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Using Your 5th Amendment Rights: The Cautionary Tale of Roger Clemens

Last week there was an article in the New York Times about the indictment of ex-baseball player Roger Clemens on perjury charges. The facts are as follows: about two years ago a congressional sub-committee issued the Mitchell Report, which stated that there was rampant steroid use in the 1980’s and early 1990’s in professional baseball. Some names were mentioned, including Roger Clemens, as examples of baseball players who used steroids to enhance their careers.

After publication of the Mitchell Report, Clemens and his Texas attorney issued a statement denying that Clemens had ever used steroids. To make matters worse, Clemens voluntarily testified in front of the senate under oath. During that testimony, he made specific factual denials about the allegations of steroid use.

What was interesting about his testimony is that Clemens was not required to testify in front of the senate, and had even been advised by several senate members that he may not want to do so. Nevertheless, Clemens chose to go forward and testify under oath. Subsequent to Mr. Clemens’ testimony, additional evidence was discovered which seemed to indicate that Mr. Clemens had lied under oath.  Clemens now faces possible imprisonment for perjury.

There were other baseball players who were mentioned in the report, and they also made public denials about steroid use, but did not testify under oath. As a result, they are not under federal indictment. Mr. Clemens’ voluntary testimony, which opened him up to a federal charge of perjury, was dumb and dumber.

What can be learned from this matter?  In any situation, if you have the option not to testify under oath, always refuse to do so. There is no reason to put yourself at risk. Any good criminal defense lawyer will advise you of the same, and one would hope that Mr. Clemens’ lawyer, who was described as “brash” in the NY Times article, strenuously tried to prevent his client from testifying unnecessarily under oath.  It may have been Clemens’ ultimate decision to testify, but the main goal of a criminal defense attorney is to protect the client by avoiding unnecessary risk.  Hopefully Roger Clemens now understands that he has the constitutional protection of the 5th Amendment – the right to remain silent and not to incriminate yourself.

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