ILNews

'Pleading the Fifth' not the same as admitting to criminal act

Back to TopCommentsE-mailPrintBookmark and Share

A reference made during a trial to “pleading the Fifth” is not an admission of a crime and, therefore, by itself is not grounds for a mistrial, the Indiana Court of Appeals has ruled.

In Roger Jay Piatek, M.D. and The Piatek Institute v. Shairon Beale, 49A04-1209-CT-448, the Indiana Court of Appeals affirmed the trial court’s denial of Roger Jay Piatek’s motion for a mistrial. It found the trial court’s admonition was sufficient to cure any prejudice from Shairon Beale’s reference to Piatek pleading the Fifth Amendment.

Beale filed a medical malpractice complaint against Piatek after she developed toxic epidermal necrolysis that was believed to have been caused by the medications Piatek prescribed for weight loss.

Piatek’s motion for a mistrial came after an exchange between Piatek and Beale’s counsel in the courtroom. Beale’s counsel asked Piatek a series of questions regarding I.C. 35-48-3-11 which provides for the use of Schedule III or Schedule IV controlled substances for the purposes of weight reduction or to control obesity.

Piatek’s counsel objected, saying the plaintiff’s counsel should not be asking him questions of law. At that point, Beale’s counsel, contending she was not asking Piatek to practice law, turned her attention to the Request for Admission and asked Piatek if he remembered pleading the Fifth.

As part of a pre-trial Request for Admission, Piatek was asked to admit he violated I.C. 35-48-3-11 when he prescribed Phentermine to Beale. The doctor responded “Defendants object to this Request on Fifth Amendment grounds.”

Piatek’s counsel requested a mistrial.

After hearing arguments of counsel and over the objection of Piatek’s counsel, the trial court admonished the jury that Piatek “has never pleaded the Fifth in this case and is not pleading the Fifth in this case. So disregard the question and the inference that could be made from that question.”

The COA declined to hold that a generic reference to “pleading the Fifth” subjected Piatek to greater prejudice.

The question from Beale’s counsel about whether Piatek remembered pleading the Fifth did not assert facts not in evidence. Nor did the counsel’s statement indicate the doctor had engaged in criminal activity.

“We acknowledge a reference to ‘pleading the Fifth’ suggests some underlying criminal activity and may be prejudicial,” Judge Melissa May wrote for the court. “But ‘pleading the Fifth”’ is not itself a criminal act; it is an assertion of a constitutional protection. … The trial court’s admonition to Beale’s jury was adequate.”

 
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

ADVERTISEMENT