What is pleading and Pleading the fifth
Pleading the fifth
In ordinary court proceedings, all witnesses are expected to answer all the questions asked them during both their examination in chief, cross – examination and re-examination. However, in criminal matters, if the defendant agrees to testify as a witness during his trial, you are not meant to compel him to answer questions that will incriminate him.
Pleading the fifth is a way by which the defendant resorts to his constitutional right of taking silent. It is part of the fifth amendment of the US Constitution that when a defendant testifying as a witness is placed with some questions that is meant to incriminate him that he can decide to avoid such questions. This is also with the intent of not forcing a person to incriminate himself.
The witness can decide to answer the question if he so desires but nobody is meant to force him to provide the incriminating answer. The state is not in the position of forcing or compelling people to testify against themselves.
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Pleading the fifth is however, prevalent in criminal trial. Where the defendant is only expected to answer to the best of his knowledge and on no account will the prosecutor force him to provide answers that will incriminate him.
Pleading
Pleading is the statement of fact deposed to by either of the parties to the civil suit through which they want to establish their claim or defence. Frontloading system has provided the parties to the suit the medium of preparing and serving each other their pleadings before the court hearing.
Pleading includes statement of claim of the plaintiff (Claimant), the statement of defence of the Defendant, Counter – Claim, Set-off, Admission and avoidance.
A person who suffers a civil wrong is meant to enforce his legal right. This can always be possible by filing the originating process (In this instance, Writ of Summon) and the statement of claim. Statement of claim is a written statement of fact filed by the claimant in a civil suit providing the court with the facts and reasons why his claim should be considered. The plaintiffs have to narrate in plain words and concise paragraphs all that he suffered from the defendant that gave rise to the civil action.
The Defendant at the receipt of the statement of claim shall be expected to file a memorandum of appearance. The memo can either be conditional or unconditional. In conjunction to the Memorandum of appearance, the defendant shall also file his statement of defence. This is the statement of fact through which the defendant shall adduce some facts in order to establish his defence as against the allegation of the plaintiff.
The defendant can also decide to file a counter claim. This may emanate from the claim that the defendant has against the plaintiff. The hallmark of the defendant filing a counter claim instead of a fresh action is that it will reduce the stress and time that will be wasted deciding a different / separate between the same parties in the same court.
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The Claimant can in the other hand file a cross claim as against the Defendant at the receipt of the Statement of defence and Counter claim of the Defendant.
The parties are said to have joined issue when the defendant has filed his statement of defence in reply of the claimant’s statement of claim.
Pleading is the major crux of a civil suit and parties are usually enjoined to prepare their pleading to the best taste in order to convince the court to rule to their side. The judges are in this era of frontloading system limited to the pleading of the parties in the court.
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