1.a Can you "plead the Fifth" (“Silence”) at the end of the sole written brief of a motion and stipulate that no waiver, express or implied, to Silence can be deemed valid or legal unless made by the movant in writing and duly signed so as to prevent any oral hearing of the defendant to be misconstructed, and to compel the court to deny, approve or otherwise adjudicate the motion on the merits of its written brief without being able to consider any communication (or the lack thereof) other than the movant’s written brief?

1.b Is there any standard language for such an averment or declaration? Any examples?

  1. Alternatively, can the movant move the court in the brief that no motion hearing be held?

  2. To only receive a written response by the court?


As an example relating to the matter from the Wikipedia:

"Customs vary widely as to whether oral argument is optional or mandatory once briefing in writing is complete."

Primarily interested in the context of California criminal law, but other jurisdictions are welcome!

2 Answers 2


A self-represented person, as a practical matter, has no choice but to engage with the court when an oral argument is conducted. A person present in a courtroom likewise has an obligation to acknowledge a judge addressing them.

Usually it wouldn't be contemptuous to fail to appear at oral arguments of a fully briefed matter (e.g. a motion for summary judgment, or an appeal), but it would generally be viewed negatively.

One could respond to a question from the court with "I don't really have anything more to say, my brief speaks for itself." And, sometimes a court would leave it at that, but if the court insists there is really no other option than to clarify and explain yourself. Most often, this helps more than hurts a pro se party, although I've certainly seen cases with ghost written pleadings (which are authorized if disclosed in many jurisdictions) where this isn't the case.

A fairly common tactic in civil litigation is the take a deposition of a party, or to call a party to the witness stand, and to ask them if they really want the relief that their filed legal documents says that they do, as a way to narrow the scope of the claims brought against the questioning lawyer's client. But, this is less of an issue with a pro se party when the person who drafted the legal documents and the person engaging in oral arguments are the same person. This can't be done in criminal litigation, but I could see a prosecutor trying to do something similar in oral argument, although usually in that context, the judge and not the prosecutor, is asking the questions.

  • Thank you, this is a very thorough overview of this question — both from a legal and practical standpoint!
    – kisspuska
    Sep 20, 2021 at 1:11

I've never seen such a maneuver attempted, but I have no doubt that it would be unsuccessful.

The Constitution requires that a waiver of one's Fifth Amendment rights be made knowingly, intelligently, and voluntarily. It does not require that the waiver be made in a signed writing, in a writing, explicitly, or even verbally.

If the court has authority to consider statements or other evidence in ruling on a motion, it would be a very uncommon situation where a litigant could unilaterally strip the court of that authority.

  • To the last point: There is no unilateral stripping of any authority. The court will be able to ask questions, (pointless) and may even abuse its discretion to consider the silence in any way, and resultantly adjudicate the motion based on the written brief. If the record will include actually never-occurred statements of the defendant, there will be paper trail that will support that the defendant didn’t reply, and a risk of reversal for outrageous conduct in the falsification of the court records. These potential outcomes may compel the court to rather adjudicate the motion on the brief.
    – kisspuska
    Sep 19, 2021 at 19:51
  • There were a couple related but separate questions (I numbered them now) which one is it in relating to?
    – kisspuska
    Sep 19, 2021 at 19:58

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