5th Amendment Questions

I thought about putting this in General Questions but due to the potential for interpretation of the subject matter, I decided that this forum might be more appropriate. Mods, please move if you disagree.

We are having a discussion at work today concerning the 5th Amendment. Some questions have arisen that I though someone here might be able to provide information on. So far, my searches here and elsewhere haven’t been too succesful.

  1. Obviously one of the main points is protection against self-incrimination. Why exactly? A person is either guilty or innocent. Why should they have the right to not answer questions posed to them? Also, if a spouse knows information about their husband/wife, what purpose does it serve that they cannot be forced to testify against the other?

I guess I just don’t understand why there should be protection from self-incrimination. If you didn’t do something, the chances of incriminating yourself by answering a question seem quite small. I am looking for examples of circumstances where this protects someone who is innocent.

  1. “nor shall private property be taken for public use, without just compensation”

Why are seizure of assets during a drug bust allowable then?

I’m sure to many here, these questions are horribly niave. But any enlightenment would be appreciated.

Because it is the obligation of the prosecution to prove you are guilty, not yours. If you eliminate the right against self-incrimination, you put the party in a Catch-22 - tell the truth and go to jail for the crime, or lie and go to jail for perjury.
Further, you may be forced to incriminate yourself concerning a crime with which you aren’t charged. “I couldn’t have killed that guy, because I was busy selling coke to school kids that day.”

This actually doesn’t derive from the 5th Amendment, but is an ancient common law privilege. The rationales are very different.

You’re looking for the wrong thing. Rights aren’t necessarily intended to protect only the innocent.

The theory is that you are not entitled to 5th Amendment protection for goods that you obtained illegally, or as fruits of illegal activity. You should never have had the speedboat in the first place, because the only way you could afford it was with profits from the sale of drugs. That’s the theory, anyway.


Thank you, SuaSponte. I was hoping you would respond. Much appreciated!

Might I ask what the rationale is, if not based on the 5th? Is it actually law (state?) or just a courtesy that has always been in place and not challenged?

It seems that if I know my husband imbezzled a bunch of money but don’t have to answer those questions because we are married, it would still be obstruction of justice. I’m surprised that is allowed to fly.

Because the tradition that Sua speaks of is that a married couple is legally viewed as one person. Part of that person can’t be forced to self-incriminate.

Munch, the Supreme Court invalidated that rationale a while back. The two remaining rationales are (1) the preservation of marriages (doesn’t help a marriage if a spouse’s testimony sends the other spouse up the river), and (2) to preserve the freedom of a married couple to communicate with each other freely.

You see, musicguy, ascertaining guilt and punishing the guilty really isn’t the highest interest of government. The sanctity of marriage, the freedom of religious worship (priest-pentitent privilege), the ability to seek informed counsel from an attorney (attorney-client privilege), are just some of the interests we give greater weight to than ascertaining guilt.


Isn’t it also related to the “Miranda warning”? You have a right to keep quiet and if you don’t then it can be used against you. This somewhat cuts down on forced confessions (if you heed the warning that is).

:smiley: [sup]I’ve probably been watching too much TV[/sup]

Fair enough.

Just one more question…

would I be correct in assuming that this protection of the husband/wife privelege is a law then? State or Federal?

Regarding your first questions:

Besides the points which have already been made, if a suspect did not have the protection against self-incrimination, the government could apply enough pressure to make him confess to something he didn’t do.

History showed the founding fathers that self-incriminating statements were often of dubious value, since they were often coerced. A forced self-incriminating statement is by definition coerced, and therefore not to be trusted.


Yes, the Miranda decision was a direct result of the Supreme Court’s interpretation of the 5th Amendment protection from self-incrimination.


More on the justification for Miranda: The court in that case basically said that custodial settings are inherently coercive, so because the state can’t compel you to incriminate yourself, all confessions obtained in such settings are presumptively coerced. The notification of rights is therefore a mechanism by which the police may dissipate the coercion sufficiently that a person may make the decision freely whether to talk or not.

Sort of not really. This isn’t really a “law” as it is an established privelege, with similar justification as that applied to communications between lawyer and client, doctor and patient, and preist and penitent. When a wife is called upon to testify against her husband, what stops her is not a law as such (or the 5th Amendment), but the husband invoking his privelege to keep communications between himself and his wife private. He can waive that privelege, if he chooses, but that’s unlikely. The wife can testify as to what she has seen her husband do, especially if what he’s done is beat her up, but if he invokes, she can’t testify to the fact the he simply told her about all those banks he robbed. A prosecutor may try to make a case that she became an accessory after the fact, but a judge will almost certainly quash such an attempt unless the prosecuter can prove the wife played some active role in her husband’s illegal activities, as oposed to just listening to him talk about them.

The privelege can be over-ridden under very specific circumstances, the exact scope of which are under constant nitpicking debate, but the basics remain fairly solid. The several states choose their own standards, with some more generous than others in extending the privelege to other professionals like psychotherapists. Washington State, for example, recognizes 7 circumstances of priveleged comunication, including patient/optometrist (!)

Priveleged communication is also discussed briefly here.

As for the reason I’ve constantly mispelled “privilege”, I plead the 5th.

Thanks. I appreciate the info, everyone!

Thanks for the clarifications, Sua. I knew I was making too broad a statement, but couldn’t see where to cut it. Turns out it was completely wrong!

De nada, Munch. I confess that I had totally forgotten about that rationale for the privilege, much less that it had been abandoned, until I did a quick search to find answers for musicguy’s question. :wink:


One final point: while the person may be either guilty or innocent of the crime accused – we don’t know which. The idea behind prosecution is that he, like all of us, is presumed innocent until proven guilty – that does not mean we assume he’s innocent, but rather it defines the starting point: the D.A. must prove that he committed the crime in question.

Second, there are two excellent rationales behind the Fifth Amendment. One is that adequate compulsion, e.g., torture, can force a “confession” that is made up of whole cloth from someone who did not in fact commit that crime. By requiring that all confessions be freely given with knowledge of the consequences of so admitting to be acceptable in court, we protect people against that sort of immoral force. Anyone who’s watched any courtroom drama has seen the case of the guy who’s innocent but “obviously guilty” in the eyes of all around by the circumstantial evidence linking him to the crime.

The other is that the reason you may not want to say what you were doing or whatever has nothing to do with the crime in question – but might function as a confession to a quite different crime. If you clearly could not have been the driver of the blue Dodge like yours involved in the hit-and-run accident because you were working late at the bank in order to embezzle enough money to pay off your mortgage, you cannot be forced to admit the latter in order to acquit yourself of the former.

I was hoping that the thread would get around to discussing immunity, one of my favorite subjects… and it will, even if I have to be the one to bring it up, consarn it!!

It’s worth noting, he said portentously, that self-incrimination can be cured by a grant of immunity. In other words, the government can force you to testify about crimes you’ve committed as long as they agree not to use your testimony against you.

Some defense lawyers feel this is a shabby trick - a ploy based on a case called Murphy v. Waterfont Commission - because the government doesn’t agree not to prosecute you, just not to use your testimony, or anything derived from your testimony, against you. This is “use immunity,” and the rule is that it is contemporaneous with Fifth Amendment protections. If you confess to a crime, and the cops develop independent evidence, they can prosecute you.

If you are in a situation that calls for a grant of immunity, then, I’d urge you to hold out for transactional immunity, in which the government agrees not to prosecute you for any transaction you testify to, regardless of the source of their evidence.

  • Rick

Bricker, I’ll talk immunity, but I want a deal first!


At least in Illinois, the marital privilege is held by both parties, so if a husband tells his wife, “I just used a sock puppet on the SDMB” he could invoke the privilege so she wouldn’t have to testify, or she could use it to refuse to testify as well.

To kinda play off of Bricker’s statements, I’d just like to add that if you are taking the Fifth, you may not have the right to “hold out for transactional immunity.” Oftentimes, the government can force you testify by granting you just use immunity.

It’s actually quite an interesting area of law, especially when you see every reluctant witness wanting to “take the 5th.” In one case I prosecuted, all three witnesses to a murder didn’t want to testify. They made it perfectly clear to us that they weren’t “going to say sh**”, even though they gave written statements before. Each and every one of them got on the stand and told the judge they wanted to “take the Fifth,” and each one just assumed that meant they didn’t have to testify. Well, we held a hearing outside the presence of the jury and the witnesses had to indicate why they were taking the fifth. One after the other said they didn’t want to testify against their friends, so they were taking the Fifth. The judge told them they couldn’t unless they were going to implicate themselves. So then they said, “Yeah. We’re going to imply ourselves” (actual quote from one of them, it made me laugh outloud). We had to get attorney’s appointed for all of them, and ended up having to grant one of them use immunity. It ended up not really mattering because they all lied through their teeth on the stand and denied seeing the murder and denied giving their written statements. But I learned a lot about the Fifth Amendment on the fly. Very interesting stuff. Thanks for the slight detour Bricker, now I don’t feel so bad sharing.