# 5th Amendment Questions **URL:** \ **Category:** Great Debates\ **Created:** [May 16, 2002, 7:26pm UTC](https://boards.straightdope.com/t/5th-amendment-questions/109434 "2002-05-16T19:26:40Z")\ **Posts on this page:** 5\ **Page:** 2
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [May 17, 2002, 10:03pm UTC](https://boards.straightdope.com/t/5th-amendment-questions/109434/21 "2002-05-17T22:03:44Z")
> [@](#): > > 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 I have a question about a similar situation. Suppose the wife doesn’t testify that her husband beat her up, only that he \*threatened \* to beat her up. Is that a situation where the privilege is overridden, or is the threat seen as an action? Doreen ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [May 17, 2002, 10:09pm UTC](https://boards.straightdope.com/t/5th-amendment-questions/109434/22 "2002-05-17T22:09:58Z")
> [@](#): > > \*Originally posted by Bricker \* > \*\*I was hoping that the thread would get around to discussing immunity, one of my favorite subjects- Rick \*\* In a Perry Mason book, the defendant’s brother is given immunity, in order to get him to testify. He promptly confesses to the murder, thereby getting his sister acquitted. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [May 17, 2002, 11:55pm UTC](https://boards.straightdope.com/t/5th-amendment-questions/109434/23 "2002-05-17T23:55:18Z")
> [@](#): > > \*Originally posted by doreen \* > \*_I have a question about a similar situation. Suppose the wife doesn’t testify that her husband beat her up, only that he threatened \* to beat her up. Is that a situation where the privilege is overridden, or is the threat seen as an action?_ You’d think fining an answer to this would be easy, but I just spent some time trying to sift through weighty legalese, including [The Canada Evidence Act](http://laws.justice.gc.ca/en/C-5/15748.html#section-4), which spells out the various Federal rules for evidentiary procedure. Part 1, Section 4, Paragraphs (1)-(4): > [@](#): > > (1) Every person charged with an offence, and, except as otherwise provided in this section, the wife or husband, as the case may be, of the person so charged, is a competent witness for the defence, whether the person so charged is charged solely or jointly with any other person. > > (2) The wife or husband of a person charged with an offence against subsection 50(1) of the Young Offenders Act or with an offence against any of sections 151, 152, 153, 155 or 159, subsection 160(2) or (3), or sections 170 to 173, 179, 212, 215, 218, 271 to 273, 280 to 283, 291 to 294 or 329 of the Criminal Code, or an attempt to commit any such offence, is a competent and compellable witness for the prosecution without the consent of the person charged. > > (3) No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage. > > (4) The wife or husband of a person charged with an offence against any of sections 220, 221, 235, 236, 237, 239, 240, 266, 267, 268 or 269 of the Criminal Code where the complainant or victim is under the age of fourteen years is a competent and compellable witness for the prosecution without the consent of the person charged. Clear as mud? I thought so. I found an [RCMP lesson plan](http://www.rcmp-learning.org/iim/ecdi1021.htm#compet) on the rules of evidence that boiled it down somewhat: (paraphrased) Definitions Competent - Legally able to give evidence Compellable - Must give evidence General Rule: Everyone is competent unless mentally defective. Sub-section 4(1) - Married Spouses - Not competent for prosecution. Does not include common law partners. Exceptions Sub-section 4(2)- Spouse charged with any of listed offences. 4(4)- Where victim under age 14. 4(5)- Where the common law permits. The upshot, I guess, is… well, I dunno exactly. “Uttering threats” is Section 264 of the [Criminal Code](http://laws.justice.gc.ca/en/C-46/index.html), and is not mentioned anywhere in the above extract of the Evidence Act. In the example you’ve given, I see the wife as the victim of a crime, rather than a recipient of privileged communication and as such, she can testify as a prosecution witness. In any event, if she calls the cops and tell them what her husband said, privilege evaporates as soon as a thirdy party is made aware. Lawyers. Pfft. Incidentally, in Canada you _must_ answer questions put to you as a witness, even if they incriminate you, though such answers cannot be used agasint you at a later proceding, except for perjury charges if it can be shown that you lied. In the Perry Mason example, one scrap of exculpatory evidence showing the brother _didn’t_ commit the murder would land him in serious trouble. Perry Mason is bullshit, anyway, though I’m judging the various TV episodes and not the books. I spit at TV judges that say things like “I’m going to allow it”, or “Please get to the point, Mr. Matlock”. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 18, 2002, 2:24am UTC](https://boards.straightdope.com/t/5th-amendment-questions/109434/24 "2002-05-18T02:24:20Z")
> [@](#): > > \*Originally posted by Hamlet \* > \*\*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. \*\* Yes - as I suggested, use immunity is contemporaneous with Fifth Amendment protections. But there are many situations in which the witness has at least some bargaining power - not the least of which is the convenient loss of memory, or the outright refusal to testify. While a contempt charge could certainly lie, obviously the better answer is to have a cooperative witness. - Rick ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [May 18, 2002, 3:28am UTC](https://boards.straightdope.com/t/5th-amendment-questions/109434/25 "2002-05-18T03:28:02Z")
Maybe part of the reason for the incorporation of the 5th was that the founders, and others, had a lot of experience with trials where the **only** witness against the accused was himself or herself. And the testimony was often forced out by harassment or torture. After all, if you can get the accused to confess by whatever means you have, you save the state a lot of time and money. [Previous page](https://boards.straightdope.com/t/5th-amendment-questions/109434.md?page=1)