A question about "Pleading the Fifth"

IANA American and IANA lawyer but when I hear about Trump and his ilk (or anyone else for that matter) “pleading the fifth”, how does that work? Is that some magic thing that allows people to get off scot-free? Or at some point will the truth come out?

The text of the fifth:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The relevant passage is bolded. It doesn’t let you off scot-free, but the prosecution must prove your guilt without your help.

And there are ways around it, too. If the person testifying is someone other than the person on trial, and the prosecution decides that the person on trial is more important, they can choose to grant immunity to the person testifying. If they do that, then the person testifying does get off scott-free (at least, for whatever they were immunized against), but then the court can compel them to testify, which might enable them to nail the defendant.

[bolding mine] I’ve always taken it for granted that the 5th Amendment does not allow a person to be tried twice for the same crime. But the Amendment says ‘put in jeopardy of life or limb’. It doesn’t say anything about incarceration.

Without your testimony - if (for example) you’ve written something down (like a note in your diary saying “I really hate John Doe; I wish he was dead”) it can be placed into evidence without violating the 5th amendment. This cartoon flowchart (and the linked other cartoons) do a good job of explaining all the details.

But AFAIK it is always been interpreted as not allowing two trials for the same crime, no matter what the penalty.

The loophole for government is not the “jeopardy of life or limb” part but the “same offence” part. You can be prosecuted for a state offence and a federal offence for the same crime, especially if a civil rights violation is involved.

The Fifth Amendment was written at a time when torture was a regular part of the interrogation process in England and capital punishment was a possible result of hundreds of crimes. The intent was to make criminal law less subject to the arbitrary whim of the nobility and the ruling classes. We can laugh at that today, given that the makeup of the ruling classes just shifted to an American definition, but at the time the protections were significantly greater in theory and often in practice than anything England or most other European countries offered.

Functionally, is there any overlap between pleading the fifth and perjury? Note, I know that perjury is lying under oath, but in both cases information is ultimately being withheld.

No overlap. Perjury can be prosecuted (but seldom is) while the fifth amendment is a vital part of our constitutional rights, and cannot be punished.

I think something that many people don’t understand about the fifth amendment is that it doesn’t get you out of having to answer any questions. You DO have a blanket right to refuse to testify at your own criminal trial. And you never have to answer questions absent a subpoena or some other legal compulsion.

But if called as a witness in someone else’s trial, you can only invoke your fifth amendment right if the answer could reasonably be used to prosecute you. So you cannot refuse to answer a question just because the answer would be embarrassing. You cannot refuse to answer because it would be detrimental to your career or marriage. You cannot refuse to answer a question that would implicate you in criminal conduct if the statute of limitations for that crime has passed (because you can’t be prosecuted for it). You can also end up waiving your rights if you invoke the Fifth Amendment, and subsequently provide selective information about the incriminating conduct during your testimony. If you open the door, the prosecutor can question you about it and you can’t refuse to answer.

This is another key point. We see people pleading the fifth recently in the news in things like senate hearings and public inquiries. Nobody is forced to be interrogated under oath at their own trial. Rarely is it a good idea for a defendant to take the stand at his own trial (although we’ve seen in recent cases like Kyle Rittenhouse and Alex Murdaugh two different outcomes from actually testifying.

(If someone does choose to testify at their own trial, then they cannot use the fifth during that testimony - they have agreed to answer questions by taking the stand. You can’t get up there, tell the jury “I didn’t do it” then refuse to answer when asked about the details.)

We sometimes see “plead the fifth” in bad police dramas during interrogation - but it only applies in situations where the person is compelled to answer under oath - those Senate-hearing-type situations, or as witness in someone else’s trial. During simple questioning the person can simply not answer, or say that they choose not to answer - you are not obliged to answer, but you cannot lie if it “obstructs justice”. Like court proceedings everywhere, a witness must answer questions during a trial. The fifth is the exception - you can’t be compelled to answer, and the key point is - if it results in your own trial, the fact you pled the fifth cannot be used to infer an answer. (Just as they can’t use the fact that you chose not to answer during interrogation as inferring guilt.)

So the prosecutor can’t use Bob’s trial to ask Fred if he did X and then use that to charge Fred. Nor can they say “when the police asked if he did it, Fred didn’t say no.” If you do actually say something incriminating, they can use that against you. (There’s an exception in British crime dramas, along the lines of “if you later say something you failed to mention now…” Basically, if you don’t tell the police your alibi or details like that, but then try to bring it up at trial, the prosecutor is allowed to point out “he says he was watching the telly with grandma, but he didn’t say that when we first picked him up…”. American law does not allow that exception. Your silence at any time cannot be used against you.)

Also, in civil trials, you can also plead the fifth. However, the judge/jury can in those cases use your lack of an answer to infer whether your case is worse or better than the person suing you. If Bob’s uncle is suing you for wrongful death of Bob, and you plead the fifth over whether you murdered him, the jury can infer from that and depending on other evidence that (maybe) you did. This is a “perjury trap” - you either say something that is perjury, or you pretty much admit the answer is bad for you. but in a civil trial, the worst punishment is you lose money.

As I understand, the judge can hold a special in-camera hearing to validate with a witness whether they really would be exposing themselves to legal jeopardy by answering. (Usually the reason is obvious). You can’t use the fifth as a blanket reason to refuse to say anything. For those people pleading he fifth in a senate hearing to everything, including “what is your name?” they are relying on the fact that it’s too difficult to prosecute them for contempt for simple acts like that. (But for more substantial testimony - well - Steve Bannon found out, not so. But he was prosecuted for failing to appear, not for failing to answer legitimate fifth exceptions.)

But how do you know that the seemingly innocent questions you are being asked will not be stitched together later to incriminate you?

Presumably the prosecution is seeking your guilt and any question they ask is in service of that goal.

That’s only at your own criminal trial - if you are being asked to testify at my trial, it is very likely that no one is seeking to prove you are guilty of anything and most of the questions will have nothing to do with whether you committed a crime. Probably none of the questions will involve incriminating you but there is the occasional incident where a witness either must commit perjury or that they previously falsified committed a crime related to official records.

Like if you witnessed a murder while dealing drugs.

“What were you doing when you saw the defendant shoot the victim?” would be a legitimate time to plead the fifth.

You have a right to refrain from any question you think might “reasonably” require an incriminating answer.

How Damaging Must the Disclosures Be?

Not every disclosure can be the subject of a Fifth Amendment assertion—only those that the witness “reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” (Kastigar v. U.S., 406 U.S. 441, 444-445 (1972).) The key word here is “reasonably.” Responses to questions that would be of no use to prosecutors, or that couldn’t contribute to a prosecution because of the passing of the statute of limitations, cannot take refuge within the Fifth. But if the prosecution can make use of the answer itself or any evidence it might lead to, the witness is entitled to claim the privilege against self-incrimination.

“Reasonably” is a legal term of art that your lawyer has to understand. You won’t find an answer in a regular dictionary. That’s why you should always have a lawyer with you if you want to plead.

You can invoke the Fifth at any time in the process, even at the first police interrogation, as long as you have been Mirandized.

It’s even more complicated than that. In Miranda & the 5th Amendment, the lawyer at the Legal Division at the Federal Law Enforcement Training Center in Georgia says that you can invoke the right as soon as you’re put into custody, sometimes even if not Mirandized. What is “custody”? A court has to decide.

Yes, but I wasn’t saying that you could only invoke the 5th at your own trial - in fact, I’m pretty sure you can never invoke the 5th at your own criminal trial ( as by taking the stand, you would have waived it). What I was saying is the prosecution is only seeking to prove you are guilty at your own trial - they aren’t looking to prove you are guilty at Fred’s trial.

I understand that. Everybody has been using the word “trial” and I just used your post as being handy to extend the concept: the privilege is not confined to trials.

And while it is certainly true that you waive privilege by taking the stand as a defendant in your own trial, other venues, like being called before Congress or in depositions, may require you to appear and declare in person. Neither of those existed, to my knowledge, when the Bill of Rights was written, so the Fifth had to be widened piece by piece to fit new circumstances.

This topic has been beaten to death in other threads, and if I recall the process mentioned - if the judge or prosecutor doesn’t like your answer 'the fifth" or if it doesn’t seem to be right, the judge can ask you in private to explain why the answer would incriminate you. This cannot be used against you (not sure if the prosecutor is present, but good idea if you have your own lawyer present. I presume somewhere in here the prosecutor can find out what he would need to grand immunity for if he wants your testimony) If the judge refuses to accept your reason, then you either testify or face contempt charges.

Complete hypothetical…

If you are the defendant in a criminal trial why not take the stand, say your bit then plead the fifth and take the contempt charge. Chances are the contempt charge is not as bad as whatever you are facing (penalty-wise).

Would that result in a mistrial? Even that might be preferable for the defendant. Keep doing that is probably better than a long-term prison sentence.

If you commit contempt in the face of the court, the court can direct that you be held in custody until you purge your contempt and comply with the court’s order. There’s no time limit on holding someone in that way.

Eventually, after a lengthy period, I suppose the judge might declare a mistrial (eg a jury trial where you can’t keep the jurors indefinitely), and then the trial would start again.

Taking the Fifth is something that the jury is specifically instructed not to hold against you.

Playing games like you said, I think that jury would be instructed to hold it against you, you have waived that protection by taking the stand.

So, no reason why you couldn’t, they can’t force you to answer questions you don’t want to answer, but you probably would have had a much better chance of acquittal if you had just kept your mouth shut from the start.