We see it a lot in testimony before congress where the person giving the testimony pleads the 5th on every question asked.
Is pleading the 5th a 100% surefire protection against anything asked?
If the committee asks the person their name and they plead the 5th is that the end of it?
Or, is there some mechanism where such a plea could be challenged?
(I know I mentioned a government committee but I am including courts here too. If there is a difference I’d be interested in that as well.)
I don’t know about Congressional Committees, but courts certainly can hold you in contempt for refusing to answer questions after they rule you don’t have a fifth amendment privilege for some reason (immunity or waiver, for example).
It is incumbent upon the court to conduct a proper inquiry into the legitmacy and scope of such a blanket assertion of privilege. United States v. Goodwin, 625 F.2d at 701. This requires the court to go beyond the threshold “possibility of prosecution,” discussed above, *434 In Re Corrugated Container Antitrust Litigation, 661 F.2d at 1150, and into the realm of “real danger of incrimination” if debtor were to respond to particular inquiries. Martin-Trigona v. Gouletas, 634 F.2d 354, 360 (7th Cir.) cert. denied, 449 U.S. 1025, 101 S.Ct. 593, 66 L.Ed.2d 486 (1980). The court’s inquiry into debtor’s claim of privilege is guided by the standards of Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). See United States v. Moore, 682 F.2d 853, 856 (9th Cir.1982). Generally, he must have reasonable cause to apprehend danger of self-incrimination from direct answers to the specific questions posed. Hoffman v. United States, 341 U.S. at 486, 71 S.Ct. at 818; Martin-Trigona v. Gouletas, 634 F.2d at 360. Thus far, it is the lack of any specificity which renders debtor’s blanket assertion deficient.
The Seventh Circuit has explained the precise burden Connelly bears: “[S]ome nexus between the risk of criminal conviction and the information requested must exist to excuse a witnesses’ obligation to testify in a civil proceeding”. Martin-Trigona v. Gouletas, 634 F.2d at 360.
“[A] witness need not establish that an answer to a question or an explanation why an answer cannot be given will in fact incriminate. He must, however, tender some credible reason why a response would pose a real danger of incrimination, not a remote and speculative possibility. The ultimate question of whether the privilege is properly invoked is one for the judge.” Martin-Trigona v. Gouletas, 634 F.2d at 360, citing, Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 478, 92 S.Ct. 1670, 1675, 32 L.Ed.2d 1118 (1972).
The Second Circuit has stated, regarding apparently innocuous questions (such as: “Are you married, Mr. Connelly?”) that the witness bears the burden of identifying the criminal charge or supplying sufficient facts so that a particular criminal charge can be reasonably identified by the court. In Re Morganroth, 718 F.2d 161, 167 (6th Cir.1983).
In re Connelly, 59 B.R. 421, 433–34 (Bankr. N.D. Ill. 1986)
IANAL but I have read (probably here) that if a witness answers certain questions, it is inferred that they have waived their 5A rights and therefore cannot plead the 5th on subsequent questions. (This seems a little different than what the above cite addresses.)
I am not saying this with authority, but hope that an expert in the field here will confirm/elaborate.
It’s a question by question analysis. You do, however, waive the privilege as to a particular topic by answering any questions on that topic.
Courts trying civil cases don’t have a 5th option. It’s only a thing in criminal law.
Courts can grant immunity, so that self incrimination is impossible regardless what the witness did or says. This would be a way to go after a higher target, for example.
Courts will look at it on a case-by-case basis. You are actually obligated to answer a court’s questions as a matter of law, the fifth amendment is an exception to that requirement in which you can refuse if the answer to those questions might incriminate you. However, in a situation where no such incrimination is possible, the courts can essentially find that your assertion of the right is invalid and order you to answer the questions. If you refuse, you will end up facing charges of contempt of court.
A common scenario where you lose most of your fifth amendment protections is if the prosecution agrees to a formal agreement to grant you immunity for anything you say under questioning, if you accept an immunity deal but then refuse to live up to it, the courts can and will hold you in contempt.
That being said the right is pretty broad. The courts have found that you have the right to invoke the fifth even if you are factually innocent, just because anything you say could increase your risk of being charged or prosecuted, so even if the prosecutor had evidence you weren’t guilty of a crime related to his question, that still isn’t enough necessarily to overcome invocation of the right. The courts are also very limited in how they can even explore the reasonableness of your fear that what you say might incriminate you, since having to verify this in any way would itself also be potentially incriminating.
Not correct. People refuse to answer questions in civil cases based on fifth amendment quite frequently. I had a civil trial postponed for years (until the end of a criminal case) because a crucial witness wouldn’t testify due to fifth amendment issues.
Do you mean that if I sue a police officer for wrongful death for shooting and killing my unarmed spouse (just go with it here and don’t dwell on the details) and my lawyer asks, “Did you kill Mrs. Gas in back as she was fleeing and did you know she was unarmed?” the defendant can’t plead the 5th to avoid criminal prosecution in another trial?
From what I’ve seen such civil suits tend to be filed only after all criminal proceedings are final (most famously Goldman v. Simpson) so in such a case the threat of prosecution is moot, but I’m raising a matter of legal principle.
Salinas v Texas = your silence can be used against you if you don’t actively invoke it by using the magic words (in other words, you cannot just be silent, you need to actively say you claim and use the right)
Tio Sessoms case = your use of the 5th Amendment doesn’t count if your punctuation is ambiguous and the officers can claim you didn’t really mean what you meant
Gillman Long case = if you say “I don’t want to self-incriminate” rather than “I don’t want to talk,” that word “incriminate” can be used against you.
(IANAL) It sounds a bit like your referring to an affirmative defense, where someone is claiming that they did perform the deed they’re being prosecuted for, but are claiming the act was legally justified, for example under a self-defence claim. In that circumstance the defendant has to answer questions directly related to their defence. However, they still retain the right to refuse to answer incriminating questions not directly related to their defence,
Not what I had in mind. More like,
“Were you at the scene of the crime when it occurred?”
“Yes.”
“Where you holding the murder weapon before the crime was committed?”
“Yes.”
“Were you holding the bloody murder weapon in your hand immediately after the crime was committed?”
“Yes.”
“Did you hate the victim?”
“Yes, he killed my dog.”
“Did you stab and kill the victim?”
“I plead the 5th”
Judge: “Sorry, you waived your right to plead the fifth by answering the other questions.”
That’s what happened in Salinas v Texas. The suspect answered questions all the way up until they became incriminating. His silence was then used against him in court. But the key difference is that he failed to use the magic words but simply merely remained silent.
Oh! You’re right and I’m wrong! Sorry!
To quote a relevant law firm site:
“Although the actual wording of the Fifth Amendment to the U.S. Constitution says a person shall not be “… compelled in any criminal case to be a witness against himself”, the right has been found applicable to civil actions as well. Natural persons in danger of facing criminal charges do not have to testify, answer interrogatories or produce documents about matters potentially incriminating to them.”
You seem to be saying that it is okay to answer questions which are very on-topic, all the way up until the questions become incriminating, provided that he then uses the magic words and doesn’t simply remain silent. Am I understanding that correctly?
IANAL, but yes, as I understand it, that was the issue. Salinas was only nailed because he fell silent when asked the serious incriminating questions “would the shotgun shells used in the murder match your gun?” (paraphrased.) If he had actively invoked with the words, “I invoke my 5th Amendment right to remain silent,” the prosecutor would probably not have been able to use his silence against him.
Per Wikipedia:
Suppose you are granted immunity against mopery and are compelled to testify against someone else. But it turns out that others charged with mopery were also later charged with the related federal crime of fopery. Can you refuse to answer in state court based on your 5th amendment rights unless and until you get federal immunity as well?
Does this mean that the 5th applies only for testimony that could result in criminal charges? That is, if you are a defendant in a civil case, you cannot plead the 5th for questions that could cause you to lose the case but not otherwise lead to criminal charges?
correct.
Though, again, it’d be very difficult to establish that, without the very information that you’re withholding.
As I understand - IANAL:
If you are charged, and then go to court, you have the choice to testify or not. If you choose to testify, then you have “opened the door”. You cannot say “I didn’t do it” and then refuse to answer on cross examination any details which may prove you wrong.
So the scenario where you are in court and plead the fifth would be at someone else’s trial, where you may provide testimony that could lead to charges against you. You can also plead the fifth in police interrogations and depositions leading up to the trial (as mentioned above, you must explicitly say that you are pleading the fifth.) The fact that you did so cannot be mentioned in court, since the implication is “this must mean he is guilty…” while again, as mentioned above, the facts you are hiding simply may imply that, even though you are innocent.
Quite often the prosecution will give A an immunity deal to get damning testimony about B. Then A cannot plead the fifth. What the immunity covers is part of the deal.
As I understand, if the other side objects, the judge can order an in camera session to have the details of what is involved explained without it going on the record, and then rule whether it lets the witness plead the fifth.
You might also be involved in a civil case. You are not obliged to answer, may plead the fifth, if the answers you give in civil trial may provide details that could lead to charges. (Again, even if you are innocent). However, the problem as I understand is this - if you fail to answer in civil court, this can be held against you; this is not a determination of guilt, it is a trial to see who is at fault. If you cannot provide enough information to show that you are the one most likely in the right - preponderance of evidence - then you lost the case. You are being sued for driving drunk and causing an accident.
“Did you have more than two drinks at the Happy Time bar that night?”
“I plead the fifth.”
If the plaintiff can show by other means that you likely did (i.e. bar tab) and you cannot refute that, then you lose.
Not so much the plead, but rather the lack of positive evidence you could have given.
And if your criminal trial is already settled, then what you say in a civil case cannot affect the result due to double jeopardy. If you are already found not guilty of DUI (or guilty), you have no further criminal legal jeopardy for testifying you were drunk, so no grounds to plead the fifth. Hence, waiting until after the criminal trial means less doubt from the defendant’s testimony in the civil trial - he would have to answer. (Of course, if a guilty verdict is being appealed…)
What’s not clear in this, is when there is both federal and state violations. Presumably you would need immunity from both to be free from prosecution for your testimony.
And I assume a Congressional Inquiry can play video of a witness taking the fifth and let people assume what they will, since again this is not a criminal trial in front of a judge or jury.