Can a witness pleading the Fifth Amendment be used as evidence against somebody else?

[Wrenching_Spanners]

Hypothetical situation: A jewellery store is robbed in a smash and grab by a man in a black shirt wearing a balaclava. Police investigating the crime look at CCTV from surrounding streets and one of the officers recognises Billy, a previously convicted jewel thief who is wearing a black shirt in footage taken a few minutes before the robbery. Billy is talking to another man in the footage, and the police are eventually able to determine the other man is Charlie. They bring Charlie in for questioning, but he refuses to answer questions, pleading the Fifth Amendment. Meanwhile, police are able to assemble other circumstantial evidence against Billy and a prosecutor decides to charge Billy for the robbery. Billy pleads not guilty to the charge, and it goes to trial.

At the trial, prosecutors would be able to submit evidence of a black-shirted man committing the robbery, and evidence that Billy was nearby wearing a black shirt shortly before the robbery. That’s somewhat damaging. A bit more damaging would be someone who was with Billy before the robbery refusing to say what they were doing. It implies they were up to no good. Obviously, Charlie pleading the Fifth Amendment can’t be used against Charlie. But could it be used against Billy?

[Shodan]

I don’t think it can used at all - not because it violates anyone’s Fifth Amendment rights, but because it isn’t probative of anything. Charlie’s refusal to answer doesn’t establish anything about Billy.

That somebody else didn’t talk to the police isn’t evidence.

IANAL.

Regards,
Shodan

[Telemark]

@Wrenching_Spanners

A bit more damaging would be someone who was with Billy before the robbery refusing to say what they were doing. It implies they were up to no good.

Actually, it doesn’t. For the same reason that not allowing the police to search your car doesn’t imply that you have something illegal in there.

[Wrenching_Spanners]

@Telemark

Actually, it doesn’t. For the same reason that not allowing the police to search your car doesn’t imply that you have something illegal in there.

Aren’t vehicle searches covered under the Fourth Amendment? The person refusing a search would be invoking a “right to be secure”. My understanding is that doesn’t apply to a witness answering police questions. That is, a witness can’t invoke a right not to be questioned. My understanding is that the witness must either answer the police questions, or assert that answering would be witnessing against himself in a criminal manner. Such an assertion would imply that a criminal matter exists.

[Procrustus]

@Wrenching_Spanners

Aren’t vehicle searches covered under the Fourth Amendment? The person refusing a search would be invoking a “right to be secure”. My understanding is that doesn’t apply to a witness answering police questions. That is, a witness can’t invoke a right not to be questioned. My understanding is that the witness must either answer the police questions, or assert that answering would be witnessing against himself in a criminal manner. Such an assertion would imply that a criminal matter exists.

A person can refuse to answer police questions without asserting that answering would be incriminating.

However, a witness can be subpoenaed to a grand jury or to a trial and be compelled to answer questions. At that point they have to answer or assert fifth amendment protections.

[gnoitall]

@Wrenching_Spanners

Such an assertion would imply that a criminal matter exists.

Implication isn’t proof.

Furthermore, the prosecution would have to prove, BEYOND A SHADOW OF DOUBT, that Charlie’s refusal to testify is specifically about the case being tried. Charlie could be refusing to testify against himself because he may incriminate himself in a completely unrelated matter.

Besides, In spite of the wording of the typical assertion of 5th Amendment rights, the Amendment itself doesn’t apply an assumption of covering up something; it merely states “No person … shall be compelled in any criminal case to be a witness against himself…” Nowhere in there is a requirement that they be hiding anything; they could simply be taking a extreme principled stand that he may not be compelled to be a witness against himself, period.

[Shodan]

My understanding is that all you need do is say you are invoking your right not to answer questions under the Fifth Amendment, and no other reason is necessary.

Such an assertion would imply that a criminal matter exists.

The police may think so, and they might even be right. But it cannot be used as the basis for anything else. The police can’t, for instance, say “We thought a crime had been committed because he refused to answer questions”. They can’t arrest you because you refused to answer questions, they can’t search because you refused to answer questions.

That is, a witness can’t invoke a right not to be questioned.

You sort of can. Once you invoke your right to remain silent, the police are supposed to stop asking any questions right then and there. If they keep asking, your answers will not be admissible.

They can go on talking to you, but they cannot ask any questions. I read a book about a murder investigation in my hometown, where the police detective’s MO was to sit the suspect down, and very deliberately say, over and over, “you don’t have to talk to me” and then describe the crime but deliberately get some of the details wrong. Then, if the suspect tried to correct him (which, being dumb, many criminals tried to do, including in the case described in the book) the detective would repeat “no, no - we will get to that later! You don’t have to answer any questions!” and if the suspect insisted, would say "OK, you are giving up your right to remain silent? You sure? OK, sign here.

Now, tell us what caliber the gun really was…"

Which meant two things - [ul][li]The detective had a signed statement that the suspect gave up his right to remain silent, and [*]the detective could truthfully testify that he didn’t feed the suspect any details not known except to the guilty party.[/ul]In fact he could truthfully say “Nope, I told him it was a .38 - the suspect is the one who said the gun was a .45. If you will take a glance at exhibit A, you will note that it is, in fact, a .45. And the suspect knew it.”[/li]
Regards,
Shodan

[Procrustus]

@gnoitall

Implication isn’t proof.

Furthermore, the prosecution would have to prove, BEYOND A SHADOW OF DOUBT, that Charlie’s refusal to testify is specifically about the case being tried. Charlie could be refusing to testify against himself because he may incriminate himself in a completely unrelated matter.

The threshold for admissibility of evidence is not “beyond a shadow of doubt.” Nor is it “beyond a reasonable doubt.” It merely has to be relevant and not unfairly prejudicial. The court would likely rule that Charlie’s refusal to testify is irrelevant and unfairly prejudicial.

“The State does not offer any reason why Tyson’s refusal to testify was relevant and, therefore, an appropriate topic for the jury’s consideration in this case”
*

Hendricks v. State*, 283 Ga. 470, 472, 660 S.E.2d 365, 367 (2008) (holding the error harmless)

The refusal to permit a witness to testify lies within the sound discretion of the trial court when it is claimed the witness will invoke his fifth amendment privilege against self-incrimination. State v. Wright, 582 S.W.2d 275, 282 (Mo. banc 1979). This is a matter which requires the trial court to exercise sound judgment giving due consideration to the facts and circumstances existent at the time the question arises. Id. at 283. The trial court need only make an adequate record that the privilege will be asserted by some reliable and certain means. State v. Horne, 691 S.W.2d 402, 404 (Mo.App.E.D.1985). Although suggested, the witness need not be interrogated out of the hearing of the jury to determine whether he will invoke the privilege. Wright, 582 S.W.2d at 283. Finally, neither party may use the refusal of a witness to testify on self-incrimination grounds for any inference, whether favorable or unfavorable to either party.

State v. Loggins, 698 S.W.2d 915, 918 (Mo. Ct. App. 1985)

In this case, the appellate court approved of this instruction after two witnesses refused to testify:

The court also gave the following final instruction No. 6 to the jury:

“The State has called certain witnesses in this case who have refused to testify. You must not speculate as to what the testimony of such witness might have been had he testified, and you must not assume that such testimony would have been favorable to the State had the witness testified.
“You should ignore this fact in arriving at your verdict, and you should not discuss or speculate about the matter during your deliberations.”

Pitman v. State, 436 N.E.2d 74, 78 (Ind. 1982)

[Wrenching_Spanners]

@Procrustus

A person can refuse to answer police questions without asserting that answering would be incriminating.

However, a witness can be subpoenaed to a grand jury or to a trial and be compelled to answer questions. At that point they have to answer or assert fifth amendment protections.

Thanks for the information. From both posts.