# Can Fifth Amendment rights be illegitimate cited? **URL:** \ **Category:** Factual Questions\ **Created:** [April 25, 2007, 8:23pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638 "2007-04-25T20:23:52Z")\ **Posts on this page:** 18\ **Page:** 1
**Author:** ![LilShieste](https://avatars.discourse-cdn.com/v4/letter/l/9f8e36/32.png) [@LilShieste](https://boards.straightdope.com/u/LilShieste)\ **Post date:** [April 25, 2007, 8:23pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638/1 "2007-04-25T20:23:52Z")
The [recent news regarding the firings of the U.S. attorneys](http://www.cnn.com/2007/POLITICS/04/25/congress.subpoenas.ap/index.html) has got me wondering what would happen in the following situation: [ol] [li]The person exercises Fifth Amendment right to avoid self-incrimination.[/li][li]The person is later granted immunity, and subsequently subpoenaed.[/li][li]The person’s testimony does not reveal any information that might have been used to incriminate themself.[/li][/ol] My questions are: [ul] [li]Are there repercussions for illegitimate cites of one’s Fifth Amendment rights?[/li][li]How would a situation like this be handled in court?[/li][/ul] LilShieste ---
**Author:** ![Happy\_Scrappy\_Hero\_Pup](https://avatars.discourse-cdn.com/v4/letter/h/ea5d25/32.png) [@Happy\_Scrappy\_Hero\_Pup](https://boards.straightdope.com/u/Happy_Scrappy_Hero_Pup)\ **Post date:** [April 25, 2007, 8:55pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638/2 "2007-04-25T20:55:02Z")
> [@](#): > > 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 offense 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 right is not exclusively against self-incrimination- the right is not to be a witness against yourself. So, if you BELIEVE that you would be a witness against yourself, then you’re OK to invoke the privilege. From Wikipedia, but it’s pretty much on: > [@](#): > > Fifth Amendment protections apply wherever and whenever an individual is compelled to testify. The U.S. Supreme Court has ruled that the privilege against self-incrimination applies whether the witness is in Federal or state court (see Malloy v. Hogan, 378 U.S. 1 (1964)), and whether the proceeding itself is criminal or civil (see McCarthy v. Arndstein, 266 U.S. 34 (1924)). ---
**Author:** ![Happy\_Scrappy\_Hero\_Pup](https://avatars.discourse-cdn.com/v4/letter/h/ea5d25/32.png) [@Happy\_Scrappy\_Hero\_Pup](https://boards.straightdope.com/u/Happy_Scrappy_Hero_Pup)\ **Post date:** [April 25, 2007, 9:01pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638/3 "2007-04-25T21:01:28Z")
Wanted to add: -if your subsequent testimony proved to have nothing that could inciminate you, the government must then prove that you intended to stonewall them. Your defense will likely be, of course, that the government’s aggressive pursuit of your testimony led you to fear wrongful conviction and that you took the Fifth to avoid giving the government any circumstantial evidence to use against you. -if the attorney asks you your name or your occupation or your age, and you take the Fifth, you will likely be held in contempt or be obstructing or something of that nature. Remember of course that I am not your lawyer and this is not legal advice. ---
**Author:** ![LilShieste](https://avatars.discourse-cdn.com/v4/letter/l/9f8e36/32.png) [@LilShieste](https://boards.straightdope.com/u/LilShieste)\ **Post date:** [April 25, 2007, 9:02pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638/4 "2007-04-25T21:02:12Z")
[QUOTE=Happy Scrappy Hero Pup] The right is not exclusively against self-incrimination- the right is not to be a witness against yourself. So, if you BELIEVE that you would be a witness against yourself, then you’re OK to invoke the privilege. [/quote] Thanks for the response, **Happy Scrappy Hero Pup**. Are there any limitations to this, though? Does this mean I could simply invoke the 5th, anytime I receive a subpoena, or am otherwise compelled to testify in court? Regardless of whether or not I actually believe I could incriminate myself over something? LilShieste ---
**Author:** ![Happy\_Scrappy\_Hero\_Pup](https://avatars.discourse-cdn.com/v4/letter/h/ea5d25/32.png) [@Happy\_Scrappy\_Hero\_Pup](https://boards.straightdope.com/u/Happy_Scrappy_Hero_Pup)\ **Post date:** [April 25, 2007, 9:08pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638/5 "2007-04-25T21:08:12Z")
See my post above yours. You probably could invoke it for no reason, but if found out, the penalties can be harsh; besides which, why would you? Of course, the government would have a hard time proving you intended to stonewall them. But I’m still not your lawyer and this isn’t legal advice either. ---
**Author:** ![LilShieste](https://avatars.discourse-cdn.com/v4/letter/l/9f8e36/32.png) [@LilShieste](https://boards.straightdope.com/u/LilShieste)\ **Post date:** [April 25, 2007, 9:10pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638/6 "2007-04-25T21:10:33Z")
[QUOTE=Happy Scrappy Hero Pup] -if your subsequent testimony proved to have nothing that could inciminate you, the government must then prove that you intended to stonewall them. Your defense will likely be, of course, that the government’s aggressive pursuit of your testimony led you to fear wrongful conviction and that you took the Fifth to avoid giving the government any circumstantial evidence to use against you. -if the attorney asks you your name or your occupation or your age, and you take the Fifth, you will likely be held in contempt or be obstructing or something of that nature. [/quote] So at that point it becomes an issue of “obstruction of justice”, or something similar? (Assuming that it becomes an issue at all, that is.) Doesn’t this kind of take a lot of the “umph” away from a subpoena? It sounds like anyone could plead the Fifth for these reasons. > [@Happy Scrappy Hero Pup](#): > > Remember of course that I am not your lawyer and this is not legal advice. But… but, I have to be in court in 5 minutes! 😉 LilShieste ---
**Author:** ![LilShieste](https://avatars.discourse-cdn.com/v4/letter/l/9f8e36/32.png) [@LilShieste](https://boards.straightdope.com/u/LilShieste)\ **Post date:** [April 25, 2007, 9:15pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638/7 "2007-04-25T21:15:20Z")
[QUOTE=Happy Scrappy Hero Pup] You probably could invoke it for no reason, but if found out, the penalties can be harsh; besides which, why would you? [/quote] The only reason I could think of, offhand, would be to avoid incriminating someone else (say, a friend). So, in a sense, I’m wondering if our right to “not bear witness against ourselves” can easily (albeit, unlawfully) be stretched out to “not bear witness against our friends”. > [@Happy Scrappy Hero Pup](#): > > Of course, the government would have a hard time proving you intended to stonewall them. Yeah - that’s probably where it gets really hairy. LilShieste ---
**Author:** ![Happy\_Scrappy\_Hero\_Pup](https://avatars.discourse-cdn.com/v4/letter/h/ea5d25/32.png) [@Happy\_Scrappy\_Hero\_Pup](https://boards.straightdope.com/u/Happy_Scrappy_Hero_Pup)\ **Post date:** [April 25, 2007, 9:21pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638/8 "2007-04-25T21:21:12Z")
> [@](#): > > The only reason I could think of, offhand, would be to avoid incriminating someone else (say, a friend). So, in a sense, I’m wondering if our right to “not bear witness against ourselves” can easily (albeit, unlawfully) be stretched out to “not bear witness against our friends”. No, you can’t do this. It’s your friend’s privilege to invoke or waive. Not yours. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [April 25, 2007, 9:22pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638/9 "2007-04-25T21:22:06Z")
[QUOTE=LilShieste] So, in a sense, I’m wondering if our right to “not bear witness against ourselves” can easily (albeit, unlawfully) be stretched out to “not bear witness against our friends”. [/QUOTE] Nope. Refusing to bear witness against your friends is contempt of court. ---
**Author:** ![LilShieste](https://avatars.discourse-cdn.com/v4/letter/l/9f8e36/32.png) [@LilShieste](https://boards.straightdope.com/u/LilShieste)\ **Post date:** [April 25, 2007, 9:28pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638/10 "2007-04-25T21:28:36Z")
> [@Happy Scrappy Hero Pup](#): > > No, you can’t do this. > > It’s your friend’s privilege to invoke or waive. Not yours. [QUOTE=pravnik] Nope. Refusing to bear witness against your friends is contempt of court. [/QUOTE] I fully understand this. But what if I’m refusing to bear witness against my friends, because I’m afraid I might accidentally perjure myself in my testimony? LilShieste ---
**Author:** ![A.R.Cane](https://avatars.discourse-cdn.com/v4/letter/a/ee7513/32.png) [@A.R.Cane](https://boards.straightdope.com/u/A.R.Cane)\ **Post date:** [April 25, 2007, 9:35pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638/11 "2007-04-25T21:35:29Z")
I can think of a very good reason someone might not want to testify, and I’m sure it happens fairly often. A witness could fear retaliation by the accused and/or their associates. ---
**Author:** ![LilShieste](https://avatars.discourse-cdn.com/v4/letter/l/9f8e36/32.png) [@LilShieste](https://boards.straightdope.com/u/LilShieste)\ **Post date:** [April 25, 2007, 9:48pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638/12 "2007-04-25T21:48:03Z")
[QUOTE=A.R. Cane] I can think of a very good reason someone might not want to testify, and I’m sure it happens fairly often. A witness could fear retaliation by the accused and/or their associates. [/QUOTE] Exactly. These are all examples of illegitimate uses of the rights granted with the Fifth Amendment. It’s all moot, though, if you can’t prove that the person is using this right just to stonewall the court. Can the Fifth can be invoked to protect someone from potentially perjuring themselves? (Since that would actually be a scenario where they would be bearing witness against themselves.) LilShieste ---
**Author:** ![Happy\_Scrappy\_Hero\_Pup](https://avatars.discourse-cdn.com/v4/letter/h/ea5d25/32.png) [@Happy\_Scrappy\_Hero\_Pup](https://boards.straightdope.com/u/Happy_Scrappy_Hero_Pup)\ **Post date:** [April 25, 2007, 10:27pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638/13 "2007-04-25T22:27:11Z")
You can’t accidentally perjure yourself. [QUOTE= US Code] Whoever— (1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, **willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true;** or (2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, **willfully subscribes as true any material matter which he does not believe to be true** ; is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States. [/QUOTE] (bolding mine) You can’t plead the Fifth because you’re worried about accidentally lying- you can’t really accidentally lie. You can’t plead the Fifth because you’re worried that your buddies might rat you out. You can’t plead the Fifth because you’re worried that your testimony might be inconsistent with someone else’s. I am quite thankful that I am not your lawyer and that this is not legal advice. ---
**Author:** ![LilShieste](https://avatars.discourse-cdn.com/v4/letter/l/9f8e36/32.png) [@LilShieste](https://boards.straightdope.com/u/LilShieste)\ **Post date:** [April 25, 2007, 10:54pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638/14 "2007-04-25T22:54:10Z")
[QUOTE=Happy Scrappy Hero Pup] You can’t accidentally perjure yourself. \ … \ You can’t plead the Fifth because you’re worried about accidentally lying- you can’t really accidentally lie. You can’t plead the Fifth because you’re worried that your buddies might rat you out. You can’t plead the Fifth because you’re worried that your testimony might be inconsistent with someone else’s. [/quote] I (and logic) agree with you. [Monica Goodling pled the Fifth](http://www.talkingpointsmemo.com/docs/goodling-5th/?resultpage=1&), however, using your third bullet point. From the link: > [@](#): > > Written by **Dowd** and **King** , legal counsel to **M. Goodling** : > \*Ms. Goodling will, upon our advice, assert her Fifth Amendment privilege as to any and all questions regarding the firings of U.S. attorneys, and any other questions related to the subject matter. > > \ > > …it is not uncommon for witnesses who give testimony before the Congress to face criminal investigations and even indictments for perjury, false statements, or obstruction of congressional proceedings. > > \ > > Accordingly, Ms. Goodling will not answer questions before the Committee or its staff under these circumstances.\* There was (apparently) no contention over this. Could it have been contended? > [@Happy Scrappy Hero Pup](#): > > I am quite thankful that I am not your lawyer and that this is not legal advice. I assure you that I would never attempt a defense that in any way, shape, or form resembles this. LilShieste ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [April 25, 2007, 11:12pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638/15 "2007-04-25T23:12:44Z")
In the case of Ms. Goodling, the assertion is that she is being compelled to be a witness against herself, potentially. It isn’t necessary to establish that her testimony WOULD be used against her (legitimately or otherwise). It is simply necessary to establish that it is possible that something she **could** say in response to the questions _likely_ to be asked has the potential to be used against her. So if it is reasonable to expect that someone at a Congressional hearing would ask her, “So, Ms. Goodling, why did you lie to investigators about what happened,” then it is perfectly reasonable for her to refuse to testify, given that the answer to such a question could be used in support of a prosecution for obstruction of justice. We had a thread on this already, IIRC. [Here it is.](http://boards.straightdope.com/sdmb/showthread.php?t=414129&highlight=amendment+witness) See my comments (and those of others) about the scope of the privilege. ---
**Author:** ![LilShieste](https://avatars.discourse-cdn.com/v4/letter/l/9f8e36/32.png) [@LilShieste](https://boards.straightdope.com/u/LilShieste)\ **Post date:** [April 25, 2007, 11:23pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638/16 "2007-04-25T23:23:50Z")
Thanks for the link, **DSYoungEsq**. Your search-fu is much better than mine. I’ll read through that thread, and post back here if I have any more questions. Thanks for the help, everyone. LilShieste ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [April 25, 2007, 11:50pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638/17 "2007-04-25T23:50:21Z")
[QUOTE=LilShieste] I fully understand this. But what if I’m refusing to bear witness against my friends, because I’m afraid I might accidentally perjure myself in my testimony? [/QUOTE] If you do it “accidently” then you have nothing to worry about, because perjury has to be a deliberate lie. ---
**Author:** ![Happy\_Scrappy\_Hero\_Pup](https://avatars.discourse-cdn.com/v4/letter/h/ea5d25/32.png) [@Happy\_Scrappy\_Hero\_Pup](https://boards.straightdope.com/u/Happy_Scrappy_Hero_Pup)\ **Post date:** [April 25, 2007, 11:51pm UTC](https://boards.straightdope.com/t/can-fifth-amendment-rights-be-illegitimate-cited/401638/18 "2007-04-25T23:51:08Z")
[QUOTE= LilShieste] Monica Goodling pled the Fifth, however, using your third bullet point. From the link: [/QUOTE] No, Monica Goodling pled the Fifth based on something I said earlier: [QUOTE= some witty and handsome Doper who better get an “A” on his Evidence exam] -if your subsequent testimony proved to have nothing that could inciminate you, the government must then prove that you intended to stonewall them. Your defense will likely be, of course, that the government’s aggressive pursuit of your testimony led you to fear wrongful conviction and that you took the Fifth to avoid giving the government any circumstantial evidence to use against you. [/QUOTE] On edit, I see that I am later than **DSYoung** , but not as late as **Blalron**