In other words:
I think in the OP’s case was, can you take the 5th if you don’t want to implicate someone ELSE, though. Can you do THAT?
What I understood is that you don’t have to talk to cops at all, period, and you don’t necessarily have to invoke the 5th Amendment to do so. The only way you can be compelled to give a statement is if you are given immunity from prosecution from whatever statements you give. Once you have such a grant of immunity you can be compelled to testify about anyting or anyone, including your friends or even yourself.
And… the only place you can be COMPELLED to talk, even with immunity, is on the witness stand. Even with immunity offered, you do not have to talk to the police. Of course, the prosecutor may make a condition of immunity that you also spill your guts to the police in an interrogation room, take a deposition under oath and sign the statements, etc. Depends what leverage they have.
That is why prosecutors love grand juries. basically it is a way to interrogate uncooperative suspects and witnesses before the actual trial. On the stand they have no choice but to answer or plead the 5th; in which case they can be granted immunity for whatever they are fifth-ing and then MUST testify… with no pesky defense attorney to cross-examine and get out the opposing pieces of the story.
Depends what the terms of the immunity deal say. I saw a Law and Order once where the guy testified with an immunity deal; turns out the deal was by the Manhattan prosecutor and only covered crimes in Manhattan, so an offense in the Bronx was still on the table. Often a lawyer is worth what he costs if you really need him.
There’s the “fruit of the poisoned tree” argument. If the testimony provided any guidance whatever to any evidence, a good lawyer could have that evidence excluded. If they had no clue you did the bank robbery, they would have a hard time suggesting they figured it out on their own once your testimony became known. If you told the court where the weapon was, the police would have a hard time convincing the judge that they left it there for some clueless detective from another precinct to find. Usually, just to preclude such arguments, an immunity deal covers a specific act and any charges stemming from it. (Not just the murder, say, but use of a gun in a crime, discharging a firearm within city limits, indignity to a dead body, voilation of cemetary bylaws. If the prosecution ever wants to find a crime to charge you with, they usually can. If it relates to a specific act, it would be Immunitied.)
I would suggest that if the terms of the immunity deal don’t cover what your fifth covers, then you do not have to talk about it. OTOH, if that becomes a matter of disagreement, you will end up in jail for contempt unless an appeals court thinks the judge is being unreasonable. Depends how badly they want your testimony.
See this for example: http://competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/02481.html - too much legalese.
See this too - Lewinsky Lawyers, Starr Argue Over Immunity Agreement - March 5, 1998 -seems even the top lawyers in the busines are totally clueless - get immunity agreement with no clue what it covers or whether it exists. Hence - “always get it in writing!! Signed!!” http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/lewinsky043098.htm
Remember Peterson? http://boards.library.trutv.com/showthread.php?t=292825
And a discussion: The Big Question: Is offering immunity from prosecution the only way to solve some crimes? | The Independent | The Independent
A bit drier discussion - but suggests that typically, an immunity deal is something where the prosecutor wants to see what he’s getting for his money: The Litigation Manual - John G. Koeltl - Google Books
And if the lawyer does not get a deal, that information will be used to further the investigation, even if it it does not produce actual transcripts the prosecutor can use.
That’s the key difference between use immunity and transactional immunity – Murpky v. Waterfront Commission. The Fifth Amendment’s protections are coextensive with use immunity, so prosecutors do not have to grant you transactional immunity to compel testimony.
But when they subsequently prosecute you for a matter you discussed after being granted use immunity, the burden is on them to show that the evidence they are using was obtained competely apart from your testimony or any investigation sparked by your testimony.
Not to speak for the OP, but I believe that his hypothetical would be like this:
Jim is outside of a bank, sitting on a park bench eating a hot dog. His best buddy Joe, who doesn’t see him, runs inside the bank with a gun, robs it, and flees on foot. Jim had absolutely no knowledge of the crime.
So, now the prosecutor has Jim on the stand and asking him questions about who he saw entering the bank. So, Jim, being a smart guy, decides to take the 5th so that he doesn’t implicate his buddy. Now, Jim knows that he didn’t commit a crime, but he thinks that by taking the 5th, he will make the prosecution think that he did have something to do with it (but with no evidence, he’s home free), and he will get out of having to implicate his buddy.
What happens in this situation? Would the judge take Jim back in chambers and ask for details so that he could decide if there was really self-incrimination?
Maybe Jim is worried he can be charged with littering and feeding the squirrels for dropping the rest of his hot dog bun on the ground.
IANAL but there’s nothing magical about a judge. They can’t interrogate you any more than anyone else. They can give you immunity and make you answer the questions on the stand.
Not sure what happens if they find you’ve been jerking their chain, but all in all, most of the time the prosecution has a pretty good idea what they are getting in return for immunity; they just need it told under oath to the jury by a credible witness.
And… I’m not sure what penalties the judge can apply if he finds you improperly pleaded the fifth. By then you better have a good lawyer. I imagine contempt of court pops up there somewhere, if you refused to answer without good grounds. I wonder where “accessory after the fact” shows up if you are trying to help Joe escape conviction?
Basically, if you actively mislead the police that’s obstruction. If you simply refuse to answer except on the stand, that’s your right. If you refuse to answer on the stand, that’s contempt.
That’s even better. So Jim knows that he dropped his hot dog on the ground because he was stunned after seeing Joe rob the bank.
He pleads the 5th to all questions because (not really, but he has that hook now) any questions that he might answer related to Joe’s involved in the bank robbery could lead to him being cited for a littering violation.
But surely that can’t be the end. Isn’t there any way for the judge or the prosecutor to question Jim, find out the facts, and grant Jim immunity from littering?
What if they just take a wild guess and tell Jim that he has immunity from his involvement in the bank robbery? Jim tells them “Thanks, but I still can’t answer these questions because they will incriminate me (about the littering)”
How much can they make Jim talk in these private conversations?
Yup, I am the OP and that’s exactly what I was asking. All the other hypotheticals about what if Jim actually commited a different crime at the same time, are just examples of what the prosecution might think which would allow Jim to get away with pleading the fifth.
It really sounds to me like the prosecution has no choice but to either 1) grant a witness total immunity for absolutely anything they say (since as several hypotheticals in this thread have pointed out, they can’t know for sure what other related crimes would come up in the testimony) or else 2) they have to allow the witness to invoke the 5th in cases where it’s not supposed to apply.
Am I missing something? I don’t see how the prosecution can take any middle ground on that choice.
I’ve always wondered how this works out in practical terms. Isn’t pleading the 5th basically an admission of guilt? I know it can’t be treated by the courts as an admission, but can’t the jury pretty much be counted on to consider “I plead the 5th” in a case like Fuhrman’s as equivalent to “I planted the evidence”?
I guess, though, that Furhman’s worry wasn’t about OJ’s jury but rather was about whether he was giving the prosecution a formal basis for charging him with a crime.
Can you plead the 5th when you reasonably believe telling the truth would make you look guilty, even though you are not in fact guilty?
I hope a lawyer will come along and clear things up, but there must be some middle ground. Otherwise the witness would be able to essentially pardon himself for any crime he ever committed by mentioning it in his testimony. “Yup, I saw Bill rob the bank while I was on the way to kill the Jones family, but I had to stop to wipe off the blood from the last murder.”
I’m thinking there must be some way to limit the immunity only to the crime charged. If the prosecutors also carefully limits the scope of the questions, perhaps the combination of the two can achieve the goal of a univeral ‘get out of jail card’.
See the links I posted. For Lewinsky, they promised immunity for specific acts (but not for perjury if she’d already said something wrong under oath). The thing sounds like a whole contract, specifying what may or may not be covered.
If they want your testimony, they can grant immunity. Depends how badly they want it, it’s a case of “let’s make a deal”. See the other link I posted; in many cases, according to the manual, they want to hear what they will get. However, in most cases, they already have you by the short and curlies, and so have leverage; “cooperate, you get immunity for these crimes, and your sentence will be X in club Fed for Martha Stewart. Be difficult, we’ll make a specail effort with your other cases, and your sentence will be X+10 with a sentence recommendation for maximum security”.
And of course if they give you immunity, you testify, and your testimony is not what they were told it would be or shown to be not truthful then 9a) immunity deal is off and (b) perjury charges are on.
If they have no leverage, they have to give you what you want or skip your testimony. OTOH, the defense can’t use you to say “It wasn’t Joe” either. If you are all they ahve on Joe, it’s a pretty weak case and he’ll probably walk.
If your testimony was just icing on the cake, they may skip you; but be sure to stay under the speed limit and park correctly every day from now on. Usually once the prosecution or police have decided you’re it, they’ll find enough evidence to bankrupt you with lawyer fees whether you actually did it or not. If they get enough to take you to court, then there’s always the risk of conviction. the court system is a very small clique and they all scratch each others’ back, if they aren’t being bitchy and crossing each other to get even like a bunch of high school girls.
Look at the LaCrosse team fiasco. Wanna bet most of theose parents shelled out tens of thousands in lawyer and private investigator fees, and the thing never really got beyond the preliminary stage? Without a bunch of million-dollar lawyers, if that was a team of black basketball inner city kids, they’d be doing time by now. the prosecution didn’t seem to be interested in dropping charges due to contradictory evidence or lack of DNA proof.
You could offer to sell you story to the tabloids, so your evidence is tainted. IIRC, some witness saw OJ driving a block or two from the murder scene. But the tabloids paid her big bucks for the story, so the prosecution decided she could not be a credible witness; she got money for a story, she had motive to lie.
Perjury generally rquires 2 separate pieces of evidence proving the case. (i.e. 2 to 1 story, or counter witness and physical evidence). He-said-she-said is not sufficient. In a recent case, IIRC Martha Stewart(?), the argument was whether a secretary’s testimony and that same secretary’s written notes were really 2 pieces of evidence or the same thing.
If you’re the one accused of a crime, then yes, you can always simply refuse to take the stand at all. The question we’re debating on this thread is whether someone who’s not accused of a crime can use the 5th amendment (for whatever motivation without explaining it the judge). Your hypothetical is no different than any of the others raised here.
Anybody want to settle this debate on that question?
You can refuse to answer the question if the question is such that the answer would incriminate you. If you do so, the prosecution can offer you immunity for your testimony. If they do so, your testimony won’t be incriminating any longer, and there will be nothing stopping you from testifying.
Note that the right is one against compulsory self-incrimination – not incriminating oneself about a particular crime. Consider the following: Joe, a married man, is being asked about his whereabouts at the time his acquaintances Tom, Dick, and Harry were conspiring to steal some funds to which they had access (but no legal right to). Joe was in fact not present, but his alibi (in the strict sense of the word) is that he was in bed with his secretary – and adultery is a seldom-prosecuted felony in the forum state. To demonstrate his innocence of the crime of which he was suspected, conspiracy to steal the money in cahoots with Tom, Dick, and Harry, he will incriminate himself of adultery, with the probable consequences of destroying his marriage and ruining his own reputation. He is undenisnly innocent of the crime of which he is suspected – but to demonstrate this will involve admitting guilt to a different crime. He has every right to invoke the Fifth, and to have the fact he did so not be suggestive of his guilt.
That’s what I’m not getting. If you can invoke the fifth in cases like that, and the prosecution isn’t allowed to question it; then what’s to stop a witness from ALWAYS taking the fifth because they know the presecution will have to assume a hypothetical situation like you described?
This is essentially what the lawyer in the youtube link advocates in post #18. Never ever allow yourself to be questioned without a grant of immunity, even if you don’t believe you’ve committed a crime.
The context of the lecture, though, is about investigating a crime, not actually trying one in court. The inference is that if your evidence is not crucial, they can build a case without it, and if it is crucial, they will give you the immunity.
But this raises yet another question for me – whether you need two grants of immunity; one for talking to the police in an interrogation, and another for actual testimony during a trial?
This is not exactly true. A police officer is granted the authority to substitute an arrest for just giving you a ticket and securing a promise from you to appear in court, at his discretion, for some types of crimes. In cases like that, cooperating with the police officer can be much more likely to benefit you than shutting up and demanding a lawyer, as you’ll be less likely to go to jail that night.
In general, cooperating with the police is the best course of action for most circumstances. Cops don’t want to arrest good guys. Cops don’t even like to arrest bad guys, usually. They usually try to take the course of least resistance, just like you and me and everyone else, and making an arrest is a pain in the ass for them.
Did you watch that video? Because the professor in that video contradicts your post almost 100%.
I suppose if I got pulled over for an illegal right on red right turn I might try to cooperate hoping he might give me some slack. But if a cop came knocking because my ex-wife was missing I wouldn’t say a single word.
You can only plead the fifth if you could be criminally liable. For example, if your friend commits a crime, and you temporarily stored the goods at your house, you could plead the fifth to prevent you testifying against criminal actions you undertook as part of the crime.
However, the court might simply grant you immunity from prosecution. In that case, you could be compelled to testify against your friend. And, if you have no criminal liability, you can be forced to testify no matter what.
You also cannot plead the fifth even if something is embarrassing and could damage your reputation, but won’t make you liable for criminal prosecution. (NOTE: I am not 100% sure if you can be compelled to testify if your testimony could open you up to mere civil prosecution).