It’s been hinted at here, but I’ll ask it for clarity. Let’s say that I am charged with murder. And for really, real, I didn’t do it. I tell my lawyer all of the facts, and I am in fact innocent. But as a strategy, my lawyer doesn’t want to put me on the stand.
I know that I don’t have to testify, but why? My truthful testimony would not incriminate me. Why am I allowed to invoke the fifth amendment in this situation?
Not to hijack the OP, because I still don’t think he has a satisfactory answer yet. I’m curious as well for that question.
I guess that this hints on the OP, so I will ask about it.
Okay, we will use your scenario and assume that I temporarily hid the stolen goods at my home, so I take the fifth. How does the prosecution and judge know the reason why I am taking the fifth?
Next step. Let’s say that they find out that I hid the stolen goods temporarily and they now want my testimony. “We won’t charge you for hiding the stolen goods”, the judge says, “Now testify.” I again take the fifth.
Why? Maybe I was guilty of speeding or running a red light while transporting the goods. Maybe I flicked a cigarette butt out of the car window while driving. Maybe I didn’t wear my seat belt. Maybe I jaywalked while carrying the goods into the house?
Does the judge/prosecution have to find out and grant me immunity for every single crime to compel me to testify?
And if they simply say, “Okay, we give you immunity for anything and everything” then what is to stop the laundry list from coming out on the stand.
“Well, your honor, that day was a bad one for me because I recalled how I murdered the Lindbergh baby and assassinated JFK. Next I confessed to my wife of the murders of 78 other people and the gang rapes of 100 others, etc.”
How do they balance the two without selling out the farm?
Because in our system of law, theoretically, you do not have to prove your innocence; the prosecution has to prove your guilt. And more, your guilt of the specific crime charged – that you committed criminal act X at place Y at time Z. Your job in a trial is to refute accusations, to demonstrate that what the prosecution alleges cannot be true, or a6t least cannot be proven beyond reasonable doubt. It may be good strategy to put you on the stand and have you deny the allegations under oath and state what you were doing and where you were at the time of the alleged offense, and corroborate that to the bese you can, but it is not essential, and by law you cannot be made to do so.
Further, that same right extends to everyone else. If you’re a potential witness, you’re under no obligation to confess a distinct crime, even double parking in front of the drugstore, simply because an attorney wanting to prove something about the guy on trial and his supposed crime asks you.
And further, that right is not limited to within the courts, it covers you, either as suspect or as witness, against police questioning as well.
In an episode of NBC’s Law&Order:Criminal Intent, a witness in an alledged white supremist/separatist clan is called to testify, but invoked the fifth to everything…even stating her own name.
Later in the ep. it is revealed she is actually an FBI agent who infiltrated the clan, and, being under oath on the stand, anything she stated other than the fifth would either perjure herself or compromise the investigation.
Not a lawyer, but I suspect at that point the judge would direct you to consult with an attorney (and appoint one if necessary) who would be under privilege to learn the details of your concern, and construct the appropriate immunity agreement so that you could then be compelled to testify. I would imagine that refusing to consult with an attorney to find a solution that protects you adequately would be grounds for contempt of court.
Of course, I just made that up, so any lawyers out there should weigh in.
I would also imagine that if you were questioned by prosecutors and refused to testify even if they discussed immunity with regards to the bank robbery, they are going to start scrutinizing you very closely. A reasonable person is not going to be concerned about a fine for littering when testifying about witnessing a bank robbery. Even without an immunity agreement in place, a DA is not likely to hear you admit you dropped your napkin and left it and direct the cops to cuff you on your way out of the courtroom. They’re just not that interesting in prosecuting the minor misdemeanor. So your refusal to cooperate even under offer of immunity to the bank robbery suggests that maybe you have something much more sinister to worry about - like you were in the park because you were heading to the coy pond to pitch a handgun used in a mugging gone wrong the night before.