Yes - “anything you say can and will be used against you.” If you confess before you are arrested, or after you have been read your Miranda rights, it will be used against you.
That’s why they make defendants write down their confessions, or sign them if it is a transcription. That way, if the defendant changes his mind and pleads Not Guilty, they can produce proof of what they said when they confessed. And if I am not mistaken, if you plead Guilty you have to confess to each of the relevant factors in the crime.
In a legal sense, sure. Jurors are not to take the failure of a defendant to testify on his own behalf as evidence of guilt. I don’t doubt that much or most of the time, they are covering something up. But everyone is entitled to the presumption of innocence, and that’s part of it.
I think you can be compelled to testify if the prosecution grants you immunity, such that you won’t be convicted of the crime even if you confess to it on the stand.
A lot of people would say “so what?” because that hypothetical seems to assume the person is guilty. But the 5th Amendment protects even an innocent person, because even if they took the stand and (rightly) professed their innocence, the court could then hold them guilty of trumped-up perjury charges.
As dofe referred to, it goes back to the Star Chamber back in England:
Imagine you were in the room when someone got stabbed to death, but you were not the murderer. The cops suspect you may be the guilty party, and they start asking you questions. Where were you when the murder happened? Did you and the victim get along? Do you own a knife?
They are trying to establish that you had the means, motive and opportunity to commit the crime. Even though you didn’t actually commit the crime, you were indeed in the room when it happed, and you thought the victim was a total prick, and you do in fact own a pretty bad-ass knife.
Since you’re factually not guilty, it’s in your best interests to invoke the fifth amendment when the police are asking you those questions, and if it goes to court, the fifth amendment assures that you can’t be legally compelled to take the witness stand and answer those questions.
As the Wikipedia article indicates, means/motive/opportunity aren’t enough by themselves to establish guilt, but they’re a damn fine start. The fifth amendment exists to protect factually innocent people like this; it’s a necessary by-product that it also happens to protect factually guilty people.
I know it’s a tangent, but the “can and will be used against you” part of the (possibly fictional version of) the Miranda warning has always bugged me. Specifically, the words “and will.” That implies to me that the Mirandizer is claiming how a statement WILL be used in the future. How can they know that?
Looking up the Wiki article on Miranda warnings, it looks like “and will” is not required, and I wonder if those words are really used in real life. But that’s probably another thread…)
Bryan’s point is a good one; they still cannot call the defendant to testify. Even in the case of a prior written confession, a police officer would be called to the stand to authenticate it.
One caveat is that the Fifth only protects against criminal consequences. If the victim’s family sues the defendant for damages in civil court, that jury can draw an “adverse inference” from the failure to testify.
No cites, but I’m pretty sure, too, that administrative agencies can take a failure to answer into account. For instance, if someone filling out a state medical licensing board’s registration form declines to state where he went to medical school and cites the Fifth Amendment, I believe that the board can refuse to issue the license on the basis of that refusal to answer.
Good analysis, and I would just say it slightly differently, that the Fifth lets the defendant be the one to decide when it’s in his or her interest to testify. The prosecution could establish all of the above factors by other means, for instance, and the defendant may well decide that testifying is the way to go, in order to explain away his or her presence while the murder took place.
Can a judge issue an order that grants amnesty to a witness? And would then a witness be forced to testify? The idea is that the witness is guarantied that their testimony wouldn’t be used against them, thus side-stepping the right to not self-incriminate. “Yeah, I was cooking meth when the accused stabbed to death the victim”.
A good point. If I get immunity from criminal charges, and am thus compelled to testify against someone, can my testimony be used in civil proceedings against me?
A real life recent example of potentially invoking the 5th when you’re not the one on trial: charges were recently dropped against Pete Santilli for his role (or non-role) in the Malheur occupation, but it is likely he will be called as a witness in the trial of the remaining defendants (Ryan Bundy has indicated that he intends to call Santilli).
If he is called, he will almost surely invoke the 5th at some point to avoid any possibility of giving the government enough evidence to reinstate charges.
It is unfortunately human nature to feel instinctively that the key to deciding guilt or innocence is what the accused says, and even more importantly, how he says it – does he exhibit what we consider to be evidence of shame, guilt, outraged innocence? Does he seem like the “type” of person that would do such a thing? And so on.
After some centuries of working with natural instincts, it becomes clear to enlightened people that you end up convicting people who are unpopular, poor, ugly and tongue-tied, and acquitting people who are rich, beautiful, well-liked and gifted in bullshitting and acting. Not exactly a desirable state of affairs.
Legal devices like the 5th Amendment rule out the direct tribal instinctual method of judgment. In this case, the 5th Amendment says you (the citizens, vice the state) may not insist that the accused provide testimony, so that you (the citizens, vice the jury) can decide whether he has a guilty/innocent face while speaking, whether you like his tone of voice, et cetera, and proceed straight from “Do I like this character?” to “He’s guilty/innocent.” With this and other constraints, the state is forced to rely on indirect means of proving guilt that usually have more to do with objective fact.
It’s far from perfect, of course. Your chances of getting away with murder are far higher if you are a young attractive woman with a charming way of speaking than if you are instead an alcoholic ugly middle-aged man with a short temper. But it helps. Indeed, it’s amazing it exists at all, and we can argue it does because the law is more likely to be drafted by the old and ugly than the young and beautiful.
IIRC, the Napoleonic / French system used in most of Europe, the judge is more of an interrogator sometimes. The accused cannot refuse to testify - no fifth - but the logic is they cannot be charged with perjury even if it can be proven they lie. Not sure what happens if your testimony incriminates you in a different crime.
The point of the 5th is, as others indicate - the government must prove its case without your cooperation. First, because in the middle ages, “cooperation” had a wide definition; second, because without that provision, they would simply round up the usual suspects, one by one, and try them in sequence until they found someone who could not come up with a plausible story. All those great detective stories are about finding the truth. If all they needed to do was arrest whomever they felt like, and put them under the bright light and see what sticks - we’d have no freedoms.
As for double jeopardy - if the state could keep trying someone every time the verdict was unacceptable to the prosecutor, or if all you needed was to produce an additional piece of evidence or witness not used in the first trial - some people would never go free. If necessary, the prosecutor would hold back one detail for a do-over. Being able to arrest or harass people on a whim is also the slipperiest of slopes to totalitarianism.
I think, a judge can ask a prosecutor to show why a line of questioning is germane to the case being tried, and disallow it if it appears to be fishing in other waters. One would certainly hope that the prosecutor’s hands can be tied as readily as the defense’s.
OP here. Well, my confession. I was not so much thinking about criminal trials but what I have witnessed watching C-Span transmissions of the current House of Representatives committee hearings in which one after another, the subpoenaed witnesses are taking the fifth amendment so as not to testify.
In fact they are not even answering questions about non-related issues, simple questions that would not implicate themselves in anything, it seems to me.
Are they saying that if they answer the questions put to them truthfully by the committee members, it would implicate them in a crime and thus they invoke their constitutional right to not say anything? This is what I do not understand.
Yes, subject to the hearsay rule and certain other rules of evidence.
I don’t believe that’s true. A jury may draw an adverse inference from the defendant’s failure to testify in the civil case, but not from a failure to testify in other proceedings.
Not that it would implicate them in a crime, but that it would “tend to incriminate them.” In other words, it might make it look like they had committed a crime, even if they were in fact innocent.
To use one example that has been presented already, admitting that you were present at the time that a murder defendant was killed would tend to incriminate you, even if you had nothing to do with it.
No. The rule in Congress is that if they allow questioning into anything, they legally open themselves to questioning on everything. If they are to use their Fifth Amendment rights, they must apply them from the beginning. They can identify themselves but answer no substantive questions, even seemingly innocuous ones.
Most people, like yourself, don’t understand this and it does have the appearance of making them look guilty. But they have no option.
Hate to say it but it makes them look slimy actually, especially their lawyers who sit behind them. Doesn’t it mean that they have some knowledge of a crime and, even if innocent bystanders, and they take the 5th to avoid… not sure what?
Still having trouble wrapping my head around this technique.
Double Jeopardy is a protection against not just abusive prosecutors, but lazy ones. If it wasn’t there, a prosecutor could say “Well, we don’t have a lot of evidence yet, but maybe enough to win a trial, and I don’t feel like looking harder. Let’s charge them; maybe we’ll get a jury that doesn’t question our evidence and we’ll win. If not, then we’ll dig some more and maybe come up with something that will let us win the next one. Or, maybe not even do any more digging, we’ll just keep at it until we get a jury that happens to vote our way”