I’ve heard that if one is planning to – or even considering – invoking the 5th Amendment, the Right To Remain Silent, he had better not answer any questions even from the very beginning of questioning, because by doing so he has given up that Right. If this is true, I suppose the logic is that one is not allowed to pick-and-choose which questions he refuses to answer.
But what’s wrong with picking-and-choosing? He wants to cooperate, but he just doesn’t want to implicate himself. Is this true, or have I misunderstood something?
And if it is true, is there some level of innocuous question that can be answered without Giving Up The Right? How about “What’s your name and address?”
If you chose to answer questions, you are allowed to stop at any time. I think that’s what my government teacher said last year. I know for sure that if you are answering questions without a lawyer you can stop and ask for a lawyer.
A person being questioned by the police may stop answering questions at any time. He may do so even without asking for a lawyer. If he does ask for a lawyer, the police are obliged to stop questioning him until he’s consulted his lawyer.
The confusion may arise because what you ask is true – in the context of a trial. A person may not testify in own defense on direct examination, and then refuse to answer questions on cross-examination, because by testifying he gives up his right to avoid self-incrimination as to the issues he testifies to.
For example, if I’m accused of murdering my government customers, and I get on the stand and say that we had a friendly relationship, and the prosecutor then gets up and asks if it isn’t true we had a screaming fight in the cafeteria just hours before the murder, I cannot then claim my right not to incriminate myself and refuse to answer. I’ve waived it by testifying.
Obviously you have not watched some of the Mafia senate inquiries. Invoking the 5th was invoked innumerable times in succession. You can answer any and all questions, and you can refuse to answer any and all as they are asked. In fact you cannot refuse to testify to any question before it is asked.
So, Bricker (how’s it going? don’t see much of you around),
What you can do in this case is on direct examination, when asked “Did you have a friendly relationship?”, is invoke the 5th, in which case you can’t be cross-examined. In other words, during direct examination, you can pick and choose which questions to answer. This could be tricky for a lay person though. Could someone on the stand ask to consult their lawyer before every answer? It seems to me that the judge would think you’re trying to delay the proceedings if you did that.
It would look very strange to consult your lawyer in the manner that you describe since your lawyer would be the one asking the questions.
I’m picturing this:
Your Lawyer: “Were you friendly with the deceased?”
You: “Are you sure you want me to answer that?”
Your Lawyer: “No, I guess not”
You: “I plead the fifth.”
If it goes anything like this, your in deep trouble, because your lawyer doesn’t have a clue.
During examination, of course, there would be no point in consulting with your lawyer.
I meant - during cross-examination, can you ask to consult with your lawyer before you answer a question? Because more latitude is allowed on cross-examination, so the opposing attorney could try and lead you towards admissions that would be self-damaging.
You’re going to have to answer any question that relates to any topic you discussed under direct examination. Hopefully, if the question exceeds the scope of direct you won’t have to ask your attorney as he’ll already be objecting for you.
If you aren’t the defendent, you are probably allowed to talk to a lawyer, since you were being compelled to testify in the first place.
If you are the defendent, you were never compelled to testify, so as Bricker stated, once you testify on your own direct-examination, you waive the right to the Fifth amendment as far as cross-examination goes. Given that this is the case, I can’t imagine what you could really discuss with your lawyer.
While you may think this could never happen to you, it could if you decide to fight a traffic ticket. If you decide to explain your side of the story (i.e. your direct examination) the prosecutor can then ask you questions. One of the questions would likely be “How fast were you going?” If you lie, you can now be charged with perjury if they can prove it. This is why you should merely try to poke holes in the officer’s testimony as opposed to providing testimony of your own.
in his post, Bricker specifically said “in the context of a trial.” Congressional inquiries are not trials, and he did not address the issue of the application of the 5th Amendment to congressional inquiries.
Yes, that’s true, but in both cases the person is under oath, and is subject to perjury if he lies. The only difference is that in a trial there is the choice not to testify at all.
I offered the trial example because it was at least marginally similar to the situation posed in the OP - giving up the right to remain silent by answering questions. I started out by saying that, outside of a trial situation, it’s not true that you waive your right to silence by answering. Your example of Congressional testimony fits into that broader category of situations in which answering some questions does not waive the privilege. The fact that it is testimony under oath, and subject to the penalties of perjury, is of no relevance to the question of waiver.
On a slightly related note, consider grand jury testimony. The grand jury may subpoena witnesses, who are compelled to appear before it and answer question, and are not permitted to bring their lawyers with them. They may, of course, invoke the Fifth if they wish, and they are under oath and subject to perjury charges if they lie. They may also “pick and chose,” and answering some questions does not waive the privilege.
The Fifth Amendment privilege is not available to those persons granted immunity from the crimes with which they would otherwise be incriminating themselves. In other words, if the judge says that you’ve got immunity for the robbery, you must then testify that you participated in the robbery; you cannot hide behind the Fifth Amendment any longer.
Of interest in this arena is the question of the scope of immunity. There are two varities: use immunity and transactional immunity. The former simply means that your testimony may not be used against you. You may still be prosecuted for the crime, if the police can independently develop evidence against you. This neat trick is described in a case called Murphy v. Waterfront Commission of New Jersey. The heavy hiiter of the immunity world is transactional immunity, which guarantees you may not be prosecuted for the crime, period. Although this is much preferred, courts have ruled that use immunity is co-extensive woth the Fifth Amendment privilege, so that a use immunity grant is sufficient to force you to testify.
