Let’s assume someone was subpoenaed to testify against a friend or associate and was loathe to incriminate that person, which technically is the reason why they’re forced to testify in the first place. What’s to stop a person from refusing to answer each and every question under his 5th admendent privilage? I realize that that admendment prevents one from incriminating oneself, but if one uses it how would the court know whether one was using it legally or not? Can a judge consider excessive use of the 5th admendent being rude and charge a person with contempt of court? Can use of the 5th admendment be seen as cause for investigation?
(I’ve foreseen an instance in which I could be subpoenaed in the near-future, but am asking this out of mere trivia because law interests me and I hope to begin pre-law studies when I enter the university next year. I wouldn’t actually try to be this much of an asshole were I in fact forced to testify.)
You obviously weren’t around during the Mafia hearings. The fifth amendment was continuously used.
What’s to prevent some one for using it when he has no need to use it? Perjury, for one thing. If he swears it may incriminate him, but it actually cannot, that’s perjury. Contempt of court for another.
That’s always the case. How do we know some one committed perjury? The evidence can be developed that the witness could in no way incriminate himself. If that doesn’t come to light, he gets away with it. Hey, it won’t be the first time someone got away with a crime.
Assuming they have no interest in prosecuting you [conspiracy, etc] for your knowledge, they just give you limited immunity. If it can’t be used against you, you can be forced [contempt of court] to testify.
The 5th amendment does not let you decide who to testify against. You have to testify against anyone other than yourself, unless it is covered by a court recognized confidential relationship.
I can see the question, which probably has some theoretical value, but really this wouldn’t come up in real life. First, if you are subpeonaed to testify against someone else, the questions will be regarding his actions, not your own. The only time you would be able to claim a Fifth Amendment right to avoid self-incrimination would be if you were a co-conspirator subject to charge for the same or related crimes. In such cases, the Fifth Amendment is very frequently claimed, for obvious reasons.
But why would you imply you were a co-conspirator (by claiming the Fifth Amendment) if you were not? By pleading the Fifth, you are implying your involvement in the crime at issue. Under such circumstances, the authorities will (a) work to prove you were involved as a conspirator so they can charge you as well, and/or (b) work to prove you were not involved so they can charge you with fraud upon the court or obstruction of justice (probably not perjury, because you haven’t technically perjured yourself by refusing to answer questions).
It would take a whole lot of love for a person to want to place him- or herself in that position. Far more likely (but still extremely uncommon) would be for a friend or loved one to simply refuse to testify, even under subpeona. Then you are subject to being charged with contempt of court and may even be jailed until you agree to testify. But there’s no need to bring up the Fifth Amendment.
How does the 5th amendment work if you might be peripherally involved with something? Say I help a friend of a friend move and carry some boxes from his old place to his new place, and later on he gets busted for dealing drugs. Presumably I could invoke the 5th amendment since I might get charged with some kind of accessory charge if he had anything illegal in the boxes, but would a prosecutor give immunity for that sort of situation? (DISCLAIMER: I’m not involved in any such situation now)
By “court recognized confidential relationship” do you mean any relationship that the courts consider special? What’s confidentiality got to do with it? Is a husband-wife relationship in this category? Is this phrase used to allow lawyers/shrinks/news media folks keep privileged info from the law?
It depends on the jurisdiction and the circumstances, but it is often the case that a wife cannot be forced to testify against her husband (and vice versa), nor doctors and lawyers against their clients.
The “classic” privileges are attorney-client, spousal, priest-penitent, and doctor-patient. In general, when you make a confidential communication to your lawyer, he cannot testify as to what you said. When you make a confidential statement to your clergyman, in the context of whatever religion you practice, the clergyman cannot be forced to disclose it.
Statements made in certain circumstances to your doctor and to your spouse are privileged as well.
All of these have certain exceptions - for example, a lawyer may disclose a communication made to prevent a future crime. The presence of a third party when the statement is made takes it out of privilege.
As to the OP, it’s perhaps helpful to discuss use immunity as opposed to transactional immunity. A witness asserting the Fifth Amendment may be granted use immunity, which simply means that none of his testimony, nor any evidence derived from his testimony, may be used against him. He may still be prosecuted for the acts he testifies to, however, as long as independent evidence is developed.
Transactional immunity is the complete immunity from prosecution for all transactions covered by the testimony, no matter what the source of the evidence. Use immunity - from a defense lawyer’s point of view - is a cheap substitute, a ploy based on a case called Murphy v. Waterfront Commission. Unfortunately, the courts have upheld, many times, the principle that use immunity is coextensive with Fifth Amendment protection - that is, a grant of use immunity is sufficient to overcome your Fifth Amendment rights and force you to testify.
A person claiming the Fifth Amendment privilege must have a reason to do so, and his bluff may be called, so to speak, by a grant of use immunity. Once he has this immunity, he cannot refuse to testify, and if he then fails to provide any testimony upon which his Fifth Amendment claim might have been based, he may be subject to prosecution for obstruction of justice.