# Making a statement, then invoking the Fifth Amendment (IRS): legal? **URL:** \ **Category:** Factual Questions\ **Created:** [May 23, 2013, 2:25pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122 "2013-05-23T14:25:18Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 24, 2013, 4:08pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/41 "2013-05-24T16:08:05Z")
Right, but the whole point of the rule is that you can’t have the courts determining whether people are entitled to fifth amendment protection as to any given answer - because they’d have to answer for the court to decide. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 24, 2013, 4:18pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/42 "2013-05-24T16:18:09Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Right, but the whole point of the rule is that you can’t have the courts determining whether people are entitled to fifth amendment protection as to any given answer - because they’d have to answer for the court to decide. But back to the thread topic, the IRS agent said that she didn’t commit a crime. Okay, so no 5th amendment for you. Speak up. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 24, 2013, 4:22pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/43 "2013-05-24T16:22:51Z")
The fact that she didn’t commit a crime does not necessarily mean some of her answers might not be incriminating. Remember, incriminating =/= evidence of guilt. It would include stuff that wasn’t admissible as evidence of guilt but was nonetheless suggestive of it. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [May 24, 2013, 4:23pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/44 "2013-05-24T16:23:05Z")
> [@jtgain](#): > > From the case law, any witness could refuse to testify under some peripheral fear that he might be implicated (“Yes, I saw it all from across the street, but the cops might think I was there if I talk.”) This is one issue raised in Akhil Reed Amar’s 1995 review of the (then?) current state of self-incrimination law. > [@](#): > > Begin with the following question: Does the Self-Incrimination Clause prevent a “person” in a criminal case from being compelled to testify against himself even when that person is not on trial but only a witness? Today the answer is yes. As a result, the Fifth Amendment prevents an innocent defendant from compelling self-incriminating testimony from a guilty witness. But this invocation of the Fifth Amendment by the witness denies the accused her explicit Sixth Amendment right “to have compulsory process for obtaining witnesses in [her] favor.”’ The Fifth and Sixth Amendments seem to be at war with one another, and the Fifth Amendment rights of a witness apparently trump the Sixth Amendment rights of the defendant, even though the defendant is of course the “person” whose criminal case it is. _Available at_ [http://digitalcommons.law.yale.edu/fss\_papers/993/](http://digitalcommons.law.yale.edu/fss_papers/993/) (last visited May 24, 2013). ---
**Author:** ![Leo\_Bloom](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/leo_bloom/32/10377_2.png) [@Leo\_Bloom](https://boards.straightdope.com/u/Leo_Bloom)\ **Post date:** [May 24, 2013, 4:54pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/45 "2013-05-24T16:54:36Z")
Sixth Amendment, line up here. Maybe we should make room for law on quartering soldiers in homes. Who knows what the IRS has up their sleeve. The Third never gets no respect. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 24, 2013, 5:05pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/46 "2013-05-24T17:05:30Z")
I’m fairly certain the IRS doesn’t have any soldiers that need quartering. Or any that don’t, for that matter. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 24, 2013, 5:15pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/47 "2013-05-24T17:15:26Z")
> [@Bricker](#): > > But that is clearly testimony – the evidence that you were in the store comes from your mouth. > > The password is information, like the combination to a safe. It could be written down, rather than provided by your memory. The government is precluded from arguing that because you knew the password, you have guilty knowledge, but they aren’t precluded from asking for the password itself. > > They could demand that you turn over the credit card slip from the store, the one that shows a transaction at exactly noon. But they can’t require you to testify that you were in the store at noon. See the difference? Quite frankly, I’m not seeing the difference. I can’t see where you’re drawing the line. How is asking a person what their password is different from asking them what their location was at a specific time? Both are verbal testimony. Both are requests for specific factual information. Neither is a direct admission to a criminal act. Both would provide information that would lead to incriminating evidence. So I don’t see the standard you’re using to say one is protected and one is not. I don’t see the argument that a password could have been written down as compelling. Or, to use your other example, a credit slip could prove you were in the store at a certain time. I’ll certainly agree that if these items existed they would be admissible. But I don’t agree with the argument that because they could hypothetically exist, you can be required to give testimony to provide the same evidence that they would produce. Such a standard would throw the right against self-incrimination out the window. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 24, 2013, 5:18pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/48 "2013-05-24T17:18:47Z")
> [@Leo\_Bloom](#): > > The Third never gets no respect. I’d say it’s the most respected amendment. The government doesn’t even dare look at it funny. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [May 24, 2013, 5:46pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/49 "2013-05-24T17:46:29Z")
But a person’s “taking the fifth” as a witness against someone else does not preclude the judge or jury from taking that information into account during their decisions? I don’t see the conflict. You cannot force a person to admit their own guilt, simply to exonnerate you at trial. In fact, their suggesting they have something to hide about your case most often would seem to help you. You only cannot draw inferences from a defendant not taking the stand. And, you can’t use “they previously took the fifth when they testified for Fred” as evidence when the person comes to trial themself? ---
**Author:** ![Leo\_Bloom](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/leo_bloom/32/10377_2.png) [@Leo\_Bloom](https://boards.straightdope.com/u/Leo_Bloom)\ **Post date:** [May 24, 2013, 6:30pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/50 "2013-05-24T18:30:46Z")
> [@Little\_Nemo](#): > > I’d say it’s the most respected amendment. The government doesn’t even dare look at it funny. [hijack continued by OP himself, after having initiated it, so he can’t bitch] Apparently it has been central in only one court case in the over 200 years it’s been sitting around, [Engblom v. Carey](http://en.wikipedia.org/wiki/Engblom_v._Carey) (is a prison a “home” and are National Guardsmen “soldiers.”) This must be a record. The Amendment got [its own little internet site](http://www.thirdamendment.com/third.html), which is good. [/hijack] ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 24, 2013, 6:30pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/51 "2013-05-24T18:30:52Z")
> [@md2000](#): > > Again, are we distinguishing between statements to LEO investigators and actual testimony on the stand? Can you say something on the stand and refuse to answer futher? > > You can politely decline to answer any questions put to you outside of the witness stand, without any pressure. I assume, however, your interrogators can testify to this when they are on the stand. Or can they? No, they can’t. Testimony that highlights a defendant’s post-Miranda-warning silence is generally prejudicial, and prosecution witnesses cannot do it – absent some special circumstance that would make the silence important. ---
**Author:** ![moriah](https://avatars.discourse-cdn.com/v4/letter/m/b2d939/32.png) [@moriah](https://boards.straightdope.com/u/moriah)\ **Post date:** [May 24, 2013, 6:56pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/52 "2013-05-24T18:56:54Z")
Former Gov. Ed Rendell was talking-heading today and he said that in his experience as a DA that a witness could most certainly selectively invoke Fifth Amendment rights and in every case the judge upheld it. He believes if Congress calls the IRS official back and holds her in contempt, she would easily get a Federal Judge to overturn the contempt charge. Besides, I have clear memories (but not so clear that I can remember the specific hearing) of Congressional hearings where a person is responding to questions and then their lawyer leans over and whispers to them and then they say they aren’t answering the current posed question. I guess if I voluntarily was quartering troops that at some point I can assert my rights and evict them. Voluntarily waiving a right in one instance does not mean that one is permanently waiving them. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 24, 2013, 8:05pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/53 "2013-05-24T20:05:26Z")
> [@Leo\_Bloom](#): > > Apparently it has been central in only one court case in the over 200 years it’s been sitting around, [Engblom v. Carey](http://en.wikipedia.org/wiki/Engblom_v._Carey) (is a prison a “home” and are National Guardsmen “soldiers.”) This must be a record. I’m familiar with that article. I wrote it. Well, okay, I wrote the original article back in 2004 and it’s been edited since then. But you can still see most of my original text. I also once lived in the employee housing that case referred to, although long after the case. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 25, 2013, 2:15am UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/54 "2013-05-25T02:15:36Z")
> [@md2000](#): > > But a person’s “taking the fifth” as a witness against someone else does not preclude the judge or jury from taking that information into account during their decisions? I don’t see the conflict. You cannot force a person to admit their own guilt, simply to exonnerate you at trial. In fact, their suggesting they have something to hide about your case most often would seem to help you. > > You only cannot draw inferences from a defendant not taking the stand. And, you can’t use “they previously took the fifth when they testified for Fred” as evidence when the person comes to trial themself? > [@Bricker](#): > > No, they can’t. Testimony that highlights a defendant’s post-Miranda-warning silence is generally prejudicial, and prosecution witnesses cannot do it – absent some special circumstance that would make the silence important. Look at it this way: if the jury can infer you’re guilty because you don’t want to testify, the right to remain silent is pointless. That’s a separate question, of course, from the issue of whether the jury _will_ infer your guilt if you don’t testify, but jury instructions and criminal procedure attempt to minimize this effect as much as possible. For example, the issue of whether the defendant will testify is addressed prior to trial; the prosecutor can’t call the defendant as a witness to highlight the fact that he’s refused to take the stand. ETA: post-Miranda silence is admissible as impeachment evidence, though; if you do testify at trial, and say you didn’t do it, the prosecution is entitled to ask (for example) why you didn’t tell the police that when you were arrested. ---
**Author:** ![Leo\_Bloom](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/leo_bloom/32/10377_2.png) [@Leo\_Bloom](https://boards.straightdope.com/u/Leo_Bloom)\ **Post date:** [July 5, 2013, 3:08am UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/55 "2013-07-05T03:08:19Z")
**Update** This is late news: June 28, Issa’s committee said she waived 5th Amendment, will call her back. [WP article](http://www.washingtonpost.com/politics/federal_government/house-committee-says-lois-lerner-waived-fifth-amendment-right/2013/06/28/617b662a-e02d-11e2-b2d4-ea6d8f477a01_story.html) cites people on lack of legal “meaning” of such a claim. Without giving a cite, story says …Friday’s resolution paves the way for committee chairman Darrell Issa (R-Calif.) to recall Lerner for questioning. The Republican-led panel could vote to hold Lerner in contempt if she pleads the Fifth again, and that could lead to a legal battle… Also, since we were keeping score– > [@Leo\_Bloom](#): > > Sixth Amendment, line up here. > > Maybe we should make room for law on quartering soldiers in homes. Who knows what the IRS has up their sleeve. > > The Third never gets no respect. > [@Really\_Not\_All\_That\_Bright](#): > > I’m fairly certain the IRS doesn’t have any soldiers that need quartering. Or any that don’t, for that matter. > [@Little\_Nemo](#): > > I’d say it’s the most respected amendment. The government doesn’t even dare look at it funny. > [@Leo\_Bloom](#): > > [hijack continued by OP himself, after having initiated it, so he can’t bitch] > Apparently it has been central in only one court case in the over 200 years it’s been sitting around, [Engblom v. Carey](http://en.wikipedia.org/wiki/Engblom_v._Carey) (is a prison a “home” and are National Guardsmen “soldiers.”) This must be a record. > > The Amendment got [its own little internet site](http://www.thirdamendment.com/third.html), which is good. > [/hijack] From a longish piece in [July 3, Courthouse News Service](http://www.courthousenews.com/2013/07/03/59061.htm) ``` LAS VEGAS (CN) - Henderson police arrested a family for refusing to let officers use their homes as lookouts for a domestic violence investigation of their neighbors, the family claims in court. .... The Mitchell family's claim includes Third Amendment violations, a rare claim in the United States. The Third Amendment prohibits quartering soldiers in citizens' homes in times of peace without the consent of the owner. .... ``` ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [July 5, 2013, 5:26am UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/56 "2013-07-05T05:26:45Z")
> [@Leo\_Bloom](#): > > From a longish piece in [July 3, Courthouse News Service](http://www.courthousenews.com/2013/07/03/59061.htm) > > ``` > LAS VEGAS (CN) - Henderson police arrested a family for refusing to let officers use their homes as lookouts for a domestic violence investigation of their neighbors, the family claims in court. > .... > The Mitchell family's claim includes Third Amendment violations, a rare claim in the United States. The Third Amendment prohibits quartering soldiers in citizens' homes in times of peace without the consent of the owner. > .... > > ``` My guess is they’re going to lose. The court will distinguish between “quartering” (using private property as a residence) and conducting a police investigation on private property. The court will rule the police were working in the Mitchells’ house not living in it. ---
**Author:** ![Ranger\_Jeff](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ranger_jeff/32/2065_2.png) [@Ranger\_Jeff](https://boards.straightdope.com/u/Ranger_Jeff)\ **Post date:** [July 5, 2013, 7:04am UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/57 "2013-07-05T07:04:32Z")
Going back to the OT, [Miranda warning](http://www.google.com/imgres?imgurl=http://media.mlive.com/news/baycity_impact/photo/miranda-warning-001jpg-f9c71a387f91ce8a_large.jpg&imgrefurl=http://www.mlive.com/news/bay-city/index.ssf/2010/08/local_attorneys_police_weigh_i.html&h=296&w=432&sz=36&tbnid=Z1mSiqFEtbDgJM:&tbnh=90&tbnw=132&zoom=1&usg=__ZdL6St38Lg5IB_EvJflUC4z16CA=&docid=X_SI5Fw39bB_lM&sa=X&ei=GW_WUZTdPJTA9QTU_YGIDA&ved=0CFMQ9QEwBQ&dur=5639). #5 suggests to me that after one waives their right to remain silent, they may reassert it. ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [July 5, 2013, 8:10am UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/58 "2013-07-05T08:10:23Z")
> [@Leo\_Bloom](#): > > **Update** > This is late news: June 28, Issa’s committee said she waived 5th Amendment, will call her back. [WP article](http://www.washingtonpost.com/politics/federal_government/house-committee-says-lois-lerner-waived-fifth-amendment-right/2013/06/28/617b662a-e02d-11e2-b2d4-ea6d8f477a01_story.html) cites people on lack of legal “meaning” of such a claim. Without giving a cite, story says > > …Friday’s resolution paves the way for committee chairman Darrell Issa (R-Calif.) to recall Lerner for questioning. The Republican-led panel could vote to hold Lerner in contempt if she pleads the Fifth again, and that could lead to a legal battle… It would be up to the Justice Department to bring criminal charges for contempt of Congress if Congress votes to hold him in contempt. Modern Justice Departments have simply [ignored](http://public.cq.com/docs/news/news-000004109057.html) such Congressional votes. The Congress could order its own Sargent at Arms to arrest her, which hasn’t been done since 1935. Or it could order its own lawyers to bring a civil suit to get a court order to make her testify, which is also extremely unlikely and in any case will drag out the issue possibly for years. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 5, 2013, 3:18pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/59 "2013-07-05T15:18:28Z")
> [@Little\_Nemo](#): > > My guess is they’re going to lose. The court will distinguish between “quartering” (using private property as a residence) and conducting a police investigation on private property. The court will rule the police were working in the Mitchells’ house not living in it. They’ll lose anyway. The Third Amendment does not apply to the states. > [@Ranger\_Jeff](#): > > Going back to the OT, [Miranda warning](http://www.google.com/imgres?imgurl=http://media.mlive.com/news/baycity_impact/photo/miranda-warning-001jpg-f9c71a387f91ce8a_large.jpg&imgrefurl=http://www.mlive.com/news/bay-city/index.ssf/2010/08/local_attorneys_police_weigh_i.html&h=296&w=432&sz=36&tbnid=Z1mSiqFEtbDgJM:&tbnh=90&tbnw=132&zoom=1&usg=__ZdL6St38Lg5IB_EvJflUC4z16CA=&docid=X_SI5Fw39bB_lM&sa=X&ei=GW_WUZTdPJTA9QTU_YGIDA&ved=0CFMQ9QEwBQ&dur=5639). #5 suggests to me that after one waives their right to remain silent, they may reassert it. The Miranda warning is irrelevant here because Lerner was not undergoing custodial interrogation. In any event, the warning is not controlling law. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [July 5, 2013, 11:37pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/60 "2013-07-05T23:37:40Z")
> [@Really\_Not\_All\_That\_Bright](#): > > They’ll lose anyway. The Third Amendment does not apply to the states. Engblom v Carey suggests otherwise. [Previous page](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122.md?page=2)