“Effectively, a refusal to take the oath or make the affirmation is a refusal to testify, and if you have been subpoenaed as a witness you are bound to testify** unless you have a legal justification for not testifying (the Fifth Amendment, or some other legal provision)** which means you can’t be compelled to testify). Absent a lawful excuse, refusal to testify when subpoenaed is contempt, and punishable as such.”
I get this, but what I don’t get is who decides what may or may not incriminate someone. Let’s say that I am on the stand and asked a question I don’t want to answer for whatever reason. Can’t I just take the 5th and not answer it? Do I have to say why I think my answer might incriminate me, and if I don’t why don’t people just plead the 5th on every question they don’t want to answer since who knows what may come back to bite someone in the butt.
The Fifth Amendment’s protections extend to compelled testimony not being used against you, so if you’re granted immunity, you can no longer take the Fifth.
Note you can still be prosecuted for whatever it is that incriminated you – but your testimony, and any evidence or investigation deriving from that testimony, can’t be used.
Who decides? The trial judge typically, out of the presence of the jury. As I recall, judges are pretty deferential to the claim of privilege and don’t probe too deep if it doesn’t appear ridiculous. (absent immunity, etc).
I wonder about this cases like Judith Miller, surely a court or investigative body can give a pretty limited amount of immunity. If it transpired that in the course of your testimony you’d committed a crime in the state of Virginia, there is nothing to stop the Virginia DA prosecuting you, even though the federal court had given you immunity. So why doesn’t the 5th Amendment apply? The judge has no idea which jurisdictions you are admitting to a crime in during your testimony. so you should be able to claim the 5th and say nothing.
First of all, remember that the 5th Amendment’s prohibition on requiring a person to testify against himself simply means that, if you’re going to be asked a question the answer to which could reasonably be incriminating, you get to beg off being asked to testify. A judge can determine if your claim that this will happen is valid pretty easily. Protections can be erected (immunity, limits on questioning, etc.). Obviously, it’s possible to come up with complex situations (and from time to time that does happen).
I’m not sure why griffin1977 brings up the contempt case of Judith Miller. That’s not a Fifth Amendment case at all. That’s a question of whether or not she’s entitled under the First Amendment not to divulge her sources (is that privileged information). The law is pretty settled that it isn’t, so the judge wasn’t doing anything particularly remarkable in declining to allow her to avoid the testimony on the basis of the claimed privilege.
What if nobody knew (or could have known) about the crime before my testimony? Does that mean there can be no investigation into said crime? Or at least, I’m immune from any associated charges, since knowledge of the existence of the crime stemmed from my testimony (for which I was given immunity)?
But surely it’s the ANSWER that makes it incriminating, not the question. If the answer to “who told you that Joseph C. Wilson worked for the CIA?” is “Karl Rove mentioned in passing while we were setting up a dog fighting ring in Richmond VA”, then that’s a pretty incriminating question.
My question was WHY wasn’t it Fifth Amendment case, it seems to me regardless of the immunity being offered (which only federal) she would have a pretty good case to plead the 5th.
I think you can be offered actual immunity, where the prosecution agrees not to prosecute you for any crimes you admit to, from either all crimes or a list of possible crimes committed in a certain time period. This is just an agreement, though - apparently the prosecution can renege, such as the recent Bill Cosby proceedings. I wonder how all this works. Can you refuse to testify because you feel the immunity deal they are offering is not airtight enough, or you doubt the state will honor it? If you are in Philadelphia, and you are told you must testify, and offered an immunity deal, you could say “well, Bill Cosby was promised immunity, and it didn’t mean squat. Therefore, your honor, you cannot compel me to testify as I cannot trust the State to uphold it’s end of this deal”.
He was offered immunity by the district attorney at the time, who has since testified in court under oath that he in fact offered immunity. It was an informal deal - but informal, verbal agreements are considered legally binding. This agreement, were it respected, would prevent the evidence of Cosby admitting to the crime during a deposition (where he was told he had immunity) from being presented. Without that confession as evidence, convicting him would be difficult, if not impossible. Part of the reason is that, as sick as it is, his victims generally do not remember clearly what happened.
I don’t like the fact that Cosby is getting away with it, either, but I don’t feel that tearing up the validity of immunity deals is fair. Nor do I think someone should be convicted solely on the testimony of witnesses who do not remember what happened. For that matter, given the man is 79 and probably won’t live much longer - he may not live past the trial + appeals - he effectively has already gotten away with it.
No, it’s not the answer. It’s the potential answer. So, even if I’ve done nothing wrong, I can assert the 5th Amendment and refuse to answer a question that could be incriminating to answer. So if the prosecution asks me, “Did you murder John C. Smith?” I can refuse to answer the question, even if answering it would mean me saying, “No.”
And in this case, if the witness had refused to answer the question “Who told you that Joseph C. Wilson worked for the CIA?”, citing the Fifth Amendment, and the judge held a conference to find out what particularly the problem was, and the witness (or her attorney) said that, in answering the questions about who told her about Joseph C. Wilson, it might come out that she was involved in something that could possibly have been criminal at the time, the judge has options for limiting the testimony to avoid that (such as saying, “You can ask her who, but you cannot ask here what she was doing at the time.”).
It wasn’t a Fifth Amendment case because she wasn’t being asked to testify against herself in a way that could incriminate herself. Saying who her source was wouldn’t put her in jeopardy of prosecution for having committed a crime. No answer to the question would put her in jeopardy of that. Indeed, she wasn’t prosecuted for anything. She was simply held in contempt of the court for refusing to answer a lawful question while under subpoena. The Fifth Amendment doesn’t preclude this; otherwise a court could not compel testimony of any nature.
And honestly, Fifth Amendment jurisprudence on the right to stay silent isn’t that difficult a topic to learn about. It’s not like it’s the Rule Against Perpetuities.
