# Taking the 5th about things that \*can't\* incriminate you **URL:** \ **Category:** Factual Questions\ **Created:** [March 3, 2015, 2:29am UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065 "2015-03-03T02:29:28Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![ricksummon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ricksummon/32/3333_2.png) [@ricksummon](https://boards.straightdope.com/u/ricksummon)\ **Post date:** [March 3, 2015, 2:29am UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/1 "2015-03-03T02:29:28Z")
What happens in court if a witness refuses to answer a question in court “on the grounds that the answer may tend to incriminate me”, but there’s no reasonable way it _could_ incriminate them, or, at least, no obvious way. For example, if the attorney asks “Are you a member of the Book-of-the-Month Club?” and the witness takes the 5th. Can the judge demand that the witness answer because he believes that the witness is invoking the 5th Amendment frivolously? Can the witness and his attorney speak to the judge in chambers and attempt to justify why this question may be incriminating? ---
**Author:** ![yellowjacketcoder](https://avatars.discourse-cdn.com/v4/letter/y/4bbf92/32.png) [@yellowjacketcoder](https://boards.straightdope.com/u/yellowjacketcoder)\ **Post date:** [March 3, 2015, 2:39am UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/2 "2015-03-03T02:39:55Z")
> [@ricksummon](#): > > Can the judge demand that the witness answer because he believes that the witness is invoking the 5th Amendment frivolously? Yes. I know a one word answer is unsatisfying, but the judge can direct a witness to answer a question or be held in contempt, and trying to take the 5th when it doesn’t apply is one of those cases. ---
**Author:** ![OldGuy](https://avatars.discourse-cdn.com/v4/letter/o/3bc359/32.png) [@OldGuy](https://boards.straightdope.com/u/OldGuy)\ **Post date:** [March 3, 2015, 2:56am UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/3 "2015-03-03T02:56:07Z")
> [@yellowjacketcoder](#): > > Yes. > I know a one word answer is unsatisfying, but the judge can direct a witness to answer a question or be held in contempt, and trying to take the 5th when it doesn’t apply is one of those cases. OK what if that is the judge’s opinion and the witness answers the question, and it does incriminate the witness? Does the witness have any recourse that the testimony can’t be used? ---
**Author:** ![Carlarm](https://avatars.discourse-cdn.com/v4/letter/c/b5e925/32.png) [@Carlarm](https://boards.straightdope.com/u/Carlarm)\ **Post date:** [March 3, 2015, 3:16am UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/4 "2015-03-03T03:16:38Z")
What if you’re a famous baseball player who is asked if you had been taking performance enhancing drugs at a time when doing so was not illegal but a truthful answer would cost you a bundle of money? Are you allowed to take the fifth then? Or asked if you were ever a member of the communist party? ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [March 3, 2015, 3:24am UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/5 "2015-03-03T03:24:35Z")
> [@Carlarm](#): > > What if you’re a famous baseball player who is asked if you had been taking performance enhancing drugs at a time when doing so was not illegal but a truthful answer would cost you a bundle of money? Are you allowed to take the fifth then? Or asked if you were ever a member of the communist party? [I’m not here to talk about the past.](https://www.youtube.com/watch?v=942HcHKbOno) ---
**Author:** ![yellowjacketcoder](https://avatars.discourse-cdn.com/v4/letter/y/4bbf92/32.png) [@yellowjacketcoder](https://boards.straightdope.com/u/yellowjacketcoder)\ **Post date:** [March 3, 2015, 3:25am UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/6 "2015-03-03T03:25:22Z")
The text of the fifth amendment may be useful here: > [@](#): > > No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; **nor shall be compelled in any criminal case to be a witness against himself** , nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Bolding mine. If the famous baseball player is going to lose a lot of money but is not due to a criminal case, he has to testify. Sucks to be him, he has to answer. If a committed communist is worried about losing their job at the State Department, well, sucks to be him. The fifth only applies to _government_ sanction through criminal court. It does not protect you from your employer, your spouse, or public opinion. As far as “what if an answer would incriminate the witness”, the witness should have thought of that before he took the stand. ---
**Author:** ![Hector\_St\_Clare](https://avatars.discourse-cdn.com/v4/letter/h/b5ac83/32.png) [@Hector\_St\_Clare](https://boards.straightdope.com/u/Hector_St_Clare)\ **Post date:** [March 3, 2015, 3:31am UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/7 "2015-03-03T03:31:18Z")
Regarding my communists, my understanding is that at the time of the HUAC trials, it was quasi-illegal to be one. (It wasn’t technically illegal to espouse communist ideology, but it was illegal to belong to the CPUSA). That law was found unconstitutional a couple years later, I believe. ---
**Author:** ![OldGuy](https://avatars.discourse-cdn.com/v4/letter/o/3bc359/32.png) [@OldGuy](https://boards.straightdope.com/u/OldGuy)\ **Post date:** [March 3, 2015, 3:13pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/8 "2015-03-03T15:13:11Z")
> [@yellowjacketcoder](#): > > As far as “what if an answer would incriminate the witness”, the witness should have thought of that before he took the stand. My question still stands. If you are not the defendant (or spouse, etc.) you can be compelled to be a witness by subpoena. As per previously in this thread, you can then be compelled to answer even if you claim the question would tend to incriminate you. So is there any protection if it does. ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [March 3, 2015, 3:28pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/9 "2015-03-03T15:28:00Z")
> [@ricksummon](#): > > What happens in court if a witness refuses to answer a question in court “on the grounds that the answer may tend to incriminate me”, but there’s no reasonable way it _could_ incriminate them, or, at least, no obvious way. For example, if the attorney asks “Are you a member of the Book-of-the-Month Club?” and the witness takes the 5th. Can the judge demand that the witness answer because he believes that the witness is invoking the 5th Amendment frivolously? Can the witness and his attorney speak to the judge in chambers and attempt to justify why this question may be incriminating? Obviously, one big problem with this is how the judge (or jury?) decides if testimony would be incriminating. Suppose I am asked on the stand “Have you ever stayed at the CoolBeach Resort?” Maybe I’m embarrassed over having stayed there because I was seeing a mistress there and don’t want to answer. _Maybe_ I was involved in a cocaine deal there, am already suspected as such by the police, who just need an admission that I stayed there in order to have “probable cause” to get a search warrant. Obviously, once I attempt to invoke “the fifth”, the court would have to determine whether I ought to be allowed to do so. How does that work? Do I go speak to the judge privately and spill all my details, and then the judge thinks about it and determines whether or not I actually did commit a crime? Do I have to reveal my reasons in open court (which sort of defeats the purpose of the 5th anyway…)? What if I’m not certain if testimony that I am being asked for is incriminating, but only suspect it? E.g. maybe I am asked whether I have had sex with Suzie Smith, and I suspect that she _might_ have been underage? Can I ask to see Suzie’s background check before I decide whether to claim the fifth? If it turns out that she really was 18, then no offense would have been committed. ---
**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:** [March 3, 2015, 3:44pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/10 "2015-03-03T15:44:58Z")
> [@yellowjacketcoder](#): > > The text of the fifth amendment may be useful here… Unfortunately, it wasn’t. The Fifth Amendment prohibits self-incrimination by the government, not merely self-incrimination in the course of a criminal trial. A witness in a civil action may invoke his right to remain silent if the answer to a question might incriminate him, just like a witness in a criminal case. The difference is essentially that a criminal _defendant_ may refuse to testify entirely, while a non-defendant witness may not. > [@](#): > > There are a number of exemptions from the testimonial duty,the most important of which is the Fifth Amendment privilege against compulsory self-incrimination. The privilege reflects a complex of our fundamental values and aspirations, and marks an important advance in the development of our liberty. It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it [445] protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. This Court has been zealous to safeguard the values that underlie the privilege. > > Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 1656 (1972). There are some other issues that may arise. For example, a civil plaintiff’s case may be stayed or dismissed if the defense is denied the right to a meaningful cross-examination (the adage is that the Fifth cannot be used as “both a sword and shield”.) ETA: OldGuy, the test is merely whether the defendant reasonably believes the answer may be incriminating. The court does not have much scope for inquiring into that belief. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [March 3, 2015, 5:26pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/11 "2015-03-03T17:26:51Z")
Some [relevant comments from nolo.com](http://www.nolo.com/legal-encyclopedia/your-fifth-amendment-right-against-self-incrimination.html): > [@](#): > > **When and Where Can You Assert the Privilege?** > Witnesses can assert the privilege against self-incrimination in civil proceedings as well as criminal ones, despite the seemingly limiting language of the Fifth Amendment. They can assert it in state or federal court, in a wide variety of proceedings (including trials, depositions, administrative law proceedings, and investigatory proceedings like grand jury hearings). But interestingly, if the witness fears exposure to prosecution in a country other than the U.S., the privilege does not apply. (United States v. Balsys, 524 U.S. 666, 672 (1998).) > > **How Damaging Must the Disclosures Be?** > Not every disclosure can be the subject of a Fifth Amendment assertion—only those that the witness “reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” (Kastigar v. United States, 406 U.S. 441, 444-445 (1972).) The key word here is “reasonably.” Responses to questions that would be of no use to prosecutors, or that couldn’t contribute to a prosecution because of the passing of the statute of limitations, cannot take refuge within the Fifth. But if the prosecution can make use of the answer itself or any evidence it might lead to, the witness is entitled to claim the privilege against self-incrimination. The “any evidence it might lead to” phrase suggests another interesting question – could you (for example) refuse to answer a question about being a member of the Book-of-the-Month club on the grounds that it might lead to the discovery of a crime directly connected to the membership (e.g. you bought a book from the club with a bad check or with profits from illegal gambling or something like that)? ---
**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:** [March 3, 2015, 5:45pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/12 "2015-03-03T17:45:50Z")
Not really, absent an existing prosecution or investigation of your activities with the Book-of-the-Month club. ---
**Author:** ![dstarfire](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dstarfire/32/5762_2.png) [@dstarfire](https://boards.straightdope.com/u/dstarfire)\ **Post date:** [March 3, 2015, 6:10pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/13 "2015-03-03T18:10:13Z")
You could always request a private conference with the judge or court representative to explain the situation. I imagine there’s a certain level of protection to statements made in a judge’s chambers. \ Another interesting wrinkle in the 5th amendment protections is that refusal to testify can’t be used against you in a criminal trial, but it **can** be used against you a related civil proceeding. (Something Prenda learned to their dismay.) \ ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [March 3, 2015, 6:19pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/14 "2015-03-03T18:19:57Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Not really, absent an existing prosecution or investigation of your activities with the Book-of-the-Month club. I doubt that. PA: Why did you cease being a member of the Book-of-the-Month club? Me: I plead the 5th. Judge: The witness will answer the question. Me: I killed the President of the club and split him up among 51 mason jars sending one to every state (I refuse to recognized west VIRGINIA as a state), DC and Puerto Rico. You’re really saying that I would not have had 5th Amendment protection simply because the police weren’t investigating the disappearance? So that statement could be held against me later? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [March 3, 2015, 6:22pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/15 "2015-03-03T18:22:18Z")
> [@robert\_columbia](#): > > Obviously, one big problem with this is how the judge (or jury?) decides if testimony would be incriminating. Suppose I am asked on the stand “Have you ever stayed at the CoolBeach Resort?” Maybe I’m embarrassed over having stayed there because I was seeing a mistress there and don’t want to answer. _Maybe_ I was involved in a cocaine deal there, am already suspected as such by the police, who just need an admission that I stayed there in order to have “probable cause” to get a search warrant. IANAL, but I think if you don’t want to say you were at the motel because your wife will divorce you, tough nougies. For the possible cocaine deal, you would have to get qualified immunity, whereby if you tell the truth the police can’t use your testimony to get a search warrant. > [@](#): > > Obviously, once I attempt to invoke “the fifth”, the court would have to determine whether I ought to be allowed to do so. How does that work? Do I go speak to the judge privately and spill all my details, and then the judge thinks about it and determines whether or not I actually did commit a crime? You wouldn’t, but your lawyer would. Or more likely meet with the DA and work out the deal - “if your client testifies that he was at the resort, the police won’t be able to use that to get a search warrant. Sign here.” If you lie, all bets are off. > [@](#): > > What if I’m not certain if testimony that I am being asked for is incriminating, but only suspect it? E.g. maybe I am asked whether I have had sex with Suzie Smith, and I suspect that she _might_ have been underage? May tend to incriminate me - not will incriminate me. If you suspect she was fifteen, get immunity before you say word one. As ever, talk to a lawyer before you talk to the cops or the DA if you think you will, or may, incriminate yourself. Regards, Shodan ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [March 3, 2015, 6:35pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/16 "2015-03-03T18:35:08Z")
> [@Shodan](#): > > As ever, talk to a lawyer before you talk to the cops or the DA if you think you will, or may, incriminate yourself. loach and pkbites would disagree with you. “Hey buddy, I just wanna chat. Don’t worry because I know if we are investigating you or not. What? You don’t want to talk? Are you hiding something? Don’t you want to help us catch the bad guy that put your friend in 51 mason jars? Have you ever been to West Virginia?” ---
**Author:** ![rock\_party](https://avatars.discourse-cdn.com/v4/letter/r/e19b73/32.png) [@rock\_party](https://boards.straightdope.com/u/rock_party)\ **Post date:** [March 3, 2015, 6:45pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/17 "2015-03-03T18:45:56Z")
It seems like any question could possibly incriminate, and an uncooperative witness would refuse to answer just about everything. One of the books ordered from the Book of the Month Club was about how a guy kidnapped his boss’s family in a similar way as the defendant, ultimately incriminating you. Or the defendant’s mistress frequently stayed at the resort–known or possibly unbeknownst to the witness. Better to refuse to answer. ---
**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:** [March 3, 2015, 6:52pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/18 "2015-03-03T18:52:24Z")
> [@rock\_party](#): > > It seems like any question could possibly incriminate, and an uncooperative witness would refuse to answer just about everything. It’s not quite as broad as that, and I apologize if my preceding posts gave that impression. If pressed, the witness must disclose the substance of the testimony to the judge off the record so the court can assess if the privilege applies. > [@](#): > > To assert this privilege against self-incrimination, as an initial matter, a witness’ fear of conviction on the basis of his testimony must be reasonable, real, and appreciable. _See Brown v. Walker_, 161 U.S. 591, 599, 16 S. Ct. 644, 648, 40 L. Ed. 819 (1896). The witness must face a “real danger” of conviction to invoke the privilege because the privilege does not protect against “remote and speculative possibilities.” _Zicarelli v. New Jersey State Comm’n of Investigation_, 406 U.S. 472, 478, 92 S. Ct. 1670, 1675, 32 L. Ed. 2d 234 (1972). > > United States v. Gecas, 120 F.3d 1419, 1424 (11th Cir. 1997) Uncooperative witnesses don’t need the Fifth Amendment to avoid answering questions. However, most people who are testifying at trial have a story to tell and want to be believed, so they talk. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [March 3, 2015, 6:57pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/19 "2015-03-03T18:57:59Z")
> [@Carlarm](#): > > What if you’re a famous baseball player who is asked if you had been taking performance enhancing drugs at a time when doing so was not illegal but a truthful answer would cost you a bundle of money? Are you allowed to take the fifth then? Or asked if you were ever a member of the communist party? Am I remembering incorrectly? I thought that at the time McGwire was using it was illegal but not specifically against baseball rules. Although under most sports authorities there are legal substances that are banned as well. And there were zero chance he would be prosecuted. > [@Saint\_Cad](#): > > loach and pkbites would disagree with you. “Hey buddy, I just wanna chat. Don’t worry because I know if we are investigating you or not. What? You don’t want to talk? Are you hiding something? Don’t you want to help us catch the bad guy that put your friend in 51 mason jars? Have you ever been to West Virginia?” I encourage all murderers to talk to police. So should you. Unless you have something to tell me… ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [March 3, 2015, 7:01pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/20 "2015-03-03T19:01:42Z")
> [@rock\_party](#): > > It seems like any question could possibly incriminate, and an uncooperative witness would refuse to answer just about everything… Right. The standard advice given to people being questioned by police is to say _nothing_, not even something that you think is innocuous, because: 1. You don’t know what the police know and aren’t telling you. E.g. all they need to get a warrant is an admission that you were at the roller rink, but you think that admitting that you were at the roller rink would be fine because you can’t remember committing any offenses there. Unbeknownst to you, the police have a witness that says that he saw you take money from the ticket clerk’s booth. 2. Police (and, presumably, prosecutors) are specifically trained to try to trick you into revealing things by asking sneaky questions, trying to act like your buddy, or even directly lying to you. “Don’t worry, nobody says you did anything at the roller rink, we just need to confirm that you weren’t selling unregistered machine guns in the pool hall.” … “Gotcha! Thanks for admitting to being there! You’re under arrest for theft at the roller rink!” [Next page](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065.md?page=2)