# 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:** 15\ **Page:** 2
**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, 7:39pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/21 "2015-03-03T19:39:47Z")
> [@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?” “Officer, am I free to go?” Any answer other than No results in me walking away. If he stops me, my response to any and all questions except my name, address, and birthdate is a repetition of “I am not answering any questions. Am I free to go?” Regards, Shodan ---
**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, 8:01pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/22 "2015-03-03T20:01:13Z")
> [@Saint\_Cad](#): > > 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? No. You added facts. I was responding to the hypothetical about a bad check. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [March 3, 2015, 8:27pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/23 "2015-03-03T20:27:23Z")
This is where a response of “I do not recall” is helpful. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 3, 2015, 8:27pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/24 "2015-03-03T20:27:43Z")
Worth noting: the protections given by the Fifth Amendment are coterminous with _use immunity_. That is, even testimony that you fear may be criminally incriminating can be compelled if the government grants you use immunity, which would only prohibit the use of your testimony against you. In other words, if you had use immunity and revealed your murder of the book club president, your admission couldn’t be used against you… but if other evidence, independent of your admission, existed, it could be used to convict you. ---
**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, 10:00pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/25 "2015-03-03T22:00:04Z")
How does this interact with spousal immunity? Can you refuse to testify if it may tend to incriminate your wife? Regards, Shodan ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [March 3, 2015, 10:29pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/26 "2015-03-03T22:29:52Z")
How does an admission not completely poison the fruit, so to speak? If I admit I dunnit, then that just points the police in the right direction. Then they look deeper for evidence that supports the case. It may have been a cold case, and now they know what trees to shake. So instead of looking for sales of mason jars all over the country, they just canvass the stores in my neighbourhood… “Hey, we didn’t get any leads from his testimony, we just looked for people who bought mason jars and reviewed the security videos…” or instead of trying to narrow down which of 5,000 people to track, we pulled just your cell phone GPS records. ---
**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, 10:55pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/27 "2015-03-03T22:55:36Z")
> [@md2000](#): > > How does an admission not completely poison the fruit, so to speak? > > If I admit I dunnit, then that just points the police in the right direction. Then they look deeper for evidence that supports the case. It may have been a cold case, and now they know what trees to shake. So instead of looking for sales of mason jars all over the country, they just canvass the stores in my neighbourhood… “Hey, we didn’t get any leads from his testimony, we just looked for people who bought mason jars and reviewed the security videos…” > > or instead of trying to narrow down which of 5,000 people to track, we pulled just your cell phone GPS records. Right. Or, suppose that the police “know” that you admitted to dumping the body in Lake Susan, but they aren’t allowed to use that knowledge. So maybe the government then decides to do a six-month project to map the lake floor contours (wink wink) and send down a few submersibles to look for, uhh, mole colonies, yeah. After all, the lake is public property, and there’s nothing illegal about doing a more in-depth survey of public land. Moles can be dangerous, y’know? Well, guess what they just found? A body! Well what do you know? Guess we can send this over to our crime lab, after all, it was found right here out on public land, where there is no guarantee of privacy! ---
**Author:** ![buddy431](https://avatars.discourse-cdn.com/v4/letter/b/6a8cbe/32.png) [@buddy431](https://boards.straightdope.com/u/buddy431)\ **Post date:** [March 3, 2015, 11:39pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/28 "2015-03-03T23:39:23Z")
[Handy 5th Amendment Flowchart](http://lawcomic.net/guide/?p=2897) It’s also different if you’re talking to cops vs. testifying in front of congress (or whatever). If you’re talking to a cop, you can invoke your 5th amendment right at any time (you do have to explicitly invoke it: just remaining silent for hours has been held to not be invoking your right to remain silent, which is stupid, but whatever). If you’ve been called before congress, you can take the fifth, but you have to do so right away. If you start talking about a subject, you can be forced to continue to do so. If you’re called as a witness and you’re worried you might incriminate yourself, talk to a lawyer, who will talk to the judge or prosecutor and get you immunity if you need it. [Here’s the whole section on testifying](http://lawcomic.net/guide/?p=2282), there are a lot of interesting nuances. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 3, 2015, 11:52pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/29 "2015-03-03T23:52:15Z")
> [@md2000](#): > > How does an admission not completely poison the fruit, so to speak? > > If I admit I dunnit, then that just points the police in the right direction. Then they look deeper for evidence that supports the case. It may have been a cold case, and now they know what trees to shake. So instead of looking for sales of mason jars all over the country, they just canvass the stores in my neighbourhood… “Hey, we didn’t get any leads from his testimony, we just looked for people who bought mason jars and reviewed the security videos…” > > or instead of trying to narrow down which of 5,000 people to track, we pulled just your cell phone GPS records. > [@robert\_columbia](#): > > Right. Or, suppose that the police “know” that you admitted to dumping the body in Lake Susan, but they aren’t allowed to use that knowledge. So maybe the government then decides to do a six-month project to map the lake floor contours (wink wink) and send down a few submersibles to look for, uhh, mole colonies, yeah. After all, the lake is public property, and there’s nothing illegal about doing a more in-depth survey of public land. Moles can be dangerous, y’know? > > Well, guess what they just found? A body! Well what do you know? Guess we can send this over to our crime lab, after all, it was found right here out on public land, where there is no guarantee of privacy! The burden is on the police to show that they DID NOT use your information. The presumption is that they did, and the police must rebut that presumption. Typically, this is done by a “Chinese Wall,” in which new investigators are selected, kept isolated from the knowledge of your testimony and from the people who have such knowledge, and they must be able to show the independent path their investigation took. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [March 4, 2015, 4:47pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/30 "2015-03-04T16:47:51Z")
> [@Bricker](#): > > The burden is on the police to show that they DID NOT use your information. The presumption is that they did, and the police must rebut that presumption. Typically, this is done by a “Chinese Wall,” in which new investigators are selected, kept isolated from the knowledge of your testimony and from the people who have such knowledge, and they must be able to show the independent path their investigation took. But just _knowing_ the answer in advance (hard to keep quiet) is already a major step in the right direction. “We know he did it, prove it without knowing anything more” is a helluva head start over “investigate all 10,000 people in the book club”. ---
**Author:** ![Donnerwetter](https://avatars.discourse-cdn.com/v4/letter/d/b2d939/32.png) [@Donnerwetter](https://boards.straightdope.com/u/Donnerwetter)\ **Post date:** [March 4, 2015, 5:01pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/31 "2015-03-04T17:01:17Z")
This is how [Frank “Lefty” Rosenthal](http://en.wikipedia.org/wiki/Frank_Rosenthal) got his nickname: > [@](#): > > Before a Senate hearing on gambling and organized crime in 1961, he invoked the 5th Amendment protection against self-incrimination more than 35 times, including when asked if he was left-handed. > **[Las Vegas casino operator inspired movie](https://www.latimes.com/archives/la-xpm-2008-oct-16-me-rosenthal16-story.html)** > > Frank "Lefty" Rosenthal, the onetime Chicago bookmaker who ran four Las Vegas casinos in the 1970s and whose turbulent life and near-death experience with a car bomb inspired the movie "Casino," has died. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 4, 2015, 5:10pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/32 "2015-03-04T17:10:07Z")
> [@md2000](#): > > But just _knowing_ the answer in advance (hard to keep quiet) is already a major step in the right direction. “We know he did it, prove it without knowing anything more” is a helluva head start over “investigate all 10,000 people in the book club”. If the only reason you know he did it is his use-immune testimony, then your investigators have to start NOT knowing he did it, and you need to be able to show that they were kept separated from that knowledge, or that their investigative process was sucht hat they would have inevitably discovered other evidence showing he did it. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [March 4, 2015, 5:25pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/33 "2015-03-04T17:25:41Z")
> [@buddy431](#): > > [Handy 5th Amendment Flowchart](http://lawcomic.net/guide/?p=2897) > > It’s also different if you’re talking to cops vs. testifying in front of congress (or whatever). If you’re talking to a cop, you can invoke your 5th amendment right at any time (you do have to explicitly invoke it: just remaining silent for hours has been held to not be invoking your right to remain silent, which is stupid, but whatever). If you’ve been called before congress, you can take the fifth, but you have to do so right away. If you start talking about a subject, you can be forced to continue to do so. > > If you’re called as a witness and you’re worried you might incriminate yourself, talk to a lawyer, who will talk to the judge or prosecutor and get you immunity if you need it. > > [Here’s the whole section on testifying](http://lawcomic.net/guide/?p=2282), there are a lot of interesting nuances. Kind of makes sense. You can’t get on the stand (or before congress) and say “I didn’t do it, I was at my grandmother’s” and then pull the fifth for questions like “what time did you arrive and leave”, “did you drive or walk”, “did you have your firearms with you”? You either discuss the whole topic or none of it. Opening the door and all 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 4, 2015, 5:41pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/34 "2015-03-04T17:41:07Z")
> [@Shodan](#): > > How does this interact with spousal immunity? Can you refuse to testify if it may tend to incriminate your wife? No. Spousal privilege is a separate (non-constitutional) rule of evidence. The true “spousal privilege” allows a witness-spouse to refuse to testify against a party-spouse regarding any matter, so long as they remain married. The marital communications privilege protects private communications between spouses in the course of the marriage. It can be invoked by either the witness-spouse or the party-spouse, and applies even if the marriage ends so long as the conversation occurred during the marriage. ---
**Author:** ![gnoitall](https://avatars.discourse-cdn.com/v4/letter/g/bb73d2/32.png) [@gnoitall](https://boards.straightdope.com/u/gnoitall)\ **Post date:** [March 4, 2015, 6:36pm UTC](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065/35 "2015-03-04T18:36:06Z")
NVM. I had a great joke there. Too bad reality didn’t support the premise. ☹ [Previous page](https://boards.straightdope.com/t/taking-the-5th-about-things-that-cant-incriminate-you/714065.md?page=1)