Taking the Fifth - in real life.

There’s a recent thread in which the OP asks about refusing to testify against someone else. It seems to be the case that you aren’t allowed to take the Fifth unless your testimony would incriminate you yourself.

When a person is questioned during a case and refuses to answer, claiming the Fifth, how does the judge determine if the testimony, if given, would actually incriminate? That is, how does the law prevent anyone and everyone from “Claiming the Fifth” for a question whose answer would not actually incriminate them, but that they just really don’t want to answer?

E.g.

Prosecutor: “Did your sister have the knife on her when she returned?”
Witness: “I refuse to answer on the grounds that the answer would tend to incriminate me.”
Prosecutor: “Please explain.”
Witness: “Explaining further would tend to incriminate me and I claim my Fifth Amendment right not to do so.”

Just like an actual incriminating statement, the witness can be offered immunity. Then the answer cannot be used against him. If he still refuses to answer, the judge can declare him in contempt of court.

What if he turns out to be incorrect about his statement being self-incriminating?

Of course, by some twisted interpretation, if his testimony would slightly different from what he told the police, I suppose the fifth eliminates an obstruction charge.

Would immunity extend only to the statement itself as a confession, or to any evidence that the police may uncover as a result of the statement? For example, say the witness in the example was granted immunity by the judge, and then truthfully answered, “No, my sister didn’t have the knife, because I used it to kill our mother and then threw it in the woods.” Is the state now prevented from prosecuting the witness for murder, or is it allowed to prosecute the witness for murder as long as it doesn’t rely on this statement as a confession? If the latter, is it permitted for the police to conduct a search of the woods for the knife, and then, if it is found and fingerprinted, introduce it as evidence in a prosecution against the witness? Or are all the fruits of investigation arising from the statement inadmissible because of the grant of immunity?

According to the OP, the witness is being deliberately incorrect about the self-incriminating claim. The witness knows it’s not self-incriminating, but just chooses the claim as an excuse not to answer the question.

If it turn out the witness is mistaken, and the statement is in fact self-incriminating, then the witness is one lucky witness.

I have an additional question related to the OP: if a witness makes an intentionally false claim that his statement would be self-incriminating, could he later be found to be guilty of perjury?

Can a prosecuter offer a blanket immunity? It would be a little unfair for the prosecuter to offer immunity in a state trial forcing the person to testify and then the Feds step in and bring them up on federal drug charges or the Mann Act or something.

Just as the police can twist antihng to make it appear incriminating, so can a witness. He may claim “I honestly believed this would result in charges”. After all, if you’re going to say something like that in court, make some effort to have an explanation…

I’ve always wondered about the hostile-witness-please-answer-yes-or-no, to reply “I’m sorry, I cannot answer that because I’m sworn to ‘tell the whole truth’ and yes or no does not meet my obligation under the oath.”

Or, the witness does genuinely believe the statement was incriminating, but doesn’t want to tell the court why, and the court isn’t sure if the witness is being honest. E.g. perhaps in an alternate scenario, the witness did see their sister come back on July 5, but the witness was out of status in the country at the time because their visa expired on July 2 and they were supposed to have left the country and not stayed around waiting for their sister, or perhaps they were on parole and didn’t have permission to travel out of state to meet their sister, or perhaps they committed a burglary nearby and are hoping to use an alibi defense that they could have been in LA on the evening July 5, which would be impossible to raise if they admit that they were in NYC waiting for their sister. Would the person then be obligated to tell the court in what way the statement would be incriminating? E.g. “I refuse to answer that question because it might incriminate me in an illegal immigration violation.” or “I refuse to answer that question because it might incriminate me on a parole violation.”, “I refuse to answer that question because it might be circumstantial evidence in an unrelated burglary case.”?

I have a separate but (I think) closely related comment/question on all this.

As I understand it, once you answer a question (beyond the basic name/rank/serial number), you LOSE the opportunity to take the 5th thereafter. The idea is, you must take the 5th on ALL questions you are asked, or else answer ALL questions. (Is this correct?) The idea is that you can’t just selectively answer those questions that you chose to, and not others.

Now this raises some questions.
Without knowing in advance ALL the questions you will be asked, you might want to take the 5th right from question #1.
– Lawyer: What day is today?
– Witness: Monday.
– Lawyer: Did you murder the victim?
– Witness: I decline to answer on the grounds that it may tend to incriminate me.
– Lawyer: You have waived your 5th Amendment rights by answering the prior question.
– Judge: Witness is directed to answer the question.

This also implies that the witness should refuse to answer even the most innocuous sounding questions, because of what he may be asked later. If the witness has anything to hide, then the above dialogue should have been:

– Lawyer: What day is today?
– Witness: I decline to answer on the grounds that it may tend to incriminate me.

BUT this raises a second question: Again, as I understand it, a court will accept AS FACT anything that anyone says that is not disputed by somebody else. (Again: Is this right?)

– Lawyer: What was visibility like at the time of the accident?
– Witness: Bright and sunny.
– Lawyer: And what time was this?
– Witness: Three in the morning.

If nobody argues otherwise, then the court WILL accept as fact that the sun was shining brightly at three in the morning. Thus, there can be danger in taking the 5th, and danger in NOT taking the 5th. See where this is leading?

Lawyer: Did John Smith murder the victim?
Witness: Yes, I saw him do it with my very own eyes.

Now, if John Smith chooses to testify in his own defense, and then answers any questions at all, he loses his right to invoke the 5th Amendment, and he might be asked a lot of question he would really not want to answer for whatever reason. But if he takes the 5th from the start, he loses the option to dispute the witness’s testimony, and the court will take as fact the statement of the witness that John Smith did it – unless John Smith’s lawyer can present OTHER witnesses or evidence to get his client acquitted. (Is all this right?)

These are some things that I think I know about court procedures. Somebody: Is ANYTHING I think I know right?

Not correct.
You must distinguish between the defendant at a criminal trial and any other witness. The defendant has the right not to take the stand at all. If the defendant chooses to take the stand, then he waives his fifth amendment right and must answer all proper questions put to him. Any other witness must answer all questions, but may take the fifth when answering a particular question might incriminate him.

Didn’t you see A Few Good Men? Remember when Jack Nicholson (who was a witness, not the defendant) starts incriminating himself, Tom Cruz asks the judge to stop the trial and have the prosecutor read him his rights?

In a civil trial, it gets more complicated.

Here is a typical criminal jury instruction:
“In deciding the facts of this case, you are the sole judges of the credibility of the witnesses. You will have to decide which witnesses to believe and which witnesses not to believe. You may believe everything a witness says or only part of it or none of it. Every witness starts on an equal basis. You are to listen to all of them with an open mind and judge them all by the same standards.”

If a witness says something incredible, the trier of fact is free to disbelieve them. But as a practical matter, if somebody lies but the lie is not so incredible as to be blatantly false on its face, you are likely to be at a disadvantage if no one contradicts the witness and the witness seems otherwise reasonable.

The problem of a witness falsely claiming the 5th or its equivalent rarely arises, because it is usually obvious how the answer might incriminate a witness. But supposing the claim was captious, the procedure in my jurisdiction (which I have never seen invoked) is to have a “trial within a trial” (we call it a voir dire, but that means something different to Americans) where he is compelled to essentially explain how the answer would incriminate him, but the answer he gives on the voir dire may not be used against him except for the purposes of resolving the issue or a perjury prosecution arising from it. Judge rules, trial proper recommences and proceeds according to how the judge ruled-if the claim was good, that’s the end of it, and if the claim was bad, witness answers the question or faces contempt proceedings.

The procedure is the same essentially for all claims of immunity. If the mere making of a claim could defeat the court’s capacity to judge the claim, then the system would break down.

I can understand how the immediate thought is that any attempt to resolve the claim defeats the claim, but that is not so. The answer given on the voir dire is not incriminating because it is protected until the court rules.

I don’t know US law but under English Commwealth law, evidence given in a criminal court case has absolute privilege. It cannot be used against the witness outside that hearing.

So if a witness confessed to a crime the police would have to find independent evidence to bring a charge. The confession itself would not be admissable.

Sorry but Yes or No is the answer required by the interrogator. Each witness belongs to whomever is questioning them at that point in time and the witness cannot bargain as to how they answer.

The remedy is two-fold. The opposing counsel can reask the question and allow the witness to elaborate. Or the judge can step in and ask as a matter of clarification. Purist lawyers frown on judges stepping into the arena but the judge is top dog and is interested in justice just like the rest of us.

Really? What do Americans think a voir dire is?

As a US non-lawyer who’s been on a couple of juries, the only reference I’ve ever heard to “voir dire” in US court is the interview/selection process of jurors from the jury panel.

Yes, understood. I remember in Murder One a substantial part of the series was a voir dire for jury selection. Still, that is a trial within a trial and I wonder if voir dire take place as we outsiders would generally understand it. A discrete legal argument with or without witnesses within a trial to clarify a legal point. It can mean the defendant going home if the arguments are succesfull.

What about “Have you stopped beating your wife?” questions?

Ken, you are a Kiwi conveyancing lawyer, right? Gotta call you on some of this. Evidence given in court is not generally protected in Cth countries. That is why there is a practice of warning witnesses that they don’t have to answer a question if it might incriminate them. If there was absolute protection as you assert, the practice would be unnecessary. If there was absolute privilege, no-one could be charged with perjury.

And no questioner can insist on a yes or no answer if the truth is grey. A witness is quite entitled to protest, as is opposing counsel. Counsel can suggest that anything other than a yes or no is prevarication, but can’t demand such an answer if the answer would be incomplete or misleading. The witness’s obligation to tell “the whole truth” trumps counsel’s “ownership” of the questioning process.

If I were to ask “do you dislike politicians?”, any mature person’s response is likely to be something like “Some I like, some I dislike. Who do you have in mind?” Demanding a yes or no answer would be quite inappropriate and objectionable.

do you not have a provision of the Evidence Act that provides limited immunity? here in Canada, the Evidence Acts provide that if a witness objects to answer a question on the ground of incrimination, the judge can grant them a limited immunity which prevents the answer from being used in subsequent proceedings. This was the compromise when the absolute common law immunity of witnesses from testifying was abolished in the latter part of the 19th century.

See s. 5 of the Canada Evidence Act, which I thought was modelled on an English provision from about the same time:

This provision has now been given constitutional value, in s. 13 of the Canadian Charter of Rights and Freedoms:

I was a juror and the defendant, while on the stand, always had an excuse or explanation or elaboration to her answers to yes-or-no questions raised by the prosecutor. She did not state a conflict between the form of the question and the “whole truth” aspect of her oath. She just was blamestorming, and ended up destroying her own credibility.

I’m in the US, and this was a state criminal trial.

Good points: I concede and withdraw. :smiley: Never did a lot of criminal work so much of what I learned was from law school and subsequent advice from colleagues.

Most commonly, it refers to the examination of a potential juror to ensure there are no grounds to disqualify the juror from the particular trial. It is also used to refer to the foundational questioning of an expert witness to establish the witness’ expertise as a matter of law. Very rarely, it could refer to the foundational questioning of any witness to establish that witness’ relevancy at a particular trial. In the vast majority of cases, this last question, if raised, is settled by a proffer from the lawyer calling the witness, but I have seen a situation in which the prosecution was unsatisfied with a proffer and demanded a voir dire before a defense witness testified, claiming the witness could not, as a matter of law, testify as to anything relevant and refusing to accept the proffer offered by the defense… in that circumstance, the judge conducted the questioning.