The 5th amendment

Great Debates
1

Can someone please explain to me the importance of the 5th amendment, particularly as it relates to “taking the 5th”?

I like to think of myself as as big a fan of the bill of rights as there is, but I must admit that situations like this one don’t seem to me to be great advertisements for our justice/legal system. I mean, isn’t this literally one situation where those who aren’t guilty honestly do NOT have anything to fear?
On the other hand, I’m sure I’m missing something pretty obvious, so I’m ready to feel dumb when it’s explained to me.

2

In a sense, there’s no help but to have something like the 5th amendment.

You have to assume that the one person who anyone will not want to incriminate, it’s themselves. The point at which a person will confess to a crime is the point at which any punishment the court places on the person for not testifying against himself exceeds the potential punishment for the crime. Essentially, the person will receive the sentence for the crime, regardless of which way they testify. This would fly in the face of the assumption that the person is innocent.

It is also quite likely that the person will simply commit perjury, so the “evidence” will be worthless anyways. The only way to enforce that the person wouldn’t lie is to make perjury have a worse sentence than any other crime in the land.

Threats of such coercion as to produce such a statement could also easily fall under cruelty, so the Eigth Amendment also tangentially requires the Fifth, I would think.

3

I would say that this is the situation where a person who is innocent has the most to fear.

In a Congressional hearing, there are no rules of evidence or discovery and there is no judge to enforce the rules of procedure or testimony. The questioners can ask any question they wish, regardless of relevance or propriety, grandstanding for a sound bite to be played in the next election, and the person being questioned can later be hauled up before Congress (or the Justice Department) for lying to Congress or for obstructing an investigation because some other testimony, given in response to a wholly separate question, appears to be in contradiction.

4

That makes sense if it’s just a case of a single person committing a single crime. Ie, if I ask someone “did you kill person X” and he refuses to answer, that should not in and of itself be proof that he did. On the other hand, the current congressional investigation is not “did Monica Goodling commit crime X, yes or no, can we convict her ass”. It’s “what the hell happened in the justice department that resulted in what appears to be some illegal or unethical actions?”. Imagine hypothetically that Gonzales was guilty and 10 other people were basically innocent but knew Gonzales was guilty, but were all loyal to him. They could all plead the 5th, even though they actually were innocent, simply to protect someone else, and how can you know? (Aren’t there usual deals in which immunity is offered in situations like that?)

But by the same token, a congressional hearing is a situation where there is a much greater public interest in finding out what happened than some random criminal trial. If some guilty guy pleads the 5th and is found innocent of murder, well, that’s a shame and all, but he’s just one guy. But if entire congressional investigations are just stopped dead in their tracks by people who aren’t even necessarily particularly prime suspects just refusing to answer questions… how does that serve the public good?

I do really hate to seem in any way anti-freedom or anti-liberty, and the irony of my even considering taking an anti-bill-of-rights position in something that is in many ways an attack on the Bush administration is not lost on me.

5

I’m really fascinated that she is going to take the Fifth. The comment was made on Hardball that her attorney is really considered a powerhouse in Washington and that this signals that something bigger is going on. Since she is a liason between the Justice Department and the White House, I am going nuts trying to think what could be the “crime” that she does not want to incriminate herself about. And the news article said that I’m not alone in wondering about this.

I’m wondering if an attorney would ever advise his client to plead the Fifth to avoid getting into trouble even when there is no known crime that has been committed.

I grew up during endless hours of McCarthy Hearings on television. That was an early lesson on how anyone and everyone can be browbeaten in hearings.

6

So far as I’m aware, a court can force them to testify against someone else (and edit out any testimony that would be condemning to themselves.) They can call the 5th all they want and it won’t matter unless the court let’s them do so.

7

The crime in question would probably be in performing things that she knew to be illegal, per orders. Of course, she can just not talk about her part in those and leave the whole matter of how those actions got done a mystery, pleading through on the 5th. What Gonzales or the White House asked “someone” to do, though, should be wide open.

8

Someone who says he’s a lawyer emailed Josh Marshall at TPM:

Dunno if that’s true or not, but I’d expect that it can be quickly confirmed or contradicted by legal eagles here on this board, or out in the blogosphere. I remember reading posts elsewhere last night that included court case cites supporting the point that the Fifth isn’t an unlimited “get out of testifying free” card, but can’t find them at the moment.

9

Ah, here we are.

There’s more legal ins and outs at the link. Hopefully the board’s J.D.'s will jump in later today.

10

I’m of the opinion they should grant her immunity from prosecution and get her testimony. Personally, I don’t believe she’s actually afraid of any prosecution, she just wants to make it difficult. But if there is, she’s a lowly liason officer and, to be honest, I don’t expect any charges are going to filed no matter what. So grant her immunity. That would negate her 5th Amendment claim, and she’ll have to testify.

11

I’d say if push comes to shove, sure. But it hasn’t. And as Christy Hardin Smith, who is a lawyer and former prosecutor, said this morning:

Granting immunity just because witnesses with their ass in a crack use the 5th as a bluff, sets a lousy precedent. Leahy should call her bluff, take her before a judge, have a hearing to see whether she’s entitled to use the 5th, and let that decide whether Goodling gets immunity.

Even though Goodling is a small fish, even small fish should learn that getting away from the straight and narrow can be dangerous. Especially lawyers from Pat Robertson’s law school, where they supposedly teach them to think of WWJD when they get in situations like these.

12

Hehehe, I was wondering how much interest there would be in this.

I’ll let either Bricker or Gfactor do most of the explaining, since Rick, at least, is a criminal law specialist. I can provide some basics, however.

The right embodied in the Fifth Amendment is not accurately called the right against self-incrimination. This is the text:

The government is precluded from compelling you to testify as a witness in the case against you. This preclusion extends not just to the actuality of taking the stand in court, but also to the whole concept of being forced in any way to offer testimonial evidence against yourself. This means you can refuse to answer any question, the answer to which MIGHT (subject to some limits which others will expound upon) result in testimony which could be used against you.

You are, of course, free to talk to the police if you prefer. You can voluntarily offer up any testimony or confession against yourself you want. But the government cannot legally put you under the bright lights, subject you to the rack, coerce you through threats, etc., into talking.

Why? For two basic reasons, both of which our current administration has completely forgotten (or chooses to ignore) with regard to certain other actions it takes in the name of fighting terror (which is where there is a delicious irony to this).

First, compelled testimony is of dubious value. When the consequences of not talking get large enough, people will squeal like stuck pigs, preferring the alternative, no matter how illogical that may seem in hindsight. We have plenty of cases in our jurisprudential history where people have been convicted wrongly on the basis of confessions made to crimes not committed.

Second, compelling testimony allows a government to engage in serious abuse of those who do not share its philosophies and beliefs. England’s experiences throughout the 15th through 18th Centuries were sufficient to instill in our founding fathers an understanding that government must be kept in check by strong bars to such behaviour. Indeed, this was considered so important at the federal level that the Constitution of 1787 would not have passed had this guarantee, along with several others, not been promised by the framers of the Constitution through immediate amendment.

13

Just to clarify, that’s the truthful answer, right? Because your dishonest testimony can always be used against you, if it’s discovered to be so. (Which appears, from her lawyer’s letter, to be one of her concerns.)

But they can toss you in prison for contempt of court. Not quite the same as threatening you with torture, but still a nontrivial threat. It just can’t coerce you into testifying in ways that can be used against your own self.

14

I was thinking that something like this would be an ideal solution. Given that the situation is not a criminal trial with her as the defendant (in which, presumably, all relevant testimony would be directly concerned with a crime she may or may not have committed) but a congressional investigation trying to figure out what happened in the first place, force her to answer the questions, but any part of her testimony would be inadmissable in any hypothetical future criminal case against her.
Overall, though, I guess I’m still not sold on the 5th amendment being anywhere near as important as (say) the 1st amendment. If a crime was committed last night and I refuse to say where I was last night, I agree that the hot pokers shouldn’t come out, but at the same time it’s preposterous to claim that my refusal to say where I was isn’t suspicious, and isn’t something that juries ought to be able to weigh in their deliberations. (And no, I’m not saying it’s anywhere near convincing proof of my guilt… but criminal cases (as I understand it) are usually built up out of lots and lots of small pieces, no one of which is proof by itself.)

15

That’s the problem, Max. A jury often will see refusal to testify to the police as absolute proof of guilt. And further, policie interrogations are tough, tricky things. The career criminal who has experienced one before, or who has his lawyer present, or who has prepared his story beforehand is less likely to be tripped up than the guy pulled in off the street who can more likely be manipulated into a situation where he makes himself more likley to be convicted of an offense he did not commit.

16

Yeah, but I might refuse to say where I was last night to get out of crime A because I was off somewhere committing crime B at the time. That’s certainly covered by the 5th amendment. And it certainly doesn’t indicate guilt of crime A. :wink:

17

Cross-posed from the relevant GQ thread:

Immunity can, of course, remove the Fifth Amendment’s protections. There are two kinds of immunity - use and transactional. Use immunity is considered sufficient protection to negate the Fifth Amendment’s protections – Murphy v. Waterfront Commission. Use immunity merely says that your testimony cannot be used against you. Transactional immunity, the only kind with real meaning, forbids a prosecution based on the transaction, regardless of the source of the evidence against you.

18

These two statements seem to be contradictory. Can you help clarify the difference?

19

They don’t seem to be that contradictory. I bought some ammonium nitrate fertilizer and some fuel oil last week. I need to get the garden ready and I have a oil powered air conditioner.

Yesterday, someone blew the bank up with an ANFO bomb.

I think that I might feel those purchases are incriminating, despite my innocence. Certainly, if I were to disclose them, the cops would look at me with further disfavor.

That said, the problem with Ms. Goodling is, as far as we can tell, nobody has any clue on any criminal actions she might be incriminating herself if she discussed. None of the actions, so far as we are aware, are criminal.

Hm. Except Hayes Act lobbying issues, maybe?

20

Perhaps this: