# The 5th amendment **URL:** \ **Category:** Great Debates\ **Created:** [March 27, 2007, 5:04am UTC](https://boards.straightdope.com/t/the-5th-amendment/397651 "2007-03-27T05:04:31Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [March 27, 2007, 8:27pm UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/21 "2007-03-27T20:27:55Z")
Hm. Good eye, Squink. Bricker, is my analysis of the 5th accurate? That’s a pretty wide issue, isn’t it. She could use the 5th to cover a lot of things to prevent being hoisted by that. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [March 27, 2007, 8:35pm UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/22 "2007-03-27T20:35:36Z")
I’d have no problem with Congress giving Goodling immunity to prosecution on the specific charge of having caused McNulty to make a false statement to Congress. But I wouldn’t want them to give a grant of immunity that was more general, unless there was a strong justification for it. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [March 27, 2007, 8:51pm UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/23 "2007-03-27T20:51:05Z")
As I understand it, the whole issue is that she feels she could be tossed to the wolves as the sacrificial lamb. The suspicion is that she would be prosecuted for inducing perjured testimony/false statements to Congress. Whether or not she actually did that is irrelevant. She is entitled under the 5th Amendment to refuse to answer questions designed to elicit testimony relevant to such an accusation. And, yes, it is a damned important right, one we should shed as much blood to keep today as was shed in the past to obtain it. I wish people in this country would get a decent course during high school in English constitutional history, so they could appreciate just how badly you can be treated when the state has compelling reasons to look at a given group of people as _per se_ “wrongdoers.” Oh, wait, I forget. Japanese-Americans. Communist party sympathizers. Arab-looking and/or Muslim people. Perhaps we just prefer to forget our transgressions… \ ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 27, 2007, 8:51pm UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/24 "2007-03-27T20:51:11Z")
[QUOTE=Fir na tine] These two statements seem to be contradictory. Can you help clarify the difference? [/QUOTE] They’re not contradictory. Ms. Smith says: \*…there has to be a connection to some criminal matter in order for it to be properly invoked. \* And that’s what I’m saying too: there has to be some connection to some criminal matter – in my example, the connection is the investigation involves a plan to rob a bank with Disney masks and shotguns, and you bought Disney masks and shotgun shells. The “connection” does not have to be that you committed a crime. The connection can simply be that you’re the target of a criminal investigation and your testimony would help the government convict you, EVEN IF YOU ARE INNOCENT. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 27, 2007, 8:55pm UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/25 "2007-03-27T20:55:57Z")
[QUOTE=RTFirefly] I’d have no problem with Congress giving Goodling immunity to prosecution on the specific charge of having caused McNulty to make a false statement to Congress. But I wouldn’t want them to give a grant of immunity that was more general, unless there was a strong justification for it. [/QUOTE] Well, suppose her crime is such that by revealing what she wants immunity for, she would necessarily reveal the crime. For example, no one has suggested that the underlying crime here is, say, child porn. But suppose there’s a massive child porn ring involving high-placed officials. US Attorneys coming closing to prosecuting those individuals for other crimes were fired to prevent the porn guys from using their knowledge to “trade” their way out of other charges. She can’t ask for immunity from a conspiracy to traffic in child porn charge without alerting the government that somehow, in this mess, child porn is involved, and the government can then decline to grant the immunity and investigate using the new lead they just got for free. Please note for the literal-minded that “child porn” is just a whacky hypothetical, OK? ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 27, 2007, 9:08pm UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/26 "2007-03-27T21:08:45Z")
[QUOTE=Bricker] Well, suppose her crime is such that by revealing what she wants immunity for, she would necessarily reveal the crime. For example, no one has suggested that the underlying crime here is, say, child porn. But suppose there’s a massive child porn ring involving high-placed officials. US Attorneys coming closing to prosecuting those individuals for other crimes were fired to prevent the porn guys from using their knowledge to “trade” their way out of other charges. She can’t ask for immunity from a conspiracy to traffic in child porn charge without alerting the government that somehow, in this mess, child porn is involved, and the government can then decline to grant the immunity and investigate using the new lead they just got for free. Please note for the literal-minded that “child porn” is just a whacky hypothetical, OK? [/QUOTE] So what you’re saying is the Bush Administration is the largest producer and distributer of child porn in the world? ---
**Author:** ![Happy\_Scrappy\_Hero\_Pup](https://avatars.discourse-cdn.com/v4/letter/h/ea5d25/32.png) [@Happy\_Scrappy\_Hero\_Pup](https://boards.straightdope.com/u/Happy_Scrappy_Hero_Pup)\ **Post date:** [March 27, 2007, 10:27pm UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/27 "2007-03-27T22:27:12Z")
[QUOTE= Hamlet] So what you’re saying is the Bush Administration is the largest producer and distributer of child porn in the world? [/QUOTE] Won’t someone PLEASE think of the… [sub]oh.[/sub] ---
**Author:** ![Cervaise](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cervaise/32/16693_2.png) [@Cervaise](https://boards.straightdope.com/u/Cervaise)\ **Post date:** [March 27, 2007, 11:19pm UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/28 "2007-03-27T23:19:16Z")
\ [QUOTE=Hamlet] So what you’re saying is the Bush Administration is the largest producer and distributer of child porn in the world? [/QUOTE] WHAT! Stop the presses! Hide the Garanimals! \ ---
**Author:** ![MaxTheVool](https://avatars.discourse-cdn.com/v4/letter/m/9fc29f/32.png) [@MaxTheVool](https://boards.straightdope.com/u/MaxTheVool)\ **Post date:** [March 27, 2007, 11:24pm UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/29 "2007-03-27T23:24:48Z")
[QUOTE=DSYoungEsq] And, yes, it is a damned important right, one we should shed as much blood to keep today as was shed in the past to obtain it. I wish people in this country would get a decent course during high school in English constitutional history, so they could appreciate just how badly you can be treated when the state has compelling reasons to look at a given group of people as _per se_ “wrongdoers.” Oh, wait, I forget. Japanese-Americans. Communist party sympathizers. Arab-looking and/or Muslim people. Perhaps we just prefer to forget our transgressions… \ [/QUOTE] Aren’t you making a bit of a leap here? Whatever the injustices visited upon Japanese-Americans during WWII, and they were many, I’ve never heard anyone claim that a major component of them had anything to do with the 5th amendment. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [March 27, 2007, 11:59pm UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/30 "2007-03-27T23:59:44Z")
Am I totally misreading the Fifth? I thought you couldn’t be compelled to testify against yourself _in a criminal case_, which this certainly isn’t. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 28, 2007, 12:19am UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/31 "2007-03-28T00:19:46Z")
[QUOTE=Czarcasm] Am I totally misreading the Fifth? I thought you couldn’t be compelled to testify against yourself _in a criminal case_, which this certainly isn’t. [/QUOTE] Er… yes. The rule is that you cannot be compelled to testify in any way that might expose you to criminal liability. Now, what happens if you were a party in a civil case, and your opponent sought to compel testimony against you that might expose you to criminal liability? Answer: you may refuse to testify. BUT - and this is an important ‘but,’ which we know because it appears in all caps, the fact-finder is permitted to infer that, had you testified, your testimony would have hurt your case. This is obviously not the rule, in criminal cases, in which the merest whisper by the prosecutor that the criminal defendant’s silence means he’s guilty is potential grounds for a mistrial. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [March 28, 2007, 12:19am UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/32 "2007-03-28T00:19:49Z")
[QUOTE=Bricker] Well, suppose her crime is such that by revealing what she wants immunity for, she would necessarily reveal the crime. For example, no one has suggested that the underlying crime here is, say, child porn. But suppose there’s a massive child porn ring involving high-placed officials. US Attorneys coming closing to prosecuting those individuals for other crimes were fired to prevent the porn guys from using their knowledge to “trade” their way out of other charges. She can’t ask for immunity from a conspiracy to traffic in child porn charge without alerting the government that somehow, in this mess, child porn is involved, and the government can then decline to grant the immunity and investigate using the new lead they just got for free. Please note for the literal-minded that “child porn” is just a whacky hypothetical, OK? [/QUOTE] You see, this is why I quoted the bit upthread where there’s apparently a procedure to hold a hearing before a judge who decides - confidentially, I assume - whether there’s a valid Fifth Amendment claim, or whether the witness is just bullshitting everyone. You’re the lawyer - **you** tell **me** whether something like this exists, and how it works, OK? If it doesn’t, just say so. But wouldn’t something like this kinda _have_ to, to keep every reluctant witness in the country from pleading the Fifth? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 28, 2007, 12:25am UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/33 "2007-03-28T00:25:11Z")
[QUOTE=RTFirefly] You see, this is why I quoted the bit upthread where there’s apparently a procedure to hold a hearing before a judge who decides - confidentially, I assume - whether there’s a valid Fifth Amendment claim, or whether the witness is just bullshitting everyone. You’re the lawyer - **you** tell **me** whether something like this exists, and how it works, OK? If it doesn’t, just say so. But wouldn’t something like this kinda _have_ to, to keep every reluctant witness in the country from pleading the Fifth? [/QUOTE] I have no idea. I know how it works in the criminal trial context in my jurisdiction. I assume there’s a similar procedure for a civil trial. How it would work with respect to testimony compelled by Congressional subpoena… I have no clue. Shockingly, my career as a public defender had me representing people called before Congress… exactly zero times. And my subsequent career as a federal contractor has placed me in contact with lots of people who arguably SHOULD be called before Congress, but here again the actual number is zero. So I got nuthin’. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [March 28, 2007, 12:30am UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/34 "2007-03-28T00:30:27Z")
[QUOTE=Constitution Of The United States] 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. [/QUOTE] She’s not being made to answer for any specific capital or infamous crime, and since the President has said repeated that we _are_ at war, the Fifth cannot be used for any testimony that concerns said war. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 28, 2007, 2:19am UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/35 "2007-03-28T02:19:34Z")
[QUOTE=Czarcasm] She’s not being made to answer for any specific capital or infamous crime, and since the President has said repeated that we _are_ at war, the Fifth cannot be used for any testimony that concerns said war. [/QUOTE] Wow. Your appreciation for the raw text of the Constitution is certainly refreshing. I assume you’ll be using a similar analytical approach when we discuss abortion. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [March 28, 2007, 4:02am UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/36 "2007-03-28T04:02:26Z")
[QUOTE=Czarcasm] She’s not being made to answer for any specific capital or infamous crime, and since the President has said repeated that we _are_ at war, the Fifth cannot be used for any testimony that concerns said war. [/QUOTE] The clause regarding being compelled to be a witness against oneself in a criminal case has nothing to do with the qualifiers you are referencing, as you should well know. I’ll assume there is some attempt at a whoosh here. 😕 ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [March 28, 2007, 4:34am UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/37 "2007-03-28T04:34:44Z")
A brief primer on the law of the Fifth Amendment’s guarantee against self-incrimination. More can be found on the subject [at "THE CONSTITUTION of the UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION](http://origin.www.gpoaccess.gov/constitution/pdf2002/023.pdf) put together by the Congressional Research Service of the Library of Congress. 1. The basic prohibition against compelling self-incriminating testimony evolved out of a rejection of the tactics of the religious courts in England (among others), where a person could be compelled to answer, under oath, any question put to him, without knowing in advance the subject matter of the questions, whether or not he was suspected of any crime, etc. The Star Chamber used this tactic quite aggressively. This was a feature of the “inquisitorial” method of law enforcement, a method which was soundly rejected in England and the colonies. 2. The point to the protection in the amendment isn’t to shield guilty parties. It is to protect innocent parties from fishing expeditions, wherein their truly innocent statements end up being used against them by the state. Why, you ask, would the state do such a thing? Ask African-Americans in the South during the period leading up to, oh, say, the 80’s. Or, as I alluded to before, alleged Communist sympathizers during the 40’s and 50’s. People shouldn’t have to sit on the hot seat and wonder if their truthful answers will get them in trouble, perhaps compelling them to lie when otherwise they would not. 3. It is not required that the witness demonstrate exactly WHY her testimony could be used against her in a criminal proceeding. > [@](#): > > If the witness, upon interposing his claim, were required > to prove the hazard . . . he would be compelled to surrender > the very protection which the privilege is designed to guarantee. To > sustain the privilege, it need only be evident from the implications > of the question, in the setting in which it is asked, that a responsive > answer to the question or an explanation of why it cannot be > answered might be dangerous because injurious disclosure could > result. _Hoffman v. United States_, 341 U.S. 479, 486–87 (1951) Hoffman goes on to explain that the judge considering a claim of privilege must look at the whole of the circumstances in which the privilege is claimed, and cannot compel the witness to reveal so much of her reasons for apprehending danger to “render the privilege nugatory.” I love that word. 🙂 1. The extent of circumstances under which the privilege may be claimed is quite broad. > [@](#): > > Thus, not only may a defendant or a witness in a criminal trial, including a juvenile proceeding, _In re Gault_, 387 U.S. 1, 42–57 (1967), claim the privilege but so may a party or a witness in a civil court proceeding, _McCarthy v. Arndstein_, 266 U.S. 34 (1924), a potential defendant or any other witness before a grand jury, _Reina v. United States_, 364 U.S. 507 (1960); _Counselman v. Hitchcock_, 142 U.S. 547, 563 (1892), **or a witness before a legislative inquiry** , _Watkins v. United States_, 354 U.S. 178, 195–96 (1957); _Quinn v. United States_, 349 U.S. 155 (1955); _Emspak v. United States_, 349 U.S. 190 (1955), or before an administrative body. _In re Groban_, 352 U.S. 330, 333, 336–37, 345–46 (1957); _ICC v. Bri_mson, 154 U.S. 447, 478–80 (1894). (_bolding added_) There is a lot of law on this subject, and it is mostly quite interesting. 🆒 ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [March 28, 2007, 4:44am UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/38 "2007-03-28T04:44:39Z")
Thank you, **DSYoungEsq** , this clarifies the Fifth Amendment quite a bit for me. I wasn’t trying to use a misinterpretation of the Fifth to make a point, btw-I was asking for clarification so that I might properly apply it to the current situation. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [March 28, 2007, 4:51am UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/39 "2007-03-28T04:51:21Z")
[QUOTE=Bricker] Wow. Your appreciation for the raw text of the Constitution is certainly refreshing. I assume you’ll be using a similar analytical approach when we discuss abortion. [/QUOTE] I was merely asking for help in understanding. First one gathers as much information as possible, _then_ one analyzes the information. Do you disapprove of this method? ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [March 28, 2007, 6:42am UTC](https://boards.straightdope.com/t/the-5th-amendment/397651/40 "2007-03-28T06:42:31Z")
[QUOTE=RTFirefly] 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.) - [/QUOTE] I was once told by Counsel that if your Lie consists \*just \*of “No, I didn’t do it” that even if you are then convicted of said crime there is no Perjury. [Previous page](https://boards.straightdope.com/t/the-5th-amendment/397651.md?page=1) [Next page](https://boards.straightdope.com/t/the-5th-amendment/397651.md?page=3)