This may sound like a dumb question to certain legally-minded eagles around here, but I know that there is a principle in English law and enshrined in the US Bill of Rights whereby a citizen cannot be compelled to self-incriminate in the process of giving evidence in a trial.
My question is: why not? If they have done something wrong, isn’t it a good thing they are found out? If withholding the information means a guilty man goes free, or worse, an innocent man is found guilty, what’s the logic behind it?
I suspect there’s a good reason to do with freedom of speech (or not speaking), and avoiding an inquisitorial-style justice system, but surely if someone were to decline to speak on the basis of the Fifth Amendment, it would be necessary to get to the bottom of it? And wouldn’t it undermine their standing as a witness before a court?
Most frequently, the prohibition against self-incrimination is exercised by not taking the witness stand at all, rather than by refusing to answer specific questions.
The purpose of the right is, as you might have guessed, to prevent the unpleasant things which gave rise to it in England: compelled confessions and the like. It’s not about whether they’ve done something wrong; the problem with prosecutions based solely on confessions is that often the defendant hasn’t done anything wrong.
As to whether refusing to answer questions undermines the witness’ standing, American juries are instructed that the defendant’s right to silence is not to be held against him (usually). In the UK, as I understand it, that is no longer the case.
Thanks Bright, I suspected the Star Chamber would be in there somewhere. But assuming they are not being tortured into confession, it seems odd to have the Fifth Amendment writ large as a Constitutional clause?
What I mean is, the Constitution already gave provision to protect against cruel and unusual punishment, secured trial by jury and so on; without the Fifth Amendment, couldn’t people just decline to take the stand anyway? It just seems like a big red warning sign to cite the Fifth as the reason you won’t testify…
I guess that is covered by your initial point, though, that they don’t specifically cite it but just decline to take part.
“Assuming they are not being tortured into confession” is kind of the problem. The state (or Crown) is not going to admit that it tortured the defendant, so the only likely evidence of such a claim is the defendant’s own testimony. Juries are rarely inclined to believe criminal defendants, which is one reason why they rarely take the stand. The odds of convincing the jury you didn’t do it are slight, and the odds of slipping up are great.
That’s it exactly. Regardless of the judge’s instructions, the jury will think whatever it thinks when the one question you refuse to answer is “did you shoot Judy?”
The difference between the right to silence and the other protections you mention is that the former is self-executing; the state doesn’t have to provide it.
the government is not allowed to haul you in and demand you answer questions about everything and anything until they find something they can charge you with; just as they can’t just wander into your house and start looking for everything and anything to charge you with.
There are very few people who don’t have something minor they’d prefer to keep secret.
I’m pretty sure, in most of the US at least, you can’t decline to take the stand unless you’re the defendant or someone else, like a spouse, to whom privilege applies. You can be compelled to testify against the defendant but you can decline to answer questions that might incriminate you unless given immunity.
If the defendant does take the stand in his/her case, then they can be compelled to answer other questions on cross-examination.
that’s true. You have no protection against being called in front of a grand jury…
Fishing expeditions would be entirely viable if the state could arrange to ask you any questions it wants at any time and you must answer under penalty of perjury. Whether that is fourth or fifth, or both… Even in front of a grand jury you can claim the fifth.
As part of the execution of the governor’s new tough on crime policy, your local police department is seeking information regarding crime in your area. Please answer the following.
Please list all illegal drugs, illegal weapons, and stolen property in your possession as of October 29, 2012. For each item, list its current location.
Have you ever committed an offense that you were not arrested for? If so, please list the offense, date, and a summary of the facts establishing your guilt with contact information for witnesses and the current locations of physical evidence.
Do you intend to commit any offenses during the next year? If so, for each offense, indicate name of offense, the planned date of commission, the planned location of commission, and the names and contact information for any expected victims.
If you do not respond by December 10, you are subject to arrest. Please mail your completed questionnaire to Police HQ, 123 Main ST, Podunk. Thank you.
Let’s say you stole a car - a crime that carries a penalty of two years in prison if you’re convicted. If there’s no Fifth Amendment, the DA puts you on the stand and simply asks you “Did you steal that car?”
Now what do you do? Do you tell the truth and admit you stole the car? You’re going to be found guilty and go to prison for two years. Or do you lie under oath and deny stealing the car? Do that, and you take the risk of being charged with perjury, which gets you an additional two years in prison.
There’s this. As it has evolved in American procedure, your 5th Amendment rights generally work this way: If you choose to answer any questions at all (beyond the basic name, rank, serial number type of stuff), then you have waived your 5th Amendment rights, and must then answer ALL subsequent questions.
SO, if you are called as a witness and you think you might need to take the 5th, you must do so right from the start, and refuse to answer ALL questions.
Often, a lawyer will ask a witness many many very suggestive questions, thus the witness must answer “I refuse to answer on the grounds that it may tend to incriminate me” many many times to many many questions, regardless of whether each specific questions is incriminating. This tends to make the witness look very guilty. This most often happens in testimony before a Congressional committee (infamously, the McCarthy inquests), and is done primarily to generate sensational news headlines like: “Lattimore takes the 5th 28 times before committee”
In court trials, OTOH, this would look very bad before a jury. Thus, it is more typical in a jury case for the lawyers to work this out, not in front of a jury, so that the witness who will take the 5th never appears before the jury at all. The taking of the 5th thus happens behind the scenes, not in open court before the jury (or public or press).
Is this true? I thought it was an urban legend and that you couldn’t take the Fifth on things like “How long have you lived in Bumphuck.” and “Do you own a teacup poodle named Freddie Frogdance?”
Another point: This is where partial or complete immunity deals often come into play.
Commonly, a prosecutor wants to question a witness, seeking answers about a crime that someone else is charged with. But the witness himself is also (or might be) implicated as well. Since the witness must answer ALL questions or NONE, the witness may take the 5th right from the start.
To get around this, prosecutors commonly cut immunity deals with the witness. This allows (and in fact REQUIRES) the witness to answer ALL questions, with the deal being that the witness will be immune to prosecution for any self-incriminating answers he gives. This allows the prosecution to ask all kinds of probative questions about the activities of anybody else.
The rules generally fall along these lines:
– The witness MUST answer ALL questions.
– The witness MUST answer truthfully.
– If the witness balks, or is later found to have lied, then all bets are off, and the witness loses any immunity he might have had.
– The witness is only immunized against prosecution for any information he provides by answering the questions. If the prosecution is able to learn any of the same information from other sources independent of the witness answers, then the witness might still be subject to prosecution. This may be variable (I think) depending on the details of the deal they made. There are various levels of immunity that may be granted.
IANAL, so it’s possible that I may be speaking out my ass under the influence of urban legends. There may well be some technical, detailed, legalistic rules about just which questions you can answer and which you can’t, regarding your 5th Amendment rights.
I am going to guess that the rules might work more along these lines: You can answer questions like those (if they don’t really have any bearing on anything) without waiving your 5th Am. rights. Thus, I’m guessing here that when you say “You can’t take the 5th” for questions like that, it means you can’t refuse to answer because (a) they aren’t self-incriminating and (b) even if you do, you can still take the 5th for other questions. Again, IANAL (and never regretted it) and I’m talking out my ass here about how I think it works.
I gotta run off to an appointment now, so excuse me if I duck out of this conversation for the next several hours . . .
Charles Manson took the 5th in his grand jury, to every single question asked, including (IIRC) his name. So while there may be some rules about what you can and can’t answer, Manson got away with answering none of them (got away for the time, anyway; he was later convicted of murder.)
However, I do not believe that the 5th is all or nothing. IANAL, but I can ask my family, most of whom are lawyers.
Time for cites ! Here’s the Wikipedia article on Fifth Amendment to the United States Constitution – This article discusses many different scenarios in which the 5th Amendment might come into play – Criminal trials, civil trials, grand jury investigations, congressional investigations, even disclosures required on IRS tax returns. (Apparently, you have to disclose the amount of any illegal income, but you can get away with not disclosing the source of such income.)
Upon quickly skimming this article, I didn’t notice anything addressing the “all or none” business. I’m quite sure that a witness is never allowed to “pick and choose” which questions he will answer, in general.
