# 'To Plead the Fifth' - why not? **URL:** \ **Category:** Factual Questions\ **Created:** [October 29, 2012, 4:23pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220 "2012-10-29T16:23:14Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Senegoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senegoid/32/6606_2.png) [@Senegoid](https://boards.straightdope.com/u/Senegoid)\ **Post date:** [October 30, 2012, 5:25am UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/21 "2012-10-30T05:25:30Z")
Okay, I’m trying to google up something on this, and I’ve spent about as much time as I care to. So far, I’m not seeing a whole lot about any “all or nothing” rule. So maybe I’m talking bullshit out my ass here. I’m sure I’ve often read things to this effect. Here’s one somewhat relevant bit I found: > [@](#): > > ``` > It has long been the rule that a defendant who takes the stand > > ``` > > in his own behalf cannot then claim the privilege to defeat cross- > examination on matters reasonably related to the subject matter of > his direct examination . . . from [this document (PDF) from the Government Printing Office](http://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992-10-6.pdf) (page 1308, or page 38 as your viewer might number it). ---
**Author:** ![dimmy\_derko](https://avatars.discourse-cdn.com/v4/letter/d/43a26b/32.png) [@dimmy\_derko](https://boards.straightdope.com/u/dimmy_derko)\ **Post date:** [October 30, 2012, 12:50pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/22 "2012-10-30T12:50:25Z")
Unless you are actually being accused of a crime, how can you be confessing anything? If, for example, all you are being asked to do is explain the circumstances which led to you killing someone, which you claim was in self defence, how could your refusal to cooperate not be seen as suspicious? If the chain of events is filmed from the moment the person under scrutiny is taken to be questioned, that should rule out all likelihood of the person doing the explaining being intimidated into incriminating themself. ---
**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:** [October 30, 2012, 1:00pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/23 "2012-10-30T13:00:36Z")
**dimmy** , that’s fine as far as it goes, but most people accused of murder do not claim to have been acting in self defense; they claim not to have done it at all. Plus, they don’t film all questioning, or the parts where the witness is being led around the station house, or whatever. > [@Senegoid](#): > > Time for _cites_ ! Here you go. > [@](#): > > The privilege [against self-incrimination] **not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime**. (Patricia) Blau v. United States, 1950, 340 U.S. 159, 71 S.Ct. 223. But **this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer**. Mason v. United States, 1917, 244 U.S. 362, 365, 37 S.Ct. 621, 622, 61 L.Ed. 1198, and cases cited. **The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself-his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified** , Rogers v. United States, 1951, 340 U.S. 367, 71 S.Ct. 438, and to require him to answer if ‘it clearly appears to the court that he is mistaken.’ Temple v. Commonwealth, 1880, 75 Va. 892, 899. However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, 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. The trial judge in appraising the claim ‘must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.’ See Taft, J., in Ex parte Irvine, C.C.S.D.Ohio, 1896, 74 F. 954, 960. > > Hoffman v. U. S., 341 U.S. 479, 486-87 (1951) Emphasis added. The Hoffman decision was in the context of a grand jury proceeding, not an actual trial, but it works the same way. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [October 30, 2012, 1:12pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/24 "2012-10-30T13:12:29Z")
> [@Really\_Not\_All\_That\_Bright](#): > > In the UK, as I understand it, that is no longer the case. In _England and Wales_!!! Look, you still have a British passport, I should not have to explain it to you.;)😃 Well, it is correct that this can be done now. It is governed by Ss 34 to 39 of this CJPOA 1994. However, the courts have limited the application of it through case law. ---
**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:** [October 30, 2012, 1:18pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/25 "2012-10-30T13:18:26Z")
I realized about 10 minutes after I posted that I’d catch hell for it later. 🙂 ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [October 30, 2012, 1:55pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/26 "2012-10-30T13:55:46Z")
As a few posters have mentioned, the public (from whom the jury is drawn) is already predisposed negatively against people who do not or can not answer some tough questions, so it’s usually best to avoid taking the stand at all, and at the very least when first questioned not say jacksquat until you have your professional counsel with you (the latter is the advise that former-LEO/former-prosecutor experts give). The strength of “the Fifth” lies not just in how that you cannot be compelled to incriminate yourself, but specially in that _your very refusal to submit to questioning may not be used by the prosecution to make the case against you_ a-la “isn’t it suspicious he will not answer?” You don’t answer questions, they have to dig up the evidence and make the case against you the hard way. ---
**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:** [October 30, 2012, 2:06pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/27 "2012-10-30T14:06:11Z")
Nitpick: your refusal can be used against you for impeachment purposes, and [if it occurs before you’ve been Mirandized (in some federal circuits](To Speak or Not to Speak: Can Pre-Miranda Silence be Used as Substantive Evidence of Guilt)). ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [October 30, 2012, 3:00pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/28 "2012-10-30T15:00:50Z")
The explanation I recall is simple - if you “open the door” by testifying about something, you cannot then refuse to go into details in cross-examination just because it might bring out more negative details. It’s all or nothing; if you want to testify about where you were on the night of Oct. 5th, then you have to answer any details that you are asked. So if you don’t want to get into details, don’t even begin to answer. Of course, anything you say that contradicts what you told the police (while not under oath) can leave you open to “obstruction of justice” charges; even if possibly the error was not intentional. ---
**Author:** ![bob\_bolger](https://avatars.discourse-cdn.com/v4/letter/b/ccd318/32.png) [@bob\_bolger](https://boards.straightdope.com/u/bob_bolger)\ **Post date:** [October 30, 2012, 3:16pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/29 "2012-10-30T15:16:22Z")
> [@dimmy\_derko](#): > > Unless you are actually being accused of a crime, how can you be confessing anything? If, for example, all you are being asked to do is explain the circumstances which led to you killing someone, which you claim was in self defence, how could your refusal to cooperate not be seen as suspicious? If the chain of events is filmed from the moment the person under scrutiny is taken to be questioned, that should rule out all likelihood of the person doing the explaining being intimidated into incriminating themself. Person A and B are in an alley. Person A is selling drugs to person B. Person C walks up and starts beating person B for no apparent reason. Defending himself, person B shoots person C. Person B is being questioned about the murder. Person B can be honest about the initial assault and his defending himself. When asked why were you in the alley in the first place, he has 3 options. 1) Confess that he was there buying drugs (a crime he had not yet been accused of), 2) Lie about why he was there (Committing perjury), or 3) Plead the 5th. You’re right in that the refusal to cooperate might be seen as suspicious. Depending on what other evidence was available, it MAY be in your best interest to own up to the (lesser) drug charges in order to not be seen as suspicious. But, if there is overwhelming evidence that it was clearly self defense, why incriminate yourself on the drug charges? ---
**Author:** ![bup](https://avatars.discourse-cdn.com/v4/letter/b/6bbea6/32.png) [@bup](https://boards.straightdope.com/u/bup)\ **Post date:** [October 30, 2012, 3:34pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/30 "2012-10-30T15:34:12Z")
> [@dimmy\_derko](#): > > Unless you are actually being accused of a crime, how can you be confessing anything? If, for example, all you are being asked to do is explain the circumstances which led to you killing someone, which you claim was in self defence, how could your refusal to cooperate not be seen as suspicious? If the chain of events is filmed from the moment the person under scrutiny is taken to be questioned, that should rule out all likelihood of the person doing the explaining being intimidated into incriminating themself. Tangent: My understanding is that ‘self-defense’ as ‘temporary insanity’ defenses are risky specifically because you are acknowledging you killed someone. \*\*bob\_bolger \*\*has answered your (rhetorical?) question directly and well. Obligating someone to testify against his- or herself makes all sorts of abuse easy for the state. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [October 30, 2012, 3:45pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/31 "2012-10-30T15:45:40Z")
Plus the added bonus that if a cop questions me about a third party, I can refuse to answer and it is not a crime. If I lie to protect them or myself it is a crime. ---
**Author:** ![solosam](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@solosam](https://boards.straightdope.com/u/solosam)\ **Post date:** [October 30, 2012, 3:55pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/32 "2012-10-30T15:55:47Z")
> [@](#): > > Depending on what other evidence was available, it MAY be in your best interest to own up to the (lesser) drug charges in order to not be seen as suspicious … after consulting with counsel, of course. ---
**Author:** ![mmmbeer](https://avatars.discourse-cdn.com/v4/letter/m/ecb155/32.png) [@mmmbeer](https://boards.straightdope.com/u/mmmbeer)\ **Post date:** [October 30, 2012, 4:01pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/33 "2012-10-30T16:01:43Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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 state doesn’t provide rights. We are born with them. This is a dangerous way to think as it implies that the state can then take them away. > [@](#): > > The privilege [against self-incrimination] not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. It is a right, not a privilege. There is a big difference. ---
**Author:** ![solosam](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@solosam](https://boards.straightdope.com/u/solosam)\ **Post date:** [October 30, 2012, 4:10pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/34 "2012-10-30T16:10:45Z")
> [@mmmbeer](#): > > The state doesn’t provide rights. We are born with them. This is a dangerous way to think as it implies that the state can then take them away. > > It is a right, not a privilege. There is a big difference. Really? If we were born with rights, then why did we require a Constitutional amendment to enshrine it? And why are some rights incorporated while others are not? Why did the Supreme Court wait until the 1920s to decide that our Bill of Rights applied to the state governments as well as the federal? The idea that our rights are inherent and can never be taken away is completely false. They can be taken away very easily, which is why vigilance is so important. ---
**Author:** ![Malden\_Capell](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/malden_capell/32/5274_2.png) [@Malden\_Capell](https://boards.straightdope.com/u/Malden_Capell)\ **Post date:** [October 30, 2012, 4:26pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/35 "2012-10-30T16:26:25Z")
> [@solosam](#): > > Really? If we were born with rights, then why did we require a Constitutional amendment to enshrine it? And why are some rights incorporated while others are not? Why did the Supreme Court wait until the 1920s to decide that our Bill of Rights applied to the state governments as well as the federal? > > The idea that our rights are inherent and can never be taken away is completely false. They can be taken away very easily, which is why vigilance is so important. **mmmbeer** is right, **solosam** : > [@](#): > > We hold these truths to be self-evident, that all men are created equal, that **they are endowed by their Creator with certain unalienable Rights,** that among these are Life, Liberty and the pursuit of Happiness. One of the major causes of the War of Independence was the colonists’ assertion of their Rights of Englishmen, given to them by Nature; they weren’t arguing that they had no rights and now wanted some. The amendment doesn’t bestow those rights, but writes them out to avoid unambiguity of what they are, what they mean, and how they can be exercised. ---
**Author:** ![solosam](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@solosam](https://boards.straightdope.com/u/solosam)\ **Post date:** [October 30, 2012, 4:35pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/36 "2012-10-30T16:35:19Z")
> [@Malden\_Capell](#): > > **mmmbeer** is right, **solosam** : > One of the major causes of the War of Independence was the colonists’ assertion of their Rights of Englishmen, given to them by Nature; they weren’t arguing that they had no rights and now wanted some. > > The amendment doesn’t bestow those rights, but writes them out to avoid unambiguity of what they are, what they mean, and how they can be exercised. The Constitution’s assertion that our rights are inherent and unalienable sounds nice, but it’s not true. The 2nd Amendment says I have the right to bear arms. But the courts interpret how I may exercise my “right,” the local laws determine whether I may exercise my right or not (ever tried to buy a gun in Hawaii?), and if 3/4 of the states get together they may pass an amendment that takes my “right” away from me. I’m sure all those black people picking cotton in the South were pleased to know their Creator had endowed them with the “right” to Life, Liberty, and the Pursuit of happiness. Regardless of whether you assert a Creator gave us rights or not, the history of our country demonstrates very clearly that the government (or anyone else) has the power to revoke / deprive us of our rights if and when it pleases. It is up to us to prevent this from happening. ---
**Author:** ![Malden\_Capell](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/malden_capell/32/5274_2.png) [@Malden\_Capell](https://boards.straightdope.com/u/Malden_Capell)\ **Post date:** [October 30, 2012, 4:41pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/37 "2012-10-30T16:41:59Z")
That’s a different subject from whether or not people _have_ rights; how those rights are exercised is up for debate, and exactly _what_ those rights are is also a matter of debate. There’s also the distinction between _human_ rights, bestowed upon someone as a person, and _civil_ rights, bestowed upon someone as a citizen. Civil rights can change (and I would wager include something such as the right to bear arms), while human rights (including the right not to be enslaved) ought not to change. We’re not arguing that they _can’t_ be oppressed. They can be, but that means we have to be vigilant against them, as you say. The difference is a civil right could be removed and the State not doing something wrong in itself; removing a human right however would make that State illegitimate, at least in my eyes. ---
**Author:** ![solosam](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@solosam](https://boards.straightdope.com/u/solosam)\ **Post date:** [October 30, 2012, 4:53pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/38 "2012-10-30T16:53:06Z")
> [@](#): > > That’s a different subject from whether or not people have rights; how those rights are exercised is up for debate, and exactly what those rights are is also a matter of debate. I agree that this is the point of contention here. You argue that person has rights even if those rights are suppressed at times, while I argue that a suppressed right might as well not exist. > [@](#): > > removing a human right however would make that State illegitimate, at least in my eyes. The biggest issue with this is that nobody can decide what Human Rights are. The UN makes very noble and generous “Human Rights Declarations” (and the UDHR is the closest thing we have to an enumerated list of them) but can’t even get all the countries of the world to agree on what those rights should be. ---
**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:** [October 30, 2012, 4:53pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/39 "2012-10-30T16:53:06Z")
**mmmbeer** is wrong. He saw a sentence that he thought conflicted with his personal grinding axe and jumped on it without bothering to comprehend it. The distinction between self-executing and non-self-executing rights is that the latter require some sort of action by the government. You cannot obtain a trial by jury, no matter how secure you are in your right thereto, unless the state assembles a jury. By contrast, you can exercise your right to silence by keeping your mouth shut. He’s also being a pointless pedant; the right against self-incrimination is frequently referred to by the courts as a privilege\* because it _was_ a privilege at common law - it resulted from the “confession rule” of evidence, not any “right of Englishmen”. It was simply a judicial codification of the Levellers’ demand that “you would have freed all men from being examined against themselves,” which was not made in the context of any “rights of man”, just a list of things the Levellers expected from government. Insofar as it was enjoyed by the colonists, only seven of the first thirteen state constitutions included references to anything recognizable as a right against self-incrimination. The right also manifests as a privilege _today_ because flowing from it is the presumption that compelled self-incrimination may not be used as evidence. \*See, for example: > [@](#): > > There are a number of exemptions from the testimonial duty, the most important of which is the Fifth Amendment privilege against compulsory self-incrimination. > > Kastigar v. United States, 406 U.S. 441, 444 (1972) ---
**Author:** ![eschereal](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eschereal/32/18939_2.png) [@eschereal](https://boards.straightdope.com/u/eschereal)\ **Post date:** [October 30, 2012, 6:22pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/40 "2012-10-30T18:22:21Z")
> [@mmmbeer](#): > > It is a right, not a privilege. There is a big difference. Which is what, specifically? [Previous page](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220.md?page=1) [Next page](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220.md?page=3)