# '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:** 3
**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, 7:20pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/41 "2012-10-30T19:20:57Z")
Based on various stories I think I know about court procedures, I think I can see another potential strategic flaw in taking the 5th: I believe it’s a standard court procedure that _any statement of alleged fact made by anyone_ will be taken at face value by the court and presumed to be true, if not challenged or disputed by someone else. Thus, if a witness says: “I saw defendant A shoot victim B clearly, because the sun was shining brightly” (even though the murder took place at 03:00 in the morning), the court will accept as fact that the sun was shining brightly at 03:00 in the morning – _if nobody disputes that._ Now, suppose somebody says something like that and the defendant wants to dispute it. But if the defendant takes the stand to dispute something, then the defendant loses any further 5th amendment right to remain silent (at least about that something) and open himself to cross-examination. Thus the defendant must choose: Do I speak up to dispute some outrageous lie that someone told about me (and waive my 5th amendment right against further questioning)? Or do I STFU to preserve my continuing right to STFU, and let some outrageous lie against me go unchallenged? ---
**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, 7:26pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/42 "2012-10-30T19:26:14Z")
Calling all SDMB legal beagles! These 5th amendment questions are interesting and important, and it’s not clear to what extent anybody posting so far actually knows WTF he’s talking about (my own posts in this thread in particular). What’s the Straight Dope here? ---
**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, 7:48pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/43 "2012-10-30T19:48:03Z")
I.A.A.L.S. Will that do? ---
**Author:** ![Learjeff](https://avatars.discourse-cdn.com/v4/letter/l/94ad74/32.png) [@Learjeff](https://boards.straightdope.com/u/Learjeff)\ **Post date:** [October 30, 2012, 11:41pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/44 "2012-10-30T23:41:03Z")
> [@bob\_bolger](#): > > 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. Or how about this: Person C walks up and starts beating A, and kills him. Person B is later asked about the incident, as a witness. He doesn’t have to answer “Why were you in that alley with A?” You don’t have to be the target of an investigation to take the 5th. You don’t have to be arrested or Mirandized to insist on having your lawyer present before any discussion with the police. ---
**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, 11:55pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/45 "2012-10-30T23:55:29Z")
Yeah, you do. In the context of noncustodial questioning, you can insist on having a lawyer present, but the government doesn’t have to provide you one. Your right to insist on a lawyer’s presence is based on the fact that you can walk away whenever you like. ---
**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 31, 2012, 12:00am UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/46 "2012-10-31T00:00:19Z")
> [@Senegoid](#): > > Thus, if a witness says: “I saw defendant A shoot victim B clearly, because the sun was shining brightly” (even though the murder took place at 03:00 in the morning), the court will accept as fact that the sun was shining brightly at 03:00 in the morning – _if nobody disputes that._ Well, really, is that not the sort of thing cross-examination is for? It is exactly the responsibility of both counsels to fully vet the testimony, if a witness testifies to something that can so easily be shot down and it is not shot down in cross, somebody is not doing what they are being paid to do. It makes no sense that the defendant would have to take the stand against such a claim. ---
**Author:** ![Learjeff](https://avatars.discourse-cdn.com/v4/letter/l/94ad74/32.png) [@Learjeff](https://boards.straightdope.com/u/Learjeff)\ **Post date:** [October 31, 2012, 12:21am UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/47 "2012-10-31T00:21:22Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Yeah, you do. In the context of noncustodial questioning, you can insist on having a lawyer present, but the government doesn’t have to provide you one. Your right to insist on a lawyer’s presence is based on the fact that you can walk away whenever you like. Thanks for correcting an impression I didn’t mean to give. You’re right, the gov doesn’t have to provide you a lawyer, but you can refuse to answer questions. ---
**Author:** ![Learjeff](https://avatars.discourse-cdn.com/v4/letter/l/94ad74/32.png) [@Learjeff](https://boards.straightdope.com/u/Learjeff)\ **Post date:** [October 31, 2012, 12:29am UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/48 "2012-10-31T00:29:29Z")
> [@For You](#): > > Well, really, is that not the sort of thing cross-examination is for? It is exactly the responsibility of both counsels to fully vet the testimony, if a witness testifies to something that can so easily be shot down and it is not shot down in cross, somebody is not doing what they are being paid to do. It makes no sense that the defendant would have to take the stand against such a claim. You’re right, but the weakness was his example, not his point. Imagine an example where the attested “fact” could only be contradicted by the defendant. I don’t know whether it’s true that a defendant has to waive his 5th amendment right if he takes the stand. However, taking the 5th when defending yourself isn’t going to be very convincing to the jury. In any case, defendants are rarely put on the stand because council for defense knows what the prosecuter can do to the defendant: rip him to shreds, even if he’s smart and innocent. Also, defense often has roads down which they don’t want to go, and putting the defendant on the stand gives the opposition a chance to go there, without having a witness of their own to get there. These roads may not be directly related to the crime, but can tarnish the defendant. There are limits to that (e.g., I believe past convictions are off the table) but the defense can’t assume that prosecution doesn’t know or suspect something the defendant hasn’t told them. ---
**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 31, 2012, 1:38am UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/49 "2012-10-31T01:38:39Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Yeah, you do. In the context of noncustodial questioning, you can insist on having a lawyer present, but the government doesn’t have to provide you one. Your right to insist on a lawyer’s presence is based on the fact that you can walk away whenever you like. If you are already well aware that you have the right to remain silent, to have a lawyer, etc., why would you care if you get Mirandized? Can’t you just keep your mouth shut (or, maybe equivalently, speak up but only to announce that you decline to answer questions) whether or not they advise you that you have that right? There was a thread a few months back that discussed this at great length, but I never did see any clear answer come out of that. ---
**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 31, 2012, 1:41am UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/50 "2012-10-31T01:41:56Z")
> [@For You](#): > > Well, really, is that not the sort of thing cross-examination is for? It is exactly the responsibility of both counsels to fully vet the testimony, if a witness testifies to something that can so easily be shot down and it is not shot down in cross, somebody is not doing what they are being paid to do. It makes no sense that the defendant would have to take the stand against such a claim. Granted, the witness (defendant) who wants to remain silent could do so, and the lawyer could dispute the disputable assertion elsehow – e.g., with physical evidence, or by getting somebody else to say so. My example about the sun shining at 03:00 a.m. was a bit silly, but it’s the example I saw in some article I once read somewhere-or-other. What is there is a more substantial assertion made than that, and what if only the defendant could refute it, but only at the price of waiving his 5th amendment rights to remain silent? ---
**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 31, 2012, 2:30am UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/51 "2012-10-31T02:30:40Z")
> [@Senegoid](#): > > My example about the sun shining at 03:00 a.m. was a bit silly … It is a poor example because it neglects the fact that juries are composed of people who discuss the evidence in order to reach a verdict. If 12 people are all going to blindly accept a self-evident testimonial error such as that, not one of them questioning the 3am sunshine (assuming it was not Yellowknife in June), you have some really serious problems will _voir dire_ or some other aspect of the legal system. Now, if the defendant can cite an alibi like, “I could not have been at the scene of the crime, at least two people witnessed me selling a 5 pound brick of cocaine in a nearby town”, then the defendant must decide whether he wants to eat the drug rap to avoid the murder rap, which ever will be worse for him. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [October 31, 2012, 4:13am UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/52 "2012-10-31T04:13:59Z")
> [@For You](#): > > Which is what, specifically? A privilege is an entitlement granted by the State to a small group of people due to class or status. A right is an entitlement that is belongs to every single human being upon their birth. The big difference **mmmbeer** is probably thinking of is that a privilege is at the mercy of the State and may be revoked. A right may not. A right being revoked is the State violating its contract with its citizenry, and said citizenry is justified in fighting to get it back. Apparently, discounting evidence obtained illegally is a privilege, not a right. Interesting. ---
**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 31, 2012, 4:19am UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/53 "2012-10-31T04:19:09Z")
> [@For You](#): > > It is a poor example because it neglects the fact that juries are composed of people who discuss the evidence in order to reach a verdict. If 12 people are all going to blindly accept a self-evident testimonial error such as that, not one of them questioning the 3am sunshine (assuming it was not Yellowknife in June), you have some really serious problems will _voir dire_ or some other aspect of the legal system. The implication I saw in that was (in the case of jury trial) that the judge would have specifically instruct the jury on that: If someone claimed that the sun was shining at 03:00 a.m. and nobody disputed that, then the judge would instruct the jury to accept that as fact. One wonders what a reasonably sentient jury would do with THAT? ---
**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 31, 2012, 4:23am UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/54 "2012-10-31T04:23:20Z")
> [@BigT](#): > > A privilege is an entitlement granted by the State to a small group of people due to class or status. A right is an entitlement that is belongs to every single human being upon their birth. > > The big difference **mmmbeer** is probably thinking of is that a privilege is at the mercy of the State and may be revoked. A right may not. A right being revoked is the State violating its contract with its citizenry, and said citizenry is justified in fighting to get it back. The constitution provides you specifically with the right to bear arm. It says “right” not “privilege”. Yet if you are convicted of a felony, your right to bears arms is stripped from you. Your distinction does not seem correct to me, or perhaps it is not meaningful. ---
**Author:** ![mmmbeer](https://avatars.discourse-cdn.com/v4/letter/m/ecb155/32.png) [@mmmbeer](https://boards.straightdope.com/u/mmmbeer)\ **Post date:** [October 31, 2012, 1:29pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/55 "2012-10-31T13:29:42Z")
> [@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. The Constitution didn’t bestow rights on us. As a living organism, I have the right to my life and the things necessary to maintain it and etc. and so on. The founders listed what they considered needed to assure the people so they could get the Constitution ratified and stated that this was not an exhaustive list. This is evidenced by the 10th Amendment. The fact that our rights are inherent does not equate to they can never be taken away. I suppose for clarity I should have said “This is a dangerous way to think as it implies that the state can then LEGALLY take them away.” To illustrate: Do you have a right to life? Yes Can I blow your head off? Yes Because I can take you life, does this then mean that you don’t have a right to it? NO That is false logic. So, just because the state can act outside their Constitutional authority, doesn’t mean we don’t have rights. ---
**Author:** ![mmmbeer](https://avatars.discourse-cdn.com/v4/letter/m/ecb155/32.png) [@mmmbeer](https://boards.straightdope.com/u/mmmbeer)\ **Post date:** [October 31, 2012, 1:46pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/56 "2012-10-31T13:46:57Z")
> [@solosam](#): > > 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. The whole purpose of the Constitution was to limit what the government could do. The way it was written sets up a system that what is not specifically denied to the states or the people was permissible, BUT only what was specifically granted to the government was permissible. > [@](#): > > 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. They could not have ratified the Constitution if it freed the slaves. Not making a statement as to the morals involved in the expedient route, only that we would not have a country. > [@](#): > > 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. Let’s leave the Creator question out of it. We have plenty to chew on without injecting that. I assert that I am born with rights. The fact that the state has the power to overstep it’s authority doesn’t mean I don’t have rights. By your logic, if a thief can accost me and take my watch, then I have no property rights. Can’t you see how that position is ludicrous? ---
**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 31, 2012, 1:51pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/57 "2012-10-31T13:51:42Z")
> [@Senegoid](#): > > If you are already well aware that you have the right to remain silent, to have a lawyer, etc., why would you care if you get Mirandized? Can’t you just keep your mouth shut (or, maybe equivalently, speak up but only to announce that you decline to answer questions) whether or not they advise you that you have that right? In some jurisdictions, the right to remain silent does not attach _until_ you’ve _been_ Mirandized. I posted [this link](http://federalevidence.com/node/1351) earlier which explains it, but it doesn’t seem to be working. So, if you decline to answer questions at certain points the fact that you refused to do so may be held against you. Even when the right does attach, your refusal to answer may still be used against you for impeachment. A much greater concern is that most people have no idea what their rights are. Everyone who’s seen an episode of _CSI_ or _Law & Order_ can probably recite the standard Miranda warning, but that doesn’t mean they know what it means. The right to counsel generally does not attach until custodial questioning begins; for example, you are generally not entitled to counsel while being driven to jail in a squad car. So, if the cop who arrested you casually asks what you’ve been up to, and you say “well, I robbed a bank,” that may end up being admitted. [QUOTE=Senegoid] The implication I saw in that was (in the case of jury trial) that the judge would have specifically instruct the jury on that: If someone claimed that the sun was shining at 03:00 a.m. and nobody disputed that, then the judge would instruct the jury to accept that as fact. [/QUOTE] It doesn’t really work like that. What you are talking about is _legal sufficiency_ - the standard which must be met for a fact to be considered proved. The factfinder cannot conclude that fact X is true in the absence of any evidence. The corollary, that the jury must conclude that fact X is true if there is some evidence for it and no evidence to the contrary, is not true. The factfinder can’t make up their own evidence, but they are free to disregard the evidence that _is_ presented. They may choose to believe that a witness is lying or has poor recall, that a document is inaccurate, or whatever. They are certainly free to disregard the testimony of a witness who claims that the sun was shining at 3:00 am. [QUOTE=BigT] Apparently, discounting evidence obtained illegally is a privilege, not a right. Interesting. [/QUOTE] It’s called the exclusionary rule. It’s a foregone conclusion today, but the Founders and early courts apparently didn’t think so. Confessions obtained in violation of the Fifth Amendment were admissible in federal prosecutions until [1897](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=168&invol=532), and evidence obtained in violation of the Fourth Amendment until [1961](http://supreme.justia.com/cases/federal/us/367/643/case.html) (and still is, in many cases). ---
**Author:** ![mmmbeer](https://avatars.discourse-cdn.com/v4/letter/m/ecb155/32.png) [@mmmbeer](https://boards.straightdope.com/u/mmmbeer)\ **Post date:** [October 31, 2012, 1:56pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/58 "2012-10-31T13:56:09Z")
> [@Really\_Not\_All\_That\_Bright](#): > > **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: Ah, the mind reader is back. Welcome. I will thank you very kindly not state what I can or can not comprehend. Especially, when you are talking about something different than what I am talking about. I did not even address “self-executing and non-self-executing rights”. The fact that the court refers to rights as privileges doesn’t make it so and it is far from pedantic to correct them. As I pointed out it is dangerous to let people or institutions that are charged with protecting our rights get away with referring to them as privileges as that leads to the idea that the government can legally take it away like revoking your privilege to drive. ---
**Author:** ![mmmbeer](https://avatars.discourse-cdn.com/v4/letter/m/ecb155/32.png) [@mmmbeer](https://boards.straightdope.com/u/mmmbeer)\ **Post date:** [October 31, 2012, 1:58pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/59 "2012-10-31T13:58:05Z")
> [@For You](#): > > Which is what, specifically? The difference is that the state can LEGALLY (as in it has legal authority) revoke a privilege that it grants you like your driver’s license, but not a right, like freedom of speech. ---
**Author:** ![mmmbeer](https://avatars.discourse-cdn.com/v4/letter/m/ecb155/32.png) [@mmmbeer](https://boards.straightdope.com/u/mmmbeer)\ **Post date:** [October 31, 2012, 2:23pm UTC](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220/60 "2012-10-31T14:23:14Z")
> [@For You](#): > > The constitution provides you specifically with the right to bear arm. It says “right” not “privilege”. Yet if you are convicted of a felony, your right to bears arms is stripped from you. Your distinction does not seem correct to me, or perhaps it is not meaningful. THIS is a very interesting argument. Kudos. It could likewise be argued that person C is too dangerous of a writer to be allowed to publish his ideas and his right to free speech must be taken away…hmmmm Darwin for instance. How to build your very own nuke. I’ll have to think consider this… Well done. [Previous page](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220.md?page=2) [Next page](https://boards.straightdope.com/t/to-plead-the-fifth-why-not/639220.md?page=4)