Reading some headlines about the Martha Stewart trial brought to mind some general questions about trial procedure. As I understand it an accused can refuse to “take the stand” if called to testify by the prosecution. (The prosecution can question the witness, however, if the defense calls the accused to testify, I’m pretty sure.)
Is the prosecutor even allowed to call the accused, even though he/she knows the accused will refuse? I would think the prosecutor would like the jury to actually see the accused refusing to take the stand. Or does our trial system deprive the prosecutor this little theatric?
Is “refusing to take the stand” the exact same thing as “pleading the Fifth”?
Is there any question that an accused can not refuse to answer at trial?
NOTE: I’m not looking for Martha Stewart trial answers here, just general trial procedure answers. But feel free to use her as an example if it helps illustrate your reply. Thanks all.
The prosecutor is not permitted to call the accused to the stand. The accused has an absolute right to not testify. The “little theatric” of calling the accused and having him refuse to answer question is deemed far too prejudicial. The prosecutor is not permitted to refer to the accused’s silence in argument; the idea that a prosecutor could highlight a refusal to testify is far more prejudicial and is simply not permitted.
However, if the accused voluntarily takes the stand in his own defense, the prosecution is absolutely entitled to cross-examine, just as with any other defense witness.
In the context of a trial, and focusing only on the accused, yes. However, any witness may “take the Fifth” even if they are not the one on trial. So the phrase “taking the Fifth” encompasses a more expansive set of circumstances than simply refusing to take the stand.
It depends. If the accused testifies on direct examination, he waives his Fifth Amendment rights for cross-examination. So, generally and liberally, any subject covered in his direct examination is fair game on cross, and he may not refuse to answer a cross-examination question that explores territory he put into issue with his direct examination.
However, he may still assert a Fifth Amendment privilege if the prosecution were, on cross, to veer into some other, uncharged area. If an accused arsonist is on trial for setting the police station on fire, and the prosecutor asks him if he defrauded widows out of their savings in a land-sales scheme, he may refuse to answer the question. (In fact, the question itself is objectionable on other grounds, but you get the idea).
Ok. The standard disclaimers apply. Also, there is some variation between jurisdictions.
Not in a criminal trial. For exactly that reason. Calling a witness simply to cause the witness to invoke the fifth is a no-no. And besides that, in a criminal trial, it is the accused’s privilege not to take the stand at all. If a prosecutor has some sort of exception in mind, it should be raised in a pretrial motion–not in front of a jury.
No. The Fifth can be invoked at any time. However, Supreme Court case law says that if you testify about a subject to the extent that you have already incriminated yoursefl, you can’t raise the Fifth in an attempt to avoid testifying about the details. Again, the Fifth is really two privileges when it comes to criminal trials:
a. It gives the Defendant the right to refuse to take the stand.
b. It gives the Defendant the right to refuse to give incriminating testimony.
Moreover, under Miranda it gives the Defendant the right to refuse to answer questions whenever the Defendant is in police custody.
The Fifth Amendment to the U.S. Constitution provides, in relevant part: “No person . . . shall be compelled in any criminal case to be a witness against himself.”
The prosecutor is not allowed to call the defendant. It is entirely the decision of the defendant as to whether or not to testify. The “little theatric” you suggest would be highly prejudicial to the defendant. I don’t do criminal law, but I’m pretty sure that the prosecutor is not allowed to argue based on the defendant’s not testifying.
The defendant’s right not to testify at trial is one right protected by the Fifth Amendment, but when “pleading the Fifth” is used, it more commonly means refusing to answer questions in a situation other than your own trial. In short, your right not to be a witness against yourself is broader than actually testifying at your trial.
For instance, if the police want to question you, you have a Fifth Amendment right not to answer, because under the rules of evidence, what you tell the police can be used against you at trial (making you a witness against yourself). Similarly, you can’t be compelled to make any self-incriminating statements at someone else’s trial or if called to testify in a legislative or administrative hearing. There is an exception, however, if you are given immunity, a hightly technical legal concept under which what you say cannot be used against you, so you can be compelled to testify.
Generally, at trial, if the defendant refuses to testify, the prosecution cannot question him or her. However, if the defendant does testify, he or she may open up areas about which the procecution may be entitled to question. As criminal law is not my field, I can’t give you any more details than that.
I believe that in a non-trial context, certain things like questions about identiy are not protected by the Fifth Amendment.
Correct. The general rule is that a direct reference to an accused’s failure to testify is per se prejudicial; an indirect reference is still not permitted, but may pass muster and not require reversal under harmless error analysis.
I think we’ve discussed immunity in some detail before on the boards, but I forgot to mention it and I’m glad you did. There are basically two kinds of immunity: use and transactional. Use immunity means that nothing you say may be used against you - your testimony, and any evidence developed from your testimony, cannot be admitted into evidence against you. This is the sort of grant that is considered to cover Fifth Amendment protections (it’s “co-extensive” with the Fifth Amendment). Note that you could still be prosecuted for the acts, as long as the prosecution didn’t use your admissions, or any evidence developed from your admissions, at trial. A judge may order you to testify after granting you use immunity.
Transactional immunity means that you are immune from prosecution for any of the acts that you testify about. In other words, regardless of whther th ecops come up with separate evidence or not, you simply cannot be prosecuted for the crimes covered by the grant of immunity.
You may also be confusing criminal trials with the dramatic footage of the mob bosses refusing to testify in front of Congressional committees. While they still have the right not to say anything incriminating, I believe they can still be compelled to take the stand, if only to state their name and refuse to answer any other questions.
Isn’t it true that until relatively recently in either the U.S. or U.K. an accused was not allowed to testify, because if guilty s/he would be tempted to lie under oath and thereby be condemned to hell? As you see, my recollection of this bit of trivia is hazy.
And what about refusing to swear on a bible or with any reference to God? Can that be overtly or subtly referenced during cross? Are there still courts in which one has to ask that God not be invoked? (The only time I had to testify, neither God nor the bible was present.)
Ten years ago, in my state, my oath was the standard tv court-room drama oath except for the reference to God. I was wondering what the standard is now.
“[M]any magistrates … were reluctant to make orders which would increase the burden on local ratepayers. The Society of Clerks of the Peace regarded the scheme as a means by which villains could escape their just deserts at the public expense. Judges were inclined to think that the rights of prisoners were safe in their hands.”
Well, things certainly haven’t changed much.
But was the refusal to allow the accused to testify related to the fear that perjury would condemn them to hell, whereas losing the case would just condemn them to death.