What is the point of pleading the 5th?

General Questions
#1

When you plead the 5th, you’re effectively saying that you’re guilty.

In the OJ case, Detective Furhman is asked by the defense “Did you manufacture or plant any evidence in this case?” to which he pleads the 5th.

Why not just say yes? Everyone from that point on was always going to interprate that as meaning he had planted evidence.

So I see no reason ever to plead the 5th. Unless I’m missing something. If you plead the 5th, is the jury instructed to disregard the question or the answer? Is it kept off the record? If not, why does anyone plead the 5th if it is the same as incriminating yourself?

#2

Sayeth Wikipedia;

#3

Fuhrman wasn’t on trial in the OJ case, but if he had admitted in open court that he planted evidence he could have been prosecuted himself. However, since he asserted his right to avoid self-incrimination his answer could not be used against him in a subsequent prosecution.

Had OJ testified, any fifth amendment assertion could not have been held against him. To avoid the problem with the jury making assumptions, the judge will instruct them not to consider the implication of that answer. The parties will also generally hash out the lines of questioning before trial to avoid that sort of thing.

ETA: Griffin addressed a situation where defendant chooses not to testify at all, which is a corollary of the right to refuse to answer a particular question available only to a criminal defendant. It goes a bit further than that: except in limited circumstances, the prosecutor cannot even comment on the refusal to testify. Johnnie Cochrane was free to ask the jury to draw an inference of Fuhrman’s wrongdoing from his answer, though that answer would not have been used as substantive evidence if Fuhrman was later prosecuted.

#4

The prosecutor wouldn’t have to ask, I’m sure 99.9% of jury members would know that was an inference of guilt without being told to accept it as such.

#5

Jury members might think that. But they would be wrong. There are any number of reasons to refuse to answer questions other than guilt.

#6

And a guilty verdict arrived at on that basis would likely be overturned on appeal.

#7

And how does anyone know what basis the jury decided the case on? There are no transcripts or recordings of jury deliberations and the jury doesn’t have to deliver a written (or oral) explanation of its findings.

#8

Maybe, but self incrimination is far and away the main one. The fifth prevents you from being put on the stand, under oath, then asked about any crimes you may have committed.

#9

No, it prevents you from being obliged to answer questions that may tend to incriminate you. The answers don’t have to be tied to any crimes you actually committed, or to whatever is actually at issue in the trial.

It depends on what the other evidence is. If there is lots of other evidence of whatever inference the jury may have drawn, an appeal is likely to fail (but the jury is unlikely to have relied on the silence issue anyway). If there is no other evidence of that inference, the appellate court (or more likely the trial judge) will know that the jury impermissibly drew an inference of guilt.

#10

The juries on which I have served have been fairly scrupulous about adhering to the rules laid out by the court. In one trial, we heard testimony from a man who was wearing an orange jumpsuit and shackles, and who initially refused to testify. We were told to draw no inferences from any of these circumstances, and in our deliberations, we considered him solely as a witness to the crime, and did not discuss his situation or reasons he might have had to testify. Of course it’s not possible to tell what was going on in the minds of the jury, but we did ultimately accept his testimony as valid and credible.

In that trial the defendant did not testify, and we were told not to take that as evidence of guilt. Although part of reason for finding him guilty is that we did not have an alternate explanation for events, which he might have given us if he had testified, the mere fact that he did not testiy was not a reason for our decision.

As far as the fifth amendment is concerned, the most obvious reason someone who is not guilty might plead the fifth is that they are guilty of some other crime. But this should not impact the jury’s decision in the case they are hearing.

#11

For some reason, the idea of a witness (for the prosecution) “pleading the 5th” seems to be a horror scenario for the prosecution and the court.

I watched the Casey Anthony trial in 2011 and I distinctly remember one remarkable scene: There was a witness on the stand who happened to be present when the victim’s body was found. In my layman’s judgement, his testimony was ancillary, actually superfluous, but the prosecution apparently decided they wanted to build their case as thoroughly as possible.

Turns out this witness seemed to have had a minor “issue” with the law himself. The defense smelled a rat and they cornered the witness until he started to say: “On the advice of my attorney, I respectfully …”. He couldn’t even finish his sentence before all hell broke loose, the trial was interrupted, the jurors were rushed out of the courtroom and the camera for the livestream went dark. They even might have cleared the courtroom. At first I thought there was a bomb threat or a gunman on the loose. It was quite a spectacle.

#12

Has anyone mentioned the fact that the Fifth Amendment also protects witnesses who are not on trial? It also protects people outside of the courtroom. For example, during a police encounter.

If an officer pulls you over for a broken taillight or something, and asks you, “do you have anything illegal in this car?” If you do, in fact, have something illegal in the car, what benefit do you get from answering that question?

I suspect many defendants hang themselves well before the matter ever goes before a jury, by simply being blabbermouths to the police.

#13

I can say that some non-zero percentage of jurors will follow the judge’s instructions on things like ignoring improper evidence. In my opinion, any random jury would very likely have more than one juror who would be more thoughtful than conclude, “He invoked the Fifth! Hang him!!!”

All it takes is one juror not to ignore the Constitution and protect someone from being unjustly convicted.

#14

Of course, in the OJ trial, it was Fuhrman pleading the fifth. Nobody thought he’d killed Mrs. Simpson, so in this case the fifth helped the defense.

the problem is, they ask something like “have you ever planted evidence?” This guy had been a gung-ho detective in a big city - to me, that sounds like a fishing expedition… (“Goes to character and pattern of behavior, your honor”?) It would be like asking “have you ever told a racist joke” or those in-depth hiring interviews, “have you ever taken anything from your workplace”, or “have you ever stolen anything”. it’s a no-win situation. You either admit that yes, meaning you helped yourself to office supplies or told that KKK joke, or you lie.

I don’t know about the Casey Anthony thing, but I suspect that dredging up something that made the guy plead the fifth was just a ploy to help discredit a prosecution witness. Whether the guy was taking a nature walk or poaching gators or stashing his drugs would be irrelevant to finding a body, and so really should never have been a matter for testimony. (If they went through that much effort to keep it quiet, one wonders if they were straying into police informant territory, on-going investigation, or something else hush-hush.)

the point of the fifth is that unlike the French system or a Grand Jury, the court can’t force the defendant to take the stand and answer interrogations. (In Grand Jury, they are free to plead the fifth, but I don’t know if that is allowed to influence the decision to indict?) Basically, the prosecution must prove the case without coercing testimony from the defendant. Of course, there have been several threads on this - once a defendant begins to testify about something, they can’t stop. I.e. can’t say “I was watching TV with my mother” then not answer what TV show, tell me what happened, why didn’t you answer the door to pay for the pizza at that time, how did you get there, etc.

#15

I should also add, the defendant NOT testifying is pretty much standard. Even with innocent defendants, the lawyer will typically strongly advise their client not to testify. So the jury does not get to see the defendant get asked “did you kill your wife?” and plead the fifth. He usually never even takes the stand.

#16

Please correct me if I am wrong, but I thought Fuhrman was asked if he had ever planted evidence.

#17

When asked on the record about crimes you may have committed, why would anyone ever answer affirmatively. Those statements can be used against you.

ETA: unless you’ve already negotiated immunity for your testimony.

#18

Right, the question never gets asked and the defendant doesnt have to refuse to answer it in the first place.

But in general, one should not answer incriminating questions. or talk to the Police when they think you are a possible suspect. (If you are detained, arrested or they have read you your rights)

#19

In addition to this, the 5th Amendment plays a huge role in custodial interrogations. A smart criminal (or a citizen wrongfully accused) will decline to talk to police without a lawyer present. The 5th Amendment is what gives them the right to do so. Fortunately, most criminals are idiots.

As for the matter of juries, a juror can vote however he wants for whatever stupid reason comes to mind. Nobody can “force” a juror to confess his reasoning, so unless the juror actually admits to it there is no way the judge can know the reasons.

#20

But you aren’t. Not legally. This can matter in many ways, even if you think a jury might consider it a sign of guilt. And most jurors understand that, so they don’t automatically assume it’s a sign of guilt. They know that sometimes it is better not to talk even if you are NOT guilty, because you can say incriminating things you don’t mean to say.

And even if you are, the point is that you cannot be compelled to speak. So if you refuse to talk, you can’t be sent to jail for contempt of court, for instance.