More on the Fifth

In response to this post about prosecutors advising witnesses who wish to take the Fifth, an anonymous Harris County prosecutor wrote:

Before you are too hard on the D.A.s for telling a witness that they can’t plead the 5th on the stand, you should realize how often that comes up for us. Too many witnesses believe that a lack of interest in testifying means that they can plead the 5th. Or the fact that they don’t want to rat out their friend works for them too. I agree that if there is some true criminal exposure that we’ve got no business telling them that they can’t plead the 5th. I don’t know what everybody else does, but I will let a witness know if I think there is even a remote possibility that they need a lawyer.

In fact, a lack of interest in testifying is an excellent reason to plead the Fifth. The fact that you don’t want to rat out your friend is another. So is a desire to make the prosecutor actually work. When a witness takes the Fifth, he doesn’t have to justify it to anyone. You can take the Fifth and refuse to talk to the police and prosecutors because this is America.

That’s not just my whacky radical defense-lawyer philosophy; it’s the law. Here’s how it works: if you take the Fifth, there’s not a damn thing the prosecutor or the court can do, other than give you immunity. If you get immunity and testify, and it turns out that your testimony was in no way incriminatory — even if it becomes apparent that you were just trying to protect your buddy — there’s not a damn thing the prosecutor or the court can do about it. If you don’t get immunity and don’t testify, there’s not a damn thing the prosecutor or the court can do about it. In other words, you can’t be punished for taking the Fifth, regardless of your secret reasons for doing so.

(For an excellent explanation of why immunity statutes are themselves violative of the Fifth Amendment, see Freedom Spent, which I link to below.)

If a prosecutor sees a remote possibility that a witness needs a lawyer, then it’s a good idea for him to tell the witness that. But even when the prosecutor doesn’t see that possibility — and even when the witness himself doesn’t see that possibility — it might be there.

Richard Harris, from “Freedom Spent: Tales of Tyranny in America”:

In legal terms, of course, what is a lie and what is not is up to a jury to decide. One may believe that one is telling the truth when being questioned [by agents or police], only to later recall events somewhat differently; if one then tells the revised cersion of those events before a grand jury or a court, one can be prosecuted for having lied in the first place. even as seemingly small an untruth as telling a government official that one doesn’t know anything about what is being inquired into when one does know something about it is a criminal act . . . . some lawyers would argue that the only sensibly self-protective course for anyone, guilty or innocent of wrongdoing, is to refuse to speak to any government agent unless a lawyer is present. . . .

Generally a prosecutor’s idea of what a witness will say comes only from the offense report and his own previous discussions with the witness. The prosecutor doesn’t know (a) whether the witness really told the police what the police say he told them, or (b) whether the witness was telling the truth to the police or to him (and of course a witness with more than half a brain will not tell the prosecutor that he lied to the cops). If the witness gets on the witness stand and, under oath, tells a story different than the one the cops say he told before, he might face criminal liability for lying to the cops, regardless of whether he actually said what the cops claim he said.

(I say that the prosecutor doesn’t know whether the witness was telling the truth to the police, but sometimes a prosecutor does know that a witness’s intended testimony under oath will be different than her statements to the police. The prosecutor threatens to charge the witness with making a false statement to the police if the witness testifies that the police report was false. In this scenario, does the prosecutor give the witness the correct legal advice: “you need to get a lawyer”? I’ve never heard of it happening.)

A prosecutor doesn’t know what the truth is, and doesn’t know what possible exposure the witness might have. So a prosecutor never has any business telling a witness that he doesn’t need a lawyer.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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10 Responses to More on the Fifth

  1. Anonymous says:

    Ouch. I think you assume too much by saying the prosecutor doesn’t know what he’s talking about. You clearly have never had the occasion to have a witness tell you “I have to work next Tuesday, so I’m just going to take the 5th and not come to court.” I wasn’t talking about a prosecutor making a judgment call on whether or not their a person is worthy of the 5th. What I was trying to talk about was witnesses using the 5th as a “I don’t feel like coming to court” card.

  2. Mark Bennett says:

    Oops. I did assume too much. But so did you: how do you know that the witness is not clumsily concealing his real reason to take the Fifth?

    Even if the witness is telling you the truth, this is an excellent example of someone who’s entitled to take the Fifth unless immunized. The right to take the Fifth doesn’t depend on the person having a “good” reason or, indeed, any reason at all.

    It doesn’t get him out of court, though: the prosecutor’s correct response would be, “that’s fine; we’ll deal with the Fifth Amendment when you come to court on Tuesday, but meanwhile you’re still under subpoena, and if you’re not there I’ll ask the judge to send a deputy out to your work and bring you in to court.”

  3. Anonymous says:

    Good point. And in all honesty, it doesn’t come up too often. I think in the time I’ve been there, I’ve dealt with a witness invoking the 5th less than 5 times, and I’ve offered immunity in advance on only two occasions.
    I think the fundamental difference between our sides of the debate is that I’m making the assumption that the 5th Amendment claim is B.S. in the scenario I’m envisioning, and you are assuming its his last vestige of hope in yours. Perhaps we are both correct, and thus, legal geniuses.

  4. Mark Bennett says:

    My point (soon I’ll figure out how to make it clearly) is that there is no BS Fifth Amendment privilege. A person does not need a good reason, or any reason at all, to take the Fifth. Innocent people have as much right not to talk to the government as guilty people.

  5. jimbo says:

    “Innocent people have as much right not to talk to the government as guilty people.”

    No, they don’t. Prosecutors and the courts have the authority to subpoena and compel people to testify. Failure to testify is punishable by contempt.

    The right not to testify only applied to incriminating statements. Truly innocent people do not make incriminating statement because they are innocent.

    There is no right in the Constitution to obstruct justice.

  6. Mark Bennett says:

    You’re flat-out wrong, Jimbo.

    Taking the Fifth is never punishable, even when in the prosecutor’s opinion it works to obstruct justice.

    Telling the truth, however, is often punishable when the prosecutor thinks the truth is otherwise.

    The only legal way a prosecutor can compel someone to talk over an invocation of the Fifth is to give him immunity. A court order to answer a question, made over an invocation of the Fifth, acts as a grant of use immunity.

    The person who thinks he is innocent is almost universally better off not talking without first receiving immunity because he has no idea what kind of liability talking might create.

  7. jimbo says:

    Here’s a fact that I’d like your opinion on (I know lawyers love fact patterns).

    You are representing Defendant X on Charge Y. You believe X to be innocent because of a credible alibi witness Z, the ex-girlfriend of X. Z, if she testifies truthfully, will say that X and her were in the throes of passsion all night long when the crime is alleged to have taken place.

    For whatever reason, once called to testify by you, Z refuses to testify as to X’s whereabout on the night in question. Maybe there’s been a falling out between X and Z, maybe Z doesn’t want her husband to know what was going down. Whatever the reason, Z refuses to testify and “takes the Fifth.”

    Z was not engaged in any illegal behavior. Without the testimony of Z, your client will probably be convicted and spend the rest of his life in prison.

    Should the Fifth Amendment, the protection against incriminating one’s self, be able to be twisted in such a manner?

  8. Mark Bennett says:

    “Should”? No, it sucks.

    “Can”? Absolutely.

  9. Anonymous says:

    Jimbo is right, Mark. The 5th Amendment deals with the right to be protected against self-incrimination, not the right to decide you don’t want to testify “just because”. I understand that it would be quite lovely for a defense case if ALL the witnesses decided to plead the 5th so that the case against a Defendant just goes away, but I think you are expanding the 5th too far in your assertions.

  10. Mark Bennett says:

    Let’s forget what we think the Fifth means and look at the practicalities:

    A witness takes the Fifth. Can the prosecutor and the court inquire into the grounds? No.
    Can the witness be punished for not answering questions? Only if he has been ordered to answer.
    When can the court order a witness to answer a question? Only if it is ‘perfectly clear, from a careful consideration of all the circumstances in the case that the answer cannot possibly’ tend to incriminate the witness. In those circumstances, even if the judge is wrong about the incriminatory nature of the testimony, an order to answer is a grant of immunity (because ordered testimony is compelled, and compelled testimony is inadmissible unless the witness has explicitly waived his Fifth-Amendment rights).
    The prosecutor can always give use immunity and thereby compel a witness to testify. After a witness has been given immunity and answered questions, can he be punished because his answers are not inculpatory? No.

    So as a practical matter (which is after all what really matters when a witness is deciding to take the Fifth) any witness can seek the protection of the Fifth Amendment and force the prosecution (or in some circuits the court) to immunize him.

    Apropos of Jimbo’s question, in some circuits federal courts may order judicial use immunity if a witness’s testimony is material, exculpatory, and otherwise unavailable. Interesting. In the Fifth Circuit, even, the court may force the government to immunize defense witnesses if the government has abused its immunity power.

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