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Under the Fifth Amendment, one might say at a hearing, "I refuse to answer on the grounds that it would incriminate me." Suppose the subject matter were embarrassing, but not necessarily criminal. Examples follow:

  1. I refuse to comment on an adulterous affair with the defendant. I believe, that adultery is illegal. (In fact, it is illegal in 22 states, although it is almost never prosecuted.)

  2. I decline to comment, even though I was a witness to the action, because to get there in time, I would have to admit to speeding. "Speeding" is, in fact, illegal, but "trivially" so.

Would someone be within their rights to "take the Fifth" in either or both cases? If they were not lawyers and honestly believed that they were properly invoking the "Fifth" would they get off with a warning?

Libra
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  • @xuhdev: No. I, the OP. I've never known of a government entity that could commit adultery, or run a red light. – Libra Nov 14 '19 at 05:21
  • It may be interesting that in England defendants had no legal rights to give evidence in their own defence in any situation until about 1880, for the exact opposite reason from "self incrimination!". The current English "right to silence" is more general that the 5th, in that no reason is required for it. There are only a few specific exceptions, most of which only involve identifying oneself or another person by their name and address (e.g. the case of a vehicle accident, it is a specific criminal offence for the "registered keeper" of the vehicle not to identify the driver to the police). – alephzero Nov 14 '19 at 15:53
  • @alephzero. That's right. The full quote in UK is "You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court.". In essence they are just saying you can remain silent, but if you provide new information when asked by the court the court will give less weight to these because you provided them ad-hoc and not preemptively. Basically the choice is on you, and so is the risk ... – Hoki Nov 14 '19 at 17:13
  • You can plead the fifth to a speeding ticket all you want, you still have to pay the fine. – Mast Nov 14 '19 at 18:32
  • @Mast "The fifth" isn't that kind of a plea. – Beanluc Nov 14 '19 at 18:41
  • @Beanluc OP seems to think so based on the 2nd example. – Mast Nov 14 '19 at 18:44
  • @Beanluc: No, the hypothetical issue was, "were you a witness to an accident at such and such intersection at such an such a time?" If I answered yes (and I was), I would admit to "speeding," given that I had left a nearby location with too little time to drive normally. – Libra Nov 14 '19 at 19:08
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    OP wrote "... on the grounds that it would incriminate me." You do not need to be guilty of something to use the 5th amendment. If that were a requirement, then you would essentially be saying "Yes, I did it." You can use it whether you are guilty or not, and to preserve this right it is intended that you sometimes use it even when you are innocent. – Aaron Nov 14 '19 at 22:46
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    Surely a court would consider sanctions for the act of claiming the fifth only in the most ridiculous cases. The more likely issue would be the penalty for continuing to refuse to testify after either (a) you've been granted immunity or (b) the court has judged that there is no danger for you to hide behind. – dmckee --- ex-moderator kitten Nov 15 '19 at 16:11
  • @dmckee: OK, so the sanctions are for "continuation" and not for the first invocation of the "Fifth." – Libra Nov 15 '19 at 16:43
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    @Mast in theory if the officer measured your speed with an approved speed measuring device, then your testimony should be superfluous to the case against you. But sometimes the officer gets to calibrate the device, batteries dead, etc., etc. If you are asked how fast you were going, then invoke the 5th. If the officer dotted all the i's and crossed all the t's then you will still have to pay the fine. Invoking the 5th is not a "Get Out of Jail" card, but sometimes it works for you. It will never work against you. – emory Nov 15 '19 at 22:24

2 Answers2

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In the US, a person is "within their rights" to invoke the Fifth Amendment, i.e. refuse to self-incriminate. However, the government can give a person immunity from prosecution for offenses having to do with the testimony, in which case he can be compelled to testify. A person is not required to guess about whether they could actually be convicted based on their testimony. It is the privilege of the court (judge) to determine whether a witness has "a reasonable cause to apprehend danger from a direct answer" (Ohio v. Reiner, 532 U.S. 17).

user6726
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    Am I misunderstanding; or does this not "fix" the misunderstanding in OP's first example? I.e. (assuming the courts don't grant immunity) the person won't elaborate but will also not be in trouble for refusing to answer? In short, what would happen to that person, assuming the courts don't grant immunity (e.g. because they are unaware if there is a serious crime hidden in the person's answer)? – Flater Nov 15 '19 at 10:37
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[I didn’t see user6726’s excellent answer until after I finished mine. There’s quite a bit overlap — except that he discusses immunity, which I ignore — but I think there’s enough difference that some readers may benefit from seeing both.]

TL;DNR: No, you could not “take the 5th” to avoid embarrassment. If you tried and got caught, you’d get in trouble. As for your speeding ticket hypothetical: I’ll take the 5th!

To answer this question, it will help to be clear on what it means to take the 5th. Contrary to popular belief, taking the 5th is not about admitting guilt. Taking the 5th is about avoiding legal trouble caused by one’s testimony. As Justice Clark said in 1951, in Hoffman v. US, a witness can only take the 5th if she “has reasonable cause to apprehend danger” from answering the question.

(This explains why an innocent person can take the 5th. Since some innocent people look guilty, and some innocent people are found guilty, some innocent people might reasonably fear that testifying will get them convicted. To avoid that danger, they, too, can take the 5th.)

As you point out, witnesses might face a variety of non-legal dangers if they testify, such as embarrassment. Or they might be confused about the legal dangers they face. What keeps these witnesses from “falsely” taking the 5th?

The answer is simple. As Justice Clark said in Hoffman,

“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, and to require him to answer if it ‘clearly appears to the court that he is mistaken.’”

Figuring out whether a witness really will be in danger if she incriminates herself raises some tricky problems. To convince the judge, the witness may have to actually incriminate herself. To prevent this, the judge will talk to the witness in private. If the judge finds the witness is not in danger, he will order her to testify. If she does not, the judge can put her in jail, or fine her, for contempt-of-court.

To see the problem judges face, consider why I took the 5th on the speeder question. My hunch is that the speeder cannot take the 5th. It seems to me that the danger she faces is too “small” compared to the damage caused by not hearing her testimony. But I am not sure; I worry that I might be wrong. To avoid embarrassing myself by showing my ignorance, I took the 5th to avoid answering the question. Here’s the catch: By explaining why I need to take the 5th, I end up incriminating myself, in which case, I don’t need to take the 5th!

Just a guy
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    I don't see that as a catch. "The defendant admitted it to a judge". Where was this alleged location? "In chambers." What was the subject matter of the discussion? "The validity of a 5th Amendment refusal". Bang dismissed, inadmissiable.. – Harper - Reinstate Monica Nov 14 '19 at 15:44
  • I don't think it's true today, but I believe that in 1951, adultery was criminal in at least some states. It's "criminal" in other legal forums such as the Bible, and in many foreign countries. As a layman, I could reasonably say that I take the fifth because I don't know where and when adultery is illegal. – Libra Nov 14 '19 at 16:04
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    @Harper-ReinstateMonica Yes! That's exactly the point I was trying to make: Judges talk to witnesses in private so anything they discuss is inadmissible. – Just a guy Nov 14 '19 at 17:01
  • @Libra Driving down the road without a horseman preceding you waving a lantern, is still illegal in Indiana. – Harper - Reinstate Monica Nov 14 '19 at 17:07
  • @Libra You are right, as a layman you could reasonably believe that you were in danger. Justice Clark's point is that your sincere but wrong belief is not enough to trigger the 5th. In his words, your "say-so does not of itself establish the hazard of incrimination." That is why the judge has to investigate, to see if your claim to the protection of the 5th is legally justified. – Just a guy Nov 14 '19 at 17:09
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    @Harper-ReinstateMonica I hate to be that guy, but that lantern fact is one of those fun facts that’s only true on the internet. The Indiana Motor Vehicle code mentions lanterns a lot, but never in that way. Here is a fun fact about Indiana law that is true: There are so many Amish in Indiana that Elkhart county put together is “Horse & Buggy Drivers Manual.” It is interesting. http://www.elkhartcountysheriff.com/resources/horse-buggy-manual/ – Just a guy Nov 14 '19 at 19:34
  • @Justaguy Yeah but there are stupid laws like that around... often they're embedded in the wrong Act which is why they were missed. I would have expected the buggy book in PA, VA or as I learned recently, OH and MI... so wow, pretty much all the Breakfast States. (I misheard Michael Moore call them the "Breakfast States"; he meant Brexit.) Having it be on PDF, I would not expect. Maybe it's for the Mennonites :) – Harper - Reinstate Monica Nov 14 '19 at 19:42
  • No, you could not “take the 5th” to avoid embarrassment. If you tried and got caught, you’d get in trouble. Really? What would the sanction be? If you tried and the judge allowed it then I suspect that matter is closed. – President James K. Polk Nov 14 '19 at 21:28
  • @Justaguy If Harper's point is the point you were trying to make, I think that warrants an edit! I, too, had trouble following that part. I think you left the conclusion up to the imagination, but for us commonfolk, the conclusion needs to be spelled out more clearly – Mars Nov 15 '19 at 01:46
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    I'm pretty sure the judge will not ask to speak to the witness privately. In addition to all the problems of making a judgement based on testimony not on the record, Hoffman says it's not necessary: "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" – Ross Ridge Nov 15 '19 at 01:47
  • "you could not “take the 5th” to avoid embarrassment" - could you do it to avoid retribution from criminal organizations or terrorists? Or does the protection of the 5th amendment only apply for protection against being sentenced by your own government? – vsz Nov 15 '19 at 07:08
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    @vsz The 5th Amendment only protects you against the possibility of being convicted by US governments. That's because the 5th Amendment says no person can be compelled to "be a witness against himself" in a "criminal trial." It does not protect against private groups that want to hurt you, or against foreign governments that could use your testimony to convict you. There's an irony here: The 5th Amendment protects a mob hitman who fears a criminal conviction, but not an innocent bystander who fears mob retribution. – Just a guy Nov 15 '19 at 07:54
  • @vsz : I suppose that the proper thing to do here is, once you get in the judge's chambers if not earlier, to explain the situation and ask about witness protection. You might be allowed to testify anonymously with a disguised identity, for example. In extreme cases, the FBI has a programme to resettle people and their families in a new location under a new name. – Toby Bartels Nov 15 '19 at 22:08
  • @Mars Apologies! Today got away from me, but I should have some time tomorrow to make the edits you suggest. – Just a guy Nov 16 '19 at 02:59
  • @RossRidge I agree with your reading of Hoffman, but this is another case in which a Supreme Court opinion is not a good guide to what happens in the real world. In the real world, judges continue to meet with witnesses in camera to discuss whether the witness should be allowed to take the 5th. I am not a 5th Amendment specialist, so I can’t say how common this is, but it is common enough that it’s mentioned in decisions, and in practice guides for lawyers (and judges). I don't have citations at hand. Let me know if you'd like them and I'll post some. PS Sorry it took so long to answer. – Just a guy Nov 16 '19 at 03:02
  • @Justaguy: During a bench trial, would such issues be handled by someone other than the fact-finding judge? Having a witness talk with a fact-finding judge outside the presence of counsel would seem improper, but having counsel present when a witness is discussing potentially-self-incriminating issues would also seem problematic, especially since if counsel have interests contrary to those of the witness. – supercat Nov 16 '19 at 20:24