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Suppose a defendant testifies at a criminal trial and is advised beforehand that the prosecution has a right to cross examine him. Suppose the defendant answers all of his lawyer's questions on direct examination.

Would that defendant be able to refuse to answer some (or any) of the questions the prosecution asks on cross examination? I would expect the prosecution to ask questions that would tend to incriminate the defendant, and I'm wondering if, by voluntarily testifying on direct, the court would see his right to remain silent as being waived permanently, or if the court would be fine with the defendant re-asserting his 5th amendment rights during cross.

Greg Schmit
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  • Why not suppose, being advised beforehand that the prosecution has a right to cross-examine is irrelevant; changing nothing?

    If answering questions on direct examination matters, how is that?

    If not the homework for a Law class, is this about big-or-small screen representation of Law?

    What does your Law course, or the screen, say about prosecutors asking incriminating questions?

    Are you suggesting the screen guys usually get the 5th amendment wrong, or what?

     – Robbie Goodwin Apr 30 '23 at 15:18

3 Answers3

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No, a defendant may not remain silent on cross-examination.

Witnesses who voluntarily testify in their own defense are subject to cross-examination on that testimony.

In Fitzpatrick v. United States, 178 U.S. 304, (1900), a murder defendant testified that he was at two bars and then his cabin the night of the crime. The trial court held that having waived his Fifth Amendment right to remain silent, the defendant was subject to cross examination about what he was wearing that night, his connections to a co-defendant, the co-defendant's clothes, and who else was at the cabin with him. The Supreme Court affirmed the conviction, holding that if a defendant voluntary makes a statement about the crime at trial, the prosecution may cross-examine him with as much latitude as it would have with any other witness:

The witness having sworn to an alibi, it was perfectly competent for the government to cross-examine him as to every fact which had a bearing upon his whereabouts upon the night of the murder, and as to what he did and the persons with whom he associated that night. Indeed, we know of no reason why an accused person, who takes the stand as a witness, should not be subject to cross-examination as other witnesses are.

Fitzpatrick v. United States, 178 U.S. 304, 315 (1900).

bdb484
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  • Isn't this limited to questions incriminating for what the defendant is being tried for? Or must he answer questions potentially incriminating him for other crimes too? – Greendrake Apr 26 '23 at 02:25
  • I've never heard of a court limiting it in that way. – bdb484 Apr 26 '23 at 02:53
  • @Greendrake It's limited only to questions that the prosecution can justify asking as part of that cross-examination. If the question is fair game for the prosecutor to ask (as determined by the judge and relevant law) then the defendant must answer it. – David Schwartz Apr 26 '23 at 06:37
  • @DavidSchwartz Even if that means admitting commiting a crime not related to the one being tried? Eeeek! – Greendrake Apr 26 '23 at 06:39
  • @Greendrake Yep. But you can see why the rule has to be this way. Otherwise, the defendant could be deliberately and maliciously misleading on direct and the prosecutor would be unable to truly cross examine them. If the question is within the scope of rebutting what was said on direct, it's fair game on cross. – David Schwartz Apr 26 '23 at 06:47
  • @DavidSchwartz Yes I can see why the rule has to be that way, but I can't see how it can be constitutional. Understandably you voluntarily relinquish your 5th amendment rights by electing to give evidence, but I'd expect that you only do so in relation to the crime being tried and not any other crimes you may have committed. – Greendrake Apr 26 '23 at 07:23
  • @Greendrake It's waived with respect to the scope of whatever you put in your direct testimony and anything that could reasonably rebut what you chose to put in there. If it's not in relation to the crime being tried, don't open it up on direct and you won't have to answer about it on cross. – David Schwartz Apr 26 '23 at 07:52
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    Yes, so Fitzpatrick probably could have been cross-examined about whether he had also robbed the murder victim or whether he had been using drugs at home at the time of the murder, but he probably couldn't have been cross-examined about whether he had paid his income taxes that year or run a red light on the way to trial that morning. – bdb484 Apr 26 '23 at 12:13
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    Nevermind the anachronisms. – bdb484 Apr 26 '23 at 12:14
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    IANAL, but I assume the defense attorney can object to questions that are irrelevant to the current case. – Barmar Apr 26 '23 at 14:07
  • OK, but what about a witness other than the defendant? - is user6726 accurate? – Carl Witthoft Apr 26 '23 at 17:26
  • I'm not sure. It's an interesting but separate question. – bdb484 Apr 26 '23 at 18:25
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    @Greendrake: I believe a different crime is usually out of scope for a cross examination questions anyway, unless testified about in the initial testimony (which is 5th amendment waived). E.g. If Alice testified that she couldn't have murdered Bob, because she was busy robbing Charlie, then the prosecution should be able question her about robbing Charlie. As I understand it, ALL cross-examination questions are limited to either the matters discussed in the primary testimony, or about the witness's credibility. – sharur Apr 26 '23 at 20:44
  • Did the court hold that the defendant could be found in contempt for failing to answer questions on cross-examination, or merely that it was proper for the prosecution to ask such questions and instruct both the defendant and jury that refusal to answer questions on cross examination may justify severe adverse inferences about the credibility of earlier testimony? – supercat Apr 26 '23 at 22:53
  • @sharur That seems to be false as per bdb484's upvoted comment above: the defendant can be asked whether he had also robbed his murder victim even if the robbery wasn't mentioned in the primary testimony. – Greendrake Apr 26 '23 at 23:03
  • @supercat Fitzpatrick held that the questions were not improper. Subsequent cases have affirmed contempt convictions for refusing to answer incriminating questions after waiving the Fifth. – bdb484 Apr 27 '23 at 15:40
  • @bdb484: Contempt for the defendant on refusal to answer questions in a murder trial is preposterous. The government has no power in fact to compel because the penalty for the contempt charge is nothing compared to the murder charge. (Incidentally the same is true of perjury but if he's going to be caught at perjury he has sunk his murder defense.) – Joshua Apr 27 '23 at 20:05
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Perhaps. This article addresses the balance between the 5th Amendment protection against compelled self-incrimination, and the Confrontation Clause of the 6th Amendment. For example, a defense witness cannot refuse to answer a question that is solely about the witness' credibility. The basis for such a refusal is limited to protection against self-incrimination. Then, the witness can still be compelled to testify if granted immunity from prosecution (since there is no risk of incrimination). There are other protections pertaining to convicted defendants and the likelihood of a death sentence or a more severe non-death penalty. For a non-defendant, the right is asserted on a question-by-question basis. However (Rogers v. US, 340 U.S. 367), when a witness has voluntarily self-incriminated, they cannot then refuse to answer further questions that supply details. Even then, the right is not waived entirely, and exists in terms of increased risk of incrimination.

Toby Speight
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user6726
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    That article seems to address the clash between 5A/6A when a defense is cross examining a witness for the prosecution; I'm mainly interested in the case of a defendant not answering when the prosecution is cross examining the defendant. – Greg Schmit Apr 25 '23 at 20:49
  • The Rogers vs US case is interesting though! – Greg Schmit Apr 25 '23 at 20:50
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As noted, in a criminal trial the defendant, having voluntarily taken the stand in his own defense, is deemed to have waived (given up) his right to the protections of the Fifth Amendment, and must answer the prosecutor's questions.

But this does not mean that he must answer any and all questions the prosecutor may ask him. Relevance is still an issue; the question must be relevant to the matter on trial. If the prosecutor asks a question not relevant to the current trial, the judge will sustain an objection and tell the defendant he need not answer.

Dave A
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