法律英语：103 The Fifth Amendment

by Michael W. Flynn

First, a disclaimer: Although I am an attorney, I do have feelings, and I admit that I was truly touched by the letters of support I received from you, Loyal Listeners. The past two weeks were much less painful and much more bearable with your kind and thoughtful well-wishing. I truly appreciate your support, and am very glad to be back behind the microphone.

And second, the standard disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed 1 to practice in your jurisdiction 2. Further, I do not intend to create an attorney-client relationship with any listener.

Today’s topic is the Fifth Amendment 3’s privilege against self-incrimination. Several listeners have written in with questions after seeing a witness in a TV show take the Fifth to avoid testifying, and after reading about how Monica Goodling attempted to take the Fifth when she testified before Congress regarding the firing of eight U.S. attorneys.

The Fifth Amendment provides in full:

No person shall be held to answer for a capital, or otherwise infamous 4 crime, unless on a presentment or indictment 5 of a Grand Jury, except in cases arising in the land or naval 6 forces, or in the Militia 7, when in actual service in time of War or public danger; nor shall any person be subject for the same offense 8 to be twice put in jeopardy 9 of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The relevant portion for today’s episode is the phrase, “nor shall be compelled in any criminal case to be a witness against himself.” This privilege allows a person to refuse to answer official questions put to him in any proceeding 10, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings 11. This is the basis for the famous portion of the Miranda warning: “You have the right to remain silent.” Further, the government cannot punish a defendant 12 for exercising his right to silence by allowing the prosecutor 13 to ask the jury to draw an inference of guilt 14 from the defendant's refusal to testify in his own defense 15.

But, the privilege is not absolute. The main exception is immunity 16. If the government grants a person immunity, then that person may be compelled to testify. Immunity generally falls into two categories: transactional immunity and use immunity. For transactional immunity, the witness is immune from prosecution 17 for offenses 18 related to that testimony 19. For use immunity, the witness may still be prosecuted 20, but his testimony may not be used against him. The government need only grant use immunity to compel testimony.

Monica Goodling is an excellent example of how immunity works. She was compelled by the Senate Judiciary Committee to testify about what she knew regarding the firing of eight U.S. attorneys. On advice of her lawyers, she asserted her Fifth Amendment privilege to remain silent because she feared that her statements might later be used against her in a criminal case. So, the government granted her use immunity. After that, she could not assert her Fifth Amendment privileges because her statements could not incriminate her. So, she was forced to testify, or be held in contempt of court. In the end, she testified.

The government will often use this tactic 21 when prosecuting 22 members of organized crime syndicates, i.e., the mob. For example, the government will grant immunity to a low-level crony in order to compel him to testify against the masterminds of the group.

Last, it is important to note that the Fifth Amendment applies only to statements, but not to actions. A common example comes from drunk driving cases. If an officer pulls you over and asks if you have been drinking, you have the right to refuse to speak because your statement that you just slammed six shots of tequila would likely be used against you in a criminal case. But, if the officer asks you to step out of the car, and you fall out and puke on the officer’s shoes, those actions are not protected by the Fifth Amendment. Similarly, the results of a blood or breath test that indicate you are drunk are not covered by the Fifth Amendment. While these actions effectively communicate incriminating information, they do not constitute statements. So, you cannot assert a Fifth Amendment privilege to suppress your stumbling or the results of the alcohol tests.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful 23 Life. Be sure to check out all the excellent Quick and Dirty Tips podcasts at QuickAndDirtyTips.com.

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