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What prevents someone from pleading the Fifth Amendment, even if they don't necessarily have something that would incriminate themselves if they answered? Does the opposition have to prove that nothing they say could incriminate themselves to remove the protection? Does the witness have to reveal something to the judge to enforce the protection?

Additionally, who knows what random law they might have broken, and might admit to if they testify? Can someone plead the fifth on those grounds?

Martin Schröder
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David Liu
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1 Answers1

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What prevents someone from pleading the Fifth Amendment, even if they don't necessarily have something that would incriminate themselves if they answered?

Immunity. Sometimes prosecutors offer immunity to a witness in exchange for testimony against another defendant. In such cases, the witness cannot claim protection under the fifth amendment because the witness's testimony can no longer incriminate the witness.

Does the opposition have to prove that nothing they say could incriminate themselves to remove the protection?

No. Proving a negative proposition is generally impossible.

Does the witness have to reveal something to the judge to enforce the protection?

No, because such a revelation would also tend to incriminate the witness.

Additionally, who knows what random law they might have broken, and might admit to if they testify? Can someone plead the fifth on those grounds?

Yes. It is not in fact necessary to cite specific grounds for invoking the fifth amendment, because forcing a witness to cite a reason would itself be tantamount to forcing the witness to incriminate him- or herself.

Quoting Wikipedia:

Truthful statements by an innocent person

An incriminating statement includes any statement that tends to increase the danger that the person making the statement will be accused, charged or prosecuted – even if the statement is true, and even if the person is innocent of any crime. Thus, even a person who is innocent of any crime who testifies truthfully can be incriminated by that testimony. The United States Supreme Court has stated that the Fifth Amendment privilege:

protects the innocent as well as the guilty.... one of the Fifth Amendment’s basic functions . . . is to protect innocent men . . . who otherwise might be ensnared by ambiguous circumstances..... truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.

(Ohio v. Reiner, 532 U.S. 17 (2001) (per curiam))

The U.S. Supreme Court has also stated:

Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.

(Ullmann v. United States, 350 U.S. 422, 426 (1956) (footnote omitted))

(Citations inlined)

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phoog
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    With specific note to the final question: That is why when you are told by the cops you have a right to remain silent, your only words should be "lawyer". Statements against you ( that would work to make you look guilty) are admissible in court. Statements that exonerate you (Shouting "I'm innocent, I tells ya! INNOCENT!") are considered hearsay and the police cannot testify that you said that at all. Shut up, don't speak to anyone accept your lawyer, tell your lawyer everything in gruesome detail, and then listen to the advise of your lawyer. – hszmv Dec 18 '17 at 15:58
  • Is there a case with the last one? That seems unexpectedly broad. –  Dec 18 '17 at 16:54
  • @notstoreboughtdirt Yeah, that was my main wonder. One could plead the fifth on almost anything if that were the case (though immunity seems to be a good solution for that). – David Liu Dec 18 '17 at 22:00
  • @notstoreboughtdirt do you really need a case? It follows logically. If a witness had to assert that they were avoiding testifying because they committed a particular crime and want to avoid self incrimination in connection with that crime, the witness would already have incriminated himself. – phoog Dec 18 '17 at 22:56
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    @DavidLiu you can plead the fifth on almost anything. – phoog Dec 18 '17 at 22:57
  • I would like a case. It seems weird that not knowing law is protected, hszmv's advice is pretty standard regarding police, but I've never heard it for a courtroom. –  Dec 19 '17 at 05:31
  • @notstoreboughtdirt How do you imagine it could possibly work if defendants were required to justify themselves when they invoke the fifth amendment? In any event, I've added some material to the question. Let me know what you think. – phoog Dec 19 '17 at 06:27
  • Agree w/@phoog and would add that, as often as someone "pleads the 5th" for "no reason" (aka the situation OP is putting forth) it also occurs that if someone pleads the 5th, prosecutors and anyone watching (General Flynn & Special Prosecutor Robert Mueller comes to mind) can tell, if not precisely then quite close enough, what the person is avoiding by not speaking. That said, it doesn't matter. The 5th is your right and you may use it without justification. – A.fm. Dec 19 '17 at 07:22
  • "Proving a negative proposition is generally impossible." I would disagree. Also, the OP should consider that there are huge negative consequences in civil litigation to pleading the 5th, even though there are not adverse consequences in criminal cases for doing so. (And, in practice, empirical studies have shown that juries penalize defendants who don't testify in their own cases almost as much as they do when defendants have serious prior criminal histories revealed, even though they aren't supposed to do that.) – ohwilleke Dec 20 '17 at 20:09
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    It was suggested to me elsewhere that the judge may provide a limiting factor here. If the judge thinks you have no actual basis and are just messing around, he can listen to your circumstances off the record, and hold you in contempt of court if there isn't anything really that would incriminate yourself with. Lawyers could also word questions in a way that the answers would not result in self-incrimination – David Liu Dec 21 '17 at 01:17
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    @DavidLiu: Yes, I think that's right. See https://apps.americanbar.org/buslaw/blt/blt00may-shield.html. "The determination of what answers may incriminate or tend to incriminate cannot be left solely up to the witness but is a matter which requires the exercise of the sound discretion of the trial court under all the circumstances of the case." So in fact the witness may have to convince the court that the answer could incriminate, and if the court can't be convinced, the witness may be ordered to answer or face contempt charges. As such, I'm afraid the answer is incomplete and misleading. – Nate Eldredge Dec 21 '17 at 06:24