The Fifth Amendment provides that no one can be compelled to testify against himself. In other words, a person cannot be required to speak if his statements would tend to implicate him in a crime. The right is what lawyers call a testimonial privilege, and it is related to other areas declared off limits by the law, areas such as the attorney-client privilege or the matrimonial privilege.
But the law also guarantees to criminal defendants the right to present a defense. This right is anchored in the Sixth Amendment’s guarantee to a defendant of the right to use compulsory process — subpoenas, and, if necessary, warrants authorizing law enforcement officers to take reluctant witnesses into custody and bring them to court — to assure that he has the witnesses he needs to defend himself against the government’s charges.
What to do when these rights collide?
A common defense at trial is what is known as third-party culpability. In such a defense, the defendant acknowledges that a crime was committed but contends that some other identifiable party did it. Moe and Larry, on trial for bank robbery, may seek to put Curly on the stand for the purpose of saying Curly did it all on his own.
Curly has two choices once he takes the stand. He can deny involvement altogether, or, if his testimony might tend to inculpate him, he can “take the Fifth.” Doesn’t Curly’s invocation of the right to remain silent deprive Moe and Larry of their right to present a defense?
Judges balance constitutional rights all the time. It’s one reason the stream of decided cases flows endlessly. The law is not application of a set of formulas laid out in neat order; it is a rumble of ideas. Good lawyering is the use of discrete legal doctrines in novel ways, depending on the interests of a client in crisis.
Suppose Curly clams up and asserts his privilege. A defendant can then challenge his invocation, and the court will hold a hearing, typically outside the jury’s presence, at which a defense lawyer can ask Curly questions to determine if there are good grounds to assert the privilege.
“Isn’t it true, Curly, that you boasted of how easy it was to knock off the bank?”
“On advice of counsel, I plead the Fifth,” Curly says.
“And isn’t it true, sir, that you used the money from the robbery to buy yourself a new pickup truck, paying cash?”
“On advice of counsel, I plead the Fifth,” Curly says again.
If the court finds that Curly validly sought to avoid implicating himself in an actual crime, he will not be required to testify. The balance tips, so to speak, in Curly’s favor.
But if the government, and not the defense, needed Curly’s testimony badly enough, it could offer him testimonial immunity, agreeing not to use his words against him. It could go even further, of course, agreeing not to prosecute him at all. The defense lacks such a right, obviously, and herein lies the rub.
Because the government has the right to immunize witnesses, it is also prohibited from putting a witness on the stand solely to induce the witness to plead the Fifth.
Such a move would work unfair prejudice on a defendant, especially in a case of an uncharged co-conspirator; it would amount to leveraging the assertion of a privilege by a person who may, or may not, be guilty into speculative evidence that an associate of his is guilty.
The government has a choice: either immunize a reluctant witness, or don’t use the witness at all. The defense cannot confer immunity — ever.
So why should the defense be prohibited from asking questions of a witness who intends to plead the Fifth in the jury’s presence?
A corollary to the testimonial privilege is that no one can be punished for asserting it. That’s the point of its being called a right. In criminal law, we say no one can draw an adverse inference against a person who asserts the right. In other words, it can’t be held against a person.
It might surprise you to learn that in civil cases, a defendant can assert the Fifth, but if he does, jurors are told that they can, if they choose, hold it against him. The trick in a civil case is to ask the right question. Poor Curly needs to be asked, point blank, if he robbed the bank. If he pleads the Fifth, and the evidence otherwise shows he might have been involved, a jury is permitted to draw an adverse inference that he remained silent because he robbed the bank.
What’s the difference? A civil action is a private contest between parties seeking money damages or other, non-punitive, relief.
(Stop grumbling that this makes no sense. As I say to clients all the time: I don’t write the law; I just read it.)
As a general rule, judges don’t permit defendants in criminal cases to call witnesses to the stand solely for the purpose of having those witnesses plead the Fifth. This general prohibition is an unwarranted slap at the right to present a defense.
The right to compulsory process can force a witness to the courtroom, but, apparently, it cannot force a witness onto the witness stand in the jury’s presence if the witness asserts his right to remain silent. The Fifth Amendment thus swallows the Sixth.
There’s really no need for that.
As in civil cases, a defendant ought to be able to call a witness to the stand to ask him what he knows about the crime charged. If the witness intends to plead the Fifth, a judge can, and should, decide if the invocation is valid or a stunt. If it is valid, then the law prohibits the government from using the invocation of this right against the witness. But why can’t a defendant use such an invocation in his defense?
The Fifth Amendment ought not to bar a defendant from arguing that when Curly refuses to testify it is because he has something to hide. Yet, judges prohibit this sort of evidence all the time, and thereby compromise the right to present a defense.