The Fifth

Twice recently I’ve had people — potential witnesses in criminal cases — tell me, “the prosecutor said I couldn’t take the Fifth because I’m not testifying to anything incriminating.” One of them, an alleged complaining witness, even told me, “the prosecutor said I didn’t need a lawyer because he’s my lawyer.”


First, the prosecutor isn’t the witness’s lawyer. He shouldn’t be giving legal advice to the witness and he certainly shouldn’t be claiming to represent her. The prosecutor represents the government, and if the government’s interests clash with the witness’s interests, he is going to do what his client, the government, wants him to do. The witness who listens to the government in those circumstances is looking for trouble.

Second, the prosecutor doesn’t get to decide whether the answer to a question might be incriminating. Neither does the judge. Nor do the police, the FBI, or the DEA. Only the witness can possibly know what is in her head, and even she isn’t competent to know whether what is in her head, if it came out, might incriminate her. For example, if you talk to federal agents, and they decide later that you lied (whether they are correct or not), you can be prosecuted for making a false statement.

If a witness refuses to answer his questions outside court, all the prosecutor can do is subpoena her to court. If she takes the stand and takes the Fifth there and the prosecutor still wants her to answer his questions (at about this time the prosecutor ought to be taking a deep breath and wondering whether he really wants the answers), he must immunize her. That means that he must get a formal order declaring that what she says can’t be used against her. If she answers the questions then, fine. If not, he must ask the judge to order her to answer the questions. If she answers the questions then, again, fine. If not, then and only then may she be punished (by being held in contempt) for not answering the government’s questions.

Sometimes, maybe, with the advice of a good lawyer who is familiar with all of the facts, it makes sense for a person to give up the protection of the Fifth Amendment and talk to the government. Usually, though, a witness has so little to gain from talking to the government, and the possible legal downside of talking is so great, that the best advice is for the witness to keep her mouth shut at least until not doing so is punishable as contempt.

Who ya gonna believe, me or some guy who’s in the business of putting people in prison?

0 responses to “The Fifth”

  1. Hogwash? Is this 1830s week on your blog? Just kidding.

    Before you are too hard on the D.A.s for telling a witness that they can’t plead the 5th on the stand, you should realize how often that comes up for us. Too many witnesses believe that a lack of interest in testifying means that they can plead the 5th. Or the fact that they don’t want to rat out their friend works for them too.
    I agree that if there is some true criminal exposure that we’ve got no business telling them that they can’t plead the 5th. I don’t know what everybody else does, but I will let a witness know if I think there is even a remote possibility that they need a lawyer.
    In all honesty, I think that the more common occurence is when the defense is calling a person with criminal liability because he may appear more culpable then their client. That can create a cluster of immense proportions, because then arises the question over who needs to stand up and protect the witness’ rights?
    Discuss amongst yourselves.

  2. When a witness pleads the 5th, there is a clear path that should be taken, no matter what any prosecutor thinks. The judge must give the witness the opportunity to consult with a lawyer of his own choosing or, if he can’t afford a lawyer, assign a lawyer to advise the witness. The attorney’s job is twofold; to explain and advise the witness, including the consequences of a frivolous assertion of the 5th, perjury and obstruction of governmental administration.

    After consultation, the attorney for the witness (who is NEVER the prosecutor) should inform the court whether the witness will assert the right against self-incrimination.

    If so, the prosecutor then has two options. Immunize or let go. If the prosecutor does not believe that there is any valid basis for the assertion, then conferring immunity to obtain testimony carries no downside risk. Should the assertion be frivolous or ill-intended, the prosecutor will then have the ability to address it.

    But no matter how honest or sincere a prosecutor may be in “advising” a witness, there is an absolute conflict and it should never be permitted or sanctioned.

  3. Thanks for the comments, Anon and Scott.
    Why Anon is wrong and Scott is right about prosecutors advising people about taking the Fifth deserves a post of its own, as does the question of who needs to stand up and protect the witness’s rights when he might have criminal liability and doesn’t know it.

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