More on the Fifth

 Posted on January 13, 2008 in Uncategorized

In response to this post about prosecutors advising witnesses who wish to take the Fifth, an anonymous Harris County prosecutor wrote:

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 fact, a lack of interest in testifying is an excellent reason to plead the Fifth. The fact that you don't want to rat out your friend is another. So is a desire to make the prosecutor actually work. When a witness takes the Fifth, he doesn't have to justify it to anyone. You can take the Fifth and refuse to talk to the police and prosecutors because this is America.

That's not just my whacky radical defense-lawyer philosophy; it's the law. Here's how it works: if you take the Fifth, there's not a damn thing the prosecutor or the court can do, other than give you immunity. If you get immunity and testify, and it turns out that your testimony was in no way incriminatory - even if it becomes apparent that you were just trying to protect your buddy - there's not a damn thing the prosecutor or the court can do about it. If you don't get immunity and don't testify, there's not a damn thing the prosecutor or the court can do about it. In other words, you can't be punished for taking the Fifth, regardless of your secret reasons for doing so.

(For an excellent explanation of why immunity statutes are themselves violative of the Fifth Amendment, see Freedom Spent, which I link to below.)

If a prosecutor sees a remote possibility that a witness needs a lawyer, then it's a good idea for him to tell the witness that. But even when the prosecutor doesn't see that possibility - and even when the witness himself doesn't see that possibility - it might be there.

Richard Harris, from "Freedom Spent: Tales of Tyranny in America":

In legal terms, of course, what is a lie and what is not is up to a jury to decide. One may believe that one is telling the truth when being questioned [by agents or police], only to later recall events somewhat differently; if one then tells the revised cersion of those events before a grand jury or a court, one can be prosecuted for having lied in the first place. even as seemingly small an untruth as telling a government official that one doesn't know anything about what is being inquired into when one does know something about it is a criminal act.... some lawyers would argue that the only sensibly self-protective course for anyone, guilty or innocent of wrongdoing, is to refuse to speak to any government agent unless a lawyer is present....

Generally a prosecutor's idea of what a witness will say comes only from the offense report and his own previous discussions with the witness. The prosecutor doesn't know (a) whether the witness really told the police what the police say he told them, or (b) whether the witness was telling the truth to the police or to him (and of course a witness with more than half a brain will not tell the prosecutor that he lied to the cops). If the witness gets on the witness stand and, under oath, tells a story different than the one the cops say he told before, he might face criminal liability for lying to the cops, regardless of whether he actually said what the cops claim he said.

(I say that the prosecutor doesn't know whether the witness was telling the truth to the police, but sometimes a prosecutor does know that a witness's intended testimony under oath will be different than her statements to the police. The prosecutor threatens to charge the witness with making a false statement to the police if the witness testifies that the police report was false. In this scenario, does the prosecutor give the witness the correct legal advice: "you need to get a lawyer"? I've never heard of it happening.)

A prosecutor doesn't know what the truth is, and doesn't know what possible exposure the witness might have. So a prosecutor never has any business telling a witness that he doesn't need a lawyer.