The Fifth Amendment Privilege Redux

 Posted on November 04, 2008 in Uncategorized

There is the law as we learn it in law school, and there is the law as it is practiced in the real world.

I was reminded of this today in a telephone call with a federal prosecutor in a state that rhymes with bassachusetts. I told the lad that I expected my client, when haled before a grand jury, to take the Fifth, and inquired whether he planned to give my client use immunity for his testimony.

The youth was quite insistent that a person called before a grand jury can't just take the Fifth and refuse to testify without "a good faith reason to believe that the testimony might incriminate him."

Well, of course my client has a good faith reason to believe that the testimony might incriminate him: he'd be talking to the federal government. The government doesn't get to decide whether the witness has a good faith reason to refuse to talk; if it did, there'd be no point in having a Fifth Amendment right against self-incrimination.

But aside from that, there is no such test, in the real world (which is where I practice) for taking the Fifth. As I have said here before, this is the way it works:

1. Witness is sworn in.

2. Witness is asked a question.

3. Witness refuses to answer on grounds that the answer might tend to incriminate him.

4. Witness is asked another question.

5. Witness again refuses to answer.

6. Prosecutor gets tired of this game.

At this point, the prosecutor appearing before the grand jury is not allowed to strap the witness down and waterboard him until he answers the question. He has two options. First, he can let it go and let the witness go on about his business.

Second, he can go to a judge and ask the judge to order the witness to answer the questions. If the judge orders the witness to answer the questions, the witness has to either answer or be held in contempt.

But guess what: the judge's order for the witness to answer the questions is a grant of use immunity. In federal court, this commonsense rule is even codified, in 18 USC § 6002. If a person has refused, on the basis of the privilege against self-incrimination, to testify (regardless of the good faith belief in his claim) and has been ordered to testify,

[N]o testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case...

This is as it should be.

So there may well be a case somewhere in some law school textbook saying that a witness can't take the Fifth without a good-faith reason to think that his answers might be incriminatory, but there'd be no way for a prosecutor to enforce this rule other than by obtaining an order under 18 USC § 6003 - in other words, by giving the witness use immunity - which is exactly what the prosecutor would have to do to compel a witness to testify if the witness were taking the Fifth in good faith.

In other words, while there may be some theoretical academic difference between the witness who doesn't want to talk to the government in general (and so takes the Fifth), and the witness who has a specific legitimate concern that the answers to specific questions would incriminate him, there is no real-world difference.

I didn't point out the existence of a gee-whiz actual federal immunity statute to this federal prosecutor. If he wants to get my client to say anything before the grand jury, he's going to have to figure it out himself. In the real world.