Maria de la Fuego

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Fifth Amendment

Dear Maria de la Fuego: I noticed your comment on a talk page:

"::::The Fifth Amendment was intended to prevent forced confessions. It says, no person "shall be compelled in any criminal case to be a witness against himself." It wasn't supposed to grant IRS officials immunity from oversight...."

The Fifth Amendment privilege against being compelled to be a witness against oneself does not grant Lois Lerner -- or any other present or former IRS official -- "immunity from oversight."

Also -- and this is a concept many people do not understand -- the purpose of the Fifth Amendment privilege is to protect the innocent as well as the guilty. Even a completely innocent person who tells the entire truth before a congressional committee, etc., can be incriminated by that innocent person's truthful statements.

If I had been Lois Lerner's lawyer, or anyone else's lawyer in her situation, I also would have advised her to assert her Fifth Amendment privilege, just as she did -- except that I would have advised her not even to make the opening statement that she made.

If the congressional committee is so concerned about getting to the truth and about "oversight" of the IRS, all the committee has to do is to obtain an order granting Lerner immunity from prosecution. That is standard procedure when someone is asserting the Fifth Amendment.

An argument that Lerner is somehow abusing the privilege by asserting it in precisely the very situation where it applies is not a valid argument. Famspear (talk) 13:07, 5 April 2014 (UTC)

What is self-incrimination? What is a self-incriminating statement?

An incriminating statement includes any statement that tends to increase the danger or likelihood that the person making the statement will be accused, charged or prosecuted – even if the statement is true, and regardless of whether that person is guilty or innocent of any crime. From Black's Law Dictionary:

"[to] Incriminate ... to expose [oneself] to an accusation or charge of crime; to involve oneself or another [person] in a criminal prosecution or the danger thereof." Black's Law Dictionary, p. 690 (5th ed. 1979) (bolding added).

From the U.S. Supreme Court:

The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. (Patricia) Blau v. United States, 1950, 340 U.S. 159, 71 S.Ct. 223. But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. Mason v. United States, 1917, 244 U.S. 362, 365, 37 S.Ct. 621, 622, 61 L.Ed. 1198, and cases cited. The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself—his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, Rogers v. United States, 1951, 340 U.S. 367, 71 S.Ct. 438, and to require him to answer if 'it clearly appears to the court that he is mistaken.' Temple v. Commonwealth, 1880, 75 Va. 892, 899. However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim 'must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.'

--from Hoffman v. United States, 341 U.S. 479 (1951) (bolding added).

Even a person who is innocent of any crime who testifies truthfully can be incriminated by that testimony.

The protection of the privilege against self incrimination extends only to witnesses who have “reasonable cause to apprehend danger from a direct answer.” The determination of whether there is a risk of incrimination is made by the court; the witness’ assertion does not by itself establish that there is a risk of incrimination. A danger of “imaginary and unsubstantial character” will not suffice. See generally Ohio v. Reiner, 532 U.S. 17 (2001) (per curiam), citing Hoffman v. United States, 341 U. S. 479, 486 (1951) and Mason v. United States, 244 U.S. 362, 366 (1917).

Even an innocent person can be incriminated by testifying. The United States Supreme Court has stated that the Fifth Amendment privilege against being compelled to be a witness against oneself:

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.

--from Ohio v. Reiner, 532 U.S. 17 (2001) (per curiam) (bolding added; internal quotation marks omitted).

.... 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.

--also from Ohio v. Reiner, 532 U.S. 17 (2001) (per curiam) (bolding added), citing another case.

"The immediate and potential evils of compulsory self-disclosure transcend any difficulties that the exercise of the privilege may impose on society in the detection and prosecution of crime."

--from Hoffman v. United States, 341 U.S. 479, 490 (1951), citing United States v. White, 322 U. S. 694, 698 (1944), at [1].

More from the U.S. Supreme Court:

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. Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States. The Founders of the Nation were not naive or disregardful of the interests of justice.

--from Ullmann v. United States, 350 U.S. 422, 426 (1956) (footnote omitted) (bolding added), at [2].

From another Supreme Court decision:

Here the Board [the Board of Higher Education of New York City], in support of its position, contends that only two possible inferences flow from appellant's claim of self-incrimination: (1) that the answering of the question would tend to prove him guilty of a crime in some way connected with his official conduct; or (2) that in order to avoid answering the question he falsely invoked the privilege by stating that the answer would tend to incriminate him, and thus committed perjury.

[ . . . ]

At the outset we must condemn the practice of imputing a sinister meaning to the exercise of a person's constitutional right under the Fifth Amendment. ... The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. As we pointed out in Ullmann, a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.

--from Slochower v. Board of Higher Education of New York City, 350 U.S. 551 (1956) (bolding added).

Yours, Famspear (talk) 13:30, 5 April 2014 (UTC)