How does answering one question waive rights under the Fifth Amendment?

January 13, 2022 5:14 PM

I've now seen a few times the idea that once you answer one question, you waive your right not to self-incriminate. (E.g. it is a plot point in Miss Sloane.) This seems contrary to the language of the Fifth Amendment, but I am not a lawyer. Is this accurate? What are the actual parameters?
posted by musofire to Law & Government (4 answers total)

If a defendant testifies on their own behalf, they subject themselves to cross examination, and have to respond, even if their answers incriminate themselves.

If a suspect makes some statements, but then invokes their right to remain silent, that fact can be used against them in certain situations.

But, if you answer police questions and then later decide you want to stop, that’s still your right. Not sure if that answers your question.
posted by skewed at 5:36 PM on January 13, 2022

What you do is you lose the right to avoid negative consequences from refusing to answer questions about the subject of your testimony.

In a criminal case, a defendant choosing to testify doesn't then get to just refuse to answer questions; they are subject to cross-examination. So answering one question on direct examination from their attorney would open them up to cross-examination, and they don't get to invoke the Fifth Amendment on anything that's within the scope of direct examination. See, e.g., Fitzpatrick v. U S, 178 U.S. 304 (1900).

The only situation I can think of in the US where that happens . . .

I was thinking of Salinas v. Texas, 570 U.S. 178 (2013), where the exact situation I described happened. A murder suspect made some statements to police, then decided to stop speaking. The fact that he remained silent when accused of murder was made known to the jury. SCOTUS said that did not violate his Fifth Amendment rights. This is not really a waiver, but kinda fits the scenario OP is getting at.
posted by skewed at 8:25 PM on January 13, 2022

An aside for anyone who might be interested. The 'you have a right to remain silent' bit in the UK police spiel has the explicit addendum 'but, it may harm your defence if you do not mention when questioned something which you later rely on in court.' Effectively, silence is its own evidence.
posted by How much is that froggie in the window at 10:55 PM on January 13, 2022

I think there are/were rules for grand juries where a witness could choose not to testify, but if they did testify they had to answer every question. It was a plot point in a Rockford Files episode, and I heard about it separately about the same time.

Grand juries are different from trials.
posted by SemiSalt at 4:50 AM on January 14, 2022 [1 favorite]