How does answering one question waive rights under the Fifth Amendment?
January 13, 2022 5:14 PM Subscribe
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?
If a defendant testifies on their own behalf, they subject themselves to cross examination, and have to respond, even if their answers incriminate themselves.
Not so. What you do is you lose the right to avoid negative consequences from refusing to answer questions about the subject of your testimony. If you refused to give testimony altogether, the prosecutor could not argue to the jury that your refusal to testify itself incriminated you. If you give testimony and then refuse to answer questions about it, the prosecutor can. I'm not sure if the judge could also order the jury to disregard your testimony completely and am too lazy to look it up, but I wouldn't be surprised if that were an option in some states.
If a suspect makes some statements, but then invokes their right to remain silent, that fact can be used against them in certain situations.
I think you're thinking about the UK, which has slightly different rules. The only situation I can think of in the US where that happens is if you are making a "proffer" to the DOJ--describing the testimony you would give if you were a cooperating witness--and then decided to stop talking. Once you start making a proffer, you've waived your Fifth Amendment rights with respect to that testimony.
There may be some confusion here with civil cases. In civil cases, you are not allowed to engage in "selective waiver" of a privilege (attorney-client, marital, etc.). That is, you can't testify about some aspect of, e.g., a privileged communication, but refuse to discuss others, without inviting sanctions, up to and including loss of the case (very rare). In those circumstances, "answering one question" could waive privilege with respect to a whole communication or even all communications on a particular topic, if the answer was broad enough.
posted by praemunire at 6:19 PM on January 13, 2022 [6 favorites]
Not so. What you do is you lose the right to avoid negative consequences from refusing to answer questions about the subject of your testimony. If you refused to give testimony altogether, the prosecutor could not argue to the jury that your refusal to testify itself incriminated you. If you give testimony and then refuse to answer questions about it, the prosecutor can. I'm not sure if the judge could also order the jury to disregard your testimony completely and am too lazy to look it up, but I wouldn't be surprised if that were an option in some states.
If a suspect makes some statements, but then invokes their right to remain silent, that fact can be used against them in certain situations.
I think you're thinking about the UK, which has slightly different rules. The only situation I can think of in the US where that happens is if you are making a "proffer" to the DOJ--describing the testimony you would give if you were a cooperating witness--and then decided to stop talking. Once you start making a proffer, you've waived your Fifth Amendment rights with respect to that testimony.
There may be some confusion here with civil cases. In civil cases, you are not allowed to engage in "selective waiver" of a privilege (attorney-client, marital, etc.). That is, you can't testify about some aspect of, e.g., a privileged communication, but refuse to discuss others, without inviting sanctions, up to and including loss of the case (very rare). In those circumstances, "answering one question" could waive privilege with respect to a whole communication or even all communications on a particular topic, if the answer was broad enough.
posted by praemunire at 6:19 PM on January 13, 2022 [6 favorites]
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
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
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).
As Fitzpatrick says, "While the court would probably have no power of compelling an answer to any question, a refusal to answer a proper question put upon cross-examination [in such circumstances] has been held to be a proper subject of comment to the jury..."
Which is exactly what I said.
And in Salinas, the Court held that the defendant never explicitly asserted the privilege, but simply shut up. The defendant exactly didn't (in the Court's quite tortured view) "invoke [his] right to remain silent." Had he said "I'm invoking my right to remain silent now," the Court couldn't have used that reasoning: "We have before us no allegation that petitioner’s failure to assert the privilege was involuntary, and it would have been a simple matter for him to say that he was not answering the officer’s question on Fifth Amendment grounds. Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment."
Expecting a work of pop culture to accurately depict the contours of any complicated legal doctrine is, of course, just setting yourself up for disappointment.
posted by praemunire at 10:20 PM on January 13, 2022 [1 favorite]
As Fitzpatrick says, "While the court would probably have no power of compelling an answer to any question, a refusal to answer a proper question put upon cross-examination [in such circumstances] has been held to be a proper subject of comment to the jury..."
Which is exactly what I said.
And in Salinas, the Court held that the defendant never explicitly asserted the privilege, but simply shut up. The defendant exactly didn't (in the Court's quite tortured view) "invoke [his] right to remain silent." Had he said "I'm invoking my right to remain silent now," the Court couldn't have used that reasoning: "We have before us no allegation that petitioner’s failure to assert the privilege was involuntary, and it would have been a simple matter for him to say that he was not answering the officer’s question on Fifth Amendment grounds. Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment."
Expecting a work of pop culture to accurately depict the contours of any complicated legal doctrine is, of course, just setting yourself up for disappointment.
posted by praemunire at 10:20 PM on January 13, 2022 [1 favorite]
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
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]
Grand juries are different from trials.
posted by SemiSalt at 4:50 AM on January 14, 2022 [1 favorite]
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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