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This is a question for the sake of a story, I'm not seeking legal advice to use in court, just fact checking general laws. Any elaboration on interesting facets that may be useful for story writing is always welcomed as well :).

Let's say that there is an individual whose actual identity is not known: he goes by the alias Kal-el. Another individual, Clark Kent (yeah, I decided to get geeky with my names), has been accused of being this person in the past, and has told everyone that he is not this person, but he does know this person, and his real identity, but won't reveal that identity.

Later Kal-el is somehow related to a crime (accused of doing it, or a witness, whatever), and the police need to know who he is as part of their investigation, thus they talk to Clark. Let's say that Kal-el is a different person, but Clark does not want to admit this.

  1. Could Clark ever be put in a position where he is forced to admit Kal-el's actual identity? I assume he usually wouldn't, but if he is aware of Kal-el's involvement in a crime at some point he becomes an accessory by not revealing it?

  2. If there is a point at which Clark would usually be compelled by the court to give Kal-el's actual identity could Clark refuse to do it on the grounds that he has been accused of being Kal-el? Arguing that if he is Kal-el he would be bearing witness against himself to admit it and is thus protected by the fifth amendment. He has previously claimed he isn't in an unofficial capacity, but he is not going to make that claim legally, instead refusing to admit rather he is Kal-el or if Kal-el is someone who he knows.

If you only allow him to plead the fifth if he is Kal-el then the act of pleading the fifth still bears witness by implicitly stating he must actually be Kal-el, thus the only way to protect him from having to reveal the truth is by allowing him to plead the fifth even if he isn't actually Kal-el without this being considered lying to the court. Obviously you therefore can't force him to reveal the actual identity of Kal-el without implicitly forcing him to bear witness against himself as to whether or not he is this individual. Does this argument work?

  • Since you broke off question #1 as a separate question can you delete it here? And maybe produce a more concise exposition of the titular question? – feetwet Sep 15 '15 at 15:31
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    Since Clark Kent and Kal-el are generally known to be the same person you may want to pick different names as they make your quesiton quite confusing. – Lilienthal Sep 15 '15 at 16:03
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No. The Fifth Amendment provides limited protection that gives you some ability to not answer police questions about where you were at a specific point in time, if you can identity a piece of evidence, etc. It also allows you to avoid testifying in court if the testimony would also incriminate you. Clark Kent, if he were a reporter, could try and claim First Amendment protection to protect Kal'el's identity, but simply being accused of being somebody isn't a crime, and therefore wouldn't be subject to Fifth Amendment protections.

Even under the First Amendment, a court could subpoena Clark Kent and force him to reveal the identity of Kal'el; failure to do so results in a contempt in court charge, including possible jail time, fines, or both. However, they couldn't generally make Clark Kent answer any questions about Kal'el's activities if they could possibly lead to a conviction of Clark Kent. For example, he could refuse to testify in court, or choose not to answer questions about where he was on the night of the 25th, if they could cause him to be self-incriminated.

  • if the individual in question committed a crime beyond reasonable dispute then does not admitting you are that person effectively equate to admitting that you committed the crime? I would imagine if he was Kal he should at least get the right to plead the fifth in that case could he not? – dsollen Sep 16 '15 at 15:01
  • @dsollen Perhaps you've misunderstood the intent of my answer. The Fifth Amendment is intended to protect innocent people from being framed for a crime they didn't commit by admission to facts that may be used to indict them of the crime. For example, if a person matching a description leaving a scene of a crime matched the person being interrogated, they might be assumed to be the perpetrator if they admit to being in the area. Admission of identity doesn't prove anything, but admission of where you were, what you were doing, or what you know about evidence can prove guilt. – phyrfox Sep 16 '15 at 15:23
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    If the Joker lived a normal day life. It would be self incrimination for this person to admit they were the joker. – Viktor Sep 16 '15 at 15:28
  • @Viktor Actually, no, to incriminate is to "appear guilty of a crime or wrongdoing"; simply being the Joker isn't a crime, it's what they've done that's the crime. Similarly, Joker having an alter ego doesn't mean that alter ego is automatically a criminal simply by admitting they are the Joker. At best, having an alter ego deny the identity of a well-known criminal is at best "running from the law", "laying low", etc, which is itself a crime. Admitting your true identity isn't a crime under modern law. – phyrfox Sep 16 '15 at 16:41
  • @Viktor In fact, let's go further and say that the Joker's never actually was proven to commit any crime at all (there wasn't enough evidence). Someone else claiming to be Joker wouldn't automatically land them in jail. First, their identity would have to be proven, and that they actually committed the crimes in question. – phyrfox Sep 16 '15 at 16:48

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