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Under the Fifth Amendment, one might say at a hearing, "I refuse to answer on the grounds that it would incriminate me." Suppose the subject matter were embarrassing, but not necessarily criminal. Examples follow:

  1. I refuse to comment on an adulterous affair with the defendant. I believe, that adultery is illegal. (In fact, it is illegal in 22 states, although it is almost never prosecuted.)

  2. I decline to comment, even though I was a witness to the action, because to get there in time, I would have to admit to speeding. "Speeding" is, in fact, illegal, but "trivially" so.

Would someone be within their rights to "take the Fifth" in either or both cases? If they were not lawyers and honestly believed that they were properly invoking the "Fifth" would they get off with a warning?

  • @xuhdev: No. I, the OP. I've never known of a government entity that could commit adultery, or run a red light. – Libra Nov 14 at 5:21
  • It may be interesting that in England defendants had no legal rights to give evidence in their own defence in any situation until about 1880, for the exact opposite reason from "self incrimination!". The current English "right to silence" is more general that the 5th, in that no reason is required for it. There are only a few specific exceptions, most of which only involve identifying oneself or another person by their name and address (e.g. the case of a vehicle accident, it is a specific criminal offence for the "registered keeper" of the vehicle not to identify the driver to the police). – alephzero Nov 14 at 15:53
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    OP wrote "... on the grounds that it would incriminate me." You do not need to be guilty of something to use the 5th amendment. If that were a requirement, then you would essentially be saying "Yes, I did it." You can use it whether you are guilty or not, and to preserve this right it is intended that you sometimes use it even when you are innocent. – Aaron Nov 14 at 22:46
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    Surely a court would consider sanctions for the act of claiming the fifth only in the most ridiculous cases. The more likely issue would be the penalty for continuing to refuse to testify after either (a) you've been granted immunity or (b) the court has judged that there is no danger for you to hide behind. – dmckee Nov 15 at 16:11
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    @Mast in theory if the officer measured your speed with an approved speed measuring device, then your testimony should be superfluous to the case against you. But sometimes the officer gets to calibrate the device, batteries dead, etc., etc. If you are asked how fast you were going, then invoke the 5th. If the officer dotted all the i's and crossed all the t's then you will still have to pay the fine. Invoking the 5th is not a "Get Out of Jail" card, but sometimes it works for you. It will never work against you. – emory Nov 15 at 22:24
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In the US, a person is "within their rights" to invoke the Fifth Amendment, i.e. refuse to self-incriminate. However, the government can give a person immunity from prosecution for offenses having to do with the testimony, in which case he can be compelled to testify. A person is not required to guess about whether they could actually be convicted based on their testimony. It is the privilege of the court (judge) to determine whether a witness has "a reasonable cause to apprehend danger from a direct answer" (Ohio v. Reiner, 532 U.S. 17).

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    Am I misunderstanding; or does this not "fix" the misunderstanding in OP's first example? I.e. (assuming the courts don't grant immunity) the person won't elaborate but will also not be in trouble for refusing to answer? In short, what would happen to that person, assuming the courts don't grant immunity (e.g. because they are unaware if there is a serious crime hidden in the person's answer)? – Flater Nov 15 at 10:37
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[I didn’t see user6726’s excellent answer until after I finished mine. There’s quite a bit overlap — except that he discusses immunity, which I ignore — but I think there’s enough difference that some readers may benefit from seeing both.]

TL;DNR: No, you could not “take the 5th” to avoid embarrassment. If you tried and got caught, you’d get in trouble. As for your speeding ticket hypothetical: I’ll take the 5th!

To answer this question, it will help to be clear on what it means to take the 5th. Contrary to popular belief, taking the 5th is not about admitting guilt. Taking the 5th is about avoiding legal trouble caused by one’s testimony. As Justice Clark said in 1951, in Hoffman v. US, a witness can only take the 5th if she “has reasonable cause to apprehend danger” from answering the question.

(This explains why an innocent person can take the 5th. Since some innocent people look guilty, and some innocent people are found guilty, some innocent people might reasonably fear that testifying will get them convicted. To avoid that danger, they, too, can take the 5th.)

As you point out, witnesses might face a variety of non-legal dangers if they testify, such as embarrassment. Or they might be confused about the legal dangers they face. What keeps these witnesses from “falsely” taking the 5th?

The answer is simple. As Justice Clark said in Hoffman,

“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, and to require him to answer if it ‘clearly appears to the court that he is mistaken.’”

Figuring out whether a witness really will be in danger if she incriminates herself raises some tricky problems. To convince the judge, the witness may have to actually incriminate herself. To prevent this, the judge will talk to the witness in private. If the judge finds the witness is not in danger, he will order her to testify. If she does not, the judge can put her in jail, or fine her, for contempt-of-court.

To see the problem judges face, consider why I took the 5th on the speeder question. My hunch is that the speeder cannot take the 5th. It seems to me that the danger she faces is too “small” compared to the damage caused by not hearing her testimony. But I am not sure; I worry that I might be wrong. To avoid embarrassing myself by showing my ignorance, I took the 5th to avoid answering the question. Here’s the catch: By explaining why I need to take the 5th, I end up incriminating myself, in which case, I don’t need to take the 5th!

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    I don't see that as a catch. "The defendant admitted it to a judge". Where was this alleged location? "In chambers." What was the subject matter of the discussion? "The validity of a 5th Amendment refusal". Bang dismissed, inadmissiable.. – Harper - Reinstate Monica Nov 14 at 15:44
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    @Harper-ReinstateMonica Yes! That's exactly the point I was trying to make: Judges talk to witnesses in private so anything they discuss is inadmissible. – Just a guy Nov 14 at 17:01
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    @Harper-ReinstateMonica I hate to be that guy, but that lantern fact is one of those fun facts that’s only true on the internet. The Indiana Motor Vehicle code mentions lanterns a lot, but never in that way. Here is a fun fact about Indiana law that is true: There are so many Amish in Indiana that Elkhart county put together is “Horse & Buggy Drivers Manual.” It is interesting. elkhartcountysheriff.com/resources/horse-buggy-manual – Just a guy Nov 14 at 19:34
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    I'm pretty sure the judge will not ask to speak to the witness privately. In addition to all the problems of making a judgement based on testimony not on the record, Hoffman says it's not necessary: "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" – Ross Ridge Nov 15 at 1:47
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    @vsz The 5th Amendment only protects you against the possibility of being convicted by US governments. That's because the 5th Amendment says no person can be compelled to "be a witness against himself" in a "criminal trial." It does not protect against private groups that want to hurt you, or against foreign governments that could use your testimony to convict you. There's an irony here: The 5th Amendment protects a mob hitman who fears a criminal conviction, but not an innocent bystander who fears mob retribution. – Just a guy Nov 15 at 7:54

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