Let's say that person A is being questioned in court and is asked where they were on the night of April 1st. Person A pleads the fifth, is given immunity, and is compelled to testify. Upon person A testifying it becomes clear that person A wasn't doing anything illegal on the the night in question and her answer doesn't incriminate her. Could she then be convicted of perjury since she falsely plead the fifth?

1 Answer 1


Pleading the fifth is not a true / false proposition, it is a personal conclusion about legal risk. A person cannot be prosecuted for drawing incorrect legal inferences. A statement like "I refused to answer on the grounds that the answer may tend to incriminate me" is a self-proving statement (technically known as a "performative") – in saying this, the witness has by definition refused, and it cannot be false that the witness refused.

The prosecutor is free to infer whatever he want about why the witness has refused to testify, and may or may not offer immunity. But prosecution for perjury for the refusal is off the table, because one cannot be prosecuted for incorrect inferences on the part of the prosecutor. One can only be prosecuted for literally knowingly-false statements taken under oath.

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