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If you invoke the right to not self-incriminate when testifying and the judge asks you questions in regards to whether you fear of incriminating yourself is reasonable.

Is that conversation considered privilege? Does the same rights to confidentially that apply to talks with counsel apply to it?

I wonder what the case law says. I don't know if there has ever been an attempt by government to compel a judge to give an account of a case that was before him/her. If that is even possible. I'm just wondering what assurances the witness would have that, that conversation would not be used against him/her.

SOURCE: David SIegel's answer found here.

When the privilege is asserted in a court case, the Judge may question the person asserting it in private, off the record, to determine whether the fear of incrimination is reasonable.

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    What makes you think the judge would ask such questions?
    – phoog
    Apr 3, 2023 at 7:01
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    @phoog I have added a source as per your request.
    – Neil Meyer
    Apr 3, 2023 at 13:39
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    Presumably one could plead the 5th in such conversations. I do not think there is an exception in the constitution.
    – User65535
    Apr 3, 2023 at 14:04
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    @NateEldredge thanks for the link. I read that opinion with interest, but it does not discuss questioning of a witness by a judge, nor does it indicate that any judge ever questioned the witness in this case. Rather, the decision notes that the district court relied solely on the interrogation by the prosecutor. The opinion says that the district court "should have" done some things differently, but it does not suggest that it should have interviewed the witness, only that it should have considered certain facts in the public record and others that are common knowledge.
    – phoog
    Apr 5, 2023 at 4:44
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    Related Q&A on how challenges to pleading the fifth are handled. However, there is a single answer there and it seems not to fully answer the question, as persistent "what I heard"'s and even court opinions imply there is more to a challenge than the simple question of whether adequate immunity has been provided. I have a suspicion that there's a bit of misinformation floating behind the "judge questioning the person who invoked the 5th" claim, but it seems hard to pin down in an answer. Apr 6, 2023 at 5:37

2 Answers 2

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I believe a frame challenge is necessary, as the underlying assumption of the question, and in particular the material quoted from another answer, is, I understand, incorrect.

This assertion, in short, is that if an invocation of the 5th is challenged, or perhaps just "hard to understand (the validity of)", then the judge may privately question the one asserting the right for more specific details. And from there they may then make the determination of the whether the invocation is valid. I've heard this logic many times myself, and have had it enter my head as fact at some point or another. It seems one of those persistent folk tales about the legal world.

My best guess is this stems from how the limits of the 5th amendment protection on self incrimination are typically phrased within major decisions, or popular summations thereof (including but not necessarily limited to, or specifically implicating, wikipedia pages). The phrasing I am most familiar with is "an invocation of the 5th is valid if the person has a reasonable fear that the answer may be used against them in a prosecution"; perhaps modified, more accurately reflecting the jurisprudence, to add "or as a link which could lead them to evidence that could be used in a prosecution against them".

The mistake then arises in applying an everyday understanding of this phrasing: how else are you to decide if a person is being reasonable unless you question them? Maybe they've got a good reason, maybe they have a psychotic delusion, maybe they're just trying to mess with the court for their own amusement, etc. etc. Surely you have to investigate to find out.

But within American courts, the term "reasonable" in such a standard almost never invokes the everyday understanding like this. Instead, it refers to some abstract and generic entity. A "reasonable jury" is not a judgment made about the particulars of a given jury, but rather an artificial construct created within the mind(s) of the judge(s) composed of purely hypothetical and generically "reasonable" everyday people. And the legal standard to uphold that the "reasonable" standard has been met is not whether the particular person/jury/whatever at hand was acting reasonably in the usually understood fashion. But rather if such an imagined being/group/whatever could possibly act in such fashions.

As such, if a Judge is considering overruling an invocation of the 5th, they must invoke such an abstracted entity, within the context at hand, and see if they can construe one who reasonably invokes the protection. The judge may be able to use certain facts about the particular entity at hand, depending. If you are invoking the 5th and the record already shows you have an extensive criminal record, the court may consider that this reasonable abstraction also has an extensive criminal record; at which point it may become clear that such a person may wish to invoke the 5th so as not to incriminate themselves in other crimes. Even moreso if the context is a far-ranging federal grand jury investigation into organized crime, and the questions you invoked the 5th on regard your connections to events of established interest to this investigation. And this is done without actually further questioning the person, beyond what is already in the record. All the court has to do is imagine some reasonable person with a reasonable fear within the context at hand; if it can, the invocation of the 5th is generally to be sustained. No actual determination of the particular person's "reasonableness" is required, or really even permitted.

All of the latter hypothetical was essentially the fact of the matter in the case Hoffman v. United States. It is a very interesting and informative read, and I think fairly accessibly written (as long as one isn't too easily thrown off the rails by the citation formatting). It covers a great deal of how any potential challenges to the 5th are to be handled. And the short is as I have indicated above: an abstract "reasonable" person is constructed, with such construction informed by the circumstances and knowledge at hand, and judgement of reasonableness made from there. It specifically points out that courts should be mindful of the fact that some people earn a living by violating and evading the law, and they are protected by the 5th as thoroughly and strongly as anyone else is, so the courts should consider the question of whether it would be reasonable for such a person to have invoked the 5th when deciding if it should be upheld.

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I'm hesitant to say that the judge would pull a witness into chambers to make a determination of if the witness can plead the 5th. Normally this debate is held between the lawyers for the party (A judge talking to the witness is an Ex Parte communication, as the witness is favorable to one side of the case.). That said, if you are called as a witness and has a valid concern that you might be asked to testify to something that would incriminate you, you should get your own lawyer to argue on your behalf, as you are likely not a client of either attorney and thus they are not obligated to look out for your own legal interests and keep you from having to testify to anything 5th amendment. The only time I've seen the judge question witnesses taking the 5th are in cases where the witness communicates ahead of testimony that they will be pleading the 5th to all questions, at which upon swearing in, the judge will confirm this in open court with a question to the effect of "It is my understanding that you will be exercising your 5th amendment right in the entirety of your testimony today, is that correct?" to which the witness confirms their intentions to do so, makes sure the records reflect this, and dismiss them. The judge is not questioning them as to the nature of their exercising of their rights, but as to the intention to exercise it.

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  • I was under the impression that these questions were usually asked so as to help decide if the witness is obstructing justice by pleading the 5th when there is no real chance that anything could incriminate them.
    – Neil Meyer
    Apr 3, 2023 at 15:21
  • No. Typically in those situations, the witness is called by a prosecutor under an agreement to testify in exchange for immunity. The prosecutor would have this conversation with the judge who would instruct the witness to answer the questions as asked. The judge doesn't ask the witness for his reasoning (generally immunity deals imply any crimes that come out in testimony.). Additionally if you've already been convicted of a crime, you cannot plead the 5th, because double jeopardy.
    – hszmv
    Apr 3, 2023 at 15:38
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    Your suggestion seems to be that Fred's strategy will work, he'll successfully avoid answering any questions, and that the plaintiff is out of luck and simply won't be able to have his testimony about the red light. What if every witness in every trial decided to use this strategy? Apr 3, 2023 at 17:05
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    Okay, but the camera footage would have to be authenticated by the testimony of the person who collected it, right? What if they also decide to plead the fifth for no good reason? (Or, if you like, add to the hypothetical that the year is 1963.) Anyway, I think that I now understand your position, but I am skeptical of it, so I will see what I can find out for myself. Apr 3, 2023 at 17:11
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    So in fact, the court is allowed to determine that no such danger exists, and to order a witness to answer, on penalty of contempt. See Hoffman v. United States, 341 U.S. 479 (1951). "But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. Mason v. United States, 244 U. S. 362, 244 U. S. 365 (1917), and cases cited. 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." [...] Apr 4, 2023 at 14:03

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