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Suppose a defendant testifies at a criminal trial and is advised beforehand that the prosecution has a right to cross examine him. Suppose the defendant answers all of his lawyer's questions on direct examination.

Would that defendant be able to refuse to answer some (or any) of the questions the prosecution asks on cross examination? I would expect the prosecution to ask questions that would tend to incriminate the defendant, and I'm wondering if, by voluntarily testifying on direct, the court would see his right to remain silent as being waived permanently, or if the court would be fine with the defendant re-asserting his 5th amendment rights during cross.

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  • Why not suppose, being advised beforehand that the prosecution has a right to cross-examine is irrelevant; changing nothing? If answering questions on direct examination matters, how is that? If not the homework for a Law class, is this about big-or-small screen representation of Law? What does your Law course, or the screen, say about prosecutors asking incriminating questions? Are you suggesting the screen guys usually get the 5th amendment wrong, or what? Apr 30, 2023 at 15:18

3 Answers 3

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No, a defendant may not remain silent on cross-examination.

Witnesses who voluntarily testify in their own defense are subject to cross-examination on that testimony.

In Fitzpatrick v. United States, 178 U.S. 304, (1900), a murder defendant testified that he was at two bars and then his cabin the night of the crime. The trial court held that having waived his Fifth Amendment right to remain silent, the defendant was subject to cross examination about what he was wearing that night, his connections to a co-defendant, the co-defendant's clothes, and who else was at the cabin with him. The Supreme Court affirmed the conviction, holding that if a defendant voluntary makes a statement about the crime at trial, the prosecution may cross-examine him with as much latitude as it would have with any other witness:

The witness having sworn to an alibi, it was perfectly competent for the government to cross-examine him as to every fact which had a bearing upon his whereabouts upon the night of the murder, and as to what he did and the persons with whom he associated that night. Indeed, we know of no reason why an accused person, who takes the stand as a witness, should not be subject to cross-examination as other witnesses are.

Fitzpatrick v. United States, 178 U.S. 304, 315 (1900).

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  • Isn't this limited to questions incriminating for what the defendant is being tried for? Or must he answer questions potentially incriminating him for other crimes too?
    – Greendrake
    Apr 26, 2023 at 2:25
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    Yes, so Fitzpatrick probably could have been cross-examined about whether he had also robbed the murder victim or whether he had been using drugs at home at the time of the murder, but he probably couldn't have been cross-examined about whether he had paid his income taxes that year or run a red light on the way to trial that morning.
    – bdb484
    Apr 26, 2023 at 12:13
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    Nevermind the anachronisms.
    – bdb484
    Apr 26, 2023 at 12:14
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    IANAL, but I assume the defense attorney can object to questions that are irrelevant to the current case.
    – Barmar
    Apr 26, 2023 at 14:07
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    @Greendrake: I believe a different crime is usually out of scope for a cross examination questions anyway, unless testified about in the initial testimony (which is 5th amendment waived). E.g. If Alice testified that she couldn't have murdered Bob, because she was busy robbing Charlie, then the prosecution should be able question her about robbing Charlie. As I understand it, ALL cross-examination questions are limited to either the matters discussed in the primary testimony, or about the witness's credibility.
    – sharur
    Apr 26, 2023 at 20:44
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Perhaps. This article addresses the balance between the 5th Amendment protection against compelled self-incrimination, and the Confrontation Clause of the 6th Amendment. For example, a defense witness cannot refuse to answer a question that is solely about the witness' credibility. The basis for such a refusal is limited to protection against self-incrimination. Then, the witness can still be compelled to testify if granted immunity from prosecution (since there is no risk of incrimination). There are other protections pertaining to convicted defendants and the likelihood of a death sentence or a more severe non-death penalty. For a non-defendant, the right is asserted on a question-by-question basis. However (Rogers v. US, 340 U.S. 367), when a witness has voluntarily self-incriminated, they cannot then refuse to answer further questions that supply details. Even then, the right is not waived entirely, and exists in terms of increased risk of incrimination.

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    That article seems to address the clash between 5A/6A when a defense is cross examining a witness for the prosecution; I'm mainly interested in the case of a defendant not answering when the prosecution is cross examining the defendant. Apr 25, 2023 at 20:49
  • The Rogers vs US case is interesting though! Apr 25, 2023 at 20:50
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As noted, in a criminal trial the defendant, having voluntarily taken the stand in his own defense, is deemed to have waived (given up) his right to the protections of the Fifth Amendment, and must answer the prosecutor's questions.

But this does not mean that he must answer any and all questions the prosecutor may ask him. Relevance is still an issue; the question must be relevant to the matter on trial. If the prosecutor asks a question not relevant to the current trial, the judge will sustain an objection and tell the defendant he need not answer.

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