法律英语：103 The Fifth Amendment

by Michael W. Flynn

First, a disclaimer: Although I am an attorney, I do have feelings, and I admit that I was truly touched by the letters of support I received from you, Loyal Listeners. The past two weeks were much less painful and much more bearable with your kind and thoughtful well-wishing. I truly appreciate your support, and am very glad to be back behind the microphone.

And second, the standard disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed¹ to practice in your jurisdiction². Further, I do not intend to create an attorney-client relationship with any listener.

Today’s topic is the Fifth Amendment³’s privilege against self-incrimination. Several listeners have written in with questions after seeing a witness in a TV show take the Fifth to avoid testifying, and after reading about how Monica Goodling attempted to take the Fifth when she testified before Congress regarding the firing of eight U.S. attorneys.

The Fifth Amendment provides in full:

No person shall be held to answer for a capital, or otherwise infamous⁴ crime, unless on a presentment or indictment⁵ of a Grand Jury, except in cases arising in the land or naval⁶ forces, or in the Militia⁷, when in actual service in time of War or public danger; nor shall any person be subject for the same offense⁸ to be twice put in jeopardy⁹ of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The relevant portion for today’s episode is the phrase, “nor shall be compelled in any criminal case to be a witness against himself.” This privilege allows a person to refuse to answer official questions put to him in any proceeding¹⁰, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings¹¹. This is the basis for the famous portion of the Miranda warning: “You have the right to remain silent.” Further, the government cannot punish a defendant¹² for exercising his right to silence by allowing the prosecutor¹³ to ask the jury to draw an inference of guilt¹⁴ from the defendant's refusal to testify in his own defense¹⁵.

But, the privilege is not absolute. The main exception is immunity¹⁶. If the government grants a person immunity, then that person may be compelled to testify. Immunity generally falls into two categories: transactional immunity and use immunity. For transactional immunity, the witness is immune from prosecution¹⁷ for offenses¹⁸ related to that testimony¹⁹. For use immunity, the witness may still be prosecuted²⁰, but his testimony may not be used against him. The government need only grant use immunity to compel testimony.

Monica Goodling is an excellent example of how immunity works. She was compelled by the Senate Judiciary Committee to testify about what she knew regarding the firing of eight U.S. attorneys. On advice of her lawyers, she asserted her Fifth Amendment privilege to remain silent because she feared that her statements might later be used against her in a criminal case. So, the government granted her use immunity. After that, she could not assert her Fifth Amendment privileges because her statements could not incriminate her. So, she was forced to testify, or be held in contempt of court. In the end, she testified.

The government will often use this tactic²¹ when prosecuting²² members of organized crime syndicates, i.e., the mob. For example, the government will grant immunity to a low-level crony in order to compel him to testify against the masterminds of the group.

Last, it is important to note that the Fifth Amendment applies only to statements, but not to actions. A common example comes from drunk driving cases. If an officer pulls you over and asks if you have been drinking, you have the right to refuse to speak because your statement that you just slammed six shots of tequila would likely be used against you in a criminal case. But, if the officer asks you to step out of the car, and you fall out and puke on the officer’s shoes, those actions are not protected by the Fifth Amendment. Similarly, the results of a blood or breath test that indicate you are drunk are not covered by the Fifth Amendment. While these actions effectively communicate incriminating information, they do not constitute statements. So, you cannot assert a Fifth Amendment privilege to suppress your stumbling or the results of the alcohol tests.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful²³ Life. Be sure to check out all the excellent Quick and Dirty Tips podcasts at QuickAndDirtyTips.com.

You can send questions and comments to.......or call them in to the voice-mail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

Legal Lad's theme music is "No Good Layabout" by Kevin MacLeod.

 

1 licensed   

adj.得到许可的v.许可，颁发执照(license的过去式和过去分词)

参考例句：

• The new drug has not yet been licensed in the US. 这种新药尚未在美国获得许可。
• Is that gun licensed? 那支枪有持枪执照吗？

2 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

3 amendment   

n.改正，修正，改善，修正案

参考例句：

• The amendment was rejected by 207 voters to 143.这项修正案以207票对143票被否决。
• The Opposition has tabled an amendment to the bill.反对党已经就该议案提交了一项修正条款。

4 infamous   

adj.声名狼藉的，臭名昭著的，邪恶的

参考例句：

• He was infamous for his anti-feminist attitudes.他因反对女性主义而声名狼藉。
• I was shocked by her infamous behaviour.她的无耻行径令我震惊。

5 indictment   

n.起诉；诉状

参考例句：

• He handed up the indictment to the supreme court.他把起诉书送交最高法院。
• They issued an indictment against them.他们起诉了他们。

6 naval   

adj.海军的，军舰的，船的

参考例句：

• He took part in a great naval battle.他参加了一次大海战。
• The harbour is an important naval base.该港是一个重要的海军基地。

7 militia   

n.民兵，民兵组织

参考例句：

• First came the PLA men,then the people's militia.人民解放军走在前面，其次是民兵。
• There's a building guarded by the local militia at the corner of the street.街道拐角处有一幢由当地民兵团守卫的大楼。

8 offense   

n.犯规，违法行为；冒犯，得罪

参考例句：

• I hope you will not take any offense at my words. 对我讲的话请别见怪。
• His words gave great offense to everybody present.他的发言冲犯了在场的所有人。

9 jeopardy   

n.危险；危难

参考例句：

• His foolish behaviour may put his whole future in jeopardy.他愚蠢的行为可能毁了他一生的前程。
• It is precisely at this juncture that the boss finds himself in double jeopardy.恰恰在这个关键时刻，上司发现自己处于进退两难的境地。

10 proceeding   

n.行动，进行，(pl.)会议录，学报

参考例句：

• This train is now proceeding from Paris to London.这次列车从巴黎开往伦敦。
• The work is proceeding briskly.工作很有生气地进展着。

11 proceedings   

n.进程，过程，议程；诉讼(程序)；公报

参考例句：

• He was released on bail pending committal proceedings. 他交保获释正在候审。
• to initiate legal proceedings against sb 对某人提起诉讼

12 defendant   

n.被告；adj.处于被告地位的

参考例句：

• The judge rejected a bribe from the defendant's family.法官拒收被告家属的贿赂。
• The defendant was borne down by the weight of evidence.有力的证据使被告认输了。

13 prosecutor   

n.起诉人；检察官，公诉人

参考例句：

• The defender argued down the prosecutor at the court.辩护人在法庭上驳倒了起诉人。
• The prosecutor would tear your testimony to pieces.检查官会把你的证言驳得体无完肤。

14 guilt   

n.犯罪；内疚；过失，罪责

参考例句：

• She tried to cover up her guilt by lying.她企图用谎言掩饰自己的罪行。
• Don't lay a guilt trip on your child about schoolwork.别因为功课责备孩子而使他觉得很内疚。

15 defense   

n.防御，保卫；[pl.]防务工事；辩护，答辩

参考例句：

• The accused has the right to defense.被告人有权获得辩护。
• The war has impacted the area with military and defense workers.战争使那个地区挤满了军队和防御工程人员。

16 immunity   

n.优惠；免除；豁免，豁免权

参考例句：

• The law gives public schools immunity from taxation.法律免除公立学校的纳税义务。
• He claims diplomatic immunity to avoid being arrested.他要求外交豁免以便避免被捕。

17 prosecution   

n.起诉，告发，检举，执行，经营

参考例句：

• The Smiths brought a prosecution against the organizers.史密斯家对组织者们提出起诉。
• He attempts to rebut the assertion made by the prosecution witness.他试图反驳原告方证人所作的断言。

18 offenses   

n.进攻( offense的名词复数 )；（球队的）前锋；进攻方法；攻势

参考例句：

• It's wrong of you to take the child to task for such trifling offenses. 因这类小毛病责备那孩子是你的不对。 来自《简明英汉词典》
• Thus, Congress cannot remove an executive official except for impeachable offenses. 因此，除非有可弹劾的行为，否则国会不能罢免行政官员。 来自英汉非文学 - 行政法

19 testimony   

n.证词；见证，证明

参考例句：

• The testimony given by him is dubious.他所作的证据是可疑的。
• He was called in to bear testimony to what the police officer said.他被传入为警官所说的话作证。

20 prosecuted   

a.被起诉的

参考例句：

• The editors are being prosecuted for obscenity. 编辑因刊载污秽文字而被起诉。
• The company was prosecuted for breaching the Health and Safety Act. 这家公司被控违反《卫生安全条例》。

21 tactic   

n.战略，策略；adj.战术的，有策略的

参考例句：

• Reducing prices is a common sales tactic.降价是常用的销售策略。
• She had often used the tactic of threatening to resign.她惯用以辞职相威胁的手法。

22 prosecuting   

检举、告发某人( prosecute的现在分词 )； 对某人提起公诉； 继续从事（某事物）； 担任控方律师

参考例句：

• The witness was cross-examined by the prosecuting counsel. 证人接受控方律师的盘问。
• Every point made by the prosecuting attorney was telling. 检查官提出的每一点都是有力的。

23 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。