“The mob takes the Fifth,” Donald Trump said at an Iowa campaign rally in September 2016. “If you’re innocent, why are you taking the Fifth Amendment?”
The public and the media—and apparently the President—have a basic misimpression about the history and purpose of the Fifth Amendment’s protection against self-incrimination. As the Supreme Court has long recognized, one of the basic functions of the Fifth Amendment is to protect the innocent, and the invocation of one’s Fifth Amendment right against self-incrimination says nothing about guilt. Yet the (mis)perception remains that if a person “takes the Fifth” it must be because they have something to hide, because only guilty people invoke the Fifth.
The Fifth Amendment contains a number of foundational principles of our criminal justice system. It provides that serious criminal charges must be made by indictment of a grand jury. It prohibits double jeopardy, and the taking of private property for public use without just compensation. It provides for due process. The Fifth Amendment also provides that “No person … shall be compelled in any criminal case to be a witness against himself.”
The Supreme Court has long understood that many misperceive the history and purpose of the privilege against self-incrimination. More than 50 years ago, in Ullmann v. United States, 350 U.S. 422 (1956), Justice Felix Frankfurter wrote that “[t]oo many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege. Such a view does scant honor the patriots who sponsored the Bill of Rights[.] … The privilege against self-incrimination serves as a protection to the innocent as well as to the guilty, and we have been admonished that it should be given a liberal application.” A year later, in Grunewald v. United States, 353 U.S. 391 (1957), Justice Marshal Harlan reiterated that “one of the basic functions of the privilege is to protect innocent men,” and noted that “[t]he privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.”
Nevertheless, the misperception that invocation indicates guilt continues to endure, and to impact decision-making in response to grand jury subpoenas. Although the Fifth Amendment right against self-incrimination is a bedrock of our legal system, many individuals confronted with a subpoena feel compelled to testify in front of a grand jury out of a basic misunderstanding of the privilege, or a fear that constituents, employers, or the public would view the exercise of their Fifth Amendment right as an admission of guilt. Likewise, many attorneys, particularly those who do not practice frequently in criminal courts, may not appreciate the breadth of situations under which a witness could make a reasonable showing that “self-incrimination” could follow from even seemingly innocent answers.
Given the history and purpose of this most basic American right, and its broad application in ex parte or sealed proceedings, such misapprehension should be put to rest. Put simply, the decision whether to invoke the Fifth Amendment should not be based on misplaced stigma, but rather on a reasoned analysis of its application to a witness’s potential testimony. While navigating a criminal investigation—particularly one that is sprawling and complex—diligent attorneys should be mindful of the court’s mandate that the privilege should be liberally construed; that the privilege protects a witness from having to give even innocent answers that could provide a “link in the chain” of evidence against him; and that a witness can still proclaim innocence while taking the Fifth.
Historical Origins and Supreme Court Precedent
The origins of the Fifth Amendment right against self-incrimination have been traced back to protections granted by English Courts and Parliament in the 17th Century. Those protections were established in response to historical practices such as ecclesiastical inquisitions and proceedings of the Star Chamber, which in the words of the Supreme Court “placed a premium on compelling subjects of the investigation to admit guilt from their own lips.”
Before those protections were granted, ecclesiastical courts would use the “oath ex officio” to force individuals in heresy inquisitions to swear before God that they would truthfully answer all questions posed to them—even before those individuals knew the specific accusations against them. By using the oath to conduct investigations, those courts put witnesses in what has been called the “cruel trilemma” of either: (1) refusing to take the oath, which constituted contempt and subjected the witness to torture; (2) taking the oath and telling the truth about their religious beliefs, which (depending on those beliefs) was punishable by death; or (3) taking the oath and lying about their religious beliefs, which was also punishable by death.
By the middle of the 17th Century, the “oath ex officio” was abolished, and by the late 18th Century, English courts in criminal cases began recognizing the privilege against self-incrimination as a fundamental rule of evidence.
Following the Revolutionary War, as colonists sought to codify and protect their rights, the privilege against self-incrimination was included in the constitutions of a number of the original states. The privilege was officially included in the Bill of Rights, ratified by Congress in 1791.
The Supreme Court has regularly examined and re-examined the Fifth Amendment privilege against self-incrimination. In the 1950s, the court considered a series of cases that helped define the privilege’s purpose and contours; those decisions are still important today in connection with the representation of any witness subpoenaed to testify before a grand jury.
In Hoffman v. United States, 341 U.S. 479 (1951), the court explained that the privilege protects even a witness who might provide even seemingly innocent and innocuous answers, if those answers could form a “link in the chain” of evidence against him. The court explained that the Fifth Amendment privilege “not only extends to answers that would in themselves support a conviction … but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant[.]”
The court in Hoffman also addressed the central role of the trial court in evaluating claims of privilege. The court wrote that it is the trial judge’s role to determine whether a witness’s invocation of the Fifth is “justified,” but at the same time any showing must be circumscribed to avoid the very harm the privilege is supposed to protect: “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.”
Significantly, the court also noted the low threshold to be employed in any review, stating that in order for the privilege to be denied it must be “perfectly clear” to a trial court, after consideration of all the circumstances, that the witness is mistaken in his perception of danger, and that the witness’s answers “cannot possibly have such tendency to incriminate.”
In Grunewald v. United States, 353 U.S. 391 (1957), the court reiterated that invocation of the privilege against self-incrimination can be “wholly consistent with innocence,” and that no inference to the contrary can be drawn in a subsequent proceeding.
The court in Grunewald also noted that the nature of the grand jury process factors into a witness’s decision to invoke the privilege. The court noted that in a grand jury proceeding an individual may be “a compelled, and not a voluntary, witness” who is not represented by counsel; that he can “summon no witnesses”; and that he has no opportunity to cross-examine witnesses testifying against him. The court wrote that “[i]nnocent men are more likely to plead the privilege in secret proceedings, where they testify without advice of counsel and without opportunity for cross-examination, than in open court proceedings, where cross-examination and judicially supervised procedure provide safeguards for the establishing of the whole, as against the possibility of merely partial, truth.” The court further noted that particularly in a case where a witness may already be considered a potential defendant, it can be “quite consistent with innocence for him to refuse to provide evidence which could be used by the Government in building its incriminating chain.”
The court has maintained these principles through the decades, notably reaffirming them in Ohio v. Reiner, 532 U.S. 17 (2001).
The Fifth Amendment in Practice
Cautious and diligent attorneys faced with a grand jury subpoena should carefully consider the history and purpose of the Fifth Amendment, and the Supreme Court’s liberal assessment of the privilege.
In many cases, a grand jury subpoena can give rise to reasonable cause for a witness to apprehend danger if they testify—even if they testify truthfully. Admitting facts that might seem neutral on their face, such as whether a witness knows, or has had contact with, or has done business with, a certain individual or entity, can provide an evidentiary link for law enforcement. This is particularly true as criminal investigations grow increasingly more complex, and the government’s proof in criminal cases correspondingly involves more and more “links in the chain.” And, this is particularly true when a witness has cause to believe he may already be the subject of a law enforcement investigation. Careful attorneys would be well advised to give great consideration to whether a client can reasonably assert the privilege, even if that witness proclaims his innocence and none of his potential answers are facially incriminating.
In some cases, non-legal considerations complicate a witness’s decision on whether to testify or invoke the privilege, even when the witness is the subject of an investigation. Public figures, such as politicians and prominent executives at public companies, face a variety of pressures to testify. Some of that pressure is rooted in an expectation that they “cooperate” with investigations, and that they appear transparent; for example, politicians fear backlash from constituents if they refuse to testify in response to a subpoena, while executives fear a similar reaction from board members and shareholders. That potential backlash is largely due to the mistaken stigma attached to invocation of the privilege, but mistaken or not, it is a reality.
These additional considerations complicate a witness’s decision, but rarely change a cautious attorney’s analysis and recommendation. If a client would be exposed to criminal liability by testifying before a grand jury, diligent and experienced criminal defense attorneys can rarely recommend doing so, regardless of the potential collateral consequences to a client’s career or business reputation. A client may—and sometimes does—choose to testify regardless of his attorney’s recommendation, fearing that the public and the media may wrongly interpret a decision to invoke the privilege as a sign of having something to hide, or as an admission of guilt, even more than he fears potential criminal exposure from testifying.
Some of the public’s misapprehension of the Fifth Amendment privilege against self-incrimination—how broad its scope is, how liberally it is applied, and how decisions are actually made by attorneys and trial judges—may be attributed to the secrecy of grand jury proceedings. Because those proceedings are normally sealed, the public has little appreciation for how often sophisticated criminal defense attorneys assert the privilege for their clients, and under how broad a range of circumstances trial courts accept that assertion. In fact, many trial courts are willing to take arguments from a witness’s attorney ex parte and in camera, to ensure that a witness is not jeopardized in asserting the privilege as he would be if he were forced to support his assertion in open court.
Assuming guilt because a person invokes his Fifth Amendment right also presumes that the government’s accusations and theories are always correct. In reality, that’s simply not the case. Our criminal justice system does make errors. The belief that an innocent person should always want to provide evidence reflects an idealistic belief that, if all the evidence is presented, our system will always produce the right result. Unfortunately, that is not always so, for a variety of reasons ranging from simple human fallibility to more sinister causes, such as racism or political motivations. In many cases, therefore, a witness with a foundation for invoking the privilege is well served by doing so instead of providing evidence—even seemingly innocuous evidence—that can potentially be used against him.
There is nothing inconsistent in a person asserting his Fifth Amendment right against self-incrimination, while at the same time publicly proclaiming innocence. Any presumption of guilt—by the public, the media, or the President—demonstrates a profound misunderstanding of the privilege, and our criminal justice system.
Ross M. Kramer and Seth C. Farber are partners at Winston & Strawn in New York.