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GEORGETOWN LAW

The Scholarly Commons

1989

The Fifth Amendment: If an Aid to the Guilty Defendant, an Impediment to the Innocent One Peter W. Tague
Georgetown University Law Center, tague@law.georgetown.edu

This paper can be downloaded free of charge from: http://scholarship.law.georgetown.edu/facpub/702

78 Geo. L.J. 1-70 (1989)
This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author.

ARTICLES The Fifth Amendment: If an Aid to the Guilty Defendant, an Impediment to the Innocent One PETER

W. TAGUE*

The fifth amendment's privilege not to answer, critics carp, insulates the guilty defendant from revealing his complicity.' While this is true, ironically it also can shackle the innocent defendant from attempting to prove that

another person committed the crime. If that other person asserts the fifth amendment in response to questions designed to substitute him for the de-

fendant, the innocent defendant can neither surmount that person's assertion nor benefit therefrom. Consider this set of facts. A murder is committed. Defendant,2 charged with the crime, has evidence that Witness killed the victim. The prosecution believes only one person committed the crime.3 Witness, subpoenaed by the

defense to testify during Defendant's trial, informs defense counsel prior to trial that he will assert the fifth amendment and refuse to testify.4 In turn,

defense counsel notifies the judge of Witness' intent. 5 The court conducts a hearing to learn whether Witness will exercise the fifth amendment privilege * Professor of Law, Georgetown University Law Center. 1. Many luminaries in the United Kingdom and the United States have criticized or worried about the privilege against self-incrimination. Among them are Bentham, Wigmore, Corwin, Pound, Cardozo, Morgan, and Friendly. See Friendly, The Fifth Amendment Tomorrow: The Case for ConstitutionalChange, 37 U. CIN. L. REV. 671, 672-74 (1968) (listing citations). For a particularly caustic examination, see the United Kingdom's CRIMINAL LAW REVISION COMMITTEE, ELEVENTH REPORT: EVIDENCE (GENERAL), 28-31 (Cmnd. 4991) (1972) [hereinafter ELEVENTH REPORT].

2. This article will identify the class of defendants that call a witness who asserts the fifth amendment as "Defendant" and the class of people who assert the fifth amendment as "Witness." When discussing the participants in a particular case or the general class of defendants or witnesses, the word will not be capitalized. 3. The other two common situations in which Witness' assertion of the privilege might thwart Defendant's defense are (1) claims by Defendant-1 that Defendant-2 alone committed the crime, or (2) claims that Defendant-2 would say Defendant-1 did not participate in a multi-culprit crime if he were to testify truthfully. For examples of these three settings, see infra Part l.A. 4. In practice, of course, defense counsel is likely to learn of Witness' reluctance to help Defendant in a less structured way: by inferring that intent from Witness' attempt to avoid being subpoenaed or by learning of Witness' intent only when he appears in court in response to a subpoena. 5. If the attorney knows (and arguably if he suspects) that Witness will assert the fifth amendment, he risks acting unethically by calling Witness to testify. See AMERICAN BAR ASSOCIATION, PROJECT ON STANDARDS RELATING TO THE ADMINISTRATION OF CRIMINAL JUSTICE 97, 132

(1974) (neither prosecutor nor defense counsel may call witness who will assert privilege). The prosecutor also risks committing reversible error by calling Witness, although few appellate courts will grant relief. See United States v. Namet, 373 U.S. 179, 188-89 (1963) (although prosecutor

THE GEORGETOWN LAW JOURNAL

[Vol. 78:1

not to testify, and to decide whether he may do so. During the hearing, Witness refuses to answer questions, the truthful answers to which, the de-

fense contends, would...
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