I believe that the Fifth Amendment privilege against self-incrimination is widely misunderstood and misapplied.
The common belief seems to be that asserting the Fifth Amendment is a neutral act. By invoking the Fifth Amendment a person is admitting nothing and we cannot hold his use of the Fifth Amendment against him.
This understanding of the Fifth Amendment is only partially correct.
When a person refuses to answer questions under the Fifth Amendment, he is precisely saying:
“I committed a crime. I choose not to answer any questions about it. If you want to convict me of a crime, you must produce evidence “beyond a reasonable doubt” without any assistance you might receive from my answers to your questions.”
Refusing to answer questions based on the Fifth Amendment is an explicit admission of criminal guilt.
But, in the context of a criminal prosecution (and only in the context of a criminal prosecution) does the Fifth Amendment require that a person’s invocation of his right to remain silent not be used against him.
If, instead, we are determining whether to make a loan, to support a political candidate, trust a person to return a borrowed lawn mower, or any other situation, we are free to recognize that a person who has asserted the Fifth Amendment has admitted that he is a criminal and we can use that information any way we like.
I realize that my statements might seem wrong or be disconcerting. I will try to explain.
The Fifth Amendment privilege against self-incrimination is not based on logic, common sense or common experience. It is a policy choice made by the 1789 politicians who drafted and ratified the Bill of Rights.
In adopting the Fifth Amendment, the politicians of 1789 decided that when the government seeks to hold a person criminally liable, the government should not be able to force that person to testify against himself. The words of the Fifth Amendment are, “nor shall be compelled in any criminal case to be a witness against himself.”
The politicians of 1789 adopted the Fifth Amendment because they believed we would have a fairer, more just, more democratic society if the government was prohibited from prosecuting citizens for crimes based on coerced confessions. In effect, the politicians of 1789 were saying, “it is more important to us that the government not be able to coerce confessions than that some guilty defendants are acquitted.”
Other societies have made different policy choices. For example, in England, a criminal suspect is advised:
“You do not have to say anything. But, it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”
This English rule recognizes that, if a suspect fails to inform the police of an innocent explanation of events at the time the suspect is first asked, that fact can be used to cast doubt on a later concocted story. (In the US, under the Fifth Amendment, the defendant’s silence when first confronted cannot be used, in court, to cast doubt on a later articulated version of events.)
Logically, the English rule makes sense. If the defendant later comes up with an innocent explanation of events, isn’t the first question that comes to mind, “Well, why didn’t you mention this explanation when you were first asked?”
After it is understood that the Fifth Amendment privilege against self-incrimination is a policy choice, the next question is “Where does it apply?”
By the explicit words of the Fifth Amendment, it only applies in criminal cases-- “in any criminal case”. It applies only when the government is trying to deprive a person of his liberty by convicting him of a crime. So, when you serve on a jury and the judge instructs, “The defendant has the right not to testify and you are to draw no inferences adverse to the defendant because he has exercised that right,” you, as a juror, are bound to follow the judge’s instruction.
Since the Fifth Amendment prohibition on drawing adverse inferences from a person’s use of the privilege against self-incrimination applies only in a criminal prosecution, what does it mean to us when we learn that a person refuses to answer questions about potential criminal acts and we are not jurors in a criminal trial?
The words of the Fifth Amendment give us the answer. The Fifth Amendment states: “Nor shall be compelled in any criminal case to be a witness against himself.” By invoking the Fifth Amendment, a person says (and must say) that if he answers a question, his answer would make him “a witness against himself.” (Although no particular words must be used to invoke the fifth Amendment, a common statement is “I refuse to answer on the grounds that my answer may tend to incriminate me.”)
Thus, by invoking the Fifth Amendment, a person necessarily admits there was a crime and that he committed it.
If there was no crime, no answer given by the person could cause him to be “a witness against himself” or to “incriminate himself.” Equally, if there was a crime, but the person did not commit it, no answer could cause the person to be a “witness against himself” or to “incriminate himself.”zx
In sum, when a person invokes the Fifth Amendment, that person is must admit, “I committed a crime and I don’t want to answer questions about it.” Otherwise, the Fifth Amendment privilege does not apply and cannot be invoked.
Given the devastating nature of the admissions made by invoking the Fifth Amendment, there is only one reason that a person asserts the Fifth Amendment privilege against self-incrimination:
The person has decided that refusing to answer questions is more favorable to that person’s interests than answering questions would be.
Another way of expressing this is that the person is saying, “If I tell my side of the story, I will be worse off than if I say nothing.”
There are millions of scenarios which could cause a person to reach the conclusion that testifying would be hurtful. The most common one is that the person did the crime and has no explanation of the evidence against him. By invoking the Fifth Amendment, the person challenges the government by saying, “I did it. But, I exercise my right to refuse to help you prove it.”
Much as it pains me to agree with former president Trump, he was correct when he said, "If you're innocent, why are you taking the Fifth Amendment?”
But you may ask, “Why do our TV politicians, TV personalities, and legal commentators always remind us that a person’s refusal to answer questions is not evidence of guilt?” And, “why don’t they point out that asserting the Fifth is an admission of guilt in all contexts but a criminal trial?”
The answer to this question is complex. When the politicians of 1789 created the Fifth Amendment privilege against self-incrimination, they created a logical conundrum. It is impossible for most people to believe two entirely contradictory things at the same time. So, if it were the general belief and consensus of society that a person who takes refuge in the Fifth Amendment has admitted that he is guilty of a crime, how could we find jurors who could follow the instruction that they are “to draw no inference adverse to the defendant because that person has asserted his right to remain silent.” Both propositions cannot be true. If a person has admitted he has committed a crime, how can we not draw an adverse inference from that admission?
I believe that the widespread belief that a person is not admitting anything by taking the Fifth Amendment developed as a result news reporting of numerous court decisions which correctly state that “in criminal prosecutions” no adverse inferences are to be drawn from a defendant’s use of the Fifth Amendment. Over time, we, as a society, forgot or lost track of the Fifth Amendment’s crucial limitation that the only place where adverse inferences are prohibited is “in a criminal trial.”
You might also ask, “Isn’t there something unfair or un-American about thinking that a person is guilty because he is refusing to answer questions?”
The answer to this question is, I submit, an unequivocal “No.” The Fifth Amendment is not a “get out of jail free” card. The Fifth Amendment makes a person who wants to avoid answering questions about criminal behavior pay a heavy price.
The person asserting the Fifth Amendment makes a bargain with the government. The person must admit that he is a criminal for all purposes except in a criminal prosecution in order to receive the benefit of not being required to answer questions about his criminal behavior.
In our everyday lives we all draw conclusions when a person refuses to answer questions. “Did you eat the last popsicle?” “Silence.” “Did you get home last night before curfew?” “Silence.” “Did you remember to pick up the laundry?” “Silence.”
In sum, when a person is accused of wrongdoing and refuses to answer questions on the grounds that his answers may tend to incriminate him, he is admitting, “There was a crime and I committed it.”
That admission is proper to use for every purpose and in every context except if you happen to be a juror or judge in a criminal prosecution.
So, in evaluating what to think of Trump, it is entirely proper to take into consideration that he reportedly asserted the Fifth Amendment more than 400 times in his deposition in the NY Attorney General’s investigation. More than four hundred times, Trump admitted: “There was a crime (or crimes) and I committed it (them).” When someone tells you that he is a criminal, you should believe him.
Rachel Maddow—Please use your unique talents to explain this to everyone.