Re: Fifth Amendment

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On 12/17/08, Jim Busey wrote:
> If a person is on the witness stand, can he pick and choose
> the questions that he wishes to take the Fifth on? Does he
> have to take the Fifth on all questions posed to him, or
> can he decide to just answer the ones he likes?

If you are the defendant, you cannot be forced to take the
witness stand and testify to anything, but if you do decide
to testify, you MUST answer all relevant questions including
ones that might incriminate you. You may not “pick and
choose” which questions to answer.

As a witness (not the defendant), you may not invoke the 5th
unless the answer is likely to incriminate you in a crime.
If you are asked, "Do you own a car." You may not refuse to
answer that question because owning a car in itself is not
incriminating. Likewise you may not refuse to answer
embarrassing questions unless they would incriminate you in a
crime. For example if you were asked, “Isn’t it true that
you flunked the bar exam.” You could not refuse to answer
that. If you open the door to a question by a statement or
answer given on the witness stand you may be required to
answer. i.e., if you say on direct testimony "I am a
peaceful person who has never been in trouble." On cross
examination you may be asked "Weren't you arrested for
assault last year?" You may not take the 5th in response.
If the next question is "Are you guilty of the assault?" If
you were not yet convicted, you do not have to answer that
question.

If you take the 5th and the judge doubts that the answer is
likely to incriminate you, you may be ordered to answer under
penalty of contempt. First, you will probably be asked to
explain to the judge in chambers why you think the answer to
the question might incriminate you, if the judge doesn't
believe it will incriminate you he may order you to testify.
In that case, even if your answer incriminates you, you have
a good suppression motion if your answer to the question
causes you to be charged with a crime.

Finally, if you are given immunity to testify, you may not
refuse to answer all relevant questions for which you were
given immunity.