By Matthew Schwartz and Nick Barnaby
Television and movies teach us that only guilty people “take the fifth.” The Fifth Amendment right itself is often referred to as the right (or privilege) against self-incrimination. In fact, the most commonly formulated version of the Fifth Amendment invocation—“I refuse to answer on the grounds that it may incriminate me”—essentially assumes the speaker’s guilt. After all, if the witness weren’t guilty, his or her answer could not possibly be incriminating, and there would be no need—or legal basis—to “take five.” Based on a version of that logic, in civil cases, a jury is allowed to draw an adverse inference when a person asserts his or her rights under the Fifth Amendment. In substance, this rule entitles a civil jury to conclude that when a witness refuses to answer a question on Fifth Amendment grounds, the answer would have been terrible.
But the Fifth Amendment is for innocent people, too. In fact, the ability of an entirely innocent person to plead the Fifth Amendment and refuse to answer questions even under compulsory process such as subpoena or court order is a large part of why we have the right in the first place.
Fifth Amendment Right
The Fifth Amendment covers a broad range of critical but separate rights designed to protect Americans from a potentially overbearing government. Among other things, the Fifth Amendment guarantees all Americans due process of law; protects against double jeopardy; ensures that a person can only be charged with a felony or capital crime upon indictment by a grand jury; and provides for “just compensation” whenever the government takes private property, such as through confiscation or eminent domain. The Fifth Amendment also says that “no person … shall be compelled in any criminal case to be a witness against himself.” That’s the whole thing; the text of the Constitution doesn’t say anything limiting the Fifth Amendment right to situations where an answer would be incriminating.
Subsequent case law has made clear that the Fifth Amendment right exists whenever a person is subject to compelled or coercive questioning—whether in a civil, administrative, or criminal case or investigation—if the answer could be used in a criminal investigation or prosecution. “The privilege afforded not only extends to answers that would in themselves support a conviction under a … criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a … crime.” Hoffman v. United States, 341 U.S. 479, 486 (1951).
But that does not mean that the answer must itself be incriminating, or that the person asserting the Fifth must be guilty, in order to validly invoke the right. To the contrary, the Supreme Court has held on more than one occasion that “the innocent and guilty alike have a right of recourse to the Fifth Amendment.” Ullmann v. United States, 350 U.S. 422, 427 n.2 (1956). In fact, the Supreme Court has “emphasized that one of the Fifth Amendment’s basic functions is to protect innocent men [and women] who otherwise might be ensnared by ambiguous circumstances.” Ohio v. Reiner, 532 U.S. 17, 21 (2001) (internal ellipsis, quotation marks, and citations omitted).
Chief Justice Warren offered this historical explanation for why the Fifth Amendment is designed precisely to protect the innocent from overzealous and unscrupulous accusers:
The privilege against self-incrimination is a right that was hard-earned by our forefathers. The reasons for its inclusion in the Constitution—and the necessities for its preservation—are to be found in the lessons of history. As early as 1650, remembrance of the horror of Star Chamber proceedings a decade before had firmly established the privilege in the common law of England. Transplanted to this country as part of our legal heritage, it soon made its way into various state constitutions and ultimately in 1791 into the federal Bill of Rights. The privilege, this Court has stated, “was generally regarded then, as now, as a privilege of great value, a protection to the innocent though a shelter to the guilty, and a safeguard against heedless, unfounded, or tyrannical prosecutions.”
Quinn v. United States, 349 U.S. 155, 161-62 (1955) (footnotes omitted, quoting Twining v. State of New Jersey, 211 U.S. 78 (1908)). This explanation makes perfect sense: While we hope that law enforcement will act responsibly and impartially in exercising its considerable powers, history has repeatedly taught that that is not always the case, and that “heedless, unfounded, or tyrannical prosecutions” did not vanish with the compelled false confessions of the Star Chamber.
Perceptions About Taking the Fifth
Any lawyer who has dabbled in criminal law (or the threat of criminal exposure) understands the reluctance that many clients have to asserting their Fifth Amendment rights, even when doing so—as it often is—is the correct tactical decision. A person who finds him- or herself in the middle of a serious criminal investigation is not often best-served by answering every question that police or prosecutors (or Congress or plaintiff’s lawyers) would like to ask. At the same time, people rightly worry about the consequences of refusing to answer.
One such imagined consequence is about the criminal investigation process itself: Won’t the police assume I’m guilty if I refuse to answer questions? The answer, unfortunately, is “maybe,” even though the refusal to answer has no evidentiary weight in a criminal proceeding. Police are people, too, and their suspicious may well be aroused when a person refuses to answer questions on Fifth Amendment grounds. Of course, to bastardize the common wisdom, it is often better to keep one’s mouth closed and be thought a criminal than to speak up and prove it. (Clients often ask the related question: Won’t the police assume I’m guilty if I insist on having a lawyer? Fortunately, the answer to that one is almost always “no.”).
Another consequence of taking the Fifth, as noted above, is the potential of an adverse inference in civil litigation. In situations involving parallel civil and criminal matters, or even in stand-alone civil cases that touch on subjects that could give rise to criminal exposure, there are serious consequences to refusing to answer questions. A civil jury will learn that a witness has refused to answer questions, will be instructed by the judge that it may draw a negative inference from the invocation, and may very well use that inference to impose substantial civil liability. (Case law generally requires that there be some independent evidence of liability, such that a verdict cannot be based solely on the adverse inference, but that is a low bar.) In such cases, the risk of criminal exposure from answering questions must be weighed carefully against the likelihood that a refusal to answer will be used against the witness.
To many people, the consequence of “taking the Fifth” that is most worrisome is reputational: What will my husband/wife/children/neighbor/friends think? Will my employer fire me? Will my investors continue to trust me? Will markets and shareholders be spooked? Indeed, the commonly-held wisdom is that prominent public figures, senior corporate executives especially, face professional ruin if they invoke their Fifth Amendment rights and in doing so essentially admit guilt. Recall “pharma bad boy” Martin Shkreli taking the Fifth before Congress when being asked about why he raised the price of a lifesaving drug by 5,000%, or former baseball slugger Mark McGuire refusing to answer questions before a House Committee about the use of steroids in baseball.
Misperception That Only Guilty People Take the Fifth
These totally legitimate reputational concerns stem from the commonly-held misperception, just debunked, that only guilty people can take the Fifth. The Supreme Court has recognized this mistaken impression, and has underscored that popular perception on this point is misguided. “Too 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.” Grunewald v. United States, 353 U.S. 391, 421 (1957).
This misconception continues to inhibit people who would be best served by asserting their Fifth Amendment rights from doing so. Speaking in the context of a criminal investigation can carry serious risks, even for the innocent. Statements made to law enforcement can provide ammunition that can fuel misguided investigations and create prior statements that prosecutors and investigators will try to flyspeck and parse, looking for any arguable untruth or inconsistency.
Indeed, there are numerous examples of public figures that were charged with crimes solely because of things they said in interviews or testimony, when taking the Fifth would likely have protected them completely—legally, at least. For example, Martha Stewart was prosecuted for making false statements in an insider trading investigation in which she had definitely not committed insider trading. If she had only stayed silent, she would have almost certainly stayed out of jail. But for whatever reason, she felt compelled to speak.
If we recognize and internalize the true purpose of the Fifth Amendment—to protect innocent people—then maybe more innocent people will feel comfortable asserting their Fifth Amendment rights, rather than put themselves in a position where they may create or exacerbate a problem.
Matthew L. Schwartz is a partner at Boies Schiller Flexner in New York City. From 2005-2015, he was an Assistant U.S. Attorney in the Southern District of New York. Nick Barnaby is a director and assistant general counsel at General Dynamics Corporation, where he handles litigation and investigations. The views expressed in this article are solely those of the authors, and do not necessarily reflect the views or opinions of the authors’ employers.
Reprinted with permission from the January 13, 2020 edition of the The New York Law Journal © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 - [email protected]