The Fifth Amendment to the United States Constitution, or the amendment best known as the right to “plead the Fifth” in order to protect incriminating oneself in adversarial procedures.
Often times, lawyers advise their clients to plead the Fifth, and respectfully decline to answer a question that may incite evidence against them. However, does invoking this Constitutional right imply guilt more so than an answer to a question from a prosecuting attorney?
This is the question that is posed and answered by philosopher James Duane, to which he answers, yes. Even if a defendant or a witness tell the complete and whole truth, and he or she is innocent, a seasoned attorney could still use information given by the innocent witness as proof against his or her credibility. To avoid any single words or phrases that are potentially damaging is simply impossible.
However, this does not mean that Duane advises defendants to not plead the fifth, and potentially incriminate themselves. Instead, re-wording this invocation is the best possible solution, in order to not only educate the jury of their innocence until proven guilty (which is an American adversarial value upheld to the highest degree) but to also make the prosecuting attorney aware that he or she knows his or her rights, and will not be bullied into answers that could incite evidence against them.
The answer Duane suggests is cited from the United States Supreme Court case of Brown v Walker of 1896, where the witness invoked their fifth amendment right in front of the grand jury by saying, “On the advice of my lawyer, I respectfully decline to answer on the basis of the Fifth Amendment, which-- according to the United States Supreme Court-- protects everyone, even innocent people, from the need to answer questions if the truth might be used to help create the misleading impression that they were somehow involved in a crime that they did not commit”.
To break this down even further, “incriminate” comes from a Latin root of “crime” or “criminal”, meaning that if a defendant or witness wishes not to incriminate them, most of the time, a layperson jury member would unconsciously associate them with a criminal, or crime.
I agree with James Duane, and his philosophy behind the meaning of the typical invocation of the Fifth Amendment rights, and how simply trying to avoid incriminating oneself can, in turn, do more harm than good. I feel that the way a witness or defendant words his or her answer to a question posed by a person who is paid to incriminate someone can be unfair, and simply deceitful, in some cases.
The Fifth Amendment is one that sets the American Judicial system apart from a long list of nations who do not reserve that right for their citizens, and to allow an attorney to essentially abuse that right is against what this country stands for, and what our United States Supreme Court stands for.
As a political science student, I believe that the meanings we attach with words are very important. For instance, simply defining “beyond a reasonable doubt”, versus “beyond a shadow of a doubt”, and even “preponderance of the evidence” can mean different things to different people, and can mean the difference between life in prison to a few years and a fine.
Words matter. From a more layperson standpoint, when watching crime shows such as Law and Order: Special Victims Unit (I understand these shows are not accurate in adversarial procedure, but more so for entertainment purposes) and a witness invokes the Fifth, I have even found myself feeling that that person is more likely to be guilty than if he or she had just answered.
Not to say that average, everyday conversational implicative does not matter, but in the court of law, usually, a lot more is on the line. Time served, fines, or even the death penalty rely on the answers given by witnesses and defendants, and the answers given should only be obtained truthfully, and purely for justice through the system.
