So, here's one that may get you. At some point in your life, you likely learned that you have a "5th Amendment right against self-incrimination. " Most people I've encountered, it seems, learned this from the great source of learning in America - TV. I've also come to realize that most people don't know the half of the story. So.......here goes.
The 5th Amendment referred to is the 5th Amendment to the U.S. Constitution (a beautiful if somewhat confusing bit of writing that could use a little updating to allow for women and persons of African descent to be counted as people), which amendments as a whole are the Bill of Rights. The full text of the amendment, however, says a lot more than just the extension of a privilege against self-incrimination:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Did you have any idea that was all in there? That's just one amendment to the Bill of Rights. Aside from marvelling at the sheer number of rights the framers were able bestow upon us more than two centuries ago, it's sort of hard to even notice that there is a privilege against self-incrimination in there. But there it is, tucked away in the middle of the paragraph - "No person...shall be compelled in any criminal case to be a witness against himself..." The other language is also hugely important, but we're only focusing on this self-incrimination thing today. (Law school professors loved this amendment and we spent weeks on every clause in this provision).
So, fundamentally, no one can ever make you testify about any crime with which you are or could ever be charged. That's why you hear about many criminal defendants not taking the stand (but not all - some are just bad witnesses). But it's not limited to actual criminal charges. You don't even have to be accused to refuse to offer up testimony about information or things that could link you to a crime.
And here's a huge p.s. that comes with this right - in a criminal court, that refusal is not (I repeat, is not) an inference or admission of guilt. That's right, a jury cannot consider your failure to testify or offer up information about yourself under the 5th Amendment as any evidence that you, in fact, committed a crime. That's what is meant when you hear that someone "took the 5th." Side note: Jimmy Hoffa frequently told accused Teamsters to "take 5" when asked questions.
Now, what kind of fun would this be if I didn't reinforce for you the idea that nothing, not even your constitutional rights, are absolute and unbending? So, here we go. The privilege against self-incrimination is not absolute. True, you can never be forced to give up testimony about yourself that would incriminate you under any set of circumstances. But.....that refusal is not always coupled with the right to be free of inference that you are guilty!!! If you are in a civil court (note: the 5th Amendment only applies to "criminal cases"), you may invoke your privilege against self-incrimination, but a jury may properly consider that as an inference of guilt.
Here's the example. You are president of CDE Corp. and left your last job because the board of directors caught you stealing money from the company. No charges were ever brought because the company didn't want its name in the news. CDE Corp. ends up in litigation with the shareholders over some accounting irregularities. This is a civil proceeding and the only thing at risk here is money. You are called to testify at deposition, as president of the company, to discuss your oversight of the accounting department. You are asked about your job history. Questions are asked about your last job. You are asked, when did you leave this job? You are asked, why did you leave this job? Bang- there it is. You have to invoke your privilege against self-incrimination or fess up that you stole money. If you invoke your privilege, the law says that the jury (if it comes to trial) can infer that your refusal to answer the question means you are guilty of a crime.
Well, that's all we have time for today. Have a great day!
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