Mike Kueber's Blog

June 22, 2012

Pleading the Fifth

Filed under: Law/justice — Mike Kueber @ 2:42 pm
Tags: , , ,

The wide-ranging Fifth Amendment to the U.S. Constitution provides, among other things, that no criminal defendant shall be compelled to be a witness against himself.  In the past weeks, two famous criminal defendants – Roger Clemens and Jerry Sandusky – have taken advantage of the Fifth Amendment by refusing to testify, with Clemens being acquitted and Sandusky’s jury still out.

Historically, the legal protection against self-incrimination was directed toward torture to extract information and confessions, and it was subsequently expanded to apply to testimony in criminal proceedings.  In 1966, the U.S. Supreme Court in 1966 in Miranda v. Arizona extended the Fifth Amendment to all custodial interrogations.

As with most civil liberties, I wish this one had remained in its earlier confines.  The following are some Wikipedia comments about the Fifth Amendment as applied to civil, noncriminal proceedings:

  • While defendants are entitled to assert that right, there are consequences to the assertion of the Fifth Amendment in a civil action.
  • The Supreme Court has held that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them….  [A]s Mr. Justice Brandeis declared, speaking for a unanimous court in the Tod case, ‘Silence is often evidence of the most persuasive character….’ ‘Failure to contest an assertion…is considered evidence of acquiescence…if it would have been natural under the circumstances to object to the assertion in question.’” (citations omitted.)
  • In Baxter, the state was entitled to an adverse inference against Palmigiano because of the evidence against him and his assertion of the Fifth Amendment privilege.

In the cases of Clemens and Sandusky, I have no objection to them not testifying, but the jury should be free to make adverse inferences from their failure to testify.  Watching defendants sit on their hands during trial is galling after hearing them loudly proclaim their innocence for months before trial.



  1. i like clements so i thought he should be able to use it. i don’t like penn st or sandusky so he should not be able to use. hook em horns

    Comment by q — June 24, 2012 @ 6:59 pm | Reply

    • How can you still like Clemens after he turned into an arrogant, knuckle-headed jerk, even if he is a Longhorn?

      Comment by Mike Kueber — June 24, 2012 @ 7:55 pm | Reply

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