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Taking the Fifth Amendment in fact and folklore

January 10, 2014 by NCC Staff


A former top aide to New Jersey Governor Chris Christie “took the Fifth” at a state hearing on Thursday into alleged forced traffic jams used as a tactic during Christie’s re-election campaign. But what exactly does taking the Fifth mean in the Bridgegate case?

lerneroncspanSomeone pleading the Fifth Amendment in a public proceeding is ingrained in our popular culture, thanks for decades of movies, television shows, and public hearings where the accused defiantly refuses to testify in a moment of high drama.

In reality, a person isn’t pleading the entire Fifth Amendment, but just the part that refers to self-incrimination.

David Wildstein, the former director of interstate capital projects for the Port Authority of New York and New Jersey, told a New Jersey state investigating committee that he wouldn’t answer its questions about the George Washington Bridge controversy. He was appearing at the committee hearing under subpoena.

“On the advice of my counsel, I respectfully assert my right to remain silent under the United States and New Jersey constitutions,” Wildstein told Assemblyman John Wisniewski, the committee chair.

Wisniewski told Wildstein that he didn’t have that right under the state law and he faced contempt charges.

Wildstein then “pleaded the Fifth” to Wisniewski’s follow-up questions, with Wildstein’s attorney, Alan Zegas, countering Wisniewski’s claims about the Fifth Amendment and Wildstein’s case.

“I’m not suggesting in any way and I don’t believe that Mr. Wildstein is guilty of anything, yet at the same time he has the right under both the federal and state constitutions to not give answers that could be used by a prosecutor were they to charge him, even if they were to charge him wrongly,” Zegas told Wisniewski.

At the end of the hearing, Wildstein was found in contempt, and the committee vowed to bring in more Christie associates, who could also very likely plead the Fifth.

The specific part of the Fifth Amendment about self-incrimination reads, “No person....shall be compelled to be a witness against himself.”

In the early years after the Constitution was ratified in 1789, the definition of self-incrimination was broader, but it only applied to federal cases.

Chief Justice John Marshall said the Fifth Amendment applied to witnesses who wanted to withhold incriminating evidence against third parties in his rulings in Marbury v. Madison (1803) and in Aaron Burr’s 1807 treason trial. (That decision has been narrowed to people asked to offer evidence about their own activities.)

But the right didn’t automatically apply to trials and hearings outside of the federal court system until the 14th Amendment was ratified in 1868, and the courts started applying the parts of the Bill of Rights to the states much later in the 20th century.

The public spectacle of a witness expressing their Fifth Amendment rights, in recent times, dates back to televised hearings in the early 1950s about organized crimes and investigations into alleged communist infiltration into the U.S. government.

The Kefauver Senate hearings about organized crime in 1950 and 1951 broadly exposed the Fifth Amendment to a daily national audience and brought the phrase “taking the Fifth” into the national vocabulary.

Witnesses in the House Un-American Activities Committee hearings were also pleading the Fifth Amendment, with mixed results, in the late 1940s.

In 1951, starting with the Dennis case, the Supreme Court expanded the protection of witnesses who refused to testify before Congress by citing the Fifth Amendment.

In 1966, the Court found, as part of its historic Miranda v. Arizona decision, that the right to protect against self-incriminating testimony existed outside of a courtroom.

“There can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves,” the Court said.

A later Court case, Ohio v. Reiner, stated that the Fifth Amendment “protects the innocent as well as the guilty” and that any information “which would furnish a link in the chain of evidence needed to prosecute the claimant” is valid cause to invoke Fifth Amendment rights.

Since the 1950s, famous incidents involving the Fifth Amendment in public testimony have included Oliver North’s testimony during the Iran-contra hearings; former Enron Chairman Kenneth Lay’s testimony at a 2002 Senate hearing; baseball star Mark McGwire taking the Fifth during testimony about steroid use in 2005 in front of a House committee; and the recent testimony of former IRS official Lois Lerner.

Lerner, the former head of the IRS tax-exempt organizations office, said in advance of her March 2013 testimony that she would assert her Fifth Amendment privilege and refuse to answer questions from House members during committee hearings about the IRS’s targeting of conservative nonprofit groups.

However, Lerner then read an opening statement at the hearing, setting off a debate about whether she had waived her Fifth Amendment rights by reading the statement.

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