NEW YORK – Former President Donald Trump is expected to face cross-examination under oath in New York’s civil investigation into his business practices on Wednesday. But will he answer?
The former president’s attorney has indicated he will advise Trump to keep quiet and invoke Fifth Amendment protections against self-incrimination. It’s a constitutional right that receives high-profile exposure in settings ranging from Congress to TV crime shows, but there are nuances. Here’s what it means, and doesn’t mean, “beg (or ‘take’) The Fifth“.
WHAT IS IT ‘THE FIFTH‘?
The Fifth Amendment to the US Constitution establishes a number of rights related to legal proceedings, including that no one “shall be compelled in any criminal case to testify against himself.”
In the most direct sense, that means criminal defendants do not have to give damning testimony in their own cases. But it has also come to be applied in non-criminal contexts.
WHAT IS THE IDEAL BEHIND THIS?
“It reflects many of our core values and noblest aspirations,” the Supreme Court wrote in 1964.
Among those ideals: prevent people from being tortured to make them confess or being shod into a “cruel trilemma of self-accusation, perjury or contempt” of court.
Many decades earlier, the court had also questioned the reliability of confessions made under duress.
THE AMENDMENT REFERS SPECIFICALLY TO CRIMINAL CASES. HOW CAN YOU APPLY FOR A CIVIL INVESTIGATION?
Over time, it has been understood that Fifth Amendment protections cover witnesses, not just defendants, in criminal and civil courts and other government settings. The Supreme Court has even held that Fifth Amendment rights protect the jobs of public employees who were fired after refusing to testify in investigations unless granted immunity from prosecution.
The Fifth Amendment also supports the famous Miranda Warning on the right to remain silent and have a lawyer on hand while being questioned in police custody.
SO, ARE THERE ANY LIMITATIONS?
Under what has become the legal standard, the witness must face a real risk of criminal prosecution, said Paul Cassell, a professor of criminal law at the University of Utah. That means prosecution for any charge in any court in the United States.
–
