7

To quote this article about Chelsea Manning's jailing:

She said prosecutors have granted her immunity for her testimony, which eliminates her ability to invoke her Fifth Amendment right against self-incrimination.

I don't understand how granting immunity for a testimony can eliminate the right to remain silent?

linked: https://politics.stackexchange.com/a/23980/6057

13

Go to the actual text of the Fifth Amendment:

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.

On a strictly literal reading, this is a very narrow right, which can only be violated if:

  1. There is a criminal trial.
  2. A witness is called during the trial.
  3. The witness is the defendant.
  4. The testimony is compelled.

However, the actual law as interpreted by the Supreme Court is closer to the following:

  1. There is a possibility of criminal prosecution.
  2. Someone gives testimony which could be used to prosecute that crime.
  3. The witness could potentially be a defendant.
  4. The testimony is compelled. If the witness was in custody, this requirement is assumed and must be rebutted by an explicit waiver of rights.

Transactional (sometimes called "blanket" or "total") immunity eliminates #3 (by making the witness not liable for the crime at all), and "use and derivative use" immunity eliminates #2 (by making the statements inadmissible at trial). In Kastigar v. United States, the Supreme Court ruled that use and derivative use immunity is sufficient to avoid offending the Fifth Amendment in federal cases. State cases are complicated by the additional rights afforded by the constitutions of each state, and the requirements therefore vary by state.

  • In the actual interpretation section, shouldn't "gives testimony" be "makes a statement"? For example, statements made in response to a police interrogation are not testimony, yet it is well known that the Supreme Court has held that the fifth amendment prevents police from compelling such statements. – phoog Mar 10 at 1:05
  • @phoog: No, because "testimony" does not exclusively refer to statements made during a trial or before a grand jury. It would indeed include statements made in response to a police interrogation. However, it typically would not include, for example, the production of documents or physical evidence. The word "testimonial" is specifically used when evaluating whether something is eligible for Fifth Amendment protections, so removing it from my answer would be misleading at best. – Kevin Mar 10 at 1:17
  • @phoog actually, the fifth amendment's provision against self-incrimination does not, directly, prohibit forced confessions or police abuse. What it does is render such statements inadmissible in court, i.e that cannot be used as testimony. It also excludes evidence found by aid of such statements i.e "fruit of the poisoned tree". Police abuse can be addressed by section 1983 suits. – David Siegel Mar 10 at 1:53
  • @Kevin every definition I can find of the word "testimony" says that it denotes statements made under oath, which statements made in response to a police interrogation are not. Can you point to a definition of testimony that supports your assertion? – phoog Mar 10 at 6:11
  • @phoog: See for example Crawford v. Washington, although that particular case was about the Confrontation Clause (but the concepts translate readily). – Kevin Mar 10 at 16:59
13

The actual wording of the Fifth Admendment is

No person ... shall be compelled in any criminal case to be a witness against himself, ...

Once a person has been granted immunity, that person's testimony cannot be used against him or her, and so compelling testimony does not violate this right.

A person asserting this right ("Pleading the Fifth") must have a reasonable belief that the testimony might actually be used in a criminal proceeding against him or her.

In Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964) at page 68 it is pointed out that

the danger of prosecution "must be real and appreciable . . . , not a danger of an imaginary and unsubstantial character. . . ."

(quoting The Queen v. Boyes, 1 B. & S. 311, a English case decided by the Queen's Bench in 1861)

In The Queen v. Boyes a witness had declined to answer a question on the ground that it might tend to incriminate him, whereupon the

"Solicitor General then produced a pardon of the witness."

The witness nevertheless refused to answer the question on the ground that he could still be impeached by the Parliament. The court held

"that the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things -- not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency so improbable that no reasonable man would suffer it to influence his conduct. . . ."

(from Footnote 7 of Murphy)

Murphy v. Waterfront Comm'n, reviews the history of grants of immunity is some detail, and is worth reading for those interested in the subject. In that case the rule against self-incrimination was made fully applicable to the states, and State and Federal governments were each required to honor grants of immunity by the other.

3

Yes, immunity from prosecution can be granted, at which point a person in the US can't refuse to testify on the basis of self incrimination, because whatever they won't say can't be used to prosecute them - per the grant of immunity.

However, grants of immunity are typically specific, not a general absolution of any criminal behavior. The prosecution agrees not to charge the person on specific crimes, to get them to testify in court, presumably to go after a much greater criminal.

In this case, a grand jury wants Manning to testify. Unless the questions fall into the specific grant of immunity given to Manning, she can take the 5th.

Instead, Manning refuses to answer any questions. Her actions are now contempt of court, and typically for cases like this, she goes to jail until either she testifies, or the grand jury's term expires. Another grand jury can be empaneled to replace the expired one, can ask the same question, and can jail her again if she refuses to testify.

This is a telling line from that article:

“I will not participate in a secret process that I morally object to, particularly one that has been used to entrap and persecute activists for protected political speech,” she said in a statement released after she was taken into custody.

Morally objecting to a secret process is not grounds for refusing to testify. It is also well established in US law that an unauthorized release of classified information is not protected political speech.

0

Another case where the right can be abrogated (though not applicable here) is pardon. A pardon removes the stigma of the offense but does not reset the clock to a preconviction point with regard to jeopardy and so also extinguishes the privilege.

And, of course, if a trial resulted in acquittal there is no jeopardy remaining and so someone could be compelled to testify in a civil trial, the 5th amendment only protects against criminal conviction not civil liability.

  • This answer would benefit greatly from sources to back up your claims. – SoylentGray Mar 11 at 16:19

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