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Issues Regarding the US Constitution’s Fifth Amendment
This law protects the person from incriminating himself to a crime, from possible improper methods to be used by law enforcement either through deceit, coercion or threats (Snitker). By encouraging silence in the face of the need for legal defense, this law wisely leads the accused to seek legal assistance.
Protection to the Criminal Defendant
Self-preservation is a natural right of any person and he may abuse this right by unknowingly withholding cooperation in judicial processes against crime. Excessive protection can be treated with reasonable approaches by law enforcement so that the Fifth will not overly and inappropriately protect defendants.
Custodial Interrogation
The typical case of interrogation under custody is already disadvantageous to the suspect. In a threatening environment all alone by himself he is automatically psychologically vulnerable to incriminating himself. This is the basis of the presumption of coercion in these circumstances and is thus remedied by the state’s duty to provide legal assistance even at the state’s expense. Once provided, the suspect cannot just simply invoke the Fifth as a blanket.
The Fifth limits itself to criminal cases with a clear implication to one’s self. Otherwise, law enforcement can negate the Fifth in favor of obstruction of justice if rightful questions are refused for answers.
Immunity
The granting of discretionary immunity can remove the need for the Fifth’s protection. This can be provided in the form of “use and derivative use” immunity which prevents defendants from being liable in the future of what they will say now. Once the threat of incrimination is removed, law enforcement now can compel defendants to answer questions. This immunity is not inherent in every situation but is granted by the court at its discretion at the recommendation of the prosecution. It is an option that can be proposed by the suspect if he wishes to be protected while cooperating with the judicial process.
(Colb)
Jury’s Right to Hear
The jury is made up of ordinary people who we can safely say are not legally clever. They would only use their common sense, intuition and conscience in hearing cases. In short, they would function simply under the guiding light of human nature. In one of the instructions to the jury stating that the defendant is not testifying, it says:
The fact that the defendant did not testify is not a factor from which any inference unfavorable to the defendant may be drawn. (Greenfield)
This is an instruction to the jury on what to think but it is not an assurance that they would do so or be convinced. The most likely opinion is that the defendant has many things to hide but in the ages of practice of court proceedings. What is not apparent but real is that there are valid reasons for refusal to testify which in no way reflects on any presumption of guilt.
The defendant believes that opening a testimony may force him to unavoidably reveal what he feels are undesirable details of his past life. This right to privacy is also as important and basic for any person. He may also refuse to further be under the public eye and to continue to suffer in embarrassment. He may also not want to reveal himself to be an inarticulate or a dull person. He may simply have a severe case of stage fright or having a natural look of confusion under stress regardless of innocence or guilt. On the positive side, a defendant may believe that his case is already too strong enough not to require his testimony. If one can avoid the stresses of testifying, why won’t he? (Greenfield)
The defendant deserves to have all the benefit of all these possible doubts and the system can grant this by denying the jury of any information surrounding defendant’s willingness to testify. This instruction to the jury is counter-intuitive to human nature. If the jury would not know whether the defendant testified or not, no such opinion will exist in their minds.
The court would also like to avoid comments from prosecutors and media to follow after learning of the refusal to testify. Further comments will most likely be hostile to the defendant and would add bias to the minds of the jury. A trial by publicity is always to be avoided.
Jury’s Inference on Refusal to Failure
The natural and intuitive reaction of the jury is why would not the defendant testify even if just to defend one’s self with the freedom to choose what to tell. The thought would be is “Why keep silent if he is innocent and had nothing to hide.” They would think that he must be guilty and he knows that it will show in one or another or another; the defendant simply would not like to take the risk. The interpretation of guilt is all too easy to assume and this poses a clear disadvantage to the defendant.
The other inference also hints of guilt and that is that the defendant is confident of the quality of his legal resources which would still prevail in the end even without his testimony. Another way of looking at it is that the defendant believes that the case of the prosecution is too weak to convince the jury of unreasonable doubt. After all, the true duty of a jury is not to judge on guilt or innocence but on whether the evidence and case presented has shown guilt beyond reasonable doubt. (Fresno)
Works Cited
Colb, Sherry. "The Supreme Court ponders coerced confessions and the Fifth Amendment". CNN.com/Law Center, 2 Jan. 2003, http://edition.cnn.com/2003/LAW/01/02/findlaw.analysis.colb.fifth/.
Fresno, Dan. "Why Would a Defendant Refuse to Testify in Criminal Case?". Fresno Criminal Lawyer, 27 Oct. 2011, https://fresnocriminallawyer.wordpress.com/2011/10/27/why-would-a-defendant-refuse-to-testify-in-a-criminal-case/.
Greenfield, Scott. "But The Defendant Didn’t Testify". Simple Justice, 7 Mar. 2013, https://blog.simplejustice.us/2013/03/07/but-the-defendant-didnt-testify/.
Snitker, Alexander. "Why Do We Have The Fifth Amendment?". Libert First Network, 19 Jun. 2013, http://libertyfirstfl.org/2013/06/why-do-we-have-the-fifth-amendment/.
