Fifth Amendment Research Paper

GEORGETOWN LAW

The Scholarly Commons

1989

The Fifth Amendment: If an Aid to the Guilty Defendant, an Impediment to the Innocent One
Peter W. Tague
Georgetown University Law Center, [e-mail]

This paper can be downloaded free of charge from: http://scholarship.law.georgetown.edu/facpub/702

78 Geo. L.J. 1-70 (1989)
This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author.

ARTICLES The Fifth Amendment: If an Aid to the Guilty Defendant, an Impediment to the Innocent One
PETER

W. TAGUE*

The fifth amendment's privilege not to answer, critics carp, insulates the guilty defendant from revealing his complicity.' While this is true, ironically it also can
Herman, 589 F.2d 1191, 1204 (3d Cir. 1978), cert. denied, 441 U.S. 913 (1979); accord Virgin Islands v. Smith, 615 F.2d 964, 968-69 (3d Cir. 1980) (prosecutor with exclusive jurisdiction over juvenile witness whom defendant wanted to call would have granted use immunity as long as the U.S. Attorney agreed; wrong for U.S. Attorney to withhold agreement); see also People v. Shapiro, 50 N.Y.2d 747, 762, 409 N.E.2d 897, 904, 431 N.Y.S.2d 422, 429 (1980) (error for prosecution to withhold immunity from defense witnesses who asserted fifth amendment only after prosecution threatened to prosecute them for perjury if they testified). Other courts have suggested the same result in dictum or have been reversed for ordering the prosecution to choose between granting use immunity and another sanction. See Earl v. United States, 361 F.2d 531, 534 n.1 (D.C. Cir. 1966) (suggesting prosecution cannot grant transactional immunity to its witnesses and refuse the same protection for defense witnesses), cert. denied, 388 U.S. 921 (1967); United States v. De Palma, 476 F. Supp. 775, 781 (S.D.N.Y. 1979) (prosecution's broad grant of immunity for its witness and limited grant for defendant's witness resulted in unfair trial, therefore new trial ordered), rev'don othergroundssub nom. United States v. Horwitz, 622 F.2d 1101, 1105-06 (2d Cir. 1980) (conceding it lacked authority to
The prosecution can expose whether Witness and Defendant have colluded in an effort to mislead the jury, or, conversely, can clear an innocent defendant. In sum, by granting use immunity and assuming Witness' truthfulness, 2 1 we can avoid the two flaws of convicting an innocent defendant or freeing a guilty defendant. The state of the law in this area invites several observations about evidentiary and constitutional law. Forbidding Defendant from trying to benefit from Witness' assertion of the fifth amendment is an example of the choice evidence law often makes: to exclude problematic evidence rather than to search for ways to help the jury identify and understand estimation problems. Although the import of Witness' privilege assertion is not pellucid, the court could help the jury more than it does in the typical trial by noting the inferences the jury might draw. 22 Alternatively, as this article suggests in Part V, the law might adopt a model of admissibility loosely drawn from discovery rules. Under this model, Defendant (and perhaps any party) could introduce any relevant evidence as long as he shared it with the prosecution far enough in advance of trial to enable the prosecution to investigate. Finally, we need to ask whether Defendant's sixth amendment right to compulsory process includes the right to try to profit from Witness' fifth amendment privilege assertion. Arguably, the sixth amendment topples the categorical rule that no litigant, not even the