united-states trial fifth-amendment testimony contempt-of-court
USA: Can a witness take the 5th to avoid perjury?
<p>Lawyer Alice is questioning witness Bob. Bob is not on trial, and no one has accused him of a crime. Alice demands Bob answer a particular question with either a "Yes" or a "no." Bob believes that doing so would mislead the court so greatly that he attempts to use a complete sentence, only for Alice to interrupt him and demand the one word answer. In frustration, Bob simply takes the 5th, to avoid what he believes is perjury. </p>

<p>What will happen to Bob now that he's taken the 5th? Will he be held in contempt of court, or will the judge be concerned and try to probe further? Assume Bob is unaware of the concept of rebuttal questions. </p>

<p>In case the specific fact pattern is required: Bob witnessed Charlie be hit with a baseball bat, which resulted in Charlie knocking over (and breaking) a vase. Alice is asking if Charlie broke the vase. In Bob's mind, a "yes" answer is a lie, the blame lies with the assailant. A "no" answer is a lie, as Charlie's fall did cause the vase to break. </p>

<p>Your ability to assert your Fifth Amendment right against self-incrimination is not limited to cases where you are on trial or have been accused of a crime. Your ability to assert that right is also not an absolute bar against being ordered to testify: if you are given immunity, you can be forced to testify.</p>

<p>Alice cannot hold Bob in contempt – only the judge can. Bob can explain to the judge why a simple truthful "yes" or "no" answer is not possible, if he knows how to do that (does he understand the notion of a false presupposition, or unclarity?). He could for example assert truthfully that he does not understand the question (pointing to the distinction between "Charlie's body falling on the vase, causing it to fall and break", and "Charlie acting with apparent intent to break the vase", since it's not patently obvious that the former scenario constitutes "breaking the vase"). However (changing the scenario a bit), he has to understand that if the question is "Did Charlie shoot Delilah?" and the fact is that Ethan forced Charlie to shoot Delilah, saying "No" based on a theory of blame is not reasonably interpreted as truthful testimony.</p>

<p>Taking the 5th, without setting forth your basis (not understanding the question) runs the risk that the prosecution will grant immunity from prosecution, and therefore you don't get to avoid answering the question. Immunity covers various things <em>except</em> that it <a href="https://www.justice.gov/jm/criminal-resource-manual-1758-perjury-cases-special-problems-and-defenses-immunity" rel="noreferrer">does not cover prosecution for perjurious testimony</a>. See <a href="https://supreme.justia.com/cases/federal/us/445/115/" rel="noreferrer">US v. Apfelbaum</a>, 445 U.S. 115:</p>

<blockquote>
  <p>the Fifth Amendment does not prevent the use of respondent's immunized
  testimony at his trial for false swearing because, at the time he was
  granted immunity, the privilege would not have protected him against
  false testimony that he later might decide to give.</p>
</blockquote>

<p>Immunity is conferred under the control of some applicable statutory law, such as <a href="https://www.law.cornell.edu/uscode/text/18/6002" rel="noreferrer">18 USC 6002</a> which says that</p>

<blockquote>
  <p>no testimony or other information compelled under the order (or any
  information directly or indirectly derived from such testimony or
  other information) may be used against the witness in any criminal
  case, <em>except a prosecution for perjury, giving a false statement, or
  otherwise failing to comply with the order</em>.</p>
</blockquote>

<p>This really depends if Alice's questions are during Direct Examination or Cross Examination.</p>

<p>If direct, Alice called Bob to the stand and Bob is testifying to his account of the events in support of Alice's client.  Because of this Alice should be asking Bob to speak more on the matters and designed to elicit answers that are Bob's own words.  Ordinarily they may not be leading questions, which are questions in which the answer is contained within the question and typically require a binary yes or no from Bob to answer.  (i.e. "Did Bob break the Vase?").  The opposing council would object on the grounds that Alice is leading the witness, which the judge will either sustain or overrule.  Overrule will require Bob to answer but the more likely sustain will have the judge instruct the question to be stricken from the record and any answer Bob gave to be disregarded by the jury when in deliberations.  Alice may be permitted to rephrase the question ("Who Broke the Vase?") which will allow Bob to explain his account of the events in full.</p>

<p>Leading Questions may be asked in direct if Alice first asks the judge for permission to treat Bob as a hostile witness and the judge grants permission.  Usually, this means Bob is uncooperative with Alice but is offering testimony in a case or Bob has impeached himself by saying one thing in testimony that conflicts with his sworn affidative or other account.  Typically it could also mean Bob has a special circumstance that makes him unable to grasp the situation (such as Bob is a child and doesn't grasp the seriousness or the point of a more open question).   Either rate, Alice did call Bob and knows what she wants him to say pertinant to her case and thus, she would have likely coached him prior to the trial even beginnning on to how to answer any question she asks.</p>

<p>With that said, leading questions are permitted and almost exclusively asked in Cross-Examination as the Attorney did not call the witness and is trying to impeach (show the witness is unreliable) and thus the witness is opposed to the Cross examination's questions and thus permitted to be assumed a Hostile Witness.</p>

<p>While the leading nature of "Did Charlie Break the Vase?" it still can be objected too as it may set up to unfairly prejudice Charlie to the Jury. It is for the judge to decide which standards the prosecution must meet to claim that a law is broken (questions of law) and the jury to judge if Charlie's actions and behavior meet those standards and Alice is only supposed to be countering Charlie's statement.  It's not clear as to Leading questions example as we're not sure as to who is on trial for what, and it could be relevent that Charlie broke the vase.  In your scenario, Yes is a truthful statement as Bob is not allowed to give his opinion on Charlie's guilt but what happened.  Charlie did physically break the vase regardless of whether he criminally broke the vase.  Bob can answer this as it is a lie and is not in a damned if you do, damned if you do not.</p>

<p>Additionally, while Alice may move on quickly, and not permit Bob to clarify his statement, Alice is not permitted to instruct him as to how to answer the question.  The judge will instruct him as to whether or not invoking the fifth is permissible at this time.  Alice either demanding a specific binary choice of answers, or refusing to accept his attempted answer and demanding the binary as the only possible answer would be objectionable on the grounds of badgering the witness, which is specifically asking the witness a question without allowing the witness to answer OR Mocking him and is likely to really piss off the judge who might hold Alice in contempt of court (especially if she was twice objected to...  despite what the TV's show, Judges take a very dim view of lawyers who behave in this manor and do so very quickly.  At this point, Alice will certainly get a dressing down from the judge as part of his instructions to the record and if he doesn't charge Alice with contempt, he will likely threaten to do so if Alice doesn't stop her antics).  Make no mistake, it's Alice who is out of line, not poor Bob who she scared into thinking he's in legal jeopardy.</p>

<p>Finally, even if this wasn't objected too or was overruled (shockingly!), Bob is not left testifying to this as there will be a re-direct (and re-cross) where both council's will be allowed to ask questions of Bob to clarify issues previously discussed.  It is here where the direct council will be allowed to ask Bob if Charlie was conscious when he broke the vase and clarify the ambiguity the cross-question created.</p>

<p>TLDR: the 5th Amendment is big dynamite, almost entirely made of unintended consequences. There are much better ways to do this. </p>

<p>Anyway, Bob swore to tell the truth, the whole truth, and nothing but the truth. That prohibits him from giving either of the answers he is being railroaded into, so he should say "I cannot answer in this format".  </p>

<h2>Bob needs to get help</h2>

<p>At the very least, Bob should shoot a "What the heck???" glance to Diane, the opposing counsel.  This will clue Diane in that she should either be ready to object, or should ask Bob more questions about the subject matter. </p>

<p>Because when Alice is done, Diane absolutely can say "I have more questions for this witness."  And there's nothing Alice can do about it, except ask more questions of her own.  </p>

<p>If Alice revisits the same question, Diane can object that the question was already asked and answered.  Alice can do the same to Diane, so Diane would need to ask in a different way or take a different approach that asks Bob to fill in the details. </p>

<p>Bob should also signal to the judge that this question is not answerable like that.  The judge wants just what Bob swore to, the whole truth, and the judge will back up Bob, and perhaps even intervene, if he feels Bob is being railroaded.  </p>

<h2>It would be bad for Alice</h2>

<p>That would put Alice in a bad position, because then it would become apparent to the judge and jury that Alice is laboring to twist witness' words to change their meaning.  They would think about other times she framed a question like that, and the witness answers would be mistrusted.  Creating jury distrust in the process is exactly why judges don't permit much of this.  </p>

<h2>Pleading the 5th? Bring your checkbook.</h2>

<p>The problem in civil trial with pleading the 5th is that <strong>the 5th Amendment does not grant immunity to litigation</strong>.  Bob would be promptly added to the defendant list.</p>

<p>Alice would argue that if Bob's actions relating to that vase are so heinous as to be <em>actually criminal</em>, then it's <em>more likely than not</em> that <strong>Bob himself</strong> is responsible for the breaking of the vase.  Bob broke the vase in the commission of a crime.  </p>

<p><em>In civil court, the burden of proof is "more likely than not".</em></p>

<p>Alice will argue that is not in the purview of <em>this</em> jury to punish Bob for the crime, and indeed that Bob <em>may well escape prosecution</em> for this crime, since he has not even been a suspect up until now.  So the jury should do all they can to hold him to account. </p>

<p>Alice could also use the ordinary discovery process she is entitled to, to thoroughly explore for evidence of Bob's crime, in full view of the jury.  She would soon have the jury thinking Bob was Al Capone.</p>

<p>This changes the landscape for Diane.  <strong>Bob isn't Diane's client</strong>. By throwing Bob to the wolves, she exonerates her client.  Bob has no friends here, and isn't entitled to counsel who could cross examine or object... at least not until his name is added to the defendant list, and Alice could "game" this to weaken him. </p>

<p>What's Bob to do? Assert that he should have counsel at the defense table <em>because he expects to soon be named as a defendant</em>? </p>

<p>A more worrisome matter: The judge would have the opportunity to refer the matter to the district attorney for <strong>criminal</strong> prosecution.  DA's have broad latitude over which cases to bother prosecuting, but they take judge's referrals very seriously.  </p>

<p>So this will likely cost Bob the price of whatever is being litigated over, and possibly much, much more.  <strong>As such, this is a very foolish way to approach the problem</strong>.  Bob could achieve the same end cheaper and with no damage to his reputation simply by offering to <strong>pay Alice's client  to "go away"</strong> (settle the matter <em>with prejudice</em>, meaning Alice's client can't bring another action in this matter).  He would then be a "white knight leaping to the rescue". </p>
