united-states criminal-law fifth-amendment testimony cross-examination
Can a defendant remain silent (invoke 5th amendment) during cross examination?
<p>Suppose a defendant testifies at a criminal trial and is advised beforehand that the prosecution has a right to cross examine him. Suppose the defendant answers all of his lawyer's questions on direct examination.</p>
<p>Would that defendant be able to refuse to answer some (or any) of the questions the prosecution asks on cross examination? I would expect the prosecution to ask questions that would tend to incriminate the defendant, and I'm wondering if, by voluntarily testifying on direct, the court would see his right to remain silent as being waived permanently, or if the court would be fine with the defendant re-asserting his 5th amendment rights during cross.</p>

<p>No, a defendant may not remain silent on cross-examination.</p>
<p>Witnesses who voluntarily testify in their own defense are subject to cross-examination on that testimony.</p>
<p>In <a href="https://casetext.com/case/fitzpatrick-v-united-states-2#p315" rel="noreferrer"><em>Fitzpatrick v. United States</em>, 178 U.S. 304, (1900)</a>, a murder defendant testified that he was at two bars and then his cabin the night of the crime. The trial court held that having waived his Fifth Amendment right to remain silent, the defendant was subject to cross examination about what he was wearing that night, his connections to a co-defendant, the co-defendant's clothes, and who else was at the cabin with him. The Supreme Court affirmed the conviction, holding that if a defendant voluntary makes a statement about the crime at trial, the prosecution may cross-examine him with as much latitude as it would have with any other witness:</p>
<blockquote>
<p>The witness having sworn to an alibi, it was perfectly competent for the government to cross-examine him as to every fact which had a bearing upon his whereabouts upon the night of the murder, and as to what he did and the persons with whom he associated that night. Indeed, we know of no reason why an accused person, who takes the stand as a witness, should not be subject to cross-examination as other witnesses are.</p>
</blockquote>
<p><em>Fitzpatrick v. United States</em>, 178 U.S. 304, 315 (1900).</p>

<p>Perhaps. <a href="https://legalbrief.com/ingram.html" rel="nofollow noreferrer">This article</a> addresses the balance between the 5th Amendment protection against compelled self-incrimination, and the Confrontation Clause of the 6th Amendment. For example, a defense witness cannot refuse to answer a question that is solely about the witness' credibility. The basis for such a refusal is limited to protection against self-incrimination. Then, the witness can still be compelled to testify if granted immunity from prosecution (since there is no risk of incrimination). There are other protections pertaining to convicted defendants and the likelihood of a death sentence or a more severe non-death penalty. For a non-defendant, the right is asserted on a question-by-question basis. However (<a href="https://supreme.justia.com/cases/federal/us/340/367/" rel="nofollow noreferrer">Rogers v. US</a>, 340 U.S. 367), when a witness has voluntarily self-incriminated, they cannot then refuse to answer further questions that supply details. Even then, the right is not waived entirely, and exists in terms of increased risk of incrimination.</p>

<p>As noted, in a <em>criminal trial</em> the defendant, having voluntarily taken the stand in his own defense, is deemed to have <em>waived</em> (given up) his right to the protections of the Fifth Amendment, and must answer the prosecutor's questions.</p>
<p>But this does not mean that he must answer any and all questions the prosecutor may ask him. <em>Relevance</em> is still an issue; the question must be <em>relevant</em> to the matter on trial. If the prosecutor asks a question not relevant to the current trial, the judge will sustain an objection and tell the defendant he need not answer.</p>
