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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 shackle the innocent defendant from attempting to prove that another person committed the crime. If that other person asserts the fifth amendment in response to questions designed to substitute him for the defendant, the innocent defendant can neither surmount that person's assertion nor benefit therefrom.

Consider this set of facts. A murder is committed. Defendant, charged with the crime, has evidence that Witness killed the victim. The prosecution believes only one person committed the crime. Witness, subpoenaed by the defense to testify during Defendant's trial, informs defense counsel prior to trial that he will assert the fifth amendment and refuse to testify. In turn, defense counsel notifies the judge of Witness' intent. The court conducts a hearing to learn whether Witness will exercise the fifth amendment privilege not to testify, and to decide whether he may do so. During the hearing, Witness refuses to answer questions, the truthful answers to which, the defense contends, would substitute Witness for Defendant as the culprit. In light of the defense's startling contention and other evidence of Witness' guilt that the defense unwraps, the court understandably accepts Witness' claim that he might incriminate himself if he were to testify truthfully. Thus, the court holds that Witness need not testify.

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78 Geo. L.J. 1-70 (1989)