Silence Is Golden
I might not prosecute criminals anymore, but I still love a good crime mystery. Matlock and Perry Mason are two of my all-time favorites; and, of the more recent shows, The Practice and Judging Amy are two shows I won't miss. The writing is fabulous.
A popular storyline is one where a witness is called to testify in, let's say a murder case. When it comes time for the prosecution's cross-examination, the witness (defendant or otherwise) decides that he doesn't want to cooperate. Where does he get the nerve?
No person shall be...compelled in any criminal case to be a witness against himself...
This clause of the Fifth Amendment to the Constitution is the basis for the privilege against self-incrimination. The annotations to that Amendment tell us that the source of the clause is derived from "nemo tenetur seipsum accusare," which means that "no man is bound to accuse himself."
Back before the days of Henry II, nearly everyone in the community, under England's system of law, was involved in the criminal proceedings - including the defendant. The annotations further tell us that an alleged wrongdoer was compelled to take an oath by which he was coerced to tell the truth about whatever the questioner wanted to ask about. The alleged wrongdoer would not know the nature of any charge or of the questions to be asked. Scary stuff.
It was because of abuses such as these that the Fifth Amendment privilege was drafted into action. A witness cannot be compelled to testify against himself in a criminal proceeding.
The privilege applies to answers that would sustain a conviction, and to those which lead to other evidence needed in a prosecution. How the privilege is interpreted and applied was developed through case law.
In order to determine whether or not the privilege applies, a Judge looks at the nature of the question and the answer that it will probably bring about. Or maybe the witness will tell the Judge that he cannot answer because "the answer may tend to incriminate me."
Picture this. The defendant takes the stand as a defense witness, and answers the questions that he and his attorney have discussed; such as where he was at the time the murder was committed. Of course, if he uses an alibi (I wasn't there; it wasn't me), the defense must provide a list of the alibi witnesses to the prosecution as well as their addresses.
When it comes time to cross-examine the witness, the prosecutor asks him about what type of relationship he had with the deceased victim. Let's say that the relationship consisted of physical abuse, and particularly one "incident" where the witness hit the deceased with a lead pipe. And, although the deceased didn't die that day, the ultimate cause of death was a sharp blow to the head.
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