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Under what conditions can the right to be silence be revoked in the USA?

You have the right to remain silent, but why?Where does the right to refuse service come from?Who are the individuals behind China's right against self-incrimination initiative?What does “far-right extremist” mean?Under what conditions would North Korea be likely to negotiate a nuclear deal?You have the right to remain silent, but why?Under what conditions can US influence legislative process in another country?What is a “right” according to the U.S. Constitution?Can confirmations be revoked?Which USA Politicians want to shut down the CIA?If the 25th amendment gets revoked?

1

To quote this article about Chelsea Manning's jailing:

She said prosecutors have granted her immunity for her testimony, which eliminates her ability to invoke her Fifth Amendment right against self-incrimination.

I don't understand how granting immunity for a testimony can eliminate the right to remain silent?

linked: https://politics.stackexchange.com/a/23980/6057

united-states law human-rights

share|improve this question

edited 57 mins ago

James K

35.2k8105148

asked 2 hours ago

toogleytoogley

347118

• 
  
  
  

  
  5
  

  
  
  
  
  
  

  
  
  The right is to not incriminate yourself, not to remain silent. If your speech cannot incriminate you, then you can't say 'Im remaining silent to avoid incriminating myself'
  
  – Orangesandlemons
  2 hours ago
  

  
  
  
  

add a comment | 

1

To quote this article about Chelsea Manning's jailing:

She said prosecutors have granted her immunity for her testimony, which eliminates her ability to invoke her Fifth Amendment right against self-incrimination.

I don't understand how granting immunity for a testimony can eliminate the right to remain silent?

linked: https://politics.stackexchange.com/a/23980/6057

united-states law human-rights

share|improve this question

edited 57 mins ago

James K

35.2k8105148

asked 2 hours ago

toogleytoogley

347118

• 
  
  
  

  
  5
  

  
  
  
  
  
  

  
  
  The right is to not incriminate yourself, not to remain silent. If your speech cannot incriminate you, then you can't say 'Im remaining silent to avoid incriminating myself'
  
  – Orangesandlemons
  2 hours ago
  

  
  
  
  

add a comment | 

To quote this article about Chelsea Manning's jailing:

She said prosecutors have granted her immunity for her testimony, which eliminates her ability to invoke her Fifth Amendment right against self-incrimination.

I don't understand how granting immunity for a testimony can eliminate the right to remain silent?

linked: https://politics.stackexchange.com/a/23980/6057

united-states law human-rights

share|improve this question

edited 57 mins ago

James K

35.2k8105148

asked 2 hours ago

toogleytoogley

347118

share|improve this question

edited 57 mins ago

James K

35.2k8105148

asked 2 hours ago

toogleytoogley

347118

share|improve this question

edited 57 mins ago

James K

35.2k8105148

asked 2 hours ago

toogleytoogley

347118

edited 57 mins ago

James K

35.2k8105148

edited 57 mins ago

James K

35.2k8105148

asked 2 hours ago

toogleytoogley

347118

asked 2 hours ago

toogleytoogley

347118

2 Answers
2

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oldest

votes

2

The actual wording of the Fifth Admendment is

No person ... shall be compelled in any criminal case to be a witness against himself, ...

Once a person has been granted immunity, that person's testimony cannot be used against him or her, and so compelling testimony does not violate this right.

A person asserting this right ("Pleading the Fifth") must have a reasonable belief that the testimony might actually be used in a criminal proceeding against him or her.

In Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964) at page 68 it is pointed out that

the danger of prosecution "must be real and appreciable . . . , not a danger of an imaginary and unsubstantial character. . . ."

(quoting The Queen v. Boyes, 1 B. & S. 311, a English case decided by the Queen's Bench in 1861)

Murphy v. Waterfront Comm'n, reviews the history of grants of immunity is some detail, and is worth reading for those interested in teh subject.

share|improve this answer

answered 41 mins ago

David SiegelDavid Siegel

1313

New contributor

David Siegel is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.

add a comment | 

1

Go to the actual text of the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

On a strictly literal reading, this is a very narrow right, which can only be violated if:

1. There is a criminal trial.


2. A witness is called during the trial.


3. The witness is the defendant.


4. The testimony is compelled.

However, the actual law as interpreted by the Supreme Court is closer to the following:

1. There is a possibility of criminal prosecution.
   


2. Someone gives testimony which could be used to prosecute that crime.


3. The witness could potentially be a defendant.
   


4. The testimony is compelled. If the witness was in custody, this requirement is assumed and must be rebutted by an explicit waiver of rights.
   

Transactional (sometimes called "blanket" or "total") immunity eliminates #3 (by making the witness not liable for the crime at all), and "use and derivative use" immunity eliminates #2 (by making the statements inadmissible at trial). In Kastigar v. United States, the Supreme Court ruled that use and derivative use immunity is sufficient to avoid offending the Fifth Amendment in federal cases. State cases are complicated by the additional rights afforded by the constitutions of each state, and the requirements therefore vary by state.

share|improve this answer

edited 42 mins ago

answered 54 mins ago

KevinKevin

1,598723

add a comment | 

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2

The actual wording of the Fifth Admendment is

No person ... shall be compelled in any criminal case to be a witness against himself, ...

Once a person has been granted immunity, that person's testimony cannot be used against him or her, and so compelling testimony does not violate this right.

A person asserting this right ("Pleading the Fifth") must have a reasonable belief that the testimony might actually be used in a criminal proceeding against him or her.

In Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964) at page 68 it is pointed out that

the danger of prosecution "must be real and appreciable . . . , not a danger of an imaginary and unsubstantial character. . . ."

(quoting The Queen v. Boyes, 1 B. & S. 311, a English case decided by the Queen's Bench in 1861)

Murphy v. Waterfront Comm'n, reviews the history of grants of immunity is some detail, and is worth reading for those interested in teh subject.

share|improve this answer

answered 41 mins ago

David SiegelDavid Siegel

1313

New contributor

David Siegel is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.

add a comment | 

2

The actual wording of the Fifth Admendment is

No person ... shall be compelled in any criminal case to be a witness against himself, ...

Once a person has been granted immunity, that person's testimony cannot be used against him or her, and so compelling testimony does not violate this right.

A person asserting this right ("Pleading the Fifth") must have a reasonable belief that the testimony might actually be used in a criminal proceeding against him or her.

In Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964) at page 68 it is pointed out that

the danger of prosecution "must be real and appreciable . . . , not a danger of an imaginary and unsubstantial character. . . ."

(quoting The Queen v. Boyes, 1 B. & S. 311, a English case decided by the Queen's Bench in 1861)

Murphy v. Waterfront Comm'n, reviews the history of grants of immunity is some detail, and is worth reading for those interested in teh subject.

share|improve this answer

answered 41 mins ago

David SiegelDavid Siegel

1313

New contributor

David Siegel is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.

add a comment | 

The actual wording of the Fifth Admendment is

No person ... shall be compelled in any criminal case to be a witness against himself, ...

Once a person has been granted immunity, that person's testimony cannot be used against him or her, and so compelling testimony does not violate this right.

A person asserting this right ("Pleading the Fifth") must have a reasonable belief that the testimony might actually be used in a criminal proceeding against him or her.

In Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964) at page 68 it is pointed out that

the danger of prosecution "must be real and appreciable . . . , not a danger of an imaginary and unsubstantial character. . . ."

(quoting The Queen v. Boyes, 1 B. & S. 311, a English case decided by the Queen's Bench in 1861)

Murphy v. Waterfront Comm'n, reviews the history of grants of immunity is some detail, and is worth reading for those interested in teh subject.

share|improve this answer

answered 41 mins ago

David SiegelDavid Siegel

1313

New contributor

David Siegel is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.

share|improve this answer

answered 41 mins ago

David SiegelDavid Siegel

1313

New contributor

David Siegel is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.

answered 41 mins ago

David SiegelDavid Siegel

1313

New contributor

David Siegel is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.

answered 41 mins ago

David SiegelDavid Siegel

1313

1

Go to the actual text of the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

On a strictly literal reading, this is a very narrow right, which can only be violated if:

1. There is a criminal trial.


2. A witness is called during the trial.


3. The witness is the defendant.


4. The testimony is compelled.

However, the actual law as interpreted by the Supreme Court is closer to the following:

1. There is a possibility of criminal prosecution.
   


2. Someone gives testimony which could be used to prosecute that crime.


3. The witness could potentially be a defendant.
   


4. The testimony is compelled. If the witness was in custody, this requirement is assumed and must be rebutted by an explicit waiver of rights.
   

Transactional (sometimes called "blanket" or "total") immunity eliminates #3 (by making the witness not liable for the crime at all), and "use and derivative use" immunity eliminates #2 (by making the statements inadmissible at trial). In Kastigar v. United States, the Supreme Court ruled that use and derivative use immunity is sufficient to avoid offending the Fifth Amendment in federal cases. State cases are complicated by the additional rights afforded by the constitutions of each state, and the requirements therefore vary by state.

share|improve this answer

edited 42 mins ago

answered 54 mins ago

KevinKevin

1,598723

add a comment | 

1

Go to the actual text of the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

On a strictly literal reading, this is a very narrow right, which can only be violated if:

1. There is a criminal trial.


2. A witness is called during the trial.


3. The witness is the defendant.


4. The testimony is compelled.

However, the actual law as interpreted by the Supreme Court is closer to the following:

1. There is a possibility of criminal prosecution.
   


2. Someone gives testimony which could be used to prosecute that crime.


3. The witness could potentially be a defendant.
   


4. The testimony is compelled. If the witness was in custody, this requirement is assumed and must be rebutted by an explicit waiver of rights.
   

Transactional (sometimes called "blanket" or "total") immunity eliminates #3 (by making the witness not liable for the crime at all), and "use and derivative use" immunity eliminates #2 (by making the statements inadmissible at trial). In Kastigar v. United States, the Supreme Court ruled that use and derivative use immunity is sufficient to avoid offending the Fifth Amendment in federal cases. State cases are complicated by the additional rights afforded by the constitutions of each state, and the requirements therefore vary by state.

share|improve this answer

edited 42 mins ago

answered 54 mins ago

KevinKevin

1,598723

add a comment | 

Go to the actual text of the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

On a strictly literal reading, this is a very narrow right, which can only be violated if:

1. There is a criminal trial.


2. A witness is called during the trial.


3. The witness is the defendant.


4. The testimony is compelled.

However, the actual law as interpreted by the Supreme Court is closer to the following:

1. There is a possibility of criminal prosecution.
   


2. Someone gives testimony which could be used to prosecute that crime.


3. The witness could potentially be a defendant.
   


4. The testimony is compelled. If the witness was in custody, this requirement is assumed and must be rebutted by an explicit waiver of rights.
   

Transactional (sometimes called "blanket" or "total") immunity eliminates #3 (by making the witness not liable for the crime at all), and "use and derivative use" immunity eliminates #2 (by making the statements inadmissible at trial). In Kastigar v. United States, the Supreme Court ruled that use and derivative use immunity is sufficient to avoid offending the Fifth Amendment in federal cases. State cases are complicated by the additional rights afforded by the constitutions of each state, and the requirements therefore vary by state.

share|improve this answer

edited 42 mins ago

answered 54 mins ago

KevinKevin

1,598723

share|improve this answer

edited 42 mins ago

answered 54 mins ago

KevinKevin

1,598723

answered 54 mins ago

KevinKevin

1,598723

answered 54 mins ago

KevinKevin

1,598723