If you ‘take the Fifth,’ does it imply guilt?

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During his campaign, Donald Trump went out of his way to blast Democrats for “taking the Fifth,” saying mob members and guilty people do so (ignoring his own invocation of the Fifth in his divorce case). And maybe it’s for that reason that the non-lawyer talking heads on TV are trashing the decision by Michael Cohen, the president’s one-time lawyer and “one-time lawyer and “fixer” — to assert his Fifth Amendment right against self-incrimination in the Stormy Daniels case. If we follow Trump’s campaign-mode thinking, his own counsellor must be guilty if he takes the Fifth.

The lawyer talking heads, though, know better. The fact is, lawyers know that innocent people get convicted all the time. Not in white-collar cases alone, but in prosecutions across the board, and across the country. Just ask The Innocence Project how often people, aided by their own true or sometimes false admissions to the authorities, have been wrongly convicted and, in some instances, sentenced to death.

{mosads}Prosecutors and judges cannot mention to seated jurors that a criminal defendant is not testifying, nor can jurors draw an adverse inference just because a defendant has not testified in his defense. However, in a civil case a trier of fact can consider a defendant’s decision to invoke the Fifth. More important, though, the public can think what it likes about an individual’s Fifth Amendment assertion. It is understandable that people might view “taking the Fifth” as a suggestion of guilt, but is fair for the public to conclude guilt?


Put otherwise, what exactly does it mean for someone to take the Fifth but still claim innocence?  The campaigning Trump would say “ridiculous”; these days, Trump presumably is more open-minded on the matter. Several people in his sphere, and he himself, may find themselves needing to invoke the Fifth.

So, when may someone take the Fifth? The standard, enunciated decades ago by the Supreme Court, is that a person can assert the Fifth, even when innocent, if an answer would “furnish a link in the chain of evidence needed to prosecute the claimant for a … crime.” Let’s not forget, the Fifth Amendment was meant to protect the innocent more so than the guilty.  

Suppose you are at a street corner, having just left a Starbucks with coffee in hand, and a murder happens. You’re not involved but you’re at the scene, and your presence means you could become a link in the chain of evidence against you.

Now, if a reputed member of the Mafia takes the Fifth, no one blinks. Everyone expects it, and no one is terribly bothered or surprised by a member of Congress or the tabloid press denouncing the “outrageous” protection afforded the Mafioso. When an average person, or even a politician, relies on his constitutional right, however, it becomes fodder for partisan politicians, the press and the public alike. All conclude that he did something illegal, even if taking the Fifth was his lawyer’s way to avoid having a client testify to some embarrassing (not necessarily criminal) fact that would furnish a link in the chain of evidence.  

Sometimes there is a strategic dual purpose, such as in the Stormy Daniels case where Cohen’s invocation of the Fifth has delayed the proceedings (which might have been his purpose).  Without intending to question the propriety of Cohen’s reliance on the Fifth, his reasons may, hypothetically, be akin to not wanting to admit being at a Starbucks where perhaps he met with Daniels to settle her claim.    

And there may be something far more imposing at stake. Given his proximity to President Trump and the ostentatious search of his premises a few weeks ago, Cohen seems to have become Public Enemy No. 1 among federal prosecutors in Washington and New York. Any lawyer representing him would be truly concerned that a false step, even by an innocent Cohen, during an interview or testimony would bring upon him the full panoply of the federal police power. Why not suit up with a Kevlar vest when people are actively shooting in your direction?   

What about the case of James Comey, former director of the FBI, who also dominates news coverage these days? Although it is obvious he won’t, given his previous congressional testimony and his many televised interviews about his book, Comey would have a right to take the Fifth if Special Counsel Robert Mueller were to seek his interview or grand jury testimony because he disclosed FBI-file memos of his conversations with the president (assuming that a prosecutor may take the position, as President Trump does, that the memos were classified and that leaking them was a crime).  

It would probably be unfair for conservative pundits to condemn Comey for asserting a constitutional right, as it is with liberal pundits in the case of Cohen — we simply don’t know the facts behind the decision. Sure, the public, unlike a jury, is not obligated to keep an open mind.  The public is entitled to look askance at people who decline to testify. Yes, it conjures up the suspicion that the witness has something to hide — and that’s precisely why jurors can’t consider it.

Yet, no matter one’s opinion about Cohen or about any of his publicly known clients, our country is built on laws and protections that all can exercise. No matter what you hear on cable TV shows, the mere act of taking the Fifth does not mean one is guilty.  

That brings us to the president. Put aside all of those unfortunate innocents who, for one reason or another, falsely confessed to crimes they didn’t commit. While his situation certainly is not comparable to theirs, President Trump also may not be guilty of anything. Nonetheless, taking the Fifth may be a strategic device that his lawyers correctly advise to ensure that he doesn’t commit a crime going forward, by giving a false statement when sitting for an interview or testifying at a grand jury.  

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is an adjunct professor at Fordham Law School. He regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of “Broken Scales: Reflections on Injustice.

Tags Criminal law Criminal procedure Donald Trump Donald Trump litigation Evidence law Fifth Amendment to the United States Constitution James Comey James Comey Michael Cohen Robert Mueller Self-incrimination

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