Chapter 7 Stigma and the Fifth Amendment

• Library: The Privilege of Silence: Fifth Amendment Protections Against Self-Incrimination (ABA) (2014 Ed.)

CHAPTER 7 Stigma and the Fifth Amendment

Because the Fifth Amendment protects only against disclosures that could incriminate, the invocation of the privilege carries a stigma that the individual acted in contravention of the criminal law. Fear of this reputational damage often deters witnesses from asserting the Fifth Amendment privilege. While perceptions of the Fifth Amendment as a refuge for the guilty may never be totally erased, the stigma associated with asserting the Fifth Amendment privilege against self-incrimination is often exaggerated, because the Fifth Amendment also protects the innocent.

The Supreme Court's decision in Ohio v. Reiner, 532 U.S. 17 (2001), is instructive. There, the Ohio Supreme Court "held that a witness who denies all culpability does not have a valid Fifth Amendment privilege against self-incrimination." Id. at 18. The U.S. Supreme Court, in a rare grant of certiorari "when a state court's interpretation of state law has been influenced by an accompanying interpretation of federal law," disagreed. Id. at 20 (citation omitted). In a per curiam decision, the Court reminded Ohio that "truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth," and are thereby protected by the Fifth Amendment. Id. at 21 (citation omitted).

Ohio v. Reiner concerned a prosecution of a father for involuntary manslaughter of his two-year-old child as a result of child abuse. The father's defense theory was that the child's babysitter was the culpable party. The babysitter, according to the Court, had reasonable cause to apprehend danger from her answers if she was questioned at the father's trial because she had spent extended periods of time alone with the baby in the weeks before his death. Given this fact—which the Court referred to as "ambiguous circumstances"—the Court ruled unanimously that the babysitter had a valid Fifth Amendment privilege not to testify despite her claimed innocence. Id. (citation omitted).

The vitality of this point continues to be demonstrated in subsequent decisions.

• In re Proceedings Before a Grand Jury, 768 N.E.2d 1102, 1107, 55 Mass. App. Ct. 17, 23 (2002) (reversing contempt order against grand jury witness for asserting Fifth Amendment privilege in investigation of arson, where witness was one of only two people working in the store shortly before fire was set).
• Begner v. State Ethics Comm'n, 552 S.E.2d 431,

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