Legal Question in Constitutional Law in Hawaii

Hi,

I'm actually working on a school assignment in Social Studies. We are learning about the 10 Amendments. We need to answer the questions and name the amendment. Here is the one I'm having trouble on:

If I am accused of cheating on Mr. Xs history test and Im taken to court, do I have to answer all the questions the judge or lawyers ask me even if I think the answer I give might hurt my case? What if I really did cheat? Do I have to say that I did?

I've tried looking up the 5th Amendment and what it is exactly, but I'm not getting anywhere. Can you please provide me with information on the 5th Amendment and if the above is legal?

Asked on 8/27/13, 1:35 pm

1 Answer from Attorneys

John Mitchell Interaction Law
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Well, I'm not going to answer your question for you, since I would not want your teacher to accuse you of cheating! ;-)

If you have found the lawguru site, surely you have found others on the Fifth Amendment. For the text itself, it is at http://www.law.cornell.edu/constitution/fifth_amendment, and contains several rights of which only one pertains to "pleading the fifth," as it is often portrayed. Cornell also hosts legal articles, including a brief one on the Fifth Amendment, at http://www.law.cornell.edu/wex/fifth_amendment (see the "Self Incrimination" heading).

The hypothetical question you provided would cause any lawyer to wonder what you are in court for. To my knowledge, cheating on a history test in school is not a crime. Still, assuming you are in court for good reason (perhaps the accusation is that this was an online test and you violated the Computer Fraud and Abuse Act by hacking into Mr. X's computer to find the test answers? - sorry, I couldn't resist; now, back to the topic). Surely, you have already seen the Wikipedia article, at http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution#Self-incrimination.

As you look for the answer, note that the protection is against self-incrimination. For example, you can be compelled to testify against yourself even if it embarrasses you or hurts you financially, so long as the testimony does not incriminate you.

The U.S. approach is somewhat arbitrary. Some years ago, when dealing with attorneys in Argentina on a case that involved potential criminal activity in the U.S. and in Argentina, I learned that they also have protection against self-incrimination, but instead of a right to refuse to testify, it is a right to lie. I really liked that approach. In the U.S., refusing to testify is not supposed to be taken as a sign of guilt, but often is. That's just human nature. And, if the accused testifies falsely ("I did not kill Ms.Y"), and is acquitted of the murder of Ms. Y, the accused could later be prosecuted for lying under oath (perjury). In Argentina, as I understood it, the accused is free to lie in order not to self-incriminate, and it is up to the judge or jury to decide whether to believe the testimony.

Have fun answering the question and, whatever you do, don't assume that just because something has been one way for the last 100 or 200 years it will stay that way for the next 100 or 200 years. Explore the reasoning behind it, and consider whether we should come up with a better idea for achieving the same goals. Remember, the right against self-incrimination was a solution to a problem, and not an end in itself.

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Answered on 8/27/13, 3:41 pm

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