Witness against one's self Taking the Fifth: Defendants do it. Victims of crime do it. Even police officers do it

September 26, 1995

FIRST IT WAS former Los Angeles police detective Mark Fuhrman. Then it was Federal Bureau of Investigation sniper Ron Horiuchi. In two highly publicized cases, two men sworn to uphold the law refused to answer questions on the grounds that to do so would tend to incriminate them. They were "taking the Fifth." The Fifth Amendment to the Constitution says, "No person shall be. . . compelled in any criminal case to be a witness against himself."

Mr. Fuhrman was a witness in the O. J. Simpson trial, and Agent Horiuchi was called before a Senate committee investigating a fatal FBI raid on a suspected criminal in Idaho, but the constitutional protection extends as much to people in such circumstances as it does to those formally accused of a crime.

It even extends to victims of others' crimes. Two of the young men who were shot by subway vigilante Bernard Goetz in New York City 10 years ago took the Fifth at Goetz's trial.

Theoretically, no judge or juror, or senator or spectator, is supposed to draw inferences from someone taking the Fifth. But most people probably do. That's why O. J. Simpson's lawyers tried to let the jurors know Mr. Fuhrman took the Fifth when questioned out of the jury's presence about his previous testimony before the jury.

Some legal scholars believe that taking the Fifth in situations where there are ample legal safeguards against police or prosecutorial abuse -- for instance in a trial -- does not advance justice or benefit society. It serves only the person accused of a crime.

Some pollsters say Americans would repeal the right against self-incrimination if given the opportunity. We doubt that. The idea that an accused individual must assist the state in proving his guilt was rejected by the writers of our Constitution and by the English jurists of the 17th and 18th centuries who inspired them. Two hundred years later (and especially when state agents are taking the Fifth themselves), we believe most Americans still agree.

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