Pleading the Fifth

It’s rare that one of my clients or witnesses needs to assert the protection of the Fifth Amendment, but it happened the other day in court.

The case involved an Eritrean who fled persecution in his country and made his way to the U.S. with the help of smugglers.  His journey cost more than $10,000.00, paid for by various relatives.  One of the relatives came to court as a witness.  During cross examination of this witness, the trial attorney asked about sending money to my client to pay the smugglers.  Not only is this a crime, but it is also a deportable offense (the witness is a lawful permanent resident). 

The Fifth Amendment: It's not just for baseball players, Solyndra executives, and comedians.

I objected to the question on the basis that the witness was unrepresented, and if he testified about paying for a smuggler, his testimony could be used against him in a criminal prosecution (not to mention a removal proceeding).  After my objection, the IJ instructed the witness about his rights under the Fifth Amendment and the witness chose to invoke his right against self incrimination.  Probably a smart move.

The situation raises a few issues.  For one, what is the attorney’s obligation to protect the witness?  I certainly could have allowed the witness to answer DHS’s question.  The witness did not know that he might face prosecution for helping his friend enter the U.S. illegally; nor did he know about his Fifth Amendment right.  In this case, there was no conflict between my client’s interests and the witness’s, and so objecting was clearly the right thing to do.  But what if the witness’s testimony would have helped my client, but harmed the witness? Perhaps I would be obliged to allow the witness to testify in order to help my client (I have a duty to my client, but not to the witness).  I suppose this points to the need for witnesses to have their own attorneys in court, but as a practical matter, I imagine that is pretty unlikely.  

Another issue is the Immigration Judge’s obligation in this situation.  A quick review of the Immigration Judge Benchbook does not reveal any helpful guidance.  The Ethics  and Professional Guidelines are little better, though they do advise the IJ to “act in a professional manner towards all… witnesses.”  Based on this, one could argue that the IJ should inform a witness when he is entering dangerous territory.  To the extent that IJs are not obligated to notify witnesses of potentially self incriminating testimony, it seems to me that EOIR should create some guidance on this point to protect witnesses in Immigration Court.     

Finally, does the DHS attorney have any obligation to the alien?  The only other time a Fifth Amendment issue came up in one of my cases, I was questioning a witness and the DHS attorney pointed out that the witness’s answer might incriminate him (and no, I was not purposely out to get the witness; I didn’t realize that my question had potentially dangerous consequences).  DHS attorneys represent the government and should act justly.  However, sometimes there are good reasons to question a witness about issues that might incriminate him.  DHS attorneys need to balance their obligation to do justice with the need for information in the case.  I would argue that DHS attorneys should warn witnesses when they are asking questions that might incriminate them, but my guess is, most DHS attorneys would disagree with me.

As for my case, the Respondent was granted relief under the Torture Convention (a result we were not thrilled with, but it beats a denial) and the witness did not incriminate himself.  I guess that is mostly a happy ending.

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2 comments

  1. I may have a 5th Amendment issue and your article was very interesting. My client had 3 arrests that involved marijuna and / or cocaine; but all 3 were pled down to non-cimt convictions such as littering, criminal mischief and peace disturbance. The DHS atty advised he will be arguing against my client’s adjusment because the 3 arrests involved drugs even though the convictions did not. I anticipate the trial atty will ask my client about the underlying facts in these cases and I am considering whether it would be appropriate to invoke the 5th Amendment because the testimony may be construed as an admission and may then will be used as grounds of inadmissibility. I would appreciate any insight you may have on this subject. Thank you.

    Reply
    • I think you have several problems. For one, it sounds like the client was already charged with the drug crimes, but not convicted. That means that double jeopardy applies and he would not be charged again. Therefore, he has no need of the Fifth Amendment protection. Also, I believe IJ’s can construe a refusal to answer under the 5A as a negative factor (but I am not 100% sure about that). Admission to acts constituting a drug crime are a problem, so I am not sure the best course of action for you if the TA asks your client about what he did. Is there any way to say that he was not involved in a drug crime (after all, he wasn’t convicted)?

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