Lois Lerner, head of the Exempt Organizations unit at the IRS, invoked her constitutional right against self-incrimination, also known as “pleading the Fifth.” Nonetheless, she was required to appear at a hearing before the House Committee on Oversight and Government Reform. She made an opening statement, which may have addressed enough core issues of the investigation that she waived her Fifth Amendment right: If you invoke it, you cannot speak in your defense. However this plays out, it should serve as a reminder that the constitution protects not only private citizens, but functionaries of the government as well.

The right of citizens not to be forced to testify against themselves is a tradition dating back to before the founding of the United States. In English inquisitorial trials, suspects had to give an oath to answer all questions truthfully before they were told of the charges being brought against them. This led to three options: refusal to take the oath, which could lead to torture, taking the oath and incriminating one’s self with the truth, which could result in death, or taking the oath and lying, which could also result in death.

English courts and parliament developed common law protections to prevent this dilemma. Nemo tenetur seipsum accusare (no man is bound to accuse himself) was adopted and carried over to the American Colonies. This was deemed so important that it was codified in the Bill of Rights. Our Accusatorial structure of courts (opposed to inquisitorial) is reflected in this guaranteed protection.

The protections granted were expanded by the courts over the years. In Chambers v. Florida, coercion to extract testimony (not limited to torture) was ruled to make the testimony inadmissible. In 1966, Miranda v. Arizona ruled that individuals must be informed of their Fifth Amendment protections when placed under arrest, in order for their testimony to be admissible. These Miranda rights are: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?” The suspect must answer clearly in the affirmative.

In 1984, the public safety exception to Miranda was developed in New York v. Quarles. If the officers or public are in immediate danger, then the officers may wait to read the Miranda warning. In the Quarles case specifically, the issue was whether they could ask the location of a gun when they saw the suspect with an empty gun holster. It was ruled that the statement could be admissible in court, despite the fact that the officers did not read the Miranda rights until after the gun was secured. This exception is limited, however, to questions necessary for the police “to secure their own safety or the safety of the public.”

Additional Resources

The Atlanta Journal-Constitution, IRS Official to Take the Fifth before Congress: http://www.ajc.com/weblogs/jamie-dupree/2013/may/21/irs-official-take-fifth-congress/

The Wall Street Journal, IRS’s Lerner Testimony: http://blogs.wsj.com/washwire/2013/05/22/irss-lerner-testimony-i-did-not-break-any-laws/

 

The Wall Street Journal, Director of IRS Unit Says She Won’t Testify: http://online.wsj.com/article/SB10001424127887324102604578496952393573348.html?mod=WSJ_WSJ_US_News_5

Cornell University Law School, Fifth Amendment: http://www.law.cornell.edu/wex/fifth_amendment

Miranda Warning Organization: http://www.mirandawarning.org/index.html

The FBI, The “Public Safety” Exception to Miranda: http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/february2011/legal_digest

American Bar, The Purpose and Scope of the Fifth Amendment Right Against Compulsory Self-Incrimination: http://apps.americanbar.org/abastore/index.cfm?section=Main&fm=Product.ViewPDF&pdf=12841

CCLB Lawyers, The Fifth Amendment in Civil Litigation: http://www.cclblawyers.com/CM/Publications/The-Fifth-Amendment-in-Civil-Litigation.pdf

Barnes and Barnes P.C., Converting a Fifth Amendment Invocation into a Negative Inference: http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/february2011/legal_digest

GPO, The Fifth Amendment: http://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992-10-6.pdf

Revolutionary War and Beyond, Fifth Amendment Court Cases: http://www.revolutionary-war-and-beyond.com/fifth-amendment-court-cases-self-incrimination-clause.html

NBC Learn, Oliver North Pleads the Fifth during Iran Contra Hearings: http://archives.nbclearn.com/portal/site/k-12/flatview?cuecard=51259#