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Questions Unanswered: The Fifth Amendment and Innocent Witnesses

NCJ Number
The Journal of Criminal Law and Criminology Volume: 93 Issue: 1 Dated: Fall 2002 Pages: 259-288
Angela Roxas
Matthew Burke
Date Published
30 pages
This paper presents arguments in the U.S. Supreme Court’s analysis of Ohio v. Reiner concluding that an innocent witness may validly claim the fifth amendment privilege against self-incrimination.
The fifth amendment provides that “no person shall be compelled in any criminal case to be a witness against himself.” Ohio v. Reiner (2001) extended the Supreme Court’s application of the fifth amendment protecting only those witnesses who have reasonable cause to apprehend danger from a direct answer. In Reiner, the Court examined whether a witness who denies all culpability in a child’s death may still exercise a valid fifth amendment privilege against self-incrimination. The U.S. Supreme Court concluded that a witness who asserts innocence may not be deprived the privilege against self-incrimination based on the idea that one of the fifth amendment's basic functions is to protect innocent men. In its conclusion, the Court expanded the privilege which continues the trend in fifth amendment cases and the Court relied principally on a policy rationale that the privilege against self-incrimination is to protect innocent men; this was considered a weak justification. In addition, the Court failed to address the issue of whether the prosecution should grant immunity to an innocent witness. The decision in the Reiner case, considered weak, leaves questions unanswered with respect to the complexities of the fifth amendment in the context of innocent witnesses.