Posted on: Friday, February 22, 2002

Island Voices
'Taking the Fifth' important right

David Childs lives in Wai'anae.

The editorial page on Feb. 19 had a commentary about discontinuing the Fifth Amendment right of American citizens testifying before Congress. The writer is identified as a "professor of law at Yale," as if further credentials were unnecessary.

But any criminal law professor could have done a better job of explaining the conundrum of congressional inquiries versus the right to remain silent preserved in the Fifth Amendment. 

The column does not explain that the Fifth Amendment protects citizens from the federal government. The Fifth Amendment does not just "give criminal defendants the right to refuse to testify at trial," as the author implies. It clicks in as soon as police "suspect" an individual of committing a crime. At that moment, the police must give the suspect his Miranda warning, which includes the "right to remain silent." 

With the shredding and the straw corporations and the "iffy" accounting practices, it is not difficult to suspect that some of Enron's major players committed criminal acts — and thus the "criminal case" has begun.

The Sixth Amendment starts out "In all criminal prosecutions ... " The right of the defendant to refuse to testify at trial may be found in the Fifth Amendment, but as is clearly seen in the opening clause of the Sixth Amendment, this right begins as soon as a criminal "case" begins, much earlier than the trial itself. 

Blatantly missing from the column is any reference to the eloquent "fruit of the poisonous tree" dictum by Oliver Wendell Holmes in 1920. Simply stated, it says that any evidence the government gains by unconstitutional methods is excluded from trials. This rule keeps our police from turning into the Hitlerian Gestapo of World War II Germany.

Of course, Congress can wait until after the criminal prosecutions have been completed and then go forward with an investigation. But why? It is fairly clear that Congress already knows what went wrong, and they have plenty of people to testify — non-criminals — to explain what went on.

The politics and posturing of our elected officials in Congress did not begin on 9/11. Government witnesses have been taking the Fifth as long as I can remember and long before that. There will always be fuzzy thinkers who believe, through ignorance, that compromising our "inalienable rights" is a good idea. Fuzzy thinkers come from every facet of American life — even Yale law professors.