Pleading the Fifth may have a catch

They call it "pleading the Fifth."

From suspected communists during the McCarthy era, to mobsters in the 1960s and early '70s, to businessmen accused of white-collar crimes, the nation's history is replete with examples of Americans exercising their privilege under the Fifth Amendment to avoid self-incrimination.

It is a protection the Founding Fathers created to safeguard against potential abuses of overzealous government prosecutors. The basic idea is that the government may not compel a suspect to provide incriminating evidence against himself.

Now, the US Supreme Court is considering whether to approve a significant exception to this fundamental constitutional protection. Specifically, the court will decide whether prosecutors can use a grant of immunity to compel the target of an investigation to surrender incriminating documents, and then turn around and use those same documents to indict the still-immunized target.

Legal analysts say the case pits the broad constitutional principle of barring compelled self-incrimination against a desire by prosecutors for a tool that will allow them to force suspects to become witnesses against themselves.

"Why should a person be an instrument of their own prosecution? That goes against everything that our justice system is built on," says Lisa Kemler of the National Association of Criminal Defense Lawyers.

Both the independent counsel's office and the US Justice Department are urging the Supreme Court to approve the practice. They argue that preexisting business and personal documents prepared long before they were requested by prosecutors are not a compelled form of testimony.

"Although the Fifth Amendment protects the individual against the compelled, incriminating disclosure of the contents of his own mind, the privilege does not extend to thoughts and understandings that have been voluntarily committed to writing," says US Solicitor General Seth Waxman in his brief in the case.

The case involves the efforts of independent counsel Kenneth Starr to persuade former Associate Attorney General Webster Hubbell to cooperate fully with prosecutors investigating the president and first lady.

Mr. Starr and his prosecutors suspected Mr. Hubbell may have accepted hush money from Clinton supporters. So they subpoenaed his personal and business papers. Hubbell resisted, citing his Fifth Amendment privilege against self-incrimination.

Prosecutors responded by offering Hubbell immunity if he turned over the documents. But after he gave 13,120 pages to Starr, prosecutors returned a 10-count tax-evasion indictment against Hubbell, his wife, his lawyer, and his tax accountant.

Lawyers for Hubbell argued the indictment broke the terms of his immunity and violated his constitutional rights. A federal judge agreed and threw out the indictment. An appeals court panel also agreed in large part, ruling that the papers' contents could not be used against Hubbell unless prosecutors were already aware through another source of the existence of the documents.

The case hinges on whether the Supreme Court agrees with prosecutors that the documents were created voluntarily, and the government "obtained that information not through the forbidden tactic of compelling the respondent to restate it or affirm its accuracy, but through the entirely permissible tactic of compelling him to produce the physical evidence," says Robert Ray, in his brief on behalf of the Office of the Independent Counsel (OIC).

Hubbell's lawyer, John Nields, disagrees. "The OIC's position ... would permit prosecutors all over the country to compel testimony under immunity as a way of obtaining evidence against the immunized witness," he writes in his brief. "The position is impossible to square with the basic principles of Fifth Amendment and immunity jurisprudence." The Supreme Court's decision will determine whether a plea bargain later entered into by Hubbell should be thrown out.

(c) Copyright 2000. The Christian Science Publishing Society