You Have the Right To Remain Silent. But How Silent?

At this week’s congressional hearings on WorldCom’s alleged accounting misdeeds, Bernard J. Ebbers, the company’s former CEO, invoked his Fifth Amendment right against compelled self-incrimination—commonly known as “the right to remain silent.” But first, Ebbers made several statements proclaiming his innocence: “I do not believe I have anything to hide in these or any other proceedings”; “No one will conclude that I engaged in any criminal conduct or fraud.”

Rep. Max Sandlin, D-Texas, charged that by proclaiming his innocence, Ebbers had waived his Fifth Amendment rights and that now he must either testify in the WorldCom hearings or be held in contempt of Congress. Is Sandlin right?

Probably not. Had Ebbers been testifying in a criminal trial, his proclamations of innocence would have effectively waived his Fifth Amendment rights. But congressional hearings are different, and no one’s quite sure what the rule is.

During a criminal trial, any witness—including the defendant—who voluntarily testifies thereby opens the door to cross-examination on any reasonably related topic. He can no longer invoke his right to remain silent. Why? Basically because he hasn’t remained silent. You opened your mouth; too bad for you.

More theoretically, the law works this way because it would be unfair for a jury to learn only part of a witness’s evidence on a given topic—especially the self-serving portion the witness chooses to share. The only remedy is to force the door-opening witness to tell the whole story. And since Ebbers’ statements were so broad—”any criminal conduct or fraud”—he would have opened himself to extremely wide-ranging cross-examination on virtually any topic related to the hearings.

But because Ebbers is a congressional and not a trial witness, the question gets murkier. In the end, the question would likely be up to Congress itself to resolve—courts would probably deem this a “political question” and stay out of it.

Some experts argue that trial rules would apply to congressional testimony—reasoning that congressional witnesses, like trial witnesses, testify under oath, typically have legal counsel, and can decide for themselves whether to speak or take the Fifth.

But others point out that broad statements proclaiming innocence are more akin to a criminal defendant’s plea of “not guilty” than to his testimony at trial. (After all, such pronouncements do not respond to a specific question and do not contain specific factual assertions.) And a defendant does not waive his Fifth Amendment rights simply by entering a not-guilty plea, even if the plea is accompanied by his self-serving commentary.

The best-known example: O.J. Simpson’s 1994 murder trial plea of “Absolutely, 100 percent not guilty.” Simpson was not forced to testify.

Next question?

Explainer would like to thank Professor Akhil Reed Amar of Yale Law School and Professor Susan Low Bloch of Georgetown Law School.