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Tuesday, 5 February, 2002, 15:38 GMT
Pleading the Fifth
The Hollywood 10 outside Congress with their lawyers in 1948
The Hollywood 10 were jailed for pleading the Fifth
By BBC News Online's Sarah Brown

Should former Enron chief Kenneth Lay decline to testify regarding his role in the collapse of Enron, he will become the latest in a long line of people to exercise this most American of rights.

"Pleading the Fifth", as it is known, allows someone to escape giving evidence at a trial or hearing should they feel they might incriminate themselves in doing so.


On the advice of my counsel I respectfully and regretfully decline to answer the question based on my constitutional rights

Colonel Oliver North
Most recently, former Andersen auditor David Duncan invoked the Fifth when questioned by a Congressional committee about his role in the downfall of Enron, one of the world's largest energy companies.

Other Andersen and Enron employees may well do the same.

Mr Duncan's actions infuriated the board, who wanted answers as to why Enron had collapsed in such a publicly humiliating manner.

Click here to see text of Fifth Amendment

Some view the Fifth, one of 10 amendments that comprise the US Constitution's Bill of Rights, as little more than an opt-out scheme for the obviously guilty.

But there have been examples where it has been used to promote more noble causes.

Now the business world is waiting to see which course of action Mr Lay chooses. If he does plead the Fifth, he will join a colourful range of characters in American history who have done the same.

'Red terror'

America in the 1950s was gripped by anti-communism fervour, and no-one was more feverish in their pursuit of so-called "reds" than Senator Joe McCarthy.

He convinced many that American Government and society was riddled with the communist "red menace".

Senator Joe McCarthy in 1954 at Congress
McCarthy was accused of leading a witch hunt
Many of those forced to appear before McCarthy's House Un-American Activities Committee took the Fifth in defiance of what they saw as an infringement of their right to choose their own beliefs.

The most famous example was the "Hollywood 10" - a group of screenwriters and directors who, when accused of being members of the Communist Party, took the Fifth in protest at what they percieved as McCarthy's bullying.

In a move that would almost certainly be ruled unconstitutional today, the committee decided their actions were illegal and jailed all 10 for contempt.

Contra scandal

In December 1986 the White House administration was rocked by the Iran-Contra scandal.

Then-President Ronald Reagan admitted that the US had secretly sold arms to Iran, and siphoned off the profits to fund "contra" rebels trying to overthrow Nigaragua's socialist government.

Amid the numerous Congressional committees appointed to investigate the affair, eerily reminiscent of the Enron scandal, one of the most colourful figures to emerge was Lieutenant Colonel Oliver North.

Lieutenant Colonel Oliver North at the Iran Contra hearings in 1986
North: "Regretted" pleading the Fifth
Colonel North repeatedly invoked the Fifth when asked about his involvement in the affair.

Challenged by Congress to admit his involvement, Colonel North consistently refused to answer questions.

"On the advice of my counsel I respectfully and regretfully decline to answer the question based on my constitutional rights," he said.

North was given a three-year suspended sentence for his role in the affair, but was later pardoned.

Murder trial

The Fifth also played a role in one of America's most notorious murder trials, when Los Angeles detective Mark Fuhrman, a key prosecution witness in the infamous OJ Simpson trial, controversially pleaded the Fifth after tapes showing him using racist language were played by the media.

Mr Fuhrman was forced to invoke the amendment three times on whether he had used racist language about ethnic minorities, angering the jury.

Experts later said that his use of the Fifth Amendment had thrown his credibility as a detective into doubt and may even have cost the prosecution their case.

Text of Fifth Amendment

The fifth amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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See also:

05 Feb 02 | Business
Congress pursues former Enron boss
04 Feb 02 | Business
Enron: Crime, punishment and reform
05 Feb 02 | Business
Andersen chief to face grilling
04 Feb 02 | Business
Enron inquiry kicks off
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