Pleading the Fifth and Hall's Testimony

​Written by Emanual Williams
During Tuesday’s proceedings in the Chauvin trial, Morries Hall, who was in the car with George Floyd moments before police arrived on the scene, filed a motion to quash (or void) a subpoena from the defense to make him take the witness stand.  Hall’s attorney threatened to invoke his Fifth Amendment right against self-incrimination, saying that Hall’s alleged drug activity with George Floyd could leave him vulnerable to a third-degree murder charge in connection to the death of Mr. Floyd. His attorney stated that Mr. Hall could not be questioned without potentially incriminating himself. Judge Cahill ordered the defense to submit their questions for Hall in writing and has said he will decide on the issue following his review of this submission. 

What does it mean for one of the key witnesses to invoke their Fifth Amendment right against self-incrimination? And how can he incriminate himself when Derek Chauvin is the one on trial? 
The Fifth Amendment of the US Constitution guarantees that no person in a criminal case can be compelled to be a witness against themselves. A witness, like a defendant, may assert their Fifth Amendment right to prevent self-incrimination, which means that they may refuse to answer questions if they fear their testimony could implicate them in criminal activity. The criminal activity doesn’t need to pertain to the case at hand. Unlike criminal defendants, when a witness chooses to plead the Fifth,  they are not able to avoid testifying altogether. Witnesses who are subpoenaed to testify must testify unless all of the questions are deemed to be self-incriminating. To be self-incriminating, a witness’s compelled answers must pose a substantial and real, and not merely a trifling or imaginary, hazard of criminal prosecution.  

In this case, Hall’s connection with the drugs allegedly sold to Mr. Floyd and the discarding of an unknown object from Hall’s backpack could lead to him being charged with third-degree murder.  Thus, he can refuse to answer any questions related to these topics by asserting his Fifth Amendment privilege. He could still, however, have to answer other questions about his observations and experiences on the day Mr. Floyd was killed. This is why Judge Cahill wants to review the defense’s proposed questions. If all or most of them would require Hall to incriminate himself, Judge Cahill may quash his subpoena and allow Hall not to testify. If any of the questions, however, would not elicit incriminating answers, Hall may still need to testify.  
  
Sometimes when a witness has a Fifth Amendment privilege, the prosecutor will give them immunity from prosecution, which protects them from future charges based on the statements they make as a witness and allows them to safely testify. In this case, Hall has not been granted immunity, a point he and his attorney have raised as they seek to quash his subpoena to testify.   
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Whether Hall takes the witness stand or not could prove to be a big development in both the prosecution and defense’s trial plans. We can only wait to see if the written questions submitted by the defense will meet the standards of the Court.