Listener Email: Pleading the Fifth
08 Mar. 2020

Listener Email: Pleading the Fifth

Since we received questions about Lena Luthor pleading the fifth in the Supergirl 100th episode, “It’s a Super Life”, we reached out to our Supergirl Radio Legal Consultants for answers. Below is how they responded.

From Leslie:

The fifth amendment to the United State Constitution states in pertinent part that “No person shall be compelled in any criminal case to be a witness against himself. . . “

In the landmark Miranda v. Arizona opinion, the United States Supreme Court extended the fifth amendment protections to suspects who were arrested and subjected to interrogation. If a person is arrested and being interrogated, the police must provide that person his/her Miranda rights, which are that the suspect has the right to remain silent, the right to have an attorney present during questioning, and the right to have a government-appointed attorney if the suspect cannot afford one, and anything the suspect says, can and will be used in a court of law against the suspect.

A defendant in a criminal case cannot be compelled to testify—that is, she cannot be called to the stand and thereafter be held in contempt of court (usually leading to immediate imprisonment) if she refuses to answer questions relevant to the charges against her. In many criminal cases, defendants never take the witness stand because they have a constitutional right against self-incrimination.

I laughed out loud so hard when Lena, who was not on trial on any criminal charges, said she was “pleading the fifth,” when the defense attorney asked her about Supergirl’s real name. He also referenced Supergirl as an “officer” and who acted as judge and jury. Actually, Supergirl was acting as a good Samaritan or a DEO federal agent. Supergirl merely tracked down the rocket which exploded anyway. But, Lillian was arrested by the National City police, not the DEO or FBI.

Lena’s statement of “pleading the fifth” was non-responsive to the question posed to her as a mere witness in a criminal proceeding, who presumably had no criminal liability arising out of Lillian Luthor’s domestic terroristic act of firing a virus into the air via rocket launcher.

Lena’s disclosure of Supergirl’s identity would not incriminate Lena in the prosecution’s case against Lillian Luthor or in any other criminal case. Moreover, the prosecutor could have objected to the questions about Supergirl’s identity as irrelevant to the case against Lillian Luthor. People other than Lena saw Lillian fire the rocket with the Medusa virus, including J’onn, the police, and other members of the public that were out the night she fired the rocket launcher.

In any event, Lena had no right to assert her fifth amendment right against self-incrimination. Lena’s statement was such a silly response. If defense counsel were allowed to ask Lena this question, a trial judge’s response to Lena would have been to order her “to answer the question or I will hold you, Ms. Luthor, in contempt of court and incarcerate you in jail until you decide to answer the question.” Of course, the Supergirl writers wanted Lena on the street to be kidnapped by Ben Lockwood to force Kara to reveal her identity as Supergirl.

This is the second time Lena has said something silly on the witness stand in a criminal trial. The first time was when she testified against Lex in season four’s “House of L” episode and said that she herself had “submitted our every correspondence into evidence.” Lena submitted nothing into evidence. The prosecutor took the evidence Lena may have provided the prosecutor and the prosecutor submitted the correspondence into evidence for the jury’s consideration. Lena was a mere witness and not the prosecutor.

Lena also talked herself out of an arrest by the FBI by having Eve hold her at gunpoint with Lena explaining that all of the alleged criminal acts were actually committed by Eve.

Clearly, this show is written without regard to the accuracy of criminal procedural and arrest law.

From Susan:

Whether or not Lena taking the fifth depends on things we don’t know, I am afraid.

The fifth amendment protects an individual against self-incrimination. “Taking the fifth” is shorthand for “I decline to answer because the answer may incriminate me.” Taking the fifth is not a “free pass” not to answer questions you would prefer not to answer for any other reason. If the answer to the question will not put the person speaking in criminal jeopardy, she cannot “take the fifth”.

In the case of Lena, if she just didn’t want to reveal Supergirl’s identity, then it was not used properly at all.

But, it would have been appropriate if there was a risk she could be prosecuted for aiding and abetting a crime Supergirl committed – wanton destruction of property, perhaps? Or harboring an alien, if there was no Alien Amnesty Act. I’m sure you can have some fun thinking of a whole bunch of other things Kara might have done with Lena that would be crimes that could get her prosecuted.

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