The Client
bat
involuntary possesses vital information that will certainly incriminate
mafia boss. Both mafia and state know about this, and the boy is afraid that
his passing the information to the state means guaranteed death from the
mafia. However, the state insists, threatening the boy with contempt of
court if he refuses to talk; it is assumed that the boy can't use 5th
amendment because it is not him who is going to be incriminated; he is only
the witness.
I wonder, could he still use 5th amendment claiming that his passing the
information to the state would incriminate him in the eyes of the mafia?
Regards
Barry Gold
No. The 5th amendment protects you from giving testimony that could
be used against you in court in a _criminal_ case. Not from giving
testimony that could harm you in some other way (e.g., damage your
position in a civil case, put you in danger from the mafia, etc.)
Usually, if somebody really doesn't want to testify, they simply
"can't remember" exactly what happened, or "don't recognize" the
person they saw, or whatever. Yes, a good lawyer can probably get
some info out of such a witness: "When you say, 'I don't recognize the
person here', do you mean you _can't_ recognize him or you don't
_choose_ to recognize him?" etc. But there are limits in how far you
can go in badgering your own witness -- you get more leeway with the
other side's witness who you are cross-examining. Worse yet, badgering
an 11-year-old boy on the stand is not going to sit well with a jury.
My take: in a situation like that you might as well testify. YOu are
in as much danger simply because of the knowledge you have as you
would be if you went ahead and testified. And at least if you
testify, a few bad guys may end up behind bars. (Plus, you might get
into the witness protection program, which is not all it's cracked up
to be but probably better than staying in the same place where the
mob/gang knows where to find you.)
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
David Martel
An interesting hypothesis. I'd say no. The mafia has not, in the past,
"legislated" on crime. They do not "adjudicate" crime either. These are not
things that they do.
Good luck,
Dave M.
Cy Pres
>I wonder, could he still use 5th amendment claiming that his passing the
>information to the state would incriminate him in the eyes of the mafia?
No. The Fifth Amendment's self-incrimination clause refers solely to
criminal prosecution by the state or federal government.
Robert Bonomi
No. The Constitution forbids his being "compelled, in any criminal case, to
be a witness against himself". Those _exact_ words. Nothing about any 3rd-
party actions.
He simply decides he is safer in jail (for contempt) than he is 'on the street'
after complying.
At some point, 'justice' decides he isn't going to change his mind, gives
up, and releases him.
D.F. Manno
I don't see the Mafia mentioned in my copy of the U.S. Constitution.
Seriously, the Fifth Amendment protects you from testifying against
yourself. It doesn't protect you from non-government consequences of
your testimony.
--
D.F. Manno | dfm...@mail.com
"...the work goes on, the cause endures, the hope still lives, and the
dream shall never die."
bat
??>> the information to the state would incriminate him in the eyes of the
??>> mafia?
DFM> Seriously, the Fifth Amendment protects you from testifying against
DFM> yourself. It doesn't protect you from non-government consequences of
DFM> your testimony.
But in this clause, government is not mentioned.
bat
RB> case, to be a witness against himself". Those _exact_ words. Nothing
RB> about any 3rd- party actions.
The clause does not say "compelled to be a witness in any criminal case
against himself". So, the case does not have to be against himself. Only the
testimony itself.
Witness is only supposed to give the information, to answer the questions;
at the moment of giving the answer, there's no exact "designation" of the
consequences of this answer. The witness can only guess as to whether each
particular answer will turn on against anybody, or not - including against
himself. The answer may turn out against the defendant, or against the
plaintiff, or even against the witness himself (contempt), or against noone.
I think, in this light "witness against himself" can be interpreted as "my
testimony can be interpreted so that it will hurt me".
bat
> be used against you in court in a _criminal_ case.
I think this would read
"nor shall be compelled to be a witness in any criminal case against himself
"
but it reads
"nor shall be compelled in any criminal case to be a witness against
himself"
Any criminal case, not necesserily the case against himself. Only the
testimony is against himself, not necesserily the whole case.
Further, since "against" is the matter of later interpretation of the
testimony by the jury, and the witness himself does not "designate" it
against anybody when testifying. Since "against" is still mentioned, I think
the only interpretation can be "testify against my own interests as I see
them".
I understand practical considerations, but my question was more about the
strict interpretation of the language.
regards
D.F. Manno
"... nor shall be compelled in any criminal case to be a witness against
himself..."
Only the government can bring a criminal case against you.
Gordon Burditt
> RB> case, to be a witness against himself". Those _exact_ words. Nothing
> RB> about any 3rd- party actions.
>
>The clause does not say "compelled to be a witness in any criminal case
>against himself". So, the case does not have to be against himself. Only the
>testimony itself.
It ought to cover being compelled, *for any reason whatever*, (and
that includes census forms, voter registration, divorce and child
custody cases, civil cases, criminal cases, school board investigations,
income tax forms, etc.) to be a witness against himself for criminal
charges. No fair letting the government manufacture a civil case
to get testimony for a later criminal case.
>Witness is only supposed to give the information, to answer the questions;
>at the moment of giving the answer, there's no exact "designation" of the
>consequences of this answer. The witness can only guess as to whether each
>particular answer will turn on against anybody, or not - including against
>himself. The answer may turn out against the defendant, or against the
>plaintiff, or even against the witness himself (contempt), or against noone.
The witness, assuming he is not also a defendant, doesn't need to
worry about the consequences of testimony in terms of criminal
charges coming from his testimony in *THIS* case, as long as he
avoids committing crimes (like perjury and contempt of court) during
his testimony. He needs to worry about the *NEXT* case, where he
will be the defendant. This is likely the reason most witnesses
"take the 5th".
Example: In a divorce case, Mr. W (who lives down the block from
Mr. & Mrs. X) is called to testify about times he has seen Mrs. X
with Mr. Y (the gardener). One of the times, Mr. W really, really
doesn't want to mention. He really doesn't care about Mrs. X vs.
Mr. X, he wants to keep his own butt out of jail.
Mr. W expects the testimony, if he made it, would go something like this:
Mr X's lawyer: When was the next time you saw Mrs. X and Mr. Y together?
Mr. W: The evening of March 14.
Mr. X's lawyer: What did you see?
Mr. W: Mrs. X and Mr. W were in the guest room of Mrs. X, in bed together
having sex.
*Mrs.* X's lawyer: Where were you when you saw Mrs. X and Mr. W having
sex in the guest room? (hoping it's "driving by their house" where he
couldn't see much).
Mr. W: Walking by the door to the guest room, which was partly closed.
I stopped to watch for a few minutes and took some pictures.
Mrs. X: What the *HECK* were you doing *IN MY HOUSE*? Were you the one
who stole my jewelry?
Mr. W knows, of course, that this is exactly why he was in the house,
and that admitting he was there would make him a suspect.
>I think, in this light "witness against himself" can be interpreted as "my
>testimony can be interpreted so that it will hurt me".
I think "witness against himself" can be interpreted as "my testimony
can be interpreted so that it will result in bringing criminal charges
against me".
Local governments don't recognize anything the mafia does as "bringing
criminal charges against someone", it's more like "murdering someone",
or "breaking one's kneecaps". There's also no "I refuse to answer
on the grounds that my wife will divorce me if I admit going to that
strip club/whorehouse/poker game/horse track again."
Deadrat
news:GLWdnQUkcMEjJTDX...@posted.internetamerica:
>> RB> No. The Constitution forbids his being "compelled, in any
>> criminal RB> case, to be a witness against himself". Those _exact_
>> words. Nothing RB> about any 3rd- party actions.
>>
>>The clause does not say "compelled to be a witness in any criminal
>>case against himself". So, the case does not have to be against
>>himself. Only the testimony itself.
>
> It ought to cover being compelled, *for any reason whatever*, (and
> that includes census forms, voter registration, divorce and child
> custody cases, civil cases, criminal cases, school board
> investigations, income tax forms, etc.) to be a witness against
> himself for criminal charges. No fair letting the government
> manufacture a civil case to get testimony for a later criminal case.
>
It does so cover. For instance, the IRS requires that filers under penalty
of law report and pay taxes on illegal income. But they cannot turn over
to the USA the returns of those who comply.
Robert Bonomi
> RB> No. The Constitution forbids his being "compelled, in any criminal
> RB> case, to be a witness against himself". Those _exact_ words. Nothing
> RB> about any 3rd- party actions.
>
>The clause does not say "compelled to be a witness in any criminal case
>against himself".
You are incorrect. As stated, I quoted the _exact_ words in Amend. V -- to wit:
"No person shall be.... ;
nor shall any person be .....;
nor shall be compelled in any criminal case to be a witness against himself
....."
Source: <http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmentv>
> So, the case does not have to be against himself. Only the
>testimony itself.
Factually correct, but implies a "reason why" that is inaccurate/incorrect.
Testimony given in open court is admissible in a subsequent legal action.
Thus, The person's own sworn testimony in case 'A' (civil _or_ criminal)
*could* be used against that person in _criminal_ case 'B', were the Amend V
prohibition -not- in place. And, if that testimony -- the 'witnessing', to
use a classical term -- were presented in the criminal case, then the person
_would_ be 'a witness against himself' -- even though the witnessing occurred
previous to the current criminal trial (case 'B').
The reason -why- the person cannot be compelled to give 'self-incriminating
testimony' in any case (absent a grant of immunity) is because that person's
'witnessing' _can_ be used against them in a subsequent criminal case.
There are precisely _two_ ways to eliminate that paradoxical situation:
1) An agreement by government prosecutors to _not_ use the 'witnessing'
in case 'A' (or anything derived from it, directly or indirectly)
against the testator. (In this scenario, if they develop information
about criminal activity *entirely*independently* of the witnessing,
they *can* proceed with a criminal prosecution of the activity disclosed
in the case 'A' testimony.
2) A blanket 'grant of immunity from prosecution' for any criminal action
disclosed in the _compelled_ testimony. (In _this_ scenario, if the
prosecution develops information about criminal activity *entirely*
*independently* of the witnessing, their hands are _still_ tied -- they
cannot prosecute for _any_ reason. Not even if the party gives them
a complete, signed, 'confession'.
"Solution 1" is _very_difficult_ to determine compliance with -- It, as a
practical matter, requires the 'proving of a negative'; that _everything_ in
the subsequent criminal case was _not_ derived (in any way) from the compelled
testimony.
"Solution 2" is much easier to establish compliance and/or non-compliance.
It is, however, a 'pig in a poke' deal for the criminal prosecutors -- they
simply "don't know" what, or what _all_, crimes the compelled testimony might
cover.
And, of course, if 'case A' is a private _civil_ matter, the opposite party
simply has no 'standing' to negotiate for either "solution".
Mike Jacobs
> > RB> No. The Constitution forbids his being "compelled, in any criminal
> > RB> case, to be a witness against himself". Those _exact_ words. Nothing
> > RB> about any 3rd- party actions.
>
> >The clause does not say "compelled to be a witness in any criminal case
> >against himself". So, the case does not have to be against himself. Only the
> >testimony itself.
>
> It ought to
Ought to? It DOES. The testimony or statement itself does not have
to be taken in a criminal case, either against the person claiming the
privilege, or someone else; it can be something that is asked for in
any other context as well. So long as the person being asked wishes
to avoid saying something that would incriminate himself, i.e.
something that COULD BE USED AS EVIDENCE AGAINST HIM in a subsequent
criminal case (putting aside the obvious and logically trivial
forbidden example of a person being charged with a crime first, and
being put on trial, and THEN being asked to testify against himself in
THAT trial), he can refuse to say anything, or he can specifically say
that he is relying on his 5th amendment right.
However, this DOES NOT shield the silent one from OTHER consequences
of his failure to give a statement when requested - which can be quite
severe, depending on the circumstances. It simply means he cannot be
convicted of a crime for doing whatever it was that he was asked to
talk or write about.
> cover being compelled, *for any reason whatever*, (and
> that includes census forms,
It does cover that. If the info on your census form would incriminate
you (I don't see how it possibly could, but, assuming), you can plead
the 5th and not give any info. You may still suffer the penalties for
failure to cooperate with the census.
> voter registration,
It covers that too, although I still can't see how anything you say to
register yourself to vote could incriminate you, unless you profess
allegiance to a banned political party - the (original) Nazi Party or
the Communist Party - in which case, your remedy (and your penalty) is
not to register to vote if you want to withhold that information to
avoid a criminal conviction. Or, register as an independent, or as a
member of some OTHER party.....?? Maybe you could fill me in here on
how you think registering to vote could incriminate yourself?
> divorce and child custody cases, civil cases,
Divorce and custody cases are a sub-type of "civil cases." You have
the right to plead the 5th when asked to testify in any civil case
too. However, in a civil case your refusal to testify based on the
5th MAY be taken as evidence for or against the CIVIL matter sought to
be proven by your testimony (whichever version would HURT you the
most, usually) even though, once again, you cannot be prosecuted
CRIMINALLY for your failure to testify, or for whatever it was they
were trying to ask you about. You may lose the house, the kid, the
pension, whatever, but you won't go to jail. So, it's your choice.
> criminal cases,
That's the example most people already know about, and doesn't need
further discussion.
> school board investigations,
a type of "civil case."
> income tax forms, etc.
If you refuse to provide IRS info you can be penalized, including
criminal prosecution, for failing to file a complete return.
However, you cannot be criminally prosecuted for whatever it was you
did illegal to earn the money you are refusing to tell the IRS
about. That's how they caught Al Capone, remember? But he was NOT
compelled to testify about his bootlegging or murder-for-profit
activities, and was never convicted of THOSE crimes.
> to be a witness against himself for criminal charges.
Yes, that's what is specifically forbidden, by the 5th Am, for the
government to try to compel.
> No fair letting the government manufacture a civil case
> to get testimony for a later criminal case.
They can't do that. They never did get Al to testify about the St
Valentine's Day Massacre, or any of his other exploits, and he was
also never convicted of any of those crimes. But that did not stop
the Feds from prosecuting him for failing to report all the income
that showed up on his books.
> >Witness is only supposed to give the information, to answer the questions;
> >at the moment of giving the answer, there's no exact "designation" of the
> >consequences of this answer. The witness can only guess as to whether each
> >particular answer will turn on against anybody, or not - including against
> >himself. The answer may turn out against the defendant, or against the
> >plaintiff, or even against the witness himself (contempt), or against no one.
>
> The witness, assuming he is not also a defendant, doesn't need to
> worry about the consequences of testimony in terms of criminal
> charges coming from his testimony in *THIS* case, as long as he
> avoids committing crimes (like perjury and contempt of court) during
> his testimony. He needs to worry about the *NEXT* case, where he
> will be the defendant. This is likely the reason most witnesses
> "take the 5th".
Sure.
> Example: In a divorce case, Mr. W (who lives down the block from
> Mr. & Mrs. X) is called to testify about times he has seen Mrs. X
> with Mr. Y (the gardener). One of the times, Mr. W really, really
> doesn't want to mention. He really doesn't care about Mrs. X vs.
> Mr. X, he wants to keep his own butt out of jail.
>
> Mr. W expects the testimony, if he made it, would go something like this:
> Mr X's lawyer: When was the next time you saw Mrs. X and Mr. Y together?
> Mr. W: The evening of March 14.
> Mr. X's lawyer: What did you see?
> Mr. W: Mrs. X and Mr. W were in the guest room of Mrs. X, in bed together
> having sex.
> *Mrs.* X's lawyer: Where were you when you saw Mrs. X and Mr. W having
> sex in the guest room? (hoping it's "driving by their house" where he
> couldn't see much).
> Mr. W: Walking by the door to the guest room, which was partly closed.
> I stopped to watch for a few minutes and took some pictures.
> Mrs. X: What the *HECK* were you doing *IN MY HOUSE*? Were you the one
> who stole my jewelry?
>
> Mr. W knows, of course, that this is exactly why he was in the house,
> and that admitting he was there would make him a suspect.
>
> >I think, in this light "witness against himself" can be interpreted as "my
> >testimony can be interpreted so that it will hurt me".
Right - you can take the 5th if it would hurt you CRIMINALLY for doing
whatever it was they are asking you to talk about, that is.
It is NOT grounds to plead the 5th if, frex, Mr. W was going to say,
"I was driving by and saw them thru the window" if saying so will make
W's boss realize that W wasn't where he told the boss he was at the
time, and may get W fired. Another, more common example (at least in
the crime-thriller movies) is of a witness to a crime who, though
perfectly innocent of any CRIMINAL wrongdoing himself, was driving
along with his mistress in the car with him, or something of that ilk,
at the time the incident happened, and instead of promptly reporting
the occurrence and getting help, W flees the scene and/or does some
other Very Bad Thing because he wants to avoid exposure of the
embarrassing circumstances. Neither of those examples give rise to a
legitimate 5th Amendment claim.
However, in Mr. Burditt's example, one would usually assume W would
simply not come forward and admit his presence, if his presence as a
witness was not already known to the authorities from what someone
ELSE told them. He would simply "lay low." Or if he DID testify
about OTHER times he saw Mrs. X and Mr. Y together, he would just
conveniently omit the one time when he was busy burglarizing the X's
house and stealing her jewelry and voyeuring her trysts (who the heck
carries their own camera with them on burglaries, anyway, unless the
PURPOSE of the burglary is to voyeur someone rather than to steal from
them?)
You do realize that both the defense and the prosecution can, and
normally do, INTERVIEW the people they each plan to call as witnesses,
IN ADVANCE, right? In criminal cases, there is usually no right to
depose the OTHER side's witnesses, but it would be foolish to put your
OWN witness on the stand unless you knew in advance what he was
anticipated to say, by ASKING him in private before putting him on the
stand.
> I think "witness against himself" can be interpreted as "my testimony
> can be interpreted so that it will result in bringing criminal charges
> against me".
Yes, of course.
> Local governments don't recognize anything the mafia does as "bringing
> criminal charges against someone", it's more like "murdering someone",
> or "breaking one's kneecaps".
Sure. That's why there's no "I refuse to testify on grounds the Mafia
might whack me" right. Such potential witnesses generally either (1)
don't come forward in the first place, (2) lie and say "I don't know"
or "I don't remember" if called to testify anyway, or (3) ask to be
placed in the Witness Protection Program, given a new identity, and
moved to another city, after they testify. As well as, of course,
usually being given immunity (or a plea bargain) for their OWN
involvement in whatever organized criminal activity was going on that
they are going to testify about.
> There's also no "I refuse to answer
> on the grounds that my wife will divorce me if I admit going to that
> strip club/whorehouse/poker game/horse track again."
Yes, you get it. That being the case, I'm not sure why you said some
of the "they oughta" stuff you said above.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Robert Bonomi
Gordon Burditt <gordon...@burditt.org> wrote:
>> RB> No. The Constitution forbids his being "compelled, in any criminal
>> RB> case, to be a witness against himself". Those _exact_ words. Nothing
>> RB> about any 3rd- party actions.
>>
>>The clause does not say "compelled to be a witness in any criminal case
>>against himself". So, the case does not have to be against himself. Only the
>>testimony itself.
>
>It ought to cover being compelled, *for any reason whatever*, (and
>that includes census forms, voter registration, divorce and child
>custody cases, civil cases, criminal cases, school board investigations,
>income tax forms, etc.) to be a witness against himself for criminal
>charges.
It does. The 'be a witness against himself' testimony can occur in _any_
civil or criminal proceeding that occurs _concurrent_with_, _or_ PRIOR_TO_
the criminal case against the compelled 'witness'.
> No fair letting the government manufacture a civil case
>to get testimony for a later criminal case.
The witness is free to refuse (on Amend V grounds) to testify in a civil
case. *HOWEVER* the 'trier of fact' in _that_ civil case *can* draw
conclusions (adverse to the interests of the witness) from that refusal
to testify.
>The witness, assuming he is not also a defendant, doesn't need to
>worry about the consequences of testimony in terms of criminal
>charges coming from his testimony in *THIS* case, as long as he
>avoids committing crimes (like perjury and contempt of court) during
>his testimony. He needs to worry about the *NEXT* case, where he
>will be the defendant. This is likely the reason most witnesses
>"take the 5th".
Yup.
[[ sneck -- good example of 'self-incrimination' testimony' ]]
>>I think, in this light "witness against himself" can be interpreted as "my
>>testimony can be interpreted so that it will hurt me".
>
>I think "witness against himself" can be interpreted as "my testimony
>can be interpreted so that it will result in bringing criminal charges
>against me".
The language means _exactly_ what it says. <wry grin>
As long as one realizes that any testimony in open court _is_ admissible
in a subsequent court proceeding, and that any compelled 'witnessing'
that _could_ be used in a later criminal proceeding against the witness
is proscribed.
>Local governments don't recognize anything the mafia does as "bringing
>criminal charges against someone", it's more like "murdering someone",
>or "breaking one's kneecaps".
Correct. "Self-interest"/"self-preservation" is _not_ an 'acceptable' reason
for not testifying -- regardless of how high the personal risk is.
> There's also no "I refuse to answer
>on the grounds that my wife will divorce me if I admit going to that
>strip club/whorehouse/poker game/horse track again."
Right. You -can- be compelled to testify to things that would be "against
your own self-interest" in a current (or subsequent) _civil_ proceeding.
Deadrat
cc2dfe...@j19g2000vbp.googlegroups.com:
>> voter registration,
>
> It covers that too, although I still can't see how anything you say to
> register yourself to vote could incriminate you, unless you profess
> allegiance to a banned political party - the (original) Nazi Party or
> the Communist Party - in which case, your remedy (and your penalty) is
> not to register to vote if you want to withhold that information to
> avoid a criminal conviction. Or, register as an independent, or as a
> member of some OTHER party.....?? Maybe you could fill me in here on
> how you think registering to vote could incriminate yourself?
Even if the registrar asked you whether you professed an allegiance to a
particular party, how could it be a crime to be a Communist? Especially
since there's Supreme Court precedent allowing the Communist Party on the
ballot (Communist Party of Indiana v. Whitcomb 414US441 (1974)).
Even the Communist Pary (www.cpusa.org) doesn't claim that it was ever
"banned."
Gene E. Utterback, EA, RFC, ABA
news:J9GdnYAzXtyG-zPX...@giganews.com...
> gordon...@burditt.org (Gordon Burditt) wrote in
> news:GLWdnQUkcMEjJTDX...@posted.internetamerica:
>
>
> It does so cover. For instance, the IRS requires that filers under
> penalty
> of law report and pay taxes on illegal income. But they cannot turn over
> to the USA the returns of those who comply.
Technically I believe you are correct. However, practically I think you're
off base a bit. While the IRS may not be able to disclose the returns
themselves BUT they can, and I believe do, turn over information they
discover that is indicitive of a criminal endeavor. For example, if I were
to file a tax return and report and pay all the taxes on $1M of income which
I reported as entertainment income the IRS would simply cash my check. But
I said that same $1M came from my activities as a pimp and local drug lord
they would alert the authorities that I was in the pimp and drug business.
I do NOT have a citation handy but I believe that there are no prohibitions
against one government agency sharing information with other agencies EVEN
if it turns out later than the information obtained was gotten illegally as
it relates to the first action.
For example, let's assume that the local police get a search warrant against
me because they get an informant to lie. They raid my house and find I'm
running a meth lab. Then the warrant gets tossed on a technicality and they
have to let me go. The IRS can use that information against me for
assessing and collecting back taxes.
NOTE - IANAL,
Gene E. Utterback, EA, RFC, ABA
D.F. Manno
<09a69d2b-e9ac-4a45...@j19g2000vbp.googlegroups.com>,
Mike Jacobs <mjaco...@gmail.com> wrote:
> Gordon Burditt wrote:
>
> > voter registration,
>
> It covers that too, although I still can't see how anything you say to
> register yourself to vote could incriminate you, unless you profess
> allegiance to a banned political party - the (original) Nazi Party or
> the Communist Party - in which case, your remedy (and your penalty) is
> not to register to vote if you want to withhold that information to
> avoid a criminal conviction.
The Communist Party of the USA is _not_ a banned party, and it is not
illegal to be a member or to profess membership in that party when
registering to vote.
bat
RB> In article <h8aq85$qdf$1...@aioe.org>, bat <b...@bats.com> wrote:
RB>>> No. The Constitution forbids his being "compelled, in any criminal
RB>>> case, to be a witness against himself". Those _exact_ words.
RB>>> Nothing about any 3rd- party actions.
??>>
??>> The clause does not say "compelled to be a witness in any criminal
??>> case against himself".
RB> You are incorrect. As stated, I quoted the _exact_ words in Amend. V
RB> -- to wit:
RB> "No person shall be.... ;
RB> nor shall any person be .....;
RB> nor shall be compelled in any criminal case to be a witness against
RB> himself
RB> ....."
I don't see why I'm incorrect. There is difference between
(1) compelled to be a witness in any criminal case against himself
and
(2) compelled in any criminal case to be a witness against himself
I said that (1) is not what the Amendment says, and you confirm that indeed
it is not.
RB> The reason -why- the person cannot be compelled to give
RB> 'self-incriminating testimony' in any case (absent a grant of immunity)
RB> is because that person's 'witnessing' _can_ be used against them in a
RB> subsequent criminal case.
This is not what the clause says. It does not specify the (subsequent) case
in which the person might be the witness. Actually, (1) above would do
exactly that, but we have agreed that this is not what it says. It does not
say that that case must be criminal. It does not even mention the word
"case". Sticking strictly to the language, any situation where there's
witnessing, does apply.
-----------------------------------------------------
http://www.answers.com/witness
n.
1..
1.. One who can give a firsthand account of something seen, heard, or experienced:
a witness to the accident.
2.. One who furnishes evidence.
2.. Something that serves as evidence; a sign.
3.. Law.
1.. One who is called on to testify before a court.
2.. One who is called on to be present at a transaction in order to
attest to what takes place.
3.. One who signs one's name to a document for the purpose of attesting
to its authenticity.
4.. An attestation to a fact, statement, or event; testimony.
5..
1.. One who publicly affirms religious faith.
2.. Witness A member of the Jehovah's Witnesses.
-----------------------------------------------------
The Amendment does not say that the only meaning of witness is 3a, not to
mention 3a narrowed down to criminal cases only. The original question that
I asked, about the boy, I think falls nicely into the definition 1a:
The boy can't be compelled in criminal case to be one who can give a
firsthand account of something seen, heard, or experienced , which account
can be used against himself (by the mafia).
regards
RB> There are precisely _two_ ways to eliminate that paradoxical situation:
RB> 1) An agreement by government prosecutors to _not_ use the
RB> 'witnessing'
RB> in case 'A' (or anything derived from it, directly or indirectly)
RB> against the testator. (In this scenario, if they develop
RB> information
RB> about criminal activity *entirely*independently* of the
RB> witnessing,
RB> they *can* proceed with a criminal prosecution of the activity
RB> disclosed
RB> in the case 'A' testimony.
RB> 2) A blanket 'grant of immunity from prosecution' for any criminal
RB> action
RB> disclosed in the _compelled_ testimony. (In _this_ scenario, if
RB> the
RB> prosecution develops information about criminal activity
RB> *entirely*
RB> *independently* of the witnessing, their hands are _still_ tied --
RB> they
RB> cannot prosecute for _any_ reason. Not even if the party gives
RB> them
RB> a complete, signed, 'confession'.
RB> "Solution 1" is _very_difficult_ to determine compliance with -- It, as
RB> a practical matter, requires the 'proving of a negative'; that
RB> _everything_ in the subsequent criminal case was _not_ derived (in any
RB> way) from the compelled testimony.
RB> "Solution 2" is much easier to establish compliance and/or
RB> non-compliance. It is, however, a 'pig in a poke' deal for the criminal
RB> prosecutors -- they simply "don't know" what, or what _all_, crimes the
RB> compelled testimony might cover.
RB> And, of course, if 'case A' is a private _civil_ matter, the opposite
RB> party simply has no 'standing' to negotiate for either "solution".
Regards
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>It does cover that. If the info on your census form would incriminate
>you (I don't see how it possibly could, but, assuming),
Some places might still have laws against cohabitation by unrelated
adults.
> you can plead the 5th and not give any info. You may still suffer
>the penalties for failure to cooperate with the census.
How would that not violate the 5th?
"You have the right to refuse to testify if that would tend to
incriminate you, but you'll be punished if you don't testify."
Seth
Gordon Burditt
>> > RB> case, to be a witness against himself". Those _exact_ words. Nothing
>> > RB> about any 3rd- party actions.
>>
>> >The clause does not say "compelled to be a witness in any criminal case
>> >against himself". So, the case does not have to be against himself. Only the
>> >testimony itself.
>>
>> It ought to
>
>Ought to? It DOES.
I don't believe that the wording quoted above says that. It would
appear that as along as the *current* case isn't a criminal case,
they can force testimony out of you, unless it's prohibited elsewhere,
for use later in a criminal case against you, at least according to
that wording.
>The testimony or statement itself does not have
>to be taken in a criminal case, either against the person claiming the
>privilege, or someone else; it can be something that is asked for in
>any other context as well. So long as the person being asked wishes
>to avoid saying something that would incriminate himself, i.e.
>something that COULD BE USED AS EVIDENCE AGAINST HIM in a subsequent
>criminal case (putting aside the obvious and logically trivial
>forbidden example of a person being charged with a crime first, and
>being put on trial, and THEN being asked to testify against himself in
>THAT trial), he can refuse to say anything, or he can specifically say
>that he is relying on his 5th amendment right.
I don't see how this conclusion comes from the quote from the
Constitution above alone.
>However, this DOES NOT shield the silent one from OTHER consequences
>of his failure to give a statement when requested - which can be quite
>severe, depending on the circumstances. It simply means he cannot be
>convicted of a crime for doing whatever it was that he was asked to
>talk or write about.
>
>> cover being compelled, *for any reason whatever*, (and
>> that includes census forms,
>
>It does cover that. If the info on your census form would incriminate
>you (I don't see how it possibly could, but, assuming), you can plead
>the 5th and not give any info. You may still suffer the penalties for
>failure to cooperate with the census.
It could incriminate you for a number of reasons. This might include
admitting you've ever been in Texas, admitting that you can speak,
admitting you can read, admitting that you live at a particular
address, admitting that you believe that people have "race" other
than "human" and assigned one to yourself, etc. This especially
applies if you've lied about these topics previously in places where
it's a crime to lie (under oath in court, on loan or credit
applications, on tax returns, etc.).
>> voter registration,
>
>It covers that too, although I still can't see how anything you say to
>register yourself to vote could incriminate you, unless you profess
>allegiance to a banned political party - the (original) Nazi Party or
>the Communist Party - in which case, your remedy (and your penalty) is
>not to register to vote if you want to withhold that information to
>avoid a criminal conviction. Or, register as an independent, or as a
>member of some OTHER party.....?? Maybe you could fill me in here on
>how you think registering to vote could incriminate yourself?
Admitting that you have a particular name, admitting that you have
a particular address, admitting that you've ever been in the state
(and for how long, or at least claiming some minimum time), admitting
that you can read, etc.
>> divorce and child custody cases, civil cases,
>
>Divorce and custody cases are a sub-type of "civil cases." You have
>the right to plead the 5th when asked to testify in any civil case
>too. However, in a civil case your refusal to testify based on the
>5th MAY be taken as evidence for or against the CIVIL matter sought to
>be proven by your testimony (whichever version would HURT you the
>most, usually) even though, once again, you cannot be prosecuted
>CRIMINALLY for your failure to testify, or for whatever it was they
>were trying to ask you about. You may lose the house, the kid, the
>pension, whatever, but you won't go to jail. So, it's your choice.
Assume the possibility that you're a witness, but not a party to the
action involved. There's much less risk there.
>> criminal cases,
>
>That's the example most people already know about, and doesn't need
>further discussion.
>
>> school board investigations,
>
>a type of "civil case."
>
>> income tax forms, etc.
>
>If you refuse to provide IRS info you can be penalized, including
>criminal prosecution, for failing to file a complete return.
>However, you cannot be criminally prosecuted for whatever it was you
>did illegal to earn the money you are refusing to tell the IRS
>about. That's how they caught Al Capone, remember? But he was NOT
>compelled to testify about his bootlegging or murder-for-profit
>activities, and was never convicted of THOSE crimes.
That doesn't mean that if I declare $100,000 in income, and list
the source as "marijuana farm", that they can't raid my marijuana
farm because one of my customers ratted me out when they got caught
with my product, does it, even though it shows as "marijuana farm"
on my tax return? How about if I list it as "unspecified source"
(true but probably too vague for the IRS) or "Amway business" (lie)?
He lives close to the couple, and everyone in a 2-block radius got
questioned about this. He couldn't "lay low" here. Although he
could shut up about that one particular incident and likely no one
would know any different.
>Or if he DID testify
>about OTHER times he saw Mrs. X and Mr. Y together, he would just
>conveniently omit the one time when he was busy burglarizing the X's
>house and stealing her jewelry and voyeuring her trysts (who the heck
>carries their own camera with them on burglaries, anyway, unless the
>PURPOSE of the burglary is to voyeur someone rather than to steal from
>them?)
He didn't carry his own camera: he stole it. :-)
>You do realize that both the defense and the prosecution can, and
>normally do, INTERVIEW the people they each plan to call as witnesses,
>IN ADVANCE, right? In criminal cases, there is usually no right to
>depose the OTHER side's witnesses, but it would be foolish to put your
>OWN witness on the stand unless you knew in advance what he was
>anticipated to say, by ASKING him in private before putting him on the
>stand.
Mr. X's lawyer questioned him and decided he'd make a strong witness
since he had a close-up view. Mr. W didn't mention the camera then.
Mrs. X's lawyer didn't get a chance to interview him. Neither
lawyer knew about the stolen jewelry, since it wasn't thought to be
relevant to the divorce, Mrs. X didn't mention it.
>> I think "witness against himself" can be interpreted as "my testimony
>> can be interpreted so that it will result in bringing criminal charges
>> against me".
>
>Yes, of course.
>
>> Local governments don't recognize anything the mafia does as "bringing
>> criminal charges against someone", it's more like "murdering someone",
>> or "breaking one's kneecaps".
>
>Sure. That's why there's no "I refuse to testify on grounds the Mafia
>might whack me" right. Such potential witnesses generally either (1)
>don't come forward in the first place, (2) lie and say "I don't know"
>or "I don't remember" if called to testify anyway, or (3) ask to be
>placed in the Witness Protection Program, given a new identity, and
>moved to another city, after they testify. As well as, of course,
>usually being given immunity (or a plea bargain) for their OWN
>involvement in whatever organized criminal activity was going on that
>they are going to testify about.
>
>> There's also no "I refuse to answer
>> on the grounds that my wife will divorce me if I admit going to that
>> strip club/whorehouse/poker game/horse track again."
A non-lawyer reading about civil forfeiture could easily come to
the (mistaken) conclusion that possession of United States currency
is illegal. That person might not want to testify about why he was
in the 7-11 ("to buy groceries and lottery tickets") when it got
robbed. Is there anything illegal about that, if he honestly
believes that possessing cash is illegal?
>Yes, you get it. That being the case, I'm not sure why you said some
>of the "they oughta" stuff you said above.
I don't think the wording from the Constitution quoted above provides
all the guarantees you indicate here.
Stuart A. Bronstein
> Mike Jacobs <mjaco...@gmail.com> wrote:
>
>>It does cover that. If the info on your census form would
>>incriminate you (I don't see how it possibly could, but,
>>assuming),
They're not allowed to disclose it - similar to tax return
information. See 13 USC �9.
> Some places might still have laws against cohabitation by
> unrelated adults.
If they do, they're unenforceable, since the Supreme Court
determined that such laws are unconstitutional to the extent they
deal with consenting adults.
>> you can plead the 5th and not give any info. You may still
>> suffer the penalties for failure to cooperate with the census.
>
> How would that not violate the 5th?
It deals with criminal liability. A jury isn't supposed to take
into consideration your failure to testify in your criminal trial,
but they can take it into consideration in a civil trial.
> "You have the right to refuse to testify if that would tend to
> incriminate you, but you'll be punished if you don't testify."
If you are given immunity or otherwise can't be held criminally
liable for what you say, then you can be punished for failure to
tell what you know.
Cy Pres
> RB> The reason -why- the person cannot be compelled to give
> RB> 'self-incriminating testimony' in any case (absent a grant of immunity)
> RB> is because that person's 'witnessing' _can_ be used against them in a
> RB> subsequent criminal case.
>This is not what the clause says. It does not specify the (subsequent) case
>in which the person might be the witness. Actually, (1) above would do
>exactly that, but we have agreed that this is not what it says. It does not
>say that that case must be criminal. It does not even mention the word
>"case". Sticking strictly to the language, any situation where there's
>witnessing, does apply.
Constitutions (and other laws) are generally construed to comport with
their purpose. The provision was adopted specifically to do away with
coerced self-incrimination as practiced under English rule, and
specifically only as against the federal government. It has thus been
interpreted. You can go ahead and interpret it some other way, but
don't expect any legal argument based on such a concept to prevail, or
even be considered non-frivolous.
Stuart A. Bronstein
> "Deadrat" <a...@b.com> wrote
>>
>> It does so cover. For instance, the IRS requires that filers
>> under penalty of law report and pay taxes on illegal income.
>> But they cannot turn over to the USA the returns of those who
>> comply.
>
> Technically I believe you are correct. However, practically I
> think you're off base a bit. While the IRS may not be able to
> disclose the returns themselves BUT they can, and I believe do,
> turn over information they discover that is indicitive of a
> criminal endeavor.
IRC �6103(a) starts out by saying, "Returns and return information
shall be confidential, and except as authorized by this title...."
The statute goes on to say that the IRS may disclose information
only to the extent it cannot be identified to or associated with
any individual taxpayer.
> For example, if I were to file a tax return
> and report and pay all the taxes on $1M of income which I
> reported as entertainment income the IRS would simply cash my
> check. But I said that same $1M came from my activities as a
> pimp and local drug lord they would alert the authorities that I
> was in the pimp and drug business.
Sorry, but no.
> For example, let's assume that the local police get a search
> warrant against me because they get an informant to lie. They
> raid my house and find I'm running a meth lab. Then the warrant
> gets tossed on a technicality and they have to let me go. The
> IRS can use that information against me for assessing and
> collecting back taxes.
That's not the same as the IRS disclosing information - it's using
information they got properly otherwise. Not the same thing.
Stuart A. Bronstein
> I don't believe that the wording quoted above says that. It
> would appear that as along as the *current* case isn't a
> criminal case, they can force testimony out of you, unless it's
> prohibited elsewhere, for use later in a criminal case against
> you, at least according to that wording.
If that were the case, how do people get away with pleading the 5th
when testifying to Congress?
Cy Pres
<spam...@lexregia.com> wrote:
>se...@panix.com (Seth) wrote:
>> Mike Jacobs <mjaco...@gmail.com> wrote:
>>>It does cover that. If the info on your census form would
>>>incriminate you (I don't see how it possibly could, but,
>>>assuming),
>They're not allowed to disclose it - similar to tax return
>information. See 13 USC �9.
However, if you make such filings, they can be used against you in
criminal proceedings to prove your guilt, and the Fifth does not
apply. Garner v. United States, 424 U.S. 648, 654 (1976) ("if a
witness under compulsion to testify makes disclosures instead of
claiming the privilege, the Government has not 'compelled' him to
incriminate himself").
The IRS is unlikely to share it directly with the criminal
authorities, however. One may, consonant with the Fifth Amendment,
disclose the amount of income from an illegal source, while invoking
the Fifth to refuse to disclose its source. United States v. Brown,
600 F.2d 248, 252 (10th Cir. 1979).
I'm not sure whether the *amount* could then be used as part of a
proof of guilt, but that would seem to offend the Constitution,
especially since just listing the amount by itself would tend to be
extremely prejudicial.
bat
"D.F. Manno" <dfm...@mail.com> wrote in message
news:dfmanno-3153A0...@news.albasani.net...
> In article <h8ap91$p5u$1...@aioe.org>, "bat" <b...@bats.com> wrote:
>
>> ??>> I wonder, could he still use 5th amendment claiming that his
>> passing
>> ??>> the information to the state would incriminate him in the eyes of
>> the
>> ??>> mafia?
>>
>> DFM> Seriously, the Fifth Amendment protects you from testifying against
>> DFM> yourself. It doesn't protect you from non-government consequences
>> of
>> DFM> your testimony.
>>
>> But in this clause, government is not mentioned.
>
> "... nor shall be compelled in any criminal case to be a witness against
> himself..."
>
> Only the government can bring a criminal case against you.
current criminal case - yes. But since the current case can be "any", not
necesserily against himself, this means that "witness against himself" can
be not only in the current case, but elsewhere - hence anywhere.
Seth
>>> you can plead the 5th and not give any info. You may still
>>> suffer the penalties for failure to cooperate with the census.
>>
>> How would that not violate the 5th?
>
>It deals with criminal liability. A jury isn't supposed to take
>into consideration your failure to testify in your criminal trial,
>but they can take it into consideration in a civil trial.
Right: if I'm suing you for something you did, and you refuse to
testify about where you were at the time I claim you were digging up
my flower garden, the jury can take your refusal to testify into
consideration.
But what sort of penalty for failure to cooperate with the census
isn't criminal?
Seth
John F. Carr
Stuart A. Bronstein <spam...@lexregia.com> wrote:
>se...@panix.com (Seth) wrote:
>> unrelated adults.
>
>If they do, they're unenforceable, since the Supreme Court
>determined that such laws are unconstitutional to the extent they
>deal with consenting adults.
There are actively enforced laws limiting the number of unrelated
people who may together. They do not target legal cohabitation
(which implies a sexual relationship) but they do target literal
cohabitation (which is Dead Language for "living in the same house").
I started to write about them but found that Snopes got there first:
http://www.snopes.com/college/halls/brothel.asp
Basically, too many unrelated people living together turns a
loosely regulated "apartment" or "house" into a strictly
regulated or prohibited "hotel" or "rooming house."
--
John Carr (j...@mit.edu)
Gordon Burditt
>> would appear that as along as the *current* case isn't a
>> criminal case, they can force testimony out of you, unless it's
>> prohibited elsewhere, for use later in a criminal case against
>> you, at least according to that wording.
>
>If that were the case, how do people get away with pleading the 5th
>when testifying to Congress?
I don't know, but either there's some other wording elsewhere that
allows it, or it's been interpreted way beyond what the words
actually *SAY*.
Stuart A. Bronstein
Perhaps it's because the Supreme Court determined that the
privilege would be meaningless if it could only be asserted in a
criminal proceeding.
"It can be asserted in any proceeding, civil or criminal,
administrative or judicial, investigatory or adjudicatory; and it
protects against any disclosures that the witness reasonably
believes could be used in a criminal prosecution or could lead to
other evidence that might be so used." Kastigar v. United States,
406 U.S. 441, 444-445 (1972).
Robert Bonomi
Gordon, you _are_ correct in your statement "they can force testimony
out of you, unless it's prohibited elsewhere, for use later in a criminal
case against you".
You apparently fail to realize, however, the scope of the 'unless' clause
you so blithely appended to the 'force testimony...' statement.
The relevant point is that a witnessing given in open court _is_ a matter
of public record, and as such can be used in *any* other "chronologically
after-the-fact" proceeding -- _without_ the presence or consent of the
witnessing party themself.
Given that, a person can refuse to testify (with impunity) in any situation,
if they believe that said testimony (i.e. 'witnessing') _could_ be used
against them in a subsequent criminal proceeding -- *WHETHER*OR*NOT* any such
proceeding is presently envisioned by law-enforcement.
The witnessing and the criminal charges do _not_ have to be temporally
connected -- the (prospective) criminal case (and charges) do not even have
to have been contemplated being brought (ye gods, what a tortured construct!:)
at the time the potentially incriminating testimony is being demanded.
Stuart A. Bronstein
> However, if you make such filings, they can be used against you
> in criminal proceedings to prove your guilt, and the Fifth does
> not apply. Garner v. United States, 424 U.S. 648, 654 (1976)
> ("if a witness under compulsion to testify makes disclosures
> instead of claiming the privilege, the Government has not
> 'compelled' him to incriminate himself").
The point is that legally you are required to provide accurate
information on a tax return and on a census form. The agencies
getting that information are not allowed to share it with
prosecutors or anyone else, so it can't be used to incriminate you.
> The IRS is unlikely to share it directly with the criminal
> authorities, however. One may, consonant with the Fifth
> Amendment, disclose the amount of income from an illegal source,
> while invoking the Fifth to refuse to disclose its source.
> United States v. Brown, 600 F.2d 248, 252 (10th Cir. 1979).
Whether they do or not, the IRS is not allowed to disclose the
information.
> I'm not sure whether the *amount* could then be used as part of
> a proof of guilt, but that would seem to offend the
> Constitution, especially since just listing the amount by itself
> would tend to be extremely prejudicial.
The law says that none of the information can be used or disclosed
except as compilations for statistical purposes, but not related to
or associated with any individual.
Cy Pres
<spam...@lexregia.com> wrote:
>The law says that none of the information can be used or disclosed
>except as compilations for statistical purposes, but not related to
>or associated with any individual.
However, as Garner points out, YOU may be compelled to disclose the
tax return information, and if you did not assert the Fifth Amendment
at the time of the compelled disclosure, you waived the privilege.
Garner v. United States, 424 U.S. 648, 654 (1976). You are correct,
of course, that the IRS will not scan through tax returns looking for
income from illegal sources and then forwarding the information to the
authorities. However, given Garner's holding, the time to assert the
Fifth is at time of filing. Of course, one may end up in trouble for
that as well, but if one has large sources of illegal income, that is
a danger of doing business.
Cy Pres
(Robert Bonomi) wrote:
>Given that, a person can refuse to testify (with impunity) in any situation,
>if they believe that said testimony (i.e. 'witnessing') _could_ be used
>against them in a subsequent criminal proceeding -- *WHETHER*OR*NOT* any such
>proceeding is presently envisioned by law-enforcement.
The belief must be REASONABLE. One may not refuse to testify with
impunity if, frex, one has the fanciful belief that a grant of
immunity is invalid and that, therefore, one is still subject to
prosecution.
Seth
Cy Pres <c.p...@yahoo.com> wrote:
>The belief must be REASONABLE. One may not refuse to testify with
>impunity if, frex, one has the fanciful belief that a grant of
>immunity is invalid and that, therefore, one is still subject to
>prosecution.
What if such a belief isn't so fanciful? For instance, the terms of
the grant of immunity are written in language that the witness doesn't
fully comprehend, and so he feels that they were intentionally written
so as to leave a loophole for prosecution. He demands a grant of
immunity written in simple English (perhaps providing the language
himself), and the government refuses to agree to that (thereby
providing him more evidence that the original grant isn't complete).
Seth
Cy Pres
wrote:
Then the witness still DOES have a reasonable belief that testifying
will open her to criminal prosecution. The same would probably be
true if something like a state administrative agency tried to compel
testimony and tried to grant immunity, when the testimony related to
violation of a federal criminal law, which a state administrative
agency has no jurisdiction to grant immunity against.
Seth
Cy Pres <c.p...@yahoo.com> wrote:
>The IRS is unlikely to share it directly with the criminal
>authorities, however. One may, consonant with the Fifth Amendment,
>disclose the amount of income from an illegal source, while invoking
>the Fifth to refuse to disclose its source. United States v. Brown,
>600 F.2d 248, 252 (10th Cir. 1979).
>
>I'm not sure whether the *amount* could then be used as part of a
>proof of guilt,
I don't see how.
Income of $500,000 from unstated sources could be the result of
murdering a bunch of people for pay, smuggling drugs, extortion,
bookmaking, or any number of other possibilities; hence, the mere
_amount_ wouldn't help to prove any particular crime. And to get a
conviction, you need to prove a particular crime, not "the defendant
must have done something illegal so find him guilty".
Seth
Cy Pres
wrote:
>In article <ot24b55pqigec1jh5...@4ax.com>,
>Cy Pres <c.p...@yahoo.com> wrote:
>>The IRS is unlikely to share it directly with the criminal
>>authorities, however. One may, consonant with the Fifth Amendment,
>>disclose the amount of income from an illegal source, while invoking
>>the Fifth to refuse to disclose its source. United States v. Brown,
>>600 F.2d 248, 252 (10th Cir. 1979).
>>I'm not sure whether the *amount* could then be used as part of a
>>proof of guilt,
>I don't see how.
Jury is wobbling. The prosecutor finds some reason, pretextual or
otherwise, to get in income tax returns that show millions of income
for "not disclosed due to Fifth Amendment." The defendant has an ugly
record, so doesn't take the stand to avoid cross examination. The
judge gives a limiting instruction that the jury is not to use the tax
return information for improper purposes, such as finding the
defendant guilty, but there isn't a jury in the world that pays a lick
of attention to those instructions, as studies have shown. Defendant
found guilty.
>Income of $500,000 from unstated sources could be the result of
>murdering a bunch of people for pay, smuggling drugs, extortion,
>bookmaking, or any number of other possibilities; hence, the mere
>_amount_ wouldn't help to prove any particular crime. And to get a
>conviction, you need to prove a particular crime, not "the defendant
>must have done something illegal so find him guilty".
To get a conviction, you have to convince twelve jurors to say
"guilty." The trial court can't look at the evidence itself, except
if there just isn't enough evidence for any reasonable jury to find
guilt. It otherwise can't second guess jury findings. The jury can
say "guilty" for whatever reason they like. They might not be
completely convinced on this particular case, but just think the
defendant is clearly a bad person and they want him off the streets;
if he didn't commit this crime, surely he's gotten away with lots of
other crimes. Etc. It's also pretty rare for a juror to admit they
found guilty (or not guilty) for an improper reason. They've heard
those limiting instructions and while they may not pay attention to
them, they do remember them. From the defendant's perspective, it
doesn't matter. He's convicted.
Letting in something like the tax returns is so prejudicial that
unless the judge had a very good reason for it (such that their
probative value outweighs the prejudice) the defendant has a
reasonable chance of winning on appeal. Even then, though, people
lose meritorious appeals all the time.
Stuart A. Bronstein
>
> Income of $500,000 from unstated sources could be the result of
> murdering a bunch of people for pay, smuggling drugs, extortion,
> bookmaking, or any number of other possibilities; hence, the
> mere _amount_ wouldn't help to prove any particular crime. And
> to get a conviction, you need to prove a particular crime, not
> "the defendant must have done something illegal so find him
> guilty".
Plus the fact that the IRS (or anyone on their behalf) is prohibited
from disclosing information contained on a tax return, even to law
enforcement.
Cy Pres
<spam...@lexregia.com> wrote:
>Plus the fact that the IRS (or anyone on their behalf) is prohibited
>from disclosing information contained on a tax return, even to law
>enforcement.
This is cold comfort for the defendant who is compelled to disclose
the returns himself.
Barry Gold
[Snipped discussion of the distinction between listing the amount
of income from an illegal source (e.g., smuggling) vs. disclosing
the actual source. Discussion that follows assumes that the
amount of such income has been admitted in a criminal proceeding.]
>Jury is wobbling. The prosecutor finds some reason, pretextual or
>otherwise, to get in income tax returns that show millions of income
>for "not disclosed due to Fifth Amendment." [limiting instruction
>given, but ignored by jurors]
>Defendant found guilty.
Which is why, AFAIK, *nothing* on your tax return can be used for any
purpose _other_ than tax collection. AFAIK the only time your return
can be used against you is if you are charged with lying on it to
evade taxes.
>To get a conviction, you have to convince twelve jurors to say
>"guilty." The trial court can't look at the evidence itself, except
>if there just isn't enough evidence for any reasonable jury to find
>guilt.
Not true. The judge can direct a "Not Guilty" verdict, or enter a
judgment of "Not Guilty" not withstanding the verdict (JNWV). In
either case, the defendant is legally Not Guilty, and there is no
appeal.
Now, an _appelate_ court cannot look at the evidence except if there
isn't sufficient for a reasonable jury to find guilt.
>Letting in something like the tax returns is so prejudicial that
>unless the judge had a very good reason for it (such that their
>probative value outweighs the prejudice) the defendant has a
>reasonable chance of winning on appeal. Even then, though, people
>lose meritorious appeals all the time.
And AFAIK tax returns are simply *not* admissible in non-tax cases,
unless the defendant _makes_ them available. In fact, AFAIK, the
information on tax returns cannot even be _disclosed_ outside of the
tax system (IRS and equivalent State & local taxing agencies) without
the permission of the filer.
There is one loophole I can think of: defendant files a joint tax
return with his spouse. The spouse than grants permission for the use
of the tax return. I'm not sure if revealing a joint return requires
the permission of both filers or only one.
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Seth
If the return might tend to incriminate the defendant, he can't be
compelled to disclose.
Seth
Stuart A. Bronstein
Cy Pres
wrote:
>Cy Pres <c.p...@yahoo.com> wrote:
> [Snipped discussion of the distinction between listing the amount
> of income from an illegal source (e.g., smuggling) vs. disclosing
> the actual source. Discussion that follows assumes that the
> amount of such income has been admitted in a criminal proceeding.]
>>Jury is wobbling. The prosecutor finds some reason, pretextual or
>>otherwise, to get in income tax returns that show millions of income
>>for "not disclosed due to Fifth Amendment." [limiting instruction
>>given, but ignored by jurors]
>>Defendant found guilty.
>Which is why, AFAIK, *nothing* on your tax return can be used for any
>purpose _other_ than tax collection. AFAIK the only time your return
>can be used against you is if you are charged with lying on it to
>evade taxes.
This is not, strictly speaking, true. A defendant may be compelled to
turn over their tax returns, and these may be used in court. A guilty
verdict may be premised upon such evidence. This happened in Garner
v. United States, 424 U.S. 648 (1976), and was found not to violate
the defendant's Fifth Amendment privilege against self-incrimination.
The defendant had listed income on his tax return as arising from
"gambling" and "wagering," and listed his occupation as "professional
gambler." The Court found that the proper time to raise the Fifth
Amendment privilege was at the time of the filing of the taxes, and
that having voluntarily disclosed the incriminating information on his
tax returns, the defendant could not subsequently claim Fifth
Amendment privilege.
>>To get a conviction, you have to convince twelve jurors to say
>>"guilty." The trial court can't look at the evidence itself, except
>>if there just isn't enough evidence for any reasonable jury to find
>>guilt.
>Not true. The judge can direct a "Not Guilty" verdict, or enter a
>judgment of "Not Guilty" not withstanding the verdict (JNWV). In
>either case, the defendant is legally Not Guilty, and there is no
>appeal.
That's what I said. If the judge does this, the judge has determined
that there "just isn't enough evidence for any reasonable jury to find
guilt."
>Now, an _appelate_ court cannot look at the evidence except if there
>isn't sufficient for a reasonable jury to find guilt.
The appellate court can look at a decision to exclude certain evidence
that leaves the prosecution with no case, but this is, of course,
generally before trial. The prosecution can't appeal subsequently.
Similarly, an appellate court could examine a JNOV before trial.
Neither of these, strictly, are looking at evidence, but instead,
looking at the law.
Cy Pres
<spam...@lexregia.com> wrote:
>Under what circumstances would that happen?
See Garner v. United States and its progeny. 424 U.S. 648 (1976).
Seth
Cy Pres <c.p...@yahoo.com> wrote:
>On Wed, 30 Sep 2009 19:27:57 +0000 (UTC), se...@panix.com (Seth)
>wrote:
>>In article <ot24b55pqigec1jh5...@4ax.com>,
>>Cy Pres <c.p...@yahoo.com> wrote:
>
>>>The IRS is unlikely to share it directly with the criminal
>>>authorities, however. One may, consonant with the Fifth Amendment,
>>>disclose the amount of income from an illegal source, while invoking
>>>the Fifth to refuse to disclose its source. United States v. Brown,
>>>600 F.2d 248, 252 (10th Cir. 1979).
>
>>>I'm not sure whether the *amount* could then be used as part of a
>>>proof of guilt,
>
>>I don't see how.
>
>Jury is wobbling. The prosecutor finds some reason, pretextual or
>otherwise, to get in income tax returns that show millions of income
>for "not disclosed due to Fifth Amendment." The defendant has an ugly
>record, so doesn't take the stand to avoid cross examination.
But his _lawyer_ suggests that the defendant go the money by doing
<some particular other crime>, and therefore he isn't guilty of doing
the crime he's on trial for.
> The judge gives a limiting instruction that the jury is not to use
>the tax return information for improper purposes, such as finding the
>defendant guilty,
More importantly, the judge reminds the jury that the defendant is on
trial for _this_ crime, and he should not be convicted for comitting
that other crime; in fact, if they believe he committed that other
crime, he should be acquitted here.
> but there isn't a jury in the world that pays a lick
>of attention to those instructions, as studies have shown. Defendant
>found guilty.
The instruction I suggest do have an effect on the jury. (In fact,
that issue is brought out by the defense in jury selection, so any
jurors who don't agree with it are excluded a priori.)
> It's also pretty rare for a juror to admit they
>found guilty (or not guilty) for an improper reason.
It happens often enough, provided the improper reason isn't a crime.
(They won't admit they were bribed; but they'll often admit that they
just don't think he should be convicted because they agree he did the
only moral choice, even if the law said otherwise.)
>Letting in something like the tax returns is so prejudicial that
>unless the judge had a very good reason for it (such that their
>probative value outweighs the prejudice) the defendant has a
>reasonable chance of winning on appeal.
That is, the prosecution can't bring them up (without allowing for
criminal charges against someone in the government for revealing
them), except, of course, in cases where they're the issue (tax
evasion, tax fraud).
Seth
Seth
Cy Pres <c.p...@yahoo.com> wrote:
>On Fri, 02 Oct 2009 22:39:40 +0000 (GMT), bg...@nyx.net (Barry Gold)
>wrote:
>>Which is why, AFAIK, *nothing* on your tax return can be used for any
>>purpose _other_ than tax collection. AFAIK the only time your return
>>can be used against you is if you are charged with lying on it to
>>evade taxes.
>
>This is not, strictly speaking, true. A defendant may be compelled to
>turn over their tax returns, and these may be used in court. A guilty
>verdict may be premised upon such evidence. This happened in Garner
>v. United States, 424 U.S. 648 (1976), and was found not to violate
>the defendant's Fifth Amendment privilege against self-incrimination.
>The defendant had listed income on his tax return as arising from
>"gambling" and "wagering," and listed his occupation as "professional
>gambler." The Court found that the proper time to raise the Fifth
>Amendment privilege was at the time of the filing of the taxes, and
>that having voluntarily disclosed the incriminating information on his
>tax returns, the defendant could not subsequently claim Fifth
>Amendment privilege.
But "gambling" per se isn't illegal, if the defendant didn't specify
the *location* where he gambled. Someone who went to Las Vegas to
play poker once a month, and won a lot of money, might well state that
doing so is his profession, even if he lives in a state where gambling
is illegal.
(I disagree with the idea that providing any information removes the
protection of the Fifth Amendment; I think someone should be allowed
to provide as much information as he wants, and stop when he thinks
_further_ information might be incriminating. I don't see any
loophole in the Fifth Amendment for requiring someone to provide
incriminating information merely because he provided some other
information.)
Seth
Barry Gold
>This is not, strictly speaking, true. A defendant may be compelled to
>turn over their tax returns, and these may be used in court. A guilty
>verdict may be premised upon such evidence. This happened in Garner
>v. United States, 424 U.S. 648 (1976), and was found not to violate
>the defendant's Fifth Amendment privilege against self-incrimination.
So what are you supposed to do? Claim the 5th when you file your
return, then the IRS says, "The law says you have to disclose" and
_then_ you are protected because you didn't disclose voluntarily? Or
do you just list the amount of income and claim the 5th in the column
that lists the type of income? Or are you just screwed?
>That's what I said. If the judge does this, the judge has determined
>that there "just isn't enough evidence for any reasonable jury to find
>guilt."
But my point is that the judge can exercise his own discretion, at
least up to the point where the jury returns a verdict. If he
terminates the trial with a directed NG vedict before sending it to the
jury, or even during deliberations, AFAIK that _cannot_ be appealed.
The defendant has been placed "in jeopardy" and the directed verdict
_is_ a finding of innocent. Period, end of story. (Except maybe if
the prosecution can prove that the judge was bribed so that there was
no jeopardy. Something similar happened when a def't had bribed the
entire jury panel, and the appeals court ruled that jeopardy had not
attached, so the def't could be retried.)
A JNOV, OTOH, can be appealed by the prosecution, AFAIK.
Stuart A. Bronstein
> "Stuart A. Bronstein" wrote:
>
>>>>Plus the fact that the IRS (or anyone on their behalf) is
>>>>prohibited from disclosing information contained on a tax
>>>>return, even to law enforcement.
>
>>> This is cold comfort for the defendant who is compelled to
>>> disclose the returns himself.
>
>
> See Garner v. United States and its progeny. 424 U.S. 648
> (1976).
That's not an answer to the question I asked.
In Garner the Supreme Court only ruled that if someone makes a
disclosure without claiming the privilege against self
incrimination, the privilege can be lost.
But apparently the issue of �6103 was never brought up, and the
court never dealt with it. They just assumed that the disclosure
was proper, and only dealt with the 5th Amendment issue.
The question I asked was, when is it proper for the IRS (or anyone
else) to disclose return information? Under �6103 that is very
limited.
I don't know why that statute was not argued by Garner's lawyers -
perhaps they didn't know what they were doing. If they had brought
it up, I'd imagine that they would have won, because the disclosure
itself was improper under the statute, irrespective of the 5th
Amendment issue.
Cy Pres
<spam...@lexregia.com> wrote:
>I don't know why that statute was not argued by Garner's lawyers -
>perhaps they didn't know what they were doing. If they had brought
>it up, I'd imagine that they would have won, because the disclosure
>itself was improper under the statute, irrespective of the 5th
>Amendment issue.
6103 specifically authorizes the discovery of tax return information
by federal agencies for purposes of law enforcement including non-tax
related criminal matters.
"(i) Disclosure to Federal officers or employees for administration of
Federal laws not relating to tax administration.
(1) Disclosure of returns and return information for use in
criminal investigations.
(A) In general. Except as provided in paragraph (6), any return
or return information with respect to any specified taxable period or
periods shall, pursuant to and upon the grant of an ex parte order by
a Federal district court judge or magistrate under subparagraph (B),
be open (but only to the extent necessary as provided in such order)
to inspection by, or disclosure to, officers and employees of any
Federal agency who are personally and directly engaged in--
(i) preparation for any judicial or administrative proceeding
pertaining to the enforcement of a specifically designated Federal
criminal statute (not involving tax administration) to which the
United States or such agency is or may be a party,
(ii) any investigation which may result in such a proceeding,
or
(iii) any Federal grand jury proceeding pertaining to
enforcement of such a criminal statute to which the United States or
such agency is or may be a party,
solely for the use of such officers and employees in such
preparation, investigation, or grand jury proceeding."
IRC Sec. 6103
Seth
>Cy Pres <c.p...@yahoo.com> wrote:
>>This is not, strictly speaking, true. A defendant may be compelled to
>>turn over their tax returns, and these may be used in court. A guilty
>>verdict may be premised upon such evidence. This happened in Garner
>>v. United States, 424 U.S. 648 (1976), and was found not to violate
>>the defendant's Fifth Amendment privilege against self-incrimination.
>
>So what are you supposed to do? Claim the 5th when you file your
>return, then the IRS says, "The law says you have to disclose" and
>_then_ you are protected because you didn't disclose voluntarily?
You have to file a return with the correct amount.
Where the form demands Occupation, I'd recommend putting in something
bland and generic: "Sales" or "Personal Services" or "Management
Consulting".
> Or
>do you just list the amount of income and claim the 5th in the column
>that lists the type of income? Or are you just screwed?
"Type" of income? "earned"
Seth
Seth
Stuart A. Bronstein <spam...@lexregia.com> wrote:
>In Garner the Supreme Court only ruled that if someone makes a
>disclosure without claiming the privilege against self
>incrimination, the privilege can be lost.
The right (not privilege) in its entirety, or only with respect to
what was already disclosed? If I feel that one particular fact
(e.g. my name) is not incriminatory, but another one (e.g. my date of
birth) is, can I provide the first but not the second?
I would think that any demand by the prosecution to provide the second
would tend to support my claim: If the first disclosure sufficed to
incriminate me, they wouldn't need the second, so the first isn't
incriminatory by itself. And if the second (along with the first)
isn't incriminatory, it won't help them so they wouldn't be asking for
it.
Seth
Cy Pres
>In article <Xns9C9C55629E7B8s...@130.133.1.4>,
>Stuart A. Bronstein <spam...@lexregia.com> wrote:
>
>>In Garner the Supreme Court only ruled that if someone makes a
>>disclosure without claiming the privilege against self
>>incrimination, the privilege can be lost.
>The right (not privilege) in its entirety, or only with respect to
>what was already disclosed?
No, the proper term is privilege. The term privilege in the Fifth
Amendment context is not used to distinguish between an inherent right
and a revocable privilege, but instead, to indicate an exemption from
providing otherwise admissable testimony.
Seth
I think it's strange how the language is used there. Why does the
Fifth Amendment context change the meaning of "privilege" (compared to
"right")?
The testimony is still admissable; rather, the exemption is from the
_requirement_ to provide it.
In any case, my question stands: if a person makes some disclosure,
can he then be required to make further disclosures? Suppose the
further disclosure is (felt to be) incriminating. Then, if the
original disclosure is incriminating, the further one isn't needed;
and if the original disclosure is not incriminating, the further one
cannot be required without violating the Fifth Amendment.
Yet somehow courts have ruled that someone can't choose not to answer
some questions while answering others, at least in some cases.
Seth
Daniel R.Reitman
>In article <65ruc5pn95ob87vgl...@4ax.com>,
>Cy Pres <c.p...@yahoo.com> wrote:
>>On Thu, 8 Oct 2009 14:02:18 +0000 (UTC), se...@panix.com (Seth) wrote:
>>No, the proper term is privilege. The term privilege in the Fifth
>>Amendment context is not used to distinguish between an inherent right
>>and a revocable privilege, but instead, to indicate an exemption from
>>providing otherwise admissable testimony.
>
>I think it's strange how the language is used there. Why does the
>Fifth Amendment context change the meaning of "privilege" (compared to
>"right")?
>. . . .
The term privilege is used because the law also recognizes a series of
other privileges from being required to testify in certain
circumstances. The best known are the attorney-client privilege, the
confessor-penitent privilege (which is recognized for all religious
equivalents of Catholic confession), the doctor-patient(and analogous)
privileges, and the marital privileges. Among the more unusual
privileges recognized in some jurisdictions include the voter's
privilege, by which one can refuse to answer a question how one voted
in a particular election.
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY-CLIENT RELATIONSHIP
INTENDED.
Cy Pres
>I think it's strange how the language is used there. Why does the
>Fifth Amendment context change the meaning of "privilege" (compared to
>"right")?
It doesn't change the meaning. Both privilege and right have multiple
meanings. Many words have multiple meanings. The relevant meaning of
the term "privilege" in the context of exemptions from having to
testify is "[a] right not to testify based on a claim of privilege; a
privilege that overrides a witness's duty to disclose matters within
the witness's knowledge, whether at trial or by deposition." Black's
Law Dictionary. Other privileges include the marital privilege, the
priest-penitent privilege, the doctor-patient privilege, the
state-secrets privilege (invoked by the government), and others. The
"privilege against self-incrimination" is also sometimes called the
"right against self-incrimination."
>The testimony is still admissable; rather, the exemption is from the
>_requirement_ to provide it.
It would be admissable if the witness waived the privilege and
testified despite the availability of the privilege. This particular
privilege is also a right. It is not a creature of pure statute. It
is constitutional in nature.
>In any case, my question stands: if a person makes some disclosure,
>can he then be required to make further disclosures?
Maybe. It depends.
>Suppose the
>further disclosure is (felt to be) incriminating.
That might just be tough titty. If one chooses to testify on a
subject matter, one cannot simply testify to what is self-serving and
helpful and then claim the privilege the moment the area of testimony
strays into what might be harmful.
>Then, if the
>original disclosure is incriminating, the further one isn't needed;
Presumably a defendant is NOT going to make an original disclosure
that is incriminating, at least not on purpose. One chooses to
testify in an area like this because one presumes the testimony will
actually be useful.
>and if the original disclosure is not incriminating, the further one
>cannot be required without violating the Fifth Amendment.
I don't see why that's the case. And as far as I am aware, case law
doesn't either.
>Yet somehow courts have ruled that someone can't choose not to answer
>some questions while answering others, at least in some cases.
This is to prevent defendants from using the privilege as a sword,
when it is intended as a shield; i.e. to hide behind the privilege to
avoid self-incrimination while, at the same time, answering questions
by one's own attorney which are purely self-serving, yet avoiding
cross examination on the same issues.
Generally, when the ability of the other side to cross examine and the
right against self-incrimination collide, the proper solution is to
argue the issue via motions in limine or otherwise to litigate the
scope of direct and cross examination before the judge, without the
jury present, to determine what defense counsel can examine the
defendant about without triggering a waiver of Fifth Amendment rights,
and what the scope of cross examination will be should defense counsel
stray into the dangerous territory.
There are very few bright line rules in this area.
Seth
Daniel R.Reitman <drei...@spiritone.com> wrote:
> Among the more unusual
>privileges recognized in some jurisdictions include the voter's
>privilege, by which one can refuse to answer a question how one voted
>in a particular election.
And in some cases, at least one judge refused to recognize that. (The
government misread a map of a district, and some ineligible people
voted. The judge demanded they tell how they voted so their votes
could be discounted, rather than re-running the election. Some of
them refused. IIRC, this was in Michigan, in the latter part of the
last century.)
Seth
Barry Gold
>In any case, my question stands: if a person makes some disclosure,
>can he then be required to make further disclosures? Suppose the
>further disclosure is (felt to be) incriminating. Then, if the
>original disclosure is incriminating, the further one isn't needed;
>and if the original disclosure is not incriminating, the further one
>cannot be required without violating the Fifth Amendment.
>
>Yet somehow courts have ruled that someone can't choose not to answer
>some questions while answering others, at least in some cases.
I guess it depends on the context. Say you are stopped by a police
officer, who asks you some questions. You answer the first few, then
decide the questioning is getting onto dangerous ground and refuse to
answer any more. You have a right to do so, AFAIK, and your refusal
to answer cannot be used against you. (However, the answers you
provided earlier _can_ be used, and in some case would be enough to
convect you if you don't provide some exculpatory evidence or
explanation.)
OTOH, if you are charged with a crime, and decide to testify in your
trial, you have _waived_ your right against self-incrimination (for
purposes of that trial) and cannot then say, "No, I'm not answering
any more questions." Once you agree to testify, the judge can order
you to answer under penalty of contempt, and your refusal to answer
_can_ be considered by the jury.
Cy Pres
wrote:
>OTOH, if you are charged with a crime, and decide to testify in your
>trial, you have _waived_ your right against self-incrimination (for
>purposes of that trial) and cannot then say, "No, I'm not answering
>any more questions." Once you agree to testify, the judge can order
>you to answer under penalty of contempt, and your refusal to answer
>_can_ be considered by the jury.
It depends on what the evidentiary orders were pre-trial. Because of
the nature of a criminal trial, where exposure of the jury to
prejudicial or otherwise inadmissible information may be a mistrial,
wasting judicial resources, the usual method is for both sides to file
what are called motions in limine prior to the trial, in which they
argue what evidence should be allowed or not allowed, and brief the
legal reasons why this should be.
Parties can also stipulate pre-trial that certain otherwise
inadmissible evidence will be allowed, for instance, in some states,
polygraph evidence is admissible if both prosecution and defense
counsel stipulate to its admission prior to trial. Presumably, this
would also be prior to the test, as only a fool committing malpractice
would stipulate to the admission of otherwise inadmissible evidence
that strongly disfavors them. Actually, I'd argue that the defense
EVER stipulating to such evidence approaches malpractice in most
circumstances, but that's another issue.
If the evidentiary ruling is particularly unfavorable to either side,
this may prompt a plea bargain, or cause the defendant to choose not
to take the stand. If the evidentiary ruling is particularly
unfavorable to the prosecution, the prosecution may drop the case,
offer a sweetheart deal, or immediately appeal the evidentiary ruling.
Unlike the defense, which can appeal after a trial marred by bad
evidence, the prosecution, if they lose at a jury trial, has no
appeal. Therefore, evidentiary appeals by the prosecution are heard
before trial.
But in any case, once the judge rules on the motions in limine, if the
judge does (the judge can reserve ruling on some or all parts of the
motions until during the trial), the scope of testimony may be
limited. Going into the forbidden territory could result in a
mistrial. For instance, the judge might exclude testimony about the
defendant's prior crimes, or drug addiction, or some other prejudicial
subject, or exclude defense witness' as to the victim's crimes, or
using some catch-all exception in the evidence rules, often including
some variation of the phrase "in the interests of justice," rule that
extraordinary circumstances justify the admission of evidence that
seems to be prohibited by some other rule.
In a case like this, neither party may go into the forbidden
territory, and attempts to do so might result in contempt or a
mistrial. The party would generally not cite the Fifth Amendment in
this case, though, but the judge's previous ruling.
Wayne Mitchell
>in some states,
>polygraph evidence is admissible if both prosecution and defense
>counsel stipulate to its admission prior to trial.
Hoo, boy! This raises a lot of questions for me. I would much prefer
that polygraph results be simply inadmissible under any circumstances.
Things get messy when we leave loopholes for dubious evidence to be
introduced.
The first question is, What does the "polygraph evidence" consist of? If
it consists only of the graphical output of the sensors as interpreted
by the operator, then it has no probative value. The best-trained
professional polygraph operator, given a statistically sufficient number
of such graphs without any other clues, will not be able to identify the
points at which the subjects were less than truthful with any better
than random success. If this is the "polygraph evidence", could or
should a judge, even if opposing counsel agree to admit the evidence,
exclude it on the grounds that it is non-probative and could only serve
to prejudice the jury?
Or does the "polygraph evidence" consist of the polygraph operator's
conclusions? Is the operator always to be accepted as an expert
witness, allowed to testify as to his conclusions? The typical
polygraph operator would only be an "expert" on the polygraph. If his
conclusions are drawn entirely from the polygraph output, then I suppose
his expert testimony should be allowed or excluded on the same basis as
the polygraph output itself.
But his conclusions may not be based solely upon the scientifically null
output of the sensors. They may rise, in whole or in part, from his
observation of the subject during the interview. Does this make his
evidence sufficiently probative so no judge could exclude it? Is the
possibility that some of his conclusions may depend upon the useless
sensor outputs sufficient to disqualify him entirely? Is that a
question for the jury, rather than the judge?
In the pure case where the operator is a trained police interrogator who
is merely using the polygraph as a prop to convince a naive subject that
his lies will be revealed, and is not basing his conclusions in any way
on the output of the sensors, then I suppose it ought to be admissible
as expert testimony. But it should not, I would think, be presented as
"polygraph evidence". Could or should the judge insist that this be
made clear to the jury? (It would have the probable and undesirable
result of weakening the effect of the evidence on the jury, since the
majority of jurors will be naive and think that the polygraph is better
at lie detection than the expert interrogator, when just the reverse is
true.)
What of the mixed case where the operator is a trained police
interrogator, but he is not merely using the polygraph as a prop? If
his conclusions are influenced by the polygraph results, is his expert
testimony admissible?
Just some musings.
--
Wayne M.
Cy Pres
<gwmitc...@pobox.com> wrote:
> Cy Pres <c.p...@yahoo.com> wrote:
>>in some states,
>>polygraph evidence is admissible if both prosecution and defense
>>counsel stipulate to its admission prior to trial.
>Hoo, boy! This raises a lot of questions for me. I would much prefer
>that polygraph results be simply inadmissible under any circumstances.
Incidentally, I agree, just as Ouija board operators, dowsing rod
diviners, and psychics should not be permitted to give expert
testimony on the truthfulness of a witness.
There may be, in the future, "lie detectors" sufficient to meet
indicia of scientific reliability, and indeed, some functional MRI
tests appear to be getting close to it, but I don't think much of
polygraphs in particular.
[. . .]
>Or does the "polygraph evidence" consist of the polygraph operator's
>conclusions? Is the operator always to be accepted as an expert
>witness, allowed to testify as to his conclusions?
Not always. A polygraph operator, like any proposed expert witness,
generally must be qualified as an expert and recognized as such by the
court in which he will testify. I'm not sure if that could be
stipulated to as well. I believe it could be, but I also believe a
court could simply refuse certain kinds of testimony if it did not
believe the expert to be qualified, even over the stipulation of the
parties, as part of the court's inherent power to manage its docket.
[. . .]
>But his conclusions may not be based solely upon the scientifically null
>output of the sensors. They may rise, in whole or in part, from his
>observation of the subject during the interview. Does this make his
>evidence sufficiently probative so no judge could exclude it?
Not necessarily.
In most if not all jurisdictions, polygraph evidence, absent a
stipulation, is simply inadmissible. There are also jurisdictions
where, even with a stipulation, courts simply tend to be hostile to
the concept.
>Is the
>possibility that some of his conclusions may depend upon the useless
>sensor outputs sufficient to disqualify him entirely? Is that a
>question for the jury, rather than the judge?
If the sensor outputs are assumed to be *completely* useless, then
there really isn't a scientific device at issue in the case at all. At
this point, you are talking about an "expert on detecting liars."
Conceivably, a court could qualify someone as an expert on that, and
allow such a person to testify about the truthfulness of various
witnesses at trial, but in reality, most courts would not do so, since
they view gauging the truthfulness of witnesses to be the job of the
trier of fact.
There might be exceptions. For example, imagine a witness with
Tourette's, who because of various tics or even strange involuntary
utterances, seems not to be credible. A court might allow a
psychiatrist to testify that while the witness has a neurological
disorder that causes him to appear strange, that he is not actually
insane and that this should not be viewed as evidence of dishonesty.
>In the pure case where the operator is a trained police interrogator who
>is merely using the polygraph as a prop to convince a naive subject that
>his lies will be revealed, and is not basing his conclusions in any way
>on the output of the sensors, then I suppose it ought to be admissible
>as expert testimony.
[. . .]
In that case, you might not need the polygraph evidence at all. If
the subject, terrified of the polygraph, confessed to the crime, you
have a confession. Obviously, if the subject then recanted the
confession, claiming it was coerced by fear of the machine, then you
might want the polygraph evidence to show that the witness, in fact,
was telling the truth when he confessed.
I think the problem with polygraph evidence is the element of
randomness and subjectivity to the testing process. There just isn't
a consistent scientific methodology that gets consistent results. Some
polygraph operators get better results from something akin to personal
skill at reading people, and others, who may have received identical
training, just don't have the "knack."
In a certain sense, society may not be consistent about this, since we
already leave determining the truthfulness of witnesses to untrained
laypeople with no equipment whatsoever, even though scientific
research has shown that people in general have very little ability to
detect dishonesty (presented with a truthteller and a liar and asked
to tell which is which most people score little better than chance
would indicate).
However, polygraph evidence still, to me, smacks of stipulating to
deciding the case by a coin toss or at the roulette table.
Cy Pres
<miatt...@gmail.com> wrote:
>On Nov 15, 9:29�am, Wayne Mitchell <gwmitchell...@pobox.com> wrote:
>> �Cy Pres <c.p...@yahoo.com> wrote:
>> >in some states,
>> >polygraph evidence is admissible if both prosecution and defense
>> >counsel stipulate to its admission prior to trial.
>> Hoo, boy! �This raises a lot of questions for me. �I would much prefer
>> that polygraph results be simply inadmissible under any circumstances.
>> Things get messy when we leave loopholes for dubious evidence to be
>> introduced.
>First of all, I'm having trouble imagining a scenario in which the
>adversaries would need -- let alone agree -- to admit polygraph
>evidence in ANY form (the printout, the operator's testimony, etc.).
You may have trouble imagining it, but I assure you that there are
many jurisdictions where polygraph evidence is admissible upon
stipulation by the parties, New Jersey being one of these
jurisdictions.
>If there is agreement that a witness's statements are truthful, a
>stipulation to those statements as fact is the proper vehicle to use,
>rather than giving the "undisputed" evidence to the jury. In a
>criminal case, what beneficial purpose would a polygraph serve where
>nobody is challenging the witness's veracity?
How often is it in a criminal case where the prosecution is NOT
questioning the defendant's veracity or, for that matter, how often is
it the case where one side is NOT questioning the veracity of the
other side's witnesses?
Stuart A. Bronstein
>>First of all, I'm having trouble imagining a scenario in which
>>the adversaries would need -- let alone agree -- to admit
>>polygraph evidence in ANY form (the printout, the operator's
>>testimony, etc.).
>
> You may have trouble imagining it, but I assure you that there
> are many jurisdictions where polygraph evidence is admissible
> upon stipulation by the parties, New Jersey being one of these
> jurisdictions.
That wasn't the question. I have no problem imagining that any
jurisdiction would allow it by rule.
What I have a problem with is that there would actually be a case
where the lawyers on both sides would agree.
Seth
Cy Pres <c.p...@yahoo.com> wrote:
>On Tue, 17 Nov 2009 13:09:24 -0800 (PST), A Michigan Attorney
><miatt...@gmail.com> wrote:
>>First of all, I'm having trouble imagining a scenario in which the
>>adversaries would need -- let alone agree -- to admit polygraph
>>evidence in ANY form (the printout, the operator's testimony, etc.).
>
>You may have trouble imagining it, but I assure you that there are
>many jurisdictions where polygraph evidence is admissible upon
>stipulation by the parties, New Jersey being one of these
>jurisdictions.
And I believe that the stipulation typically takes place _before_ the
polygraph exam is taken.
Then, based on the exam, it's likely that either charges would be
dropped or a guilty plea entered.
Seth
Cy Pres
<miatt...@gmail.com> wrote:
[Statute permitting admission of polygraph evidence upon stipulation.]
>You misunderstood the quoted passage. I cannot imagine a need that
>would be unfulfilled without such a statute. I can, however, imagine
>politicos pushing though such ridiculous legislation. In any event,
>what's the cite to that statute? I want to review it.
There isn't actually a statute. Polygraph evidence enters under the
same basic principle that parties may stipulate to the admission of
otherwise inadmissible evidence.
However, because there is a constitutional dimension to the admission
of such evidence, one generally must be advised by counsel at the time
of the waiver. State v. A.O., 198 N.J. 69, 965 A.2d 152 (2009)
(admission of polygraph evidence pursuant to stipulation entered into
without counsel was reversible error).
This is somewhat unusual, since one may even enter into a plea
agreement without counsel, a decision which completely waives the
right to a trial, while admission of polygraph evidence merely
prejudices it.
If you check out State v. A.O., it briefly articulates the doctrine as
it currently stands, and you can more or less ferret out the contours
of the doctrine from the cases cited therein.
I incidentally am in complete agreement with you. I interpreted your
statement as disbelief that any jurisdiction would do something so
silly, and while I can certainly imagine ridiculous legislation
leading to it, in this case, it is judicially created doctrine.
Cy Pres
<spam...@lexregia.com> wrote:
>Cy Pres <c.p...@yahoo.com> wrote:
>> You may have trouble imagining it, but I assure you that there
>> are many jurisdictions where polygraph evidence is admissible
>> upon stipulation by the parties, New Jersey being one of these
>> jurisdictions.
>That wasn't the question. I have no problem imagining that any
>jurisdiction would allow it by rule.
>What I have a problem with is that there would actually be a case
>where the lawyers on both sides would agree.
I don't see why the prosecution would mind. If they get it in, they
basically have little left to litigate unless the polygraph evidence
is so bad that the jury doesn't believe it. The defendant can bring
in her own polygrapher to give contrary testimony. State v.
Baskerville, 139 N.J.Super. 389, 354 A.2d 328 (N.J. Super.
App.Div.1976). It is typical for defense counsel to have a "practice
run" with a polygrapher hired by defense counsel before stipulating to
the admission of polygraph evidence from the state's polygrapher. 31
N.J. Practice � 1:42.
My personal opinion is that defense counsel stipulating to such an
admission borders on ineffective assistance of counsel, but the courts
disagree with me on this. I don't consider it ethical. Someone with
a different view of the accuracy of polygraphs might reasonably
consider it ethical, however.
Cy Pres
wrote:
>And I believe that the stipulation typically takes place _before_ the
>polygraph exam is taken.
Yes, only a genuine fool would stipulate afterwards if the test didn't
come out their way.
>Then, based on the exam, it's likely that either charges would be
>dropped or a guilty plea entered.
Often, a defendant will confess after failing a polygraph. This is
considered "voluntary."
Mike
> On Nov 19, 12:59 am, Cy Pres <c.p...@yahoo.com> wrote:
>> How often is it in a criminal case where the prosecution is NOT
>> questioning the defendant's veracity or, for that matter, how often is
>> it the case where one side is NOT questioning the veracity of the
>> other side's witnesses?
>
> stipulate to admission of a polygraph? If it favors the witness, the
> prosecution doesn't want it in; and if it favors the prosecutor, the
> defense doesn't want it in. Hence, no stipulation.
I was under the impression (perhaps wrong) that they had to stipulate to
the polygraph BEFORE it's done (and thus before any results are known.)
I can see if they already knew the results, how neither side would agree
to evidence against that side. But if they said "ok, let's do a
polygraph and we both agree, good or bad, that the results get admitted"
I can see it happening at times. I agree with Cy Pres that they are
totally inaccurate and no more useful than "reading the stars" to get
the truth but not everyone sees it like that.
Mike
> You may have trouble imagining it, but I assure you that there are
> many jurisdictions where polygraph evidence is admissible upon
> stipulation by the parties, New Jersey being one of these
> jurisdictions.
If I was sitting on a jury and saw that the defendant had agreed to a
polygraph, I'd probably lean more towards guilty (but then again, not
all defendants are smart enough to reason it out correctly.)
Basically, if you are innocent and the other evidence tends to point
towards that innocence, the polygraph has too high of a false-positive
rate and would tend to hurt yer case with those false-positives making
you look guilty. So you should not agree to it.
If yer guilty and the evidence does tend to point towards that, you
should go ahead and take it in the hopes that you get a false-negative
that would help your case against the other evidence.
So basically, as I see it, a polygraph can possibly help the guilty and
only hurt the innocent so I'd just lean towards "guilty" based on that
(of course I'd look at the other evidence as well but that one thing
would always count against the defendant for me.)