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	<title>Comments on: More on the Fifth</title>
	<atom:link href="http://bennettandbennett.com/blog/2008/01/more-on-fifth.html/feed" rel="self" type="application/rss+xml" />
	<link>http://bennettandbennett.com/blog/2008/01/more-on-fifth.html</link>
	<description>the art and science of criminal defense trial lawyering</description>
	<pubDate>Fri, 09 Jan 2009 01:49:10 +0000</pubDate>
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		<title>By: Mark Bennett</title>
		<link>http://bennettandbennett.com/blog/2008/01/more-on-fifth.html/comment-page-1#comment-836</link>
		<dc:creator>Mark Bennett</dc:creator>
		<pubDate>Mon, 14 Jan 2008 02:06:00 +0000</pubDate>
		<guid isPermaLink="false">http://bennettandbennett.com/blog/?p=454#comment-836</guid>
		<description>Let's forget what we think the Fifth means and look at the practicalities: &lt;br/&gt;&lt;br/&gt;A witness takes the Fifth. Can the prosecutor and the court inquire into the grounds? No. &lt;br/&gt;Can the witness be punished for not answering questions? Only if he has been ordered to answer. &lt;br/&gt;When can the court order a witness to answer a question? Only if it is ‚Äòperfectly clear, from a careful consideration of all the circumstances in the case that the answer cannot possibly‚Äô tend to incriminate the witness. In those circumstances, even if the judge is wrong about the incriminatory nature of the testimony, an order to answer is a grant of immunity (because ordered testimony is compelled, and compelled testimony is inadmissible unless the witness has explicitly waived his Fifth-Amendment rights). &lt;br/&gt;The prosecutor can always give use immunity and thereby compel a witness to testify. After a witness has been given immunity and answered questions, can he be punished because his answers are not inculpatory? No.&lt;br/&gt;&lt;br/&gt;So as a &lt;i&gt;practical&lt;/i&gt; matter (which is after all what really matters when a witness is deciding to take the Fifth) any witness can seek the protection of the Fifth Amendment and force the prosecution (or in some circuits the court) to immunize him.&lt;br/&gt;&lt;br/&gt;Apropos of Jimbo's question, in some circuits federal courts may order judicial use immunity if a witness's testimony is material, exculpatory, and otherwise unavailable. Interesting. In the Fifth Circuit, even, the court may force the government to immunize defense witnesses if the government has abused its immunity power.</description>
		<content:encoded><![CDATA[<p>Let&#8217;s forget what we think the Fifth means and look at the practicalities: </p>
<p>A witness takes the Fifth. Can the prosecutor and the court inquire into the grounds? No. <br />Can the witness be punished for not answering questions? Only if he has been ordered to answer. <br />When can the court order a witness to answer a question? Only if it is ‚Äòperfectly clear, from a careful consideration of all the circumstances in the case that the answer cannot possibly‚Äô tend to incriminate the witness. In those circumstances, even if the judge is wrong about the incriminatory nature of the testimony, an order to answer is a grant of immunity (because ordered testimony is compelled, and compelled testimony is inadmissible unless the witness has explicitly waived his Fifth-Amendment rights). <br />The prosecutor can always give use immunity and thereby compel a witness to testify. After a witness has been given immunity and answered questions, can he be punished because his answers are not inculpatory? No.</p>
<p>So as a <i>practical</i> matter (which is after all what really matters when a witness is deciding to take the Fifth) any witness can seek the protection of the Fifth Amendment and force the prosecution (or in some circuits the court) to immunize him.</p>
<p>Apropos of Jimbo&#8217;s question, in some circuits federal courts may order judicial use immunity if a witness&#8217;s testimony is material, exculpatory, and otherwise unavailable. Interesting. In the Fifth Circuit, even, the court may force the government to immunize defense witnesses if the government has abused its immunity power.</p>
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		<title>By: Anonymous</title>
		<link>http://bennettandbennett.com/blog/2008/01/more-on-fifth.html/comment-page-1#comment-834</link>
		<dc:creator>Anonymous</dc:creator>
		<pubDate>Mon, 14 Jan 2008 01:30:00 +0000</pubDate>
		<guid isPermaLink="false">http://bennettandbennett.com/blog/?p=454#comment-834</guid>
		<description>Jimbo is right, Mark.  The 5th Amendment deals with the right to be protected against self-incrimination, not the right to decide you don't want to testify "just because".  I understand that it would be quite lovely for a defense case if ALL the witnesses decided to plead the 5th so that the case against a Defendant just goes away, but I think you are expanding the 5th too far in your assertions.</description>
		<content:encoded><![CDATA[<p>Jimbo is right, Mark.  The 5th Amendment deals with the right to be protected against self-incrimination, not the right to decide you don&#8217;t want to testify &#8220;just because&#8221;.  I understand that it would be quite lovely for a defense case if ALL the witnesses decided to plead the 5th so that the case against a Defendant just goes away, but I think you are expanding the 5th too far in your assertions.</p>
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		<title>By: Mark Bennett</title>
		<link>http://bennettandbennett.com/blog/2008/01/more-on-fifth.html/comment-page-1#comment-833</link>
		<dc:creator>Mark Bennett</dc:creator>
		<pubDate>Mon, 14 Jan 2008 01:23:00 +0000</pubDate>
		<guid isPermaLink="false">http://bennettandbennett.com/blog/?p=454#comment-833</guid>
		<description>"Should"? No, it sucks. &lt;br/&gt;&lt;br/&gt;"Can"? Absolutely.</description>
		<content:encoded><![CDATA[<p>&#8220;Should&#8221;? No, it sucks. </p>
<p>&#8220;Can&#8221;? Absolutely.</p>
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		<title>By: jimbo</title>
		<link>http://bennettandbennett.com/blog/2008/01/more-on-fifth.html/comment-page-1#comment-832</link>
		<dc:creator>jimbo</dc:creator>
		<pubDate>Mon, 14 Jan 2008 00:51:00 +0000</pubDate>
		<guid isPermaLink="false">http://bennettandbennett.com/blog/?p=454#comment-832</guid>
		<description>Here's a fact that I'd like your opinion on (I know lawyers love fact patterns).&lt;br/&gt;&lt;br/&gt;You are representing Defendant X on Charge Y. You believe X to be innocent because of a credible alibi witness Z, the ex-girlfriend of X. Z, if she testifies truthfully, will say that X and her were in the throes of passsion all night long when the crime is alleged to have taken place.&lt;br/&gt;&lt;br/&gt;For whatever reason, once called to testify by you, Z refuses to testify as to X's whereabout on the night in question. Maybe there's been a falling out between X and Z, maybe Z doesn't want her husband to know what was going down. Whatever the reason, Z refuses to testify and "takes the Fifth."&lt;br/&gt;&lt;br/&gt;Z was not engaged in any illegal behavior. Without the testimony of Z, your client will probably be convicted and spend the rest of his life in prison. &lt;br/&gt;&lt;br/&gt;Should the Fifth Amendment, the protection against incriminating one's self, be able to be twisted in such a manner?</description>
		<content:encoded><![CDATA[<p>Here&#8217;s a fact that I&#8217;d like your opinion on (I know lawyers love fact patterns).</p>
<p>You are representing Defendant X on Charge Y. You believe X to be innocent because of a credible alibi witness Z, the ex-girlfriend of X. Z, if she testifies truthfully, will say that X and her were in the throes of passsion all night long when the crime is alleged to have taken place.</p>
<p>For whatever reason, once called to testify by you, Z refuses to testify as to X&#8217;s whereabout on the night in question. Maybe there&#8217;s been a falling out between X and Z, maybe Z doesn&#8217;t want her husband to know what was going down. Whatever the reason, Z refuses to testify and &#8220;takes the Fifth.&#8221;</p>
<p>Z was not engaged in any illegal behavior. Without the testimony of Z, your client will probably be convicted and spend the rest of his life in prison. </p>
<p>Should the Fifth Amendment, the protection against incriminating one&#8217;s self, be able to be twisted in such a manner?</p>
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		<title>By: Mark Bennett</title>
		<link>http://bennettandbennett.com/blog/2008/01/more-on-fifth.html/comment-page-1#comment-831</link>
		<dc:creator>Mark Bennett</dc:creator>
		<pubDate>Mon, 14 Jan 2008 00:28:00 +0000</pubDate>
		<guid isPermaLink="false">http://bennettandbennett.com/blog/?p=454#comment-831</guid>
		<description>You're flat-out wrong, Jimbo. &lt;br/&gt;&lt;br/&gt;Taking the Fifth is never punishable, even when in the prosecutor's opinion it works to obstruct justice.&lt;br/&gt;&lt;br/&gt;Telling the truth, however, is often punishable when the prosecutor thinks the truth is otherwise.&lt;br/&gt;&lt;br/&gt;The only legal way a prosecutor can compel someone to talk over an invocation of the Fifth is to give him immunity. A court order to answer a question, made over an invocation of the Fifth, acts as a grant of use immunity.&lt;br/&gt;&lt;br/&gt;The person who thinks he is innocent is almost universally better off not talking without first receiving immunity because he has no idea what kind of liability talking might create.</description>
		<content:encoded><![CDATA[<p>You&#8217;re flat-out wrong, Jimbo. </p>
<p>Taking the Fifth is never punishable, even when in the prosecutor&#8217;s opinion it works to obstruct justice.</p>
<p>Telling the truth, however, is often punishable when the prosecutor thinks the truth is otherwise.</p>
<p>The only legal way a prosecutor can compel someone to talk over an invocation of the Fifth is to give him immunity. A court order to answer a question, made over an invocation of the Fifth, acts as a grant of use immunity.</p>
<p>The person who thinks he is innocent is almost universally better off not talking without first receiving immunity because he has no idea what kind of liability talking might create.</p>
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		<title>By: jimbo</title>
		<link>http://bennettandbennett.com/blog/2008/01/more-on-fifth.html/comment-page-1#comment-830</link>
		<dc:creator>jimbo</dc:creator>
		<pubDate>Mon, 14 Jan 2008 00:18:00 +0000</pubDate>
		<guid isPermaLink="false">http://bennettandbennett.com/blog/?p=454#comment-830</guid>
		<description>"Innocent people have as much right not to talk to the government as guilty people."&lt;br/&gt;&lt;br/&gt;No, they don't. Prosecutors and the courts have the authority to subpoena and compel people to testify. Failure to testify is punishable by contempt.&lt;br/&gt;&lt;br/&gt;The right not to testify only applied to incriminating statements. Truly innocent people do not make incriminating statement because they are innocent.&lt;br/&gt;&lt;br/&gt;There is no right in the Constitution to obstruct justice.</description>
		<content:encoded><![CDATA[<p>&#8220;Innocent people have as much right not to talk to the government as guilty people.&#8221;</p>
<p>No, they don&#8217;t. Prosecutors and the courts have the authority to subpoena and compel people to testify. Failure to testify is punishable by contempt.</p>
<p>The right not to testify only applied to incriminating statements. Truly innocent people do not make incriminating statement because they are innocent.</p>
<p>There is no right in the Constitution to obstruct justice.</p>
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		<title>By: Mark Bennett</title>
		<link>http://bennettandbennett.com/blog/2008/01/more-on-fifth.html/comment-page-1#comment-828</link>
		<dc:creator>Mark Bennett</dc:creator>
		<pubDate>Sun, 13 Jan 2008 21:34:00 +0000</pubDate>
		<guid isPermaLink="false">http://bennettandbennett.com/blog/?p=454#comment-828</guid>
		<description>My point (soon I'll figure out how to make it clearly) is that there is no BS Fifth Amendment privilege. A person does not need a good reason, or any reason at all, to take the Fifth. Innocent people have as much right not to talk to the government as guilty people.</description>
		<content:encoded><![CDATA[<p>My point (soon I&#8217;ll figure out how to make it clearly) is that there is no BS Fifth Amendment privilege. A person does not need a good reason, or any reason at all, to take the Fifth. Innocent people have as much right not to talk to the government as guilty people.</p>
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		<title>By: Anonymous</title>
		<link>http://bennettandbennett.com/blog/2008/01/more-on-fifth.html/comment-page-1#comment-826</link>
		<dc:creator>Anonymous</dc:creator>
		<pubDate>Sun, 13 Jan 2008 21:25:00 +0000</pubDate>
		<guid isPermaLink="false">http://bennettandbennett.com/blog/?p=454#comment-826</guid>
		<description>Good point.  And in all honesty, it doesn't come up too often.  I think in the time I've been there, I've dealt with a witness invoking the 5th less than 5 times, and I've offered immunity in advance on only two occasions.&lt;br/&gt;I think the fundamental difference between our sides of the debate is that I'm making the assumption that the 5th Amendment claim is B.S. in the scenario I'm envisioning, and you are assuming its his last vestige of hope in yours.  Perhaps we are both correct, and thus, legal geniuses.</description>
		<content:encoded><![CDATA[<p>Good point.  And in all honesty, it doesn&#8217;t come up too often.  I think in the time I&#8217;ve been there, I&#8217;ve dealt with a witness invoking the 5th less than 5 times, and I&#8217;ve offered immunity in advance on only two occasions.<br />I think the fundamental difference between our sides of the debate is that I&#8217;m making the assumption that the 5th Amendment claim is B.S. in the scenario I&#8217;m envisioning, and you are assuming its his last vestige of hope in yours.  Perhaps we are both correct, and thus, legal geniuses.</p>
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		<title>By: Mark Bennett</title>
		<link>http://bennettandbennett.com/blog/2008/01/more-on-fifth.html/comment-page-1#comment-825</link>
		<dc:creator>Mark Bennett</dc:creator>
		<pubDate>Sun, 13 Jan 2008 19:22:00 +0000</pubDate>
		<guid isPermaLink="false">http://bennettandbennett.com/blog/?p=454#comment-825</guid>
		<description>Oops. I did assume too much. But so did you: how do you know that the witness is not clumsily concealing his real reason to take the Fifth?&lt;br/&gt;&lt;br/&gt;Even if the witness is telling you the truth, this is an &lt;i&gt;excellent&lt;/i&gt; example of someone who's entitled to take the Fifth unless immunized. The right to take the Fifth doesn't depend on the person having a "good" reason or, indeed, any reason at all.&lt;br/&gt;&lt;br/&gt;It doesn't get him out of court, though: the prosecutor's correct response would be, "that's fine; we'll deal with the Fifth Amendment when you come to court on Tuesday, but meanwhile you're still under subpoena, and if you're not there I'll ask the judge to send a deputy out to your work and bring you in to court."</description>
		<content:encoded><![CDATA[<p>Oops. I did assume too much. But so did you: how do you know that the witness is not clumsily concealing his real reason to take the Fifth?</p>
<p>Even if the witness is telling you the truth, this is an <i>excellent</i> example of someone who&#8217;s entitled to take the Fifth unless immunized. The right to take the Fifth doesn&#8217;t depend on the person having a &#8220;good&#8221; reason or, indeed, any reason at all.</p>
<p>It doesn&#8217;t get him out of court, though: the prosecutor&#8217;s correct response would be, &#8220;that&#8217;s fine; we&#8217;ll deal with the Fifth Amendment when you come to court on Tuesday, but meanwhile you&#8217;re still under subpoena, and if you&#8217;re not there I&#8217;ll ask the judge to send a deputy out to your work and bring you in to court.&#8221;</p>
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		<title>By: Anonymous</title>
		<link>http://bennettandbennett.com/blog/2008/01/more-on-fifth.html/comment-page-1#comment-824</link>
		<dc:creator>Anonymous</dc:creator>
		<pubDate>Sun, 13 Jan 2008 19:13:00 +0000</pubDate>
		<guid isPermaLink="false">http://bennettandbennett.com/blog/?p=454#comment-824</guid>
		<description>Ouch.  I think you assume too much by saying the prosecutor doesn't know what he's talking about.  You clearly have never had the occasion to have a witness tell you "I have to work next Tuesday, so I'm just going to take the 5th and not come to court."  I wasn't talking about a prosecutor making a judgment call on whether or not their a person is worthy of the 5th.  What I was trying to talk about was witnesses using the 5th as a "I don't feel like coming to court" card.</description>
		<content:encoded><![CDATA[<p>Ouch.  I think you assume too much by saying the prosecutor doesn&#8217;t know what he&#8217;s talking about.  You clearly have never had the occasion to have a witness tell you &#8220;I have to work next Tuesday, so I&#8217;m just going to take the 5th and not come to court.&#8221;  I wasn&#8217;t talking about a prosecutor making a judgment call on whether or not their a person is worthy of the 5th.  What I was trying to talk about was witnesses using the 5th as a &#8220;I don&#8217;t feel like coming to court&#8221; card.</p>
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