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Thread: 5th amendment

  1. #1
    Skapare is offline Member
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    5th amendment

    What is the name of your state? WV (but this is a generic question)

    Another thread was recently bumped after several years of being idle. It involved the 5th Amendment and how it might be involved in civil cases. I'm curious what opinions others have on this. Senior member "tranquility" suggested another thread. I'll leave this under "Civil litigation" because my interest (for now) is how this applies where it is initially an issue in a civil case.

    I read these words as part of that amendment: nor shall be compelled in any criminal case to be a witness against himself

    It says "criminal case". So what if the question is asked during a CIVIL case, but the answer to it would disclose a criminal action done by the witness expected to answer? Can the witness take this protection to answer just because the case at the time is not a criminal one? Is "compelling to answer" by a judge something that is overriding this right, or is it a statement that the right does not apply?

    When the judge compells the witness to answer and supposedly the witness is protected from using those answers in any subsequent proceeding, just how far can this go? Can a state district judge grant such a protection even from federal prosecution? Will it also block investigations that would otherwise not have happened because no one knew this crime even took place or where to begin investigation? What if this refers back to some major unsolved infamous case where the witness would have to end up saying "I was not there because I was busy raping and murdering those 3 children back then" (something like that would really get a lot of attention and would be hard for any judge to make go away).

    What if the person asked to answer is not even a party to the case (but is claimed to be a witness by one of the parties), and the questions are believed by this witness to simply be personal or private (for example "Yeah, I cheated on my wife") even though not criminal, and outside the scope of the case. How can this be handled in a civil case?What is the name of your state?What is the name of your state?What is the name of your state?
  2. #2
    BoredAtty is offline Member
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    Quote Originally Posted by Skapare View Post
    I read these words as part of that amendment: nor shall be compelled in any criminal case to be a witness against himself

    It says "criminal case". So what if the question is asked during a CIVIL case, but the answer to it would disclose a criminal action done by the witness expected to answer? Can the witness take this protection to answer just because the case at the time is not a criminal one?
    Since testimony given in a civil case can be used as evidence in subsequent criminal cases, then forcing a witness to admit to a crime in a civil case would be tantamount to forcing him to be a witness against himself in his later criminal trial.
    "The government insists, broadly, that the constitutional privilege against self-incrimination does not apply in any civil proceeding. The contrary must be accepted as settled. The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it." McCarthy v. Arndstein, 266 U.S. 34, 69 L.Ed. 158, 45 S.Ct. 16 (1924)

    Is "compelling to answer" by a judge something that is overriding this right, or is it a statement that the right does not apply? When the judge compells the witness to answer and supposedly the witness is protected from using those answers in any subsequent proceeding, just how far can this go? Can a state district judge grant such a protection even from federal prosecution? Will it also block investigations that would otherwise not have happened because no one knew this crime even took place or where to begin investigation? What if this refers back to some major unsolved infamous case where the witness would have to end up saying "I was not there because I was busy raping and murdering those 3 children back then" (something like that would really get a lot of attention and would be hard for any judge to make go away).
    That is not the way the right works. If you admit to committing a crime while testifying, that admission can be used against you in a subsequent criminal trial. Therefore, if you don't want that to happen, then you should invoke your right against self-incrimination and refuse to answer the question -- even if the judge compels you to answer.

    What if the person asked to answer is not even a party to the case (but is claimed to be a witness by one of the parties)
    Irrelevant.
    "The privilege protects a mere witness as fully as it does one who is also a party defendant." McCarthy

    , and the questions are believed by this witness to simply be personal or private (for example "Yeah, I cheated on my wife") even though not criminal, and outside the scope of the case. How can this be handled in a civil case?
    Adultery is a crime in many states, and thus, a witness cannot be forced to admit to it. However, assuming the question is not criminal, if the judge deems the answer to be relevant, then the question must be answered even if the answer would embarrass the witness.
  3. #3
    badapple40 is offline Senior Member
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    Keep in mind that you can assert your 5th Amendment right not to answer -- but in a lot of jurisdictions, the judge will instruct the jury that an adverse inference can be drawn against you in a civil proceeding by your taking the 5th.

    True story: had a lawsuit where 3 idiots took the 5th (what they did was both criminal and a civil tort) -- judge instructed the jury they could take an adverse inference -- and the jury spanked them with a substantial judgment and punitive damages.
    The giving or taking of any advice given in this forum does not constitute an attorney-client relationship and any readers of any posts acknowledge that they are not in any type of attorney client relationship with the poster.

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