5th Amendment - help please

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Soccerdad1995
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Re: 5th Amendment - help please

Postby Soccerdad1995 » Tue Oct 04, 2016 5:29 pm

Jusme wrote:
Abraham wrote:Are there any cases where someone other than a gangster or other miscreant took the fifth and the majority of law abiding citizens would say, he/she's a good person and this is an example of some persecuted, innocent needing to take the fifth and good for them?

At this point, as far as I can recall, only questionable, (read, mostly dirtbags) take the fifth.

Anyone have a good example of a good person taking the fifth?




During the Mcarthy hearings, several people plead the fifth, even though they were only being "accused" of being, or associating with, Communists. There was no crime being committed, and all they were trying to do was discredit people. I'm sure there are others, but unless your last name is Clinton, lying under oath is a crime while pleading the fifth is not.


Yes it's a crime, but the FBI will not recommend prosecution unless they can prove beyond a shadow of a doubt that you fully intended to commit that crime. And they won't ask you any questions about your intent or try in any other way to gather evidence on your intent.

At least that's how it works for Her Royal Highness. Mere subjects might have more to worry about.
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Re: 5th Amendment - help please

Postby LabRat » Tue Oct 04, 2016 10:47 pm

Abraham wrote:From what you guys tell me, there are no 'outstanding' examples (to speak of lately, lately being in the last 50+ years, of those considered reasonably innocent by the public, taking the 5th.

It sounds like the vast majority (no, not all...) but the vast majority of those taking the 5th are scalawags, rapscallions and scoundrels.


More than likely those folks have good lawyers who tell them not to speak if there is an investigation going on.
The video posted below your entry has some excellent advice. Including innocent folk who refused to speak because their own words might somehow be twisted and used against them. It's not always a hustle or dodge.

"Taking the 5th" should not automatically lead to considering someone a scoundrel or criminal. ScottDLS is correct in his statement regarding the importance of the 5th amendment. Government has virtually unlimited power, there is no way one person could endure such legal pressure and prosecution, if they had to speak to the authorities. SOMETHING they said would be used to convict them in some way.

Through hours of questioning, there might be something one says that would interest an over-zealous prosecutor to bring a criminal case.
The 5th amendment protection is afforded to all, innocent and non-innocent alike. One has no obligation to further their own prosecution.

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Re: 5th Amendment - help please

Postby Abraham » Wed Oct 05, 2016 9:19 am

I fully appreciate the importance of the fifth...

I thought I'd made clear (guess I didn't) as the most prominent in the public's eye seem to always be the downright questionable/probably guilty taking the fifth as per HRC's minions, gansters, etc.

You simply never hear about a prominent and highly regarded person or persons by the public taking the fifth.

That was my only point.

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Re: 5th Amendment - help please

Postby C-dub » Wed Oct 05, 2016 9:33 am

Of course, the 5A is important, but when did it become acceptable to assert it in non-criminal investigations about someone else? Unless, those hearings were considered criminal investigations. However, weren't some of those folks offered or given immunity deals? After that, for those that were, wouldn't they be considering to be obstructing?
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Re: 5th Amendment - help please

Postby srothstein » Sun Oct 09, 2016 2:31 pm

C-Dub,

I think you might have missed a little bit or been misled about the Fifth Amendment and your protections and when it can be claimed. You cannot assert the Fifth in cases about other people to protect what you know about them. You can only assert it to protect yourself. But that applies to all cases where you are testifying, whether they are criminal, civil, legislative, or administrative. When the minions refuse to answer a question about something because they stand on their Fifth Amendment rights, it is a tacit admission that they did something illegal.

Many people seem to miss this point. You can be forced to testify against others, even if you did not wish to (well, you can be ordered to anyway). You cannot refuse to answer a question about someone else to protect that person. The Fifth says you cannot be forced to testify against yourself. This means that the answer you are refusing to give MUST be incriminating against you to be a valid invokement of the Fifth.

We have granted some other people protections of this sort against others, but not many. But then they are refusing to answer because of privilege (such as attorney-client or doctor-patient privilege) and not because of the Fifth. You do hear a lot of the minions refusing to answer in congressional hearings due to Executive Privilege, but that is different from claiming the Fifth. That is a principle that says the president (and by extension his employees in the executive branch) do not have to respond to the legislative branch (Congress) about what they are doing in certain cases. If you recall, the last AG was held in contempt of Congress for trying to claim this and the courts not agreeing about it.
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TexasJohnBoy
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Re: 5th Amendment - help please

Postby TexasJohnBoy » Sun Oct 09, 2016 2:46 pm

Don't "take the fifth," just don't talk.

http://www.vice.com/read/law-professor-police-interrogation-law-constitution-survival

a little-known 2013 Supreme Court ruling allowing prosecutors to tell juries that defendants had invoked the Fifth Amendment—in other words, telling an officer you are making use of your right to remain silent could wind up being used as evidence against you.


Granted the original post is asking about the fifth in regards to testifying before congress, but I digress.
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C-dub
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Re: 5th Amendment - help please

Postby C-dub » Sun Oct 09, 2016 4:41 pm

srothstein wrote:C-Dub,

I think you might have missed a little bit or been misled about the Fifth Amendment and your protections and when it can be claimed. You cannot assert the Fifth in cases about other people to protect what you know about them. You can only assert it to protect yourself. But that applies to all cases where you are testifying, whether they are criminal, civil, legislative, or administrative. When the minions refuse to answer a question about something because they stand on their Fifth Amendment rights, it is a tacit admission that they did something illegal.

Many people seem to miss this point. You can be forced to testify against others, even if you did not wish to (well, you can be ordered to anyway). You cannot refuse to answer a question about someone else to protect that person. The Fifth says you cannot be forced to testify against yourself. This means that the answer you are refusing to give MUST be incriminating against you to be a valid invokement of the Fifth.

We have granted some other people protections of this sort against others, but not many. But then they are refusing to answer because of privilege (such as attorney-client or doctor-patient privilege) and not because of the Fifth. You do hear a lot of the minions refusing to answer in congressional hearings due to Executive Privilege, but that is different from claiming the Fifth. That is a principle that says the president (and by extension his employees in the executive branch) do not have to respond to the legislative branch (Congress) about what they are doing in certain cases. If you recall, the last AG was held in contempt of Congress for trying to claim this and the courts not agreeing about it.

Thanks for the explanation Steve. No one has misled me, it was all my misunderstanding of some of the little details and intricacies of this particular situation. So, by asserting their 5A right, they have admitted to doing something illegal, but thumbed their noses at everyone to prove it.
I am not and have never been a LEO. My avatar is in honor of my friend, Dallas Police Sargent Michael Smith, who was murdered along with four other officers in Dallas on 7.7.2016.

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Re: 5th Amendment - help please

Postby KLB » Sun Oct 09, 2016 4:56 pm

Abraham wrote:At this point, as far as I can recall, only questionable, (read, mostly dirtbags) take the fifth.


Any of us might have the occasion to take the Fifth. The law is often not clear. It turned out the conduct Martha Stewart was investigated for was not a crime. But the law was vague and she was scared so she dissembled before the FBI. That cost her time in the big house. Better that she had pleaded the Fifth.

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Re: 5th Amendment - help please

Postby C-dub » Sun Oct 09, 2016 5:07 pm

TexasJohnBoy wrote:Don't "take the fifth," just don't talk.

http://www.vice.com/read/law-professor-police-interrogation-law-constitution-survival

a little-known 2013 Supreme Court ruling allowing prosecutors to tell juries that defendants had invoked the Fifth Amendment—in other words, telling an officer you are making use of your right to remain silent could wind up being used as evidence against you.


Granted the original post is asking about the fifth in regards to testifying before congress, but I digress.

I'm not positive of the validity of this. I've been looking, but can't seem to find anything. I seem to remember a ruling in the last 5-10 years where a person did simply remain silent without actually asserting their 5A right and the court ruled that since they did not state that they were asserting that right, they didn't. Does anyone else remember this?
I am not and have never been a LEO. My avatar is in honor of my friend, Dallas Police Sargent Michael Smith, who was murdered along with four other officers in Dallas on 7.7.2016.

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Re: 5th Amendment - help please

Postby Wolverine » Sun Oct 09, 2016 5:40 pm

Where does Article I, Section 8, state that Congress shall have Power to question citizens and compel a response?

:rules:
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Re: 5th Amendment - help please

Postby TexasJohnBoy » Sun Oct 09, 2016 5:50 pm

C-dub wrote:
TexasJohnBoy wrote:Don't "take the fifth," just don't talk.

http://www.vice.com/read/law-professor-police-interrogation-law-constitution-survival

a little-known 2013 Supreme Court ruling allowing prosecutors to tell juries that defendants had invoked the Fifth Amendment—in other words, telling an officer you are making use of your right to remain silent could wind up being used as evidence against you.


Granted the original post is asking about the fifth in regards to testifying before congress, but I digress.

I'm not positive of the validity of this. I've been looking, but can't seem to find anything. I seem to remember a ruling in the last 5-10 years where a person did simply remain silent without actually asserting their 5A right and the court ruled that since they did not state that they were asserting that right, they didn't. Does anyone else remember this?


I believe this is the case being referenced - https://www.law.cornell.edu/supct/cert/12-246
That case aside, I'll still be very guarded when I feel I may be the subject of an investigation in any way.

I'll yuck it up all day with an officer (and do talk casually on a regular basis with officers at work) however, the nanosecond that it turns away from casual conversation, I'm extremely guarded. I'll of course be respectful and polite, and more than up front with my status as an LTC holder and whether I'm armed or not (and where).

Also, this does NOT mean I'm against cops, I support and appreciate everything the men and women in the blue do for us EVERY DAY.

Edit - -after further review - do talk. Just say Lawyer and nothing else... thanks for pushing back on it C-Dub.
http://www.scotusblog.com/2013/06/opinion-recap-if-you-want-to-claim-the-fifth/
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