Let’s say a person gets arrested for something they never actually did and later in the trial they have the charges withdrawn. For lack of evidence or they just admit they made a mistake.
While the person is in prison he assaults someone, and is charged.
Isn’t this the same as the other end of it where the “fruit of the poisonous tree” when they stop someone in a car and have no probable cause and look in their trunk and find a dead body.
Since the stop was illegal everything found based on the stop is ruled unadmissible?
My thinking is since the guy that went to jail was there incorrectly, he would never assaulted the guy if the police never put him there in the first place.
Yes. So far as I ever ever heard, there’s no caselaw for the proposition that this sort of totem pole inculpation would trigger Fifth Amendment protections.
Basically, they cannot use your refusal to assume reasonable suspicion, but you must understand the limits of pleading the fifth.
First of all, you cannot pick and choose what you’re pleading the fifth to. It’s an all or nothing thing. You can refuse to testify at all by pleading the fifth, so you’re not called up in the first place and asked that particular question, but once you start testifying, you cannot refuse a particular question point blank.
If you are offered immunity, you cannot plead the fifth, and if your testimony is merely personally embarrassing and not legally problematic, you could be required to testify anyway. For example, you don’t have child porn on your computer, but you do have pictures of nekid womin, and you’re a well known columnist who rants against the prevalence of porn in society.
There’s also discovery which can be problematic too. That’s how they caught Clinton. He was specifically asked in discovery if he knew Monica Lewinsky and was having an affair with her. Discovery is suppose to be non-public, but things leak – sometimes on purpose. There is nothing illegal about having an affair, so he couldn’t refuse the question. For example, a discovery document couldn’t ask someone if they snort Coke which would be illegal, but an affair is merely a personal embarrassment. Sure, the affair has nothing to do with the actual sexual harassment case against Clinton at the time, but that doesn’t matter in discovery. The Judge would rule on the permissibility of the evidence later on.
In a case where a police officer knocks on your door and asks if you are involved in a specific illegal activity, you can refuse to cooperate and your refusal cannot be taken as a sign of guilt. This doesn’t mean that the officer must now go away and never darken your door again. The officer might take your refusal as suspicious, and delve into further investigation. They might talk to neighbors, follow you around, or gather garbage you toss into public trash cans. But, they cannot do anything that requires a search warrant without further evidence.
Well, the defendant simply can just not take the stand- that is more common. In any case, perfectly truthful individuals do “take the 5th” if their lawyer has found that their way of speaking is detrimental to their believability- perhaps they stammer and act like they are lying whenever they are questioned, or they always fall apart under cross- even if they are telling the truth.
You forget that people are human, and getting up on the stand is scary. If their lawyer has found out that they perform badly, no matter how truthful, they will not put them on the stand if they can help it.
Dudes also sometimes think they are “helping the investigation” by talking to the police, even when they are a suspect. Dudes somehow think that if they just explain things, everything will be OK. This is not true- once you are a suspect, there is nothing you can say which will make the police drop you. If your alibi is poor, they will seize upon that. If the alibi is solid and facile- why that’s evidence of guilt, as most people don’t have alibis. Then the police waste resources trying to crack your alibi. Actually, lawyering up is best- the police then usually drop it on the DA’s lap, and your lawyer can talk lawyer to the DA.
Just like hand grenades where once you pull the pin, Mr Grenade is no longer your friend- once Mr Policeman has read you your rights, he is no longer your friend.
Uh, got a cite for that? This contradicts pretty much everything I’ve heard about fifth amendment rights, not to mention almost every dramatization I’ve seen in which it is invoked.
That’s a bit harsh and uncalled for, don’t you think? Are you honestly telling me that you would vote not guilty for someone indicted for, say, mass murder, where the prosecution had a rock-solid case, with DNA evidence, several eyewitnesses, and even a confession from the accused, simply because one of the eyewitnesses testifying for the prosecution refused to answer the question, “What were you doing at the time you saw the accused gun down those dozen innocent children downtown in broad daylight?” because he happened to be engaged in some relatively minor and wholly unrelated criminal activity, such as loitering, soliciting a prostitute, or purchasing medical marijuana?
Another, perhaps more common, reason to avoid the witness stand for a defendant is the existence of prior convictions.
As a general rule, prior bad acts are not admissible – specifically, they are not admissible to prove that the accused also acted badly in the present case.
But they can be admissible to show lack of credibility. So if an accused takes the stand to testify he didn’t do it, it’s often the case that the prosecution can bring up either his specific prior crimes, or just the fact that he’s a convicted felon, for the limited purpose of casting doubt on his credibility.
gazwart is referring to the common-law doctrine of “sword and shield,” as regards the claim of privilege. The rule implements the historical understanding that the privilege against self-incrimination is intended to serve simply and solely as a bar to self-incrimination. It subverts the aims of justice to use that defense to avoid self-incrimination but still be free to reveal cherry-picked, self-serving testimony. I don’t know that I’d characterize is as an “all or nothing” deal, but it’s true that if you testify to matters on direct examination, you cannot then avoid cross-examination on those same matters by invoking privilege. Your testimony on direct is held to have waived your privilege on cross.
Equally, the cross-examination cannot exceed the scope of the direct, so the mere fact that you testified about your culpability in a jaywalking scandal does mean that you have to reveal that you were crossing the street to put some distance between yourself and your murder victim.
There’s a good discussion of this in the civil context in a Virginia Supreme Court divorce case, Davis v. Davis, 357 S.E. 2d 495 (1987):
(That rule was later modified in a case called [Travis v. Finley, which held that Virgina had abrogated the common law rule by statute.)
You can answer some questions, then clam up if the answer to a given question would force you to choose between lying under oath or incrimiate yourself.
If the examiner then asks you your name, you must answer - because the 5th wouldn’t apply.
If he then asks how you know the defendant had an illegal poker game, and you
only know because you were a player, you can then refuse to answer again.
Sort of. Once you’ve made an admission that incriminates you, you have given up your privilege as to that fact. Voluntary disclosure of an incriminating fact waives the Fifth Amendment privilege concerning details. The Supreme Court said all the way back in 1896, in Brown v. Walker:
In Arndstein v. McCarthy, a 1920 Supreme Court case, quotes with approval the Michigan Supreme Court’s statement:
Not harsh, at all. I think it is the fair thing to do.
If it was a police officer, the one who found the evidence, who took the 5th when they asked him if he was telling the truth and he could not answer that…then yes.
When the cops and the prosecutors are found to be lying, or fabricating evidence, then I always say “Not Guilty” when that happens.
If the cops and the prosecutors cannot put up a case without lying and fabricating evidence, then I will let the accused go free because I dont know what else the cops lied about.
The moral is: if you are a police officer or a prosecutor, then dont lie to me
I know that in the UK the juries won’t be allowed to infer guilt from your silence, but if in police interviews or the court you neglect to mention something that you later use as a crucial element of your defense then that will count against you.
For instance: if the police arrested you on suspicion of murdering Jones near your house last weekend, you can reply “no comment” to all their questions in a number of interviews and that can’t be used against you. But if you go into your 4th interview with them a few months later and said, “by the way, I couldn’t have done it because I was actually in Spain that weekend”, the prosecutors will be allowed to question that alibi on the grounds that you went through 3 interviews without bringing it up.
there have been a number of cases in the last while in Canada where the key evidence against the accused is a “jailhouse confession”. This usually is made to a felon who then gets a break in his own charges; or an undercover police officer. When the crown has to resort to these tactics to get a case, you know they have no real evidence. Usually these are the same cases where the state is fighting tooth and nail to avoid allowing DNA evidence to be retested.
Even more notorious is the “Mister Big” scam, where they pretend to be organized crime, and try to rope the defendant into a life of riches and crime - “but only if you can prove to us you are really a bad guy like us…” They spend hundreds of thousands trying to con some poor sap into admitting he committed the murder they are trying to solve; to get him to reveal some key detail only he would know. Apparently this tactic is illegal anywhere else but Canada.
For wrongly convicted, nothing beats the “similar hair” evidence scandal. hundreds, possibly thousands were convicted using the testimony of foresic evidence experts that the pep’s hair “matched” that found at the scene. In the days before DNA, this was a judgement call by the expert, and somepeople were wrongly convicted on this testimony. I heard a re-enactment of questioning on CBC Radio once, where the dialog went in circles;
“Is it identical?”
“No, similar”.
“If it’s not identical, in what way did it differ?”
“It didn’t differ. They were quite similar.”
“Similar, or identical?”
“Similar, not identical.”
“Not identical?”
“No, similar”
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On this crap some guy spent 10 years in jail for the crime of going to help some woman in the next apartment who yelled for help.
You only need to plead the fifth - in the USA - on the stand. In Canada, they have the Canada evidence act - you cannot refuse to answer in court, but any answers cannot be used to discover evidence against you. (yeah, right). In the USA, a policeman must swear a warrant for a search or whatever. He must produce resonable grounds for believing he will find evidence; “he pled the 5th” is right up there with “my policeman’s intuition tells me” as useless grounds.
Of course, all a policeman needs is something like “an informant told me…” or “we got an anonymous tip”. The question of course will be “why do you believe this?”
In the USA, they have to be very careful about that sort of thing. If the defendant has a good attorney ($$$) and the evidence is found to come from feeding the lines to a tame informant, or outright lying - evidence due to that warrant and anything learned from it - goes out the window.
In North America, if the police want to ask you questions - you can politely decline to answer them. Of course, if you feel a need to politely explain yourself, that may in itself help the police. “hostile attitude and evasiveness” might pass for ground to search your car or person, for example.
OTOH, if you outright lie and mislead the police, they might consider that obstruction of justice - a criminal charge. So you are better off saying nothing rather than lying. I recall a case a few years ago, where it was mentioned that a man was charged with obstruction for lying to his lawyer. The logic went that the man knew his lawyer would repeat the story to police, so he was intentionally misleading police. I never saw much more about this…
It used to be that obstruction was laid against 3rd parties, but in the last decade or so it seems to be a favourite additional charge (think Martha Stewart). It’s one more serious charge to throw on the table to “persuade” the perp to accept a plea.
IANAL, but I think - if you are a witness, not the defendant; normally they can’t use your statements in court, except if they ask you why your testimony differs from the statement; or to confirm that you did in fact say “…”. You’ll look pretty stupid and not gain anything for the defence if the prosecutor asks “Mr. Smith, can you confirm that you told police you helped Mr Jones carry a body into the woods” and you plead the fifth.
I wonder if you can plead the fifth for almost everything on the grounds that you can’t remember exactly what you may have said in statements and contradicting that may be grounds for an obstruction charge?
if you are the defendant and take the stand (most attorneys advise against that) then you are compounding the stupidity by taking the fifth while on the stand. Yes juries are supposed to ignore the fact; what are the odds?
If you can’t invoke the fifth for a given set of question(s) (say, for e.g., you’ve waived that right by saying something in response to a previous question), and you decline to answer when asked a specific question, what happens? Are you found in contempt of court? Are you found to be obstructing justice? Are you found guilty of the original charge?