In Popehat’s article on Prenda Law’s appearance in court yesterday, he states
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Normally I’d consider the site (and this author in particular) a pretty reputable source (the author claims to have been a criminal defense lawyer), but is so contrary to my impressions of the legal system that I’d like confirmation and, hopefully, explanation (i.e. the reasoning behind this).
I know civil courts have dramatically lower standards for evidence (and most other legal principles, it seems), but to allow a catch-22 like that seems a bit lax even given the limited authority of a civil court.
Short, short answer: The 5th amendment is there so that the government can’t fine you or put you in jail for simply refusing to testify against yourself. A civil trial is between two parties. If you and I have a disagreement about money owed to each other, and I say that my answer might incriminate me, then the jury should hear that to decide who owes who money.
I won’t go to jail under the power of the state, but the jury gets to hear that I refuse to testify, so that justice is done in our private dispute.
In addition, the opposing attorney can directly argue to the jury that your refusal to testify means that your testimony would have hurt your case. A prosecutor in a criminal trial can’t do that.
Can you be made to testify at a civil trial about something that would incriminate you in a criminal manner? If you plead the fifth about a criminal matter in a civil trial can that be used against you in the civil trial, or subsequent criminal trial?
You still have the Fifth Amendment right to refuse to give testimony that may incriminate you in a civil trial; the difference is that in a civil trial you can be called to the stand and asked the incriminating questions which you then have to refuse to answer in front of the jury. And yes, your sworn testimony could be used against you in a criminal proceeding. (If you actually answer the question, not the pleading the fifth part.)
I do civil defense work, and this usually comes up in depositions. I’ve seen it happen a couple of times at trial though.
From what I read in the comments section of the Ars Technica writeup on this, the reason they were able (or chose to) to plead the fifth was because, at some point, the judge overseeing the case said something about “fraud against the court” -the implication being that there was potential for criminal proceedings, therefore a motivation to not implicate themselves.
I’m glad someone else is following this circus. I was actually really surprised the Straight Dope hadn’t jumped all over it yet - what a debacle.
The lawsuit had tanked big time for Prenda. They totally screwed up, ignored the court, failed to disclose they as lawyers had a financial interest in the suit, and supposedly borrowed someones identity for some company official supposedly asking for the lawsuit.
The judge had summoned them to sort out who was who, where the money went, and whether the court had been lied to. The smartest thing to do at this point was to clam up and not make things worse. Hence, the fifth. The judge could find them in contempt, a criminal outcome. Stuff and plead the fifth.
I would hope it would be for some lawsuits. It seems that you can be sued onto the sex offender registry in Ohio. The standard of proof is a civil level preponderance of the evidence and if you lose as a defendant, welcome to the world of the registered sex offender.
It might help to look at the actual wording of the 5th Amendment:
[QUOTE=Some Guys in Wigs and Knee Breeches]
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
[/QUOTE]
The Amendment itself makes it clear that the right not to be a witness against oneself is limited to criminal proceedings. Hence, in a civil court, you can be called to the witness stand against your will.
Yes, but you can do what the Prenda Bozos did - if you are under oath in a court, you can decline to answer any questions that may lead to you providing sworn testimony where you admit criminal wrongdoing. (As others mention, for the civil judgement this fact can be used to decide the “preponderance of evidence”) As I said previously, this case by then was less to deal with the civil matter - that was dismissed IIRC. It was because the statements made to the court were contradictory and apparently lies. He was holding a hearing to determine if they had “perpetrated a fraud upon the court” among other things. As one of the lawyers said when pleading the fifth for his client (also a lawyer):
Not just in the court papers, but in their actual application for incorporation (or whatever it’s called) they declared the senior partners’ housesitter as the company’s CEO. They also filed a sham lawsuit (in another state) and paid the opposing party (without the courts knowledge) to lose, so they could create a precedent for their actions. That’s on top of their initial nono of demanding information (from ISP’s) under a subpoena a judge had already denied (in other words, they claimed legal authority a court had already specifically denied to them).
@Northern Piper: Hence my bolding of the phrase “my impression”. I was pretty sure I was wrong about something. Thanks for the clarification.
Not only that - they are suing people for pirating a porn video. One website analyzing the story points to the interesting coincidence that the lawyers used a relatively obscure German proxy server to anonymize some comments posted on discussion forums about the case - they are pretty sure these comments came from the lawyers involved in the case. Oddly enough, the earliest recorded “leak” of the video came from the same proxy server address. Implication - these guys deliberately seeded the video on BitTorrent to snare people downloading it.
Here’s the latest from Ars Technica - this just keeps getting better and better.
I hadn’t heard about the German proxy bit, but I wouldn’t be at all surprised to find out they’re seeding the torrent files - that’s pretty much the only way to enter the IP pool and see the other IPs in the seeding pool (though being the “original” seeder might be unusual and/or have different legal/ethical implications).
ETA: The comments section in the Ars article are pure comedy gold, I highly recommend trudging through them.
*Duffy’s response is not badly written, and doesn’t seem to be wrong on the law, but it’s not at all the response you’d expect from a lawyer being accused of what amounts to a nationwide criminal enterprise. It’s like someone said “Ken, I have it on good authority that you routinely molest squirrels in a public park near your house,” and I responded “your accusation is without merit because that park is private.”
*
and
“Your Honor, this mentally ill hobo clearly knew what he was involved in.”
They seem to be dancing around the question of whether this is the Allan Cooper or if there is a second one. Once they commit to a specific answer, it brings the follow-on questions. their current course is to minimize the information they admit/commit to.