On a bit of a tangent, I heard some Senator on the news today saying that they would have to research whether Michael Flynn’s 5th Amendment invocation for subpoenaed documents is valid.
How is this not a settled point of law? I would guess that people have tried to do this a million times, so why is any research needed?
Compelled testimony automatically has U/DU immunity, even if there is no agreement in place. So even if the prosecution won’t bite, if the Court orders Tightlips to testify notwithstanding his claim of privilege, then that testimony can’t be used to convict him. So the future prosecution of Tightlips is in essentially no worse shape either way: regardless of what he says on the stand after being ordered by the Judge to testify, it can’t be used . . . just the same as it couldn’t be used if he had never testified.
So, what would happen is outside the presence of the jury, the defense counsel for Imogen (or Tony) makes an offer of proof to the judge: if he is called, and compelled to testify, Dave (or Tightlips) would testify inculpating himself.
The judge must then, in an exercise of discretion, determine how relevant the inculpatory testimony is. (“I did the crime myself,” is obviously more inculpatory than “Yeah, OK, I was there too, and I also benefited from the victim’s death.”) If he orders the testimony, then it can’t be used against Dave (or Tightlips).
Now, what if Tightlips lies, falsely implicating himself to create reasonable doubt to free Tony? The police are free to investigate Tightlips – that’s not using his testimony against him. It’s using it to impeach him against Tony. If they discover Tightlips lied, that fact CAN be used against him in a prosecution for perjury.
Now, suppose they discover that sure enough, Tightlips is the guy.
The prosecution can go after him for the crime. But they will bear the burden of showing that they didn’t use/derivatively use any of his testimony against him. They can commence the investigation (with a different team of investigators and prosecutors) based only on the proffer that arose in Tony’s trial – that’s allowable. And they need to be able to testify to strict separation between the teams.
Thanks, Bricker. My principal concern (and that of Western Australia, in the end) was the prospect that Johnny would lie to cover Tony and create RD, but the risk to Johnny of a perjury prosecution was low.
Another point of distinction is that here, compelled testimony (in the sense that the witness has been subpoenad, does not want to testify, but has no claim of privilege) is not “involuntary” for that reason alone. Again, in the absence of a valid claim of privilege of some sort, it is not subject to any immunity. It can used for whatever later purpose it is worth, and this is not just limited to the perjury exception.
But thanks for the information.
It does and it doesnt. You have to give enuf info to present a valid tax return. You can omit details if they might incriminate you. For example, you would have to report the $10000 of interest you made loansharking. However, you would not have to admit it was from loansharking.
Contention: Taxpayers do not have to file returns or provide financial information because of the protection against self-incrimination found in the Fifth Amendment.
Some argue that taxpayers may refuse to file federal income tax returns, or may submit tax returns on which they refuse to provide any financial information, because they believe that their Fifth Amendment privilege against self-incrimination will be violated.
The Law:
There is no constitutional right to refuse to file an income tax return on the ground that it violates the Fifth Amendment privilege against self-incrimination. In United States v. Sullivan, 274 U.S. 259, 264 (1927), the U.S. Supreme Court stated that the taxpayer “could not draw a conjurer’s circle around the whole matter by his own declaration that to write any word upon the government blank would bring him into danger of the law.” The failure to comply with the filing and reporting requirements of the federal tax laws will not be excused based upon blanket assertions of the constitutional privilege against compelled self-incrimination under the Fifth Amendment.
Relevant Case Law:
United States v. Schiff, 612 F.2d 73, 83 (2 d Cir. 1979) - The court said that “the Fifth Amendment privilege does not immunize all witnesses from testifying. Only those who assert as to each particular question that the answer to that question would tend to incriminate them are protected . . . [T]he questions in the income tax return are neutral on their face . . . [h]ence privilege may not be claimed against all disclosure on an income tax return.”
United States v. Brown, 600 F.2d 248, 252 (10 th Cir. 1979) - Noting that the Supreme Court had established “that the self-incrimination privilege can be employed to protect the taxpayer from revealing the information as to an illegal source of income, but does not protect him from disclosing the amount of his income,” the court said Brown made “an illegal effort to stretch the Fifth Amendment to include a taxpayer who wishes to avoid filing a return.”
United States v. Neff, 615 F.2d 1235, 1241 (9 th Cir.), cert. denied, 447 U.S. 925 (1980) - The court affirmed a failure to file conviction, noting that the taxpayer “did not show that his response to the tax form questions would have been self-incriminating. He cannot, therefore, prevail on his Fifth Amendment claim.”
United States v. Daly, 481 F.2d 28, 30 (8 th Cir.), cert. denied, 414 U.S. 1064 (1973) - The court affirmed a failure to file conviction, rejecting the taxpayer’s Fifth Amendment claim because of his “error in . . . his blanket refusal to answer any questions on the returns relating to his income or expenses.”
Sochia v. Commissioner, 23 F.3d 941 (5 th Cir. 1994), cert. denied, 513 U.S. 1153 (1995) - The court affirmed tax assessments and penalties for failure to file returns, failure to pay taxes, and filing a frivolous return. The court also imposed sanctions for pursuing a frivolous case. The taxpayers had failed to provide any information on their tax return about income and expenses, instead claiming a Fifth Amendment privilege on each line calling for financial information.