Yes, but criminal trials have arraignments, where one can enter a plea, such as not guilty. Now, it is true that “Not guilty” and “I didn’t break any laws or regulations. I did nothing wrong.” are not precise equivalents, and pleas are not the same thing as testimony. But in a forum where one does not get arraigned, such as a Congressional hearings, I think this is an acceptable substitute. One does have a due process right to assert one’s non-guilt in a governmental forum without thereby waiving one’s Fifth Amendment rights.
Had the statement done further, and touch upon substantive facts, rather than the ultimate legal conclusion, we’d have a different kettle of fish.
He’ll probably be charged with obstructing an investigation.
But realistically it’s not going to happen that way. The police are going to ask a suspect for his password so they can enter it. They’re not going to give him a chance to do anything with the computer himself.
If they physically restrain him “on a hunch”, and it turns out the guy is a privacy freak who doesn’t give out his passwords, and the file names are pure whimsey; the contents are actually legal briefs he’s preparing.
Is the cop in violation of search/seizure and/or illegal use of force. Saying “the file names looked suspicious” is not much in line of justification for demanding passwords.
And under what right did the cop get close enough to the computer to read file names on a laptop’s (smallish) display? Computers themselves and not intrinsically of interest to law enforcement. If I"m at Starbucks with my laptop and a cop walks in, he can hardly demand I give him the computer so he can read the screen.
At least I sincerely hope that he can’t - I know we surrendered all practical pretense at privacy about 20 years ago, but I hope it is not yet to the point that police can demand to see your computer any more than they could demand to read a letter I was reading.
The specific case being discussed (which, remember is a hijack of the OP, with due apology…) involved a guy driving over the border from Canada to U.S., so I guess the border guards tend to take a closer look at just about anything one might be bringing in.
But that is clearly testimony – the evidence that you were in the store comes from your mouth.
The password is information, like the combination to a safe. It could be written down, rather than provided by your memory. The government is precluded from arguing that because you knew the password, you have guilty knowledge, but they aren’t precluded from asking for the password itself.
They could demand that you turn over the credit card slip from the store, the one that shows a transaction at exactly noon. But they can’t require you to testify that you were in the store at noon. See the difference?
She’s not taking the Fifth in response a to a specific question, where the implication is that her testimony may incriminate her. She’s taking it because she doesn’t want to testify at all.
I can see the OP’s point about possibly having your cake and eating it too.
But it seems to me all she did was basically say “hey, you accused me of stuff I did not do, I’m innocent, me pleading the 5th will make me look guilty but my lawyer advises me to take the 5th”.
IMO its not like she spouted a bunch of facts to prove her innocence or after pleading the 5th will answer questions that make her case or gives out facts after taking the 5th.
I understand why the 5th needs to have strict scrutiny to avoid being abused but dang you can’t even say “hey, I didn’t do this shit” before taking it? That’s kinda the reason for having a trial in the first place. The person there doesn’t think they have done anything wrong. And everybody already knows THAT fact.
Don’t get me wrong either. I hope the guilty parties in the IRS debacle end up in deep doo doo before its all over. But still.
You can’t get onto the witness stand and say, “hey, I didn’t do this shit,” no. You can refuse to testify entirely, which in most criminal cases is the correct thing to do.
Lerner did make a statement about prior acts that certainly could be examined under cross.
“and I have not provided false information to this or any other congressional committee.”
On May 8, 2013 Lois Lerner did appear before the Ways and Means Subcommittee and did testify. That was two days before the bombshell was dropped via the planted question at an ABA conference.
Rep. Joseph Crowley (D-N.Y.) is now saying that Lerner lied to the committee in her May 8, 2013 testimony.
I think she should certainly be made to testify under a sort of cross examination in relation to that point.
I apologize for shouting hijack in a crowded thread. Indeed, speaking of which, in one case (although others are similar in kind), the IRS required that members of an organization requesting exemption–a pro-life group–not attend any demonstrations at Planned Parenthood, and attest so under penalty of perjury.
Again a common misunderstanding of the protections of the Fifth Amendment.
Let’s assume you’re standing in a store when a man charges in, grabs money from the open register, and runs out.
You become fearful that people will think you stole the money, so you leave.
If you’re later accused of the theft, it’s absolutely correct to say you did nothing illegal. Yet at the same time, the Fifth Amendment protects you from having to deliver a major portion of the state’s case to them by testifying that you were in the store at all. The state can’t force you to testify that you were even in the store – that testimony incriminates you, even though you’re completely innocent.
So what then, is the rule with grand juries.
As I understand, like the congressional heaings, unlike being a defendant in a criminal trial, you do not have the option of refusing to take the stand.
So if you say anything at all on the stand in front of a grand jury, are you waiving all right to the fifth?
Or can you, like congressional hearings it is implied, be selective?
Can you say something then take the fifth on cross-examination on that topic?
Yes – and if this were a trial, I’d agree. But it’s not, and so I think she has the right to say some exculpatory stuff and then hide behind the Fifth. The government can grant her use immunity if they’re so hot to find out what she has to say. That doesn’t prevent them from prosecuting her in the future – it just prevents them from using her testimony as evidence against her if they do prosecute.
Again, are we distinguishing between statements to LEO investigators and actual testimony on the stand? Can you say something on the stand and refuse to answer futher?
You can politely decline to answer any questions put to you outside of the witness stand, without any pressure. I assume, however, your interrogators can testify to this when they are on the stand. Or can they?
Obviously, in your own trial, they cannot even make you take the stand.
The Fifth Amendment issue in Oliver North hearings is interesting in many ways relevant here, in one area (not for GQ in the long run) for the political heat waves it generated, specifically whose ox is being gored. A quick Google will turn up much.
The Fifth Amendment has been taken before Congress many times, of course; no doubt many lawyers are looking into all of them. Note that in many hearings the witness takes the Fifth in the course of testimony, not as a matter of avoiding all of it. A short synopsis appeared recently, including:
[ul]
[li]GSA (2012)[/li][li]Fast and Furious (2012)[/li][li]Solyndra (2011)[/li][li]U.S. Attorney Firings (2007)[/li][li]Baseball Doping (2005)[/li][li]Enron (2002)[/li][li]Lincoln Savings and Loan (1989)[/li][li]Iran-Contra (1986)[/li][li]Communism Hearings (1948)[/li][/ul]
No, I understand the rule. I just disagree with it’s application. If I testify that I was in the store and a man ran past me and robbed the joint, I am not a witness “against” myself by a textual application of the 5th amendment. I am a very positive witness in favor of my innocence.
From the case law, any witness could refuse to testify under some peripheral fear that he might be implicated (“Yes, I saw it all from across the street, but the cops might think I was there if I talk.”)
