Okay, this is kind of a long question. If it’s been answered before, please aim me in the right direction.
I’m wondering why you can’t “plead the First.” I know that you don’t have to testify if, in doing so, you will incriminate yourself (thanks to Amendment #5). And I’ve heard that you don’t need to testify against your spouse. But what about your parents? I wouldn’t be any more willing to testify against my mom than I would against my husband. My husband says that if you refuse to answer questions while under oath, then you can be held in contempt. But don’t you have the right to refuse to talk? And why can’t you just refuse to take the oath (I don’t mean not swearing on a Bible because of religious beliefs, but just saying "No, I do not swear to tell the truth)? My husband also said he remembered hearing about some case where the guy refused to answer a question (he said he was “pleading the First”) and the court ruled that he couldn’t do that.
So, if you can’t do that, then why not?
No, not in that situation.
You can refuse to divulge infomration only if it’s protected by privilege. You mention marital privilege, but you probably don’t quite have a picture of what it entails. You can, in fact, be compelled to testify against your husband. What you cannot be compelled to do is reveal communications made within the confines of the marital relationship - things said just between you two. If you’re asked about something your husband did or said in front of other people, he has already waived the privilege, and it’s not a confidential communication.
There are other privileges. Attorney-client is perhaps the best-known; again, it refers only to information communicated to your attorney within the confines of the attorney-client relationship. The presence of a third party would waive the privilege. There is also a crime-fraud exception; if you tell your attorney you plan to commit a crime, he may break the privilege. Penitent-priest privilege covers statements made to a clergyman, and doctor-patient is obvious from the name.
Finally, there’s the privilege against self-incrimination, which is getting a fair amount of attention in another thread. This privilege allows you to refuse to testify about matters which would incriminate you.
Nowhere does the law grant you a privilege to refuse to testify against a parent or child. There is some work in expanding this area of the law, I vaguely recall reading something about a court in the Northwest considering the creation of a “union shop steward” privilege, to cover conversations between a worker and his union rep. Where that went, I have no idea.
You may not “Take the First,” as you put it, by refusing to take the oath - although you may refuse to swear. In such cases, the judge will permit you to affirm that the testimony you will give is true and correct under penalty of perjury, and Almighty God is not mentioned as a source of wrath. Noetheless, this affirmation is just as binding, legally, as an oath to tell the truth.
[quote]
And why can’t you just refuse to take the oath (I don’t mean not swearing on a Bible because of religious beliefs, but just saying "No, I do not swear to tell the truth)? My husband also said he remembered hearing about some case where the guy refused to answer a question (he said he was “pleading the First”) and the court ruled that he couldn’t do that.
So, if you can’t do that, then why not?/QUOTE]
I remember during the Watergate hearings, when Gordon Liddy was brought before the Erving Senate Committee, and refused to take the oath. IIRC, he was charged with contempt of Congress for that refusal.
A court may compel your testimony for the simple reason that the law is presumed to have a right to every man’s evidence. In a criminal case, think about it from the accused’s point of view: if you have evidence critical to his defense, is it fair for you to be permitted to remain silent?
Courts can and do punish refusals to testify as contempt. You can go to jail for it, and pretty much stay a very long time, if you persist in your refusal. I recall the case of Dr. Elizabeth Forteich, who was convinced her ex-husband was abusing their daughter. The court did not believe her, and granted the ex- unsupervised visitation. Forteich spirited her daughter into hiding and refused to say where she was. The court held her in contempt and jailed her for over a year and a half; it took a private act of Congress to set her free.
- Rick
Well, first, it would be pleading the fifth (amendment).
I sold my soul to Satan for a dollar. I got it in the mail.
Sorry to be irrelevant and pedantic but Rick, the woman’s name was Elizabeth Morgan. Eric Foretich was her husband.
Addressing the idea of refusing to testify:
The First Amendment (and, by selective inclusion, the 14th Amendment) protect a person from governmental action that infringes on the ability of that person to communicate a message. Thus, if I want to inform people that my father is a scum-sucking chauvinist pig, the First Amendment provides me with some protection from governmental action that would keep me from doing so.
However, the idea that my silence is a form of expression doesn’t extend to governmental action that compels me to speak. Silence can be a form of expression (and, thus, by extension, ‘speech’), but only if the silence is conveying a message. For instance, I could sit on a street corner and be totally silent and it could be construed that my silence was a ‘message’. But if my silence is simply a refusal to convey certain information, then the only ‘message’ is that I don’t want to convey the information, and that isn’t protected.
Thus, a statute that compels my testimony if called to the stand in court isn’t violative of the First Amendment, because it doesn’t infringe on my right to convey a message. All it does is force me to convey a message I am not desirous of conveying.
Wasn’t this used during the McCarthy hearings? IIRC, witnesses were not allowed to plead the 5th Amendment on the ground that what they were being invited to admit to was not an offence and they were therefore not being asked to incriminate themselves.
Then somebody (?connected with the military)came along and argued successfully that the 1st Amendment protection of free speech protected the right to say nothing.
Of course, I could be completely mistaken. It’s only a vague recollection and I can’t remember where I read it.
Don’t forget benefit of clergy. Your clergyman cannot be compelled to testify regarding anything said during spiritual counciling.
With magic, you can turn a frog into a prince. With science, you can turn a frog into a Ph.D, and you still have the frog you started with.
I don’t know about other denominations, but in the Catholic Church, the priest-penitant relationsip is absolute. Police, feds, lawyers, even the pope can all go jump in the lake if they want to know what someone confessed.
–It was recently discovered that research causes cancer in rats.
Diceman, I believe that’s true, but wouldn’t a priest feel compelled to break that trust in a case where the public was at danger? Fot instance, if someone confessed to a series of brutal rapes and murders, the priest would probably turn the man in to the police, wouldn’t he?
Please say yes.
I sold my soul to Satan for a dollar. I got it in the mail.
Um… I didn’t forget. I listed it in my post.
No.
The Catholic Church and church canon law hold that the sacramental seal is absolute and unbreakable. If the man were to confess to the crimes described above, undoubtedly the priest would urge the man to turn himself in, and might even withhold absolution. But could not communicate the information to anyone else in any way. Doing so would be a grave sin on the part of the priest, and it would destroy the trust of the confessional.
The priest occupies a similar situation to that of a lawyer. The same reasoning that provides that a lawyer can hear a client’s full confession and yet be unable to tell another soul. There is a future crime-fraud exception; if a lawyer hears his client is planning a future crime, he may break privilege… but not if it’s only about things that have happened in the past.
If a priest were to decide to violate the confessional seal anyway, secular law provides that his testimony would be inadmissible against the man. In the same way, a lawyer may never testify against his own client with information gained within the attorney-client relationship.
- Rick
DSY, the Exquisite:
But you just said. . . You’re reasoning is circular: The First Amendment doesn’t protect that, because it isn’t protected by the First Amendment.
And I believe the First Amendment, in effect, protects people from private interference with their right to free expression, as well as government interference. If I express a negative opinion of DSY, he can probably only harass me with court filings against me, not win any case against me for so doing. . .but maybe he can entice the OH State Bar Association to frown on my becoming a lawyer in OH.
– this said to imply such act is protected under the First Amendment. But cities, on many occasions will reasonably consider such act blockage of pedestrian or vehicular traffic and disturbance of the peace, and they will arrest you and haul you away if you refuse to leave. And your insistence on your rights to nonexpression at that location, under the First Amendment, won’t even get you more than one phone call from jail.
Ray (don’t need no steenkeeng amendment; I always get it right the first time )
BDCT:
You don’t mean ‘counseling’, perhaps? there is a difference. And Bricker already covered “statements made to a clergyman”.
Ray
Oh please, Ray. Your ignorance of the First Amendment and what it ACTUALLY means (not what you would like it to mean) is often displayed here, but never more so than in asserting that the Amendment protects people from other people (as opposed to the government). Quite apart from the plain text of the amendment in question, the repeated decisional law of the USSC makes this point clear. I can punch you in the face if I don’t like what you say, and it certainly isn’t the Constitution that stands in my way or protects you.
As for my post, my reasoning, broken down in language that any three-year-old can understand (since you fail to understand anything more complex) is:
Silence on a subject is not ‘speech’.
The First Amendment protects your right to speak.
The First Amendment doesn’t give you a right not to speak on a subject.
Or, in logic, A is not B. If B, then C. Therefore, if A, not C.
::eyeroll::