Taking the Fifth yet being in contempt

David Wildstein was called before the New Jersey Assembly to testify on the Christie bridge-closing scandal.

He took the Fifth and refused to any any questions other than his name and place of residence. He was found in contempt.

I know there are some exceptions to using the Fifth Amendment and refusing to testify when given immunity is among them. But he wasn’t given immunity and it’s not clear to me how he could be sure this testimony couldn’t - not wouldn’t - be used against him.

Can any of our lawyers talk about when a legislature body can cite someone for contempt when invoking the Fifth? If the rules are different for Congress, then what are they as well?

First of all: it was not in Court but rather in front of the state legislatureso the typical rules may not apply.

Plus it seems that he had immunity from prosecution based on statements he made to the Assembly. He could have shouted “I killed the Lindburgh baby!” and no one (state or Federal) can do anything about it. Since there’s no chance of prosecution, the 5th doesn’t apply.

Question for a lawyer - how would this apply to civil suits. If I’m required to admit I used substandard concrete in a building, that may exempt me from criminal prosecution but what about a civil suit?

Nope. The Fifth Amendment protects solely against self-incrimination, not against making oneself culpable in a civil action. The Fifth only applies to civil cases insofar as a deponent’s testimony in a civil case might expose him to subsequent criminal prosecution: or, whether the deponent “is confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination.” Marchetti v. U.S. , 390 U.S. 39 (1968).

Wildstein would have been entitled to take the Fifth if he remained in danger of federal prosecution. Obviously the NJ legislature has no authority to grant him immunity from that.

ETA: Grants of immunity are invariably tailored to the specifics of the matter the witness is being asked to testify about. I very much doubt his grant said anything about the Lindberg baby.

I doubt it. Immunity always has certain limits.

OK, a brief discussion on immunity, stolen from a post by me back in 2001: there is “use immunity” and there is “transactional immunity.” A witness asserting the Fifth Amendment may be granted use immunity, which simply means that none of his testimony, nor any evidence derived from his testimony, may be used against him. He may still be prosecuted for the acts he testifies to, however, as long as independent evidence is developed.

Transactional immunity is the complete immunity from prosecution for all transactions covered by the testimony, no matter what the source of the evidence. Use immunity - from a defense lawyer’s point of view - is a cheap substitute, a ploy based on a case called Murphy v. Waterfront Commission. Unfortunately, the courts have upheld, many times, the principle that use immunity is coextensive with Fifth Amendment protection - that is, a grant of use immunity is sufficient to overcome your Fifth Amendment rights and force you to testify.

A person claiming the Fifth Amendment privilege must have a reason to do so, and his bluff may be called, so to speak, by a grant of use immunity. Once he has this immunity, he cannot refuse to testify, and if he then fails to provide any testimony upon which his Fifth Amendment claim might have been based, he may be subject to prosecution for obstruction of justice.

The Fifth Amendment protects against both state and federal criminal actions – in other words, a state judge may grant use immunity to you for your conduct that violated state law, and thus force you to testify…but not if your conduct also violated federal law.

In this case, the claim seems to be that by operation of state law, the witness has use immunity for anything he says to the state legislature. If this is true – and I have no idea what New Jersey law actually says on the subject – then the witness is still entitled to remain silent using his Fifth Amendment privilege if his testimony would subject him to federal criminal liability.

I don’t think it’s a specific grant of immunity – I suspect it’s more akin to the transactional immunity that one has when testifying in front of a New York grand jury – it’s why a target of a criminal investigation who wants to speak to the grand jury must waive his immunity.

I could be off-base; this is speculation and not research.

That would seem more consistent with the claim that “state law” protects him, now that I think about it.

It’s worth noting that the US attorney for the district has opened a probe, so federal prosecution is not an illusory hazard here (assuming Wildstein did something wrong.)

It should also be noted that he has not been convicted of contempt. Legislative bodies often vote contempt citations as political theater, but the prosecutors don’t always follow up with any kind of prosecution.

Hmmm… is there some sort of federal charges that could result from monkeying with interstate transport?

Yes, it’s one thing to vote contempt, it’s another to make it stick in a court of law against a constitutional right. Especially since, as we’ve seen with some other cases, the feds can creatively generate “violation of civil rights” cases.

But if he is asked if the order to close the bridge came from Christie, how could an answer put him in jeopardy? Yes, if he is asked if he issued the order to close an interstate bridge that could subject him to federal criminal prosecution, but I thought there was no doubt that he did so order. The interesting thing is who told him to. Of course, it is entirely possible–indeed probable–that he wasn’t told it came from Christie. Nudge, nudge, wink, wink and all that.

what we think of as “do doubt” is not always true in court. Documents have to be authenticated, etc. Admitting it under oath makes it much more likely that part of the case will be established beyond a reasonable doubt.

If you answer any pertinent question you must answer all questions. You can’t pick and choose or stop at a certain point.

From what I’m seeing here, the contempt charge against Wildstein is political theater. If he might face federal prosecution, he had every right to use the Fifth and not assume use immunity. Is that a fair summary of the situation?

That applies to a defendant who voluntarily takes the stand in his own trial. I believe others can stop talking once they realize that the interrogator is not just asking harmless questions.

Well, sort of. He can’t really refuse to answer any questions, only those which might incriminate him.

I’d like to know how someone goes about closing a bridge without having their ass handed to them. Seriously, how was the bridge shut down? did they close off half the lanes to paint the lines? What?

If someone takes the Fifth, can the questioning attorney say, “Your Honor, I don’t see how the answer to that question could possibly incriminate the witness”? In such a case, can the judge call the witness into chambers and compel the witness to elaborate?

Found it. They did it under the guise of a “traffic study”.

Throw every person responsible for this in jail.

The whole bridge wasn’t closed. There’s an entrance ramp right before the toll booths. That traffic (from Fort Lee) normally has access to three toll booths, but the cones were moved over two lanes so the traffic could only use one booth.

There’s something I’ve always wondered about. Suppose a witness granted use immunity says “I killed the missing lovebirds and left their bodies at the ninth tree near Lover’s Lane.” What’s to stop prosecutor from calling his friend in the Park Dept. and suggesting the 9th tree as venue for a study? (Perhaps my scenario is faulty, but the general question should be clear.)

Fruit of the poisonous tree.” The “independent evidence” Bricker refers to means the state has to find the stuff without reference to the excluded evidence, or show that such discovery was inevitable.