As usual Mae West said it best:
Judge: “Are you trying to show contempt for this court?”
Ms. West: “No, I’m doing my best to conceal it!”
Yes. The government, including courts, have no power to prevent anyone from saying anything they please, especially the news media, and especially regarding a matter of public interest, such as a criminal proceeding. That’s what “freedom of speech” means.
The First Amendment says:
A law requiring the press to submit to the restrictions of a court would violate this principle.
(1) People don’t necessarily believe everything they read.
(2) In general, the public is much more likely to believe the worst about someone who is accused of a crime.
(4) In cases in which the defense can demonstrate that the local jury pool has been contaminated, it can move for a change of venue. This is fairly common in high-profile cases.
(5) Once a trial begins, jurors are ordered not to read, watch, or listen to news reports about the proceeding and are ordered not to discuss it.
(6) It is generally assumed by the law that jurors have enough intelligence and integrity to do as they are instructed, that is, to consider only the evidence that is presented to them in court.
(7) Specifically, regarding the Simpson case, all kinds of stuff was published, including a bunch of bogus theories purportedly proving he did it and those purportedly proving he didn’t.
(8) Simpson was acquitted. Was his trial unfair?
A plea – whether “guilty,” “not guilty,” or “no contest” – is not given under oath. It is not testimony. It is not evidence. It has no probative value. It serves a primarily procedural purpose – to allow the judge to determine whether a trial is necessary.
The Fifth Amendment says:
A criminal defendant need say nothing at his or her trial. Indeed, few defendants testify at trial (or in any circumstance in which they are sworn to tell the truth or in which their words might be used against them in a legal proceeding). It’s a sure way of avoiding lying under oath.
Wrong. Courts can force people to tell the truth, even when they don’t want to. There are a handful of evidentiary privileges which witnesses can (or in some cases, must) use to shield themselves from compulsion to testify (e.g., the privilege against self-incrimination, the attorney-client privilege, the marital privileges, etc.). If none of these privileges apply and a Court wants you to testify, you have no choice. If you are subpoenaed as a witness and you lie, you are committing perjury, which is a crime. If you don’t lie but simply refuse to answer questions put to you, you are not committing perjury; however, the Court may hold you in contempt for your failure to answer. Indeed, the Court can imprison you for refusing to testify – that’s what happened to Susan MacDougal, as sailo notes; Jojo is incorrect that MacDougal was convicted of perjury. She wasn’t, she was instead subpoenaed, refused to testify, held in contempt and imprisoned until she was changed her mind (which she never did).
–Cliffy
Boy, that’s some poor coding on my part. Sorry, sailor and Jojo.
–Cliffy
As Otto notes, convictions are rarely sought for perjury on top of another conviction. The perjury is a separate crime which doesn’t take place until the trial on the original charge is underway; therefore, if the government wants to prosecute the perjury it needs to bring a whole separate trial. Most of the time it just isn’t worth it. However, this is a practical decision about the best way to allocate the resources of the prosecutor’s office; if a criminal defendant lies on the stand during his trial (and the government can prove it), that defendant can be brought up on separate perjury charges and, if convicted, can be sentenced to jail time if the prosecution wants to spend the time.
As ascenray observes, merely pleading “not guilty” is not perjury. First of all, it isn’t under oath. Second of all, at the time the statement is made it is not false – guilt in a legal sense is a larger concept than simply “did he do it?”. The government must prove its case, and the defendant, even if he did do it, may have affirmative defenses at his disposal, such as facts justifying what he did (e.g., self-defense).
A defendant does not commit perjury merely by entering a plea, regardless of whether the charges are accurate or not. Perjury only comes in if the defendant then takes the stand in his own defense and lies under oath. Defendants often do not take the stand – the 5th Amendment protects them from testifying if they don’t want to. If a defendant merely stays silent, there’s no perjury, which punishes only lies.
–Cliffy
Broadly, contempt of court means disobeying or disregarding the order of a court or acting in such a way as to interfere with the court’s operation or insult its dignity.
The court’s ability to cite parties for contempt is essential in order to enforce court judgments. Plaintiff sues Defendant to get his car back. Plaintiff wins. Defendant then moves the car and refuses to tell where it is. The court may find Defendant in contempt as a way of compelling him to tell where the car is. Noncustodial parents who habitually fail to pay child support are often found in contempt as well.
Another example: Defendant is an A-1 jerk. Whenever anyone says something in testimony with which he disagrees, he jumps up out of his chair and shouts abuse at them. The judge may cite him for contempt as a way of getting him to cut it out.
Contempt of court may be either a civil or criminal offense. Often it is hard to distinguish one from the other, and judges generally have a choice as to whether to find a person in civil or criminal contempt. Either type of contempt can be punishable by fine and/or imprisonment.
Generally criminal contempt pertains to actions which occur in the court’s presence, such as the second example above where the defendant disrupts the proceedings by abusing witnesses. This is also sometimes called "direct’ contempt as it is done directly in the presence of the judge.
Civil contempt is sometimes known as indirect contempt, and can occur anywhere, inside the court or out.
The distinction between civil and criminal contempt is an important one as the primary purpose of a criminal contempt citation is to punish a person for their actions. While the effect of a civil contempt citation can be very punitive, the primary purpose of civil contempt is to compel action. A terrorist suspect who cannot be identified is brought before the court and told to state his name. He replies “I am The Spirit of Justice” and refuses to say anything else. The judge can find him in civil contempt and order that he sit in jail until he remembers that it didn’t say “The Spirit of Justice” on the driver’s license he destroyed.
Criminal penalties have to be of definite duration, even if the sentence is “three to twenty years” or “life”. A civil penalty does not. This means that a court can, in theory, hold a person in civil contempt pretty much forever until they choose to purge themselves of the contempt.
As for the question of a news outlet being found in contempt, this can sometimes happen if a newspaper, television station, etc., violates a gag order or otherwise acts to interfere with the proceedings. Some states limit the contempt powers of a court to actions against officers of the court, witnesses, and parties.
You got a ticket for riding a bike through a red?
Never heard of this in the UK, cop may bollock you but that’s it.
Terrorist suspects appear in court? When did that start happening?
But according to slipster, civil contempt can result in being jailed.
While it is true that it’s not possible to force someone to tell the truth, it is possible to punish them for refusing to do so. Calling this “voluntary” is like describing a mugging victim as “voluntarily” relinquishing his wallet.
Actually, it’s an affirmation; requiring oaths has been found to be unconstitutional. And it’s not a contract, either, as it is done under duress, and with no consideration provided by the court (consideration in the legal sense).
Cliffy
[nitpick]Actually, you do have a choice- testify or go to jail[/nitpick]
Agreed. (Although I don’t think there’s anything wrong with state of affairs in the typical case, while you appear to have a different opinion.)
–Cliffy
Just wanted to add a little somethibng… you could call it (5a) in acsenray’s post.
On very high profile cases, where it may be impossible for jurors to avoid hearing about the case in their everyday life, the jury may be “sequestered.” This means they are holed up in suitable location (generally a hotel) with no access to media for the duration of the trial.
Dang, I forgot to add, O.J.'s jury was sequestered for 6 months, I believe.
I’ve never heard of it happening in real life, but at least in theory, a prosecution for perjury can be used to give the prosecution a “second bite at the apple” when they believe the accused has been unjustly acquitted. For an example, see Anthony Trollope’s classic, Orley Farm. The idea is that even if you can’t convict them of the original crime any more, maybe you can convict them of lying about whether they did it. (Of course, it only works if the accused testified in his or her own behalf, and explaining the acquittal to the perjury jury might be a pretty tough hurdle).
Hello Again said:
Yes, that sounds sensible. The same thing happens here in the UK for certain cases, although it’s easier and cheaper just to tell the press not to say anything about the details of the case until it’s finished.
acsenray said:
Freedom of speech is a nebulous thing though eg you are not free to slander someone, you are not free to call for the overthrow of the government etc.
Likewise, whilst a criminal prosecution may be of public interest, it isn’t necessarily in the public’s interest to taint a trial. The public can find out all they need to know about a trial once it’s over.
Newspapers here in the UK are free to discuss upcoming trials as well but they need to be careful that they don’t say anything that could influence a jury. Before a trial starts, the case is considered to be sub judice ie under the law’s protection.
Agreed, but there is a chance that they may be swayed. It’s safer if they don’t read anything.
Agreed. All the more important then that you don’t have newspapers publishing accounts of the accused’s previous misdeeds which aren’t relevant to this particular case.
Although in nationally known cases (like OJ) moving the venue may not make much difference.
Your faith in people is touching. Personally I think that people have an appetite for salacious gossip and may secretly disobey the order. It’s safer if the info isn’t there in the first place.
That is also the case in the UK but we also recognise the fact that people don’t live in a vacuum and may not be able to avoid TV news reports and gratuitous tabloid headlines.
Since the jury were sequestered in that case I suppose it didn’t much matter. If I was a defence lawyer though, I would prefer it if my jury knew nothing of the case apart from what the prosecutor and I tell them.
Not as far as I can tell but the fact he was acquitted does not prove the trial was fair. Whether he was acquitted or convicted is irrelevant to the question of whether he received a fair trial.
I think we’re kinda saying the same thing but in different ways.
Courts can’t force someone to tell the truth. How do you force someone to tell the truth? You could try using a truth serum or a lie detector but neither of these are 100% reliable.
All courts can do is threaten people - “If you don’t tell the truth then x,y,z will happen…”. So, in the end, it’s up to the individual to decide whether to tell the truth or not.
Huh? I never said she was.
I’ve never heard of the girl.
The Ryan said:
Yes, contempt is a funny thing. It’s different from other offences. Others will know more than me about it but I think the gist is that if you are not co-operating with the courts proceedings then the case cannot move forward. So you get locked up until you decide to co-operate.
The law doesn’t care whether you are guilty or innocent but it does insist that a verdict of some sort is reached.
This comes down to the fact that, no matter which country you are in, the law of that country is the final arbiter. There is no higher authority (apart from God maybe). So therefore the law MUST prevail. The legal system cannot be held up while you wait for something better to come along. There is nothing better (in the eyes of the law) and there never will be.
So if you don’t co-operate with the legal process then you will be punished (perhaps sent to rot in jail forever). The legal process is everything, it’s the ultimate arbiter. You can’t just decide to avoid it and try a different way instead. There is no different way.
Hmm…as I say, I think others may be able to explain this better than me.
Not really.
You never know, you might get away with your lie. Could be worth taking the risk if you think you won’t get caught.
Yes, you are correct. That’s why (I think) I put the word contract in inverted commas. I didn’t mean it was a legal contract, I was just trying to explain it using the more generalised (non-legal) understanding of the word “contract”.
I realise in a thread full of lawyers, that was probably unwise.
Ah I forgot to insert “Cliffy said:” before the quote that begins:
MARTINL –
This is not the case in the U.S. Yes, the defendant may refuse to answer on the grounds that she would incriminate herself (what in the U.S. is called “pleading the Fifth,” by which is meant invoking the Fifth Amendment to the U.S. Constitution) but she may not lie under oath, and she does so, she commits perjury. The defendant does not have some special right to lie just because she is the defendant.
ACSENRAY –
This is not strictly correct. The court possesses the power to seal evidence (as in the case of grand jury indictments) and to instruct those over whom it has power (the parties and their lawyers) to not talk about the case – what is known as imposing a “gag order.” Gag orders are not favored and will be subject to strict scrutiny if appealed, but they do exist and are used. The judge cannot prevent an outside party, such as the news media, from discussing the case, however. And, of course, the judge can and almost always does instruct jurors in an ongoing case to not discuss the case, either among themselves (until the case is given to them for deliberation) or with anyone else.
THE RYAN –
Yeah, it can, as a mechanism to coerce the party or person into complying with the lawful order of the court. This does not serve to make it a criminal matter. But in my state, as in most I believe, jail time for civil contempt may only be used to coerce compliance and, therefore, can only be imposed if the judge also provides the person/party with a means of “purging” the contempt, which is to say curing it.
Therefore, a judge may throw you in jail for refusing to follow a court order, as a means of coercing you into following it. BUT the judge must make clear what you have to do to get out – usually, follow the court order. The best-known example of this in the U.S. is the case of Susan MacDougal. This was a very famous child support case several years back, in which the mother (Susan MacDougal) accused the father of abusing her daughter, and sent her daughter out of the country – she (the daughter) was eventually found in New Zealand, IIRC. Anyway, Ms. MacDougal was ordered by the court to divulge where the daughter was and she refused. And she spent years in jail – years – for contempt of court because of it.
So the judge may not as a sanction for civil contempt “sentence” you to jail time, but she can put you in jail to force your compliance with a court order. And sanctions for criminal contempt may include a sentence to time in jail. As the MacDougal case shows, however, civil contempt has at least the potential to be far harsher: If you’re sentenced to a term of days for criminal contempt, you know when you’re getting out and then it’s over. If you’re held without sentence on civil contempt charges, you’re in there until you stop defying the court order – in theory, up to and including the rest of your life.
Actually, it can be either. Requiring the swearing of an oath is unconstitutional, but there’s no prohibition against taking an oath, as opposed to affirming, if you choose to do so. So correcting someone who refers to it as an oath is probably hyper-technical, since you don’t know that it isn’t an oath, as opposed to an affirmation.
Hmm…
Hey Jodi, how about you and me get married?
We’re both dopers, we’re both legally inclined, we both have four letter handles beginning in JO and…um…we both like koalas.
You…you…do like koalas don’t you?
Heck, whatever, I can get over your koala-phobia.
I dunno.
Are you male?
Are you single?
Are you sane?
Are you straight?
Are you old enough that dating you would not result in jail time for me?
These are just a few of the questions I have. The koalas, like so much else, are negotiable. 
male - yes
single - yes
straight - yes
sane - hmmm?? Could fall down on that one but usually I am.
age - 36
Hey we could have the first online SDMB wedding. All we need is the official SDMB priest. Would that have to be Cecil?
That’s an interesting question though. If we got married online by a proper religious personage, would that mean we’re really married?
Assuming it could be proved who we both actually were in real life and assuming we both typed out the proper responses:
Priest - Do you Jojo, take this woman Jodi to be your lawful married wife?
Jojo - I do
Priest - And do you Jodi, take this man Jojo to be your lawful married husband?
Jodi - I do
etc etc
Would it be legally binding?
Hmm…
Although I’m having second thoughts because I wouldn’t fancy fighting you over the divorce settlement. Neither of us would give an inch - it would be hell.
We’d have to go pre-nuptuals.
And who gets the kids? Jesus, all I’m asking is that I get to see them once a week. Is that too much for God’s sake?
Little Joji and Joda.
Won’t you think of the children, for the love of God! I gave you everything, everything goddammit. I gave you the best years of my life and now THIS?
Damn.
But, hey, I still love you even despite everything.
Hmm…not sure whether it would work in the long run.
Just to add to the comments on how long you can be held in jail on civil contempt - in Canada, at least, you can’t be held in prison if it is no longer possible to purge your contempt. So if you’ve summoned to testify in the trial of A, and refuse to testify, you can only be held until the trial ends. Once A is either convicted or acquitted, the trial is over, it’s no longer possible for you to obey the court’s order to testify, and therefore the court can no longer order you held in jail for contempt. Same principle applies to the rare matter of contempt of Parliament. If you refuse to testify at a parliamentary hearing, you can be jailed for contemp, but once the session is prerogued or the House is dissolved, you have to be released.