the state cannot compel you to be a witness for yourself (the prosecution cannot call you to the stand.) You can voluntarily do so (the defense can call you to the stand.) If you do not go to the stand, the state also cannot use that as inference of guilt.
and civil cases have looser requirements for a judgment (e.g. jury decisions need not be unanimous, standard of proof is a “preponderance of evidence” and not "beyond a reasonable doubt, etc.)
No… the Fifth Amendment is part and parcel of a legal system that works from the premise that you’re innocent until PROVEN guilty. From that premise comes the notion that if a person is accused of some crime, then the burden of proof is wholly and entirely on the prosecution, as they’re bringing the accusations against a person who is presumed to be innocent, and who therefore has no obligation to help them with their accusations.
What happened to the bag that OJ gave to his friend, Robert Kardashian? The clothes that OJ wore, when he slaughtered his ex-wife and Fred Goldman’s son were (supposedly) in the bag. Was Kardashian ever charged with obstruction of justice?
Prosecutors are very skilled at making you look guilty on the stand, no matter how innocent you believe you are. Taking the stand is usually just an opportunity to subvert your own defense.
I realize that is the current law, but why does an amendment that says:
[QUOTE=Amendment 5]
nor shall be compelled in any criminal case to be a witness against himself
[/QUOTE]
mean that you cannot be compelled to be a witness for yourself?
Why would a prosecutor ever want you to testify to anything that might exonerate you?
The whole point of getting you to testify, from the prosecution view, is to get you to say something that makes you look guilty.
because there’s no bloody difference. if the defense thinks it prudent to call the defendant to the stand to testify, the prosecution is going to get their say (cross examination) and do whatever it can to cast doubt on the defendant’s testimony.
if the prosecution had the ability to call the defendant to the stand, they would do whatever they could do to cast doubt on the defendant’s testimony.
in any case, this still boils down to “innocent until proven guilty.” It is the state’s job to prove beyond a reasonable doubt that one is guilty of a crime. It is not the defendant’s job to build a case for why he/she is innocent.
See there’s the “beyond reasonable doubt” thing again. It’s not your mother assuming you stole the cookies. The state would have to prove that someone took a bag and that it really contained vital evidence and that they knew it was, and that they then got rid of it.
There’s that word “prove”. They can’t simply assume he is guilty.
Of course like OJ if he did so, he’s taking a life changing risk that if he screwed up, he is screwed. It’s amazing how often criminals screw up.
You seem to just be restating the current state of the case law. I don’t disagree with that. Of course, the prosecution would do whatever they could to cast doubt upon a defendant when he says that he did not commit the crime.
That doesn’t change the fact that the defendant is not being compelled to be a witness against himself. He is a witness in his own favor: he is testifying that he is innocent.
You’re making no sense. If the prosecution can cross-examine the defendant, and he must answer questions under oath, then he’s being forced to be a witness against himself. Or does the prosecution not get to cross examine him?
You do know that under our current law a defendant can testify, but if they do the prosecution is allow to cross examine, right? So your proposal is really a proposal eliminate that ability!
Defendants don’t have to testify. If they do, then their statements can be used against them. That is, they become a witness against themselves. If they are forced to testify for themselves they are willy-nilly forced to testify against themselves.
No. Follow me here. The defendant says he is innocent. He says that he was asleep when the murder happened, for example. The prosecution can ask all of the questions they want. The defendant says, “Sorry, but it wasn’t me. I was asleep.” He still maintains his innocence.
The evil to be solved by the 5th amendment was a perjury trap. I am being tried for mopery for which I know I am guilty. The state calls me as a witness. The Hobson’s choice I have is to either confess my guilt and cause me to be sent to prison, or to lie and then be guilty of perjury and then be sent off to prison. The 5th says that I don’t have to make that choice.
But if I am really, really innocent of mopery, then that dilemma doesn’t exist. I can say I am innocent, and I am not guilty of perjury or mopery. Now, I might end up being a shitty witness for whatever reason but that doesn’t make me a witness “against” myself as it was originally understood.
Nm
What the prosecution wants to ask, though, is whether you have a motive to murder and whether you have a witness who can prove you were asleep.
“Would it have been possible for you to slip out of your house and go to the murder scene?” Not “did you” but rather “would it have been possible”–if you answer No, then there’s going to be a whole series of followups on why it would not have been possible. If you don’t have seven eyewitnesses and a security camera’s footage of you sleeping, you probably can’t win that argument, and will probably end up looking like a liar. If, however, you answer Yes it would have been possible, then by your own words you have admitted you had opportunity. You are a witness against yourself even as you maintain innocence.
Only a stupidly incompetent prosecutor would compel a witness to take the stand that he believed would hurt his case, while plenty of competent prosecutors could set a trap for the defendant under the guise of ‘I want him to testify for his own favor’. Allowing a legal maneuver that should never be used if genuine and is only useful as a pretense for doing something forbidden by the constitution is not remotely a good idea.
we’re not fucking stupid, we don’t need you to tell us to “follow you.” All the defendant has to do is plead “not guilty,” which transfers the burden onto the state to prove that said defendant is actually guilty.
what you’re ignoring is the possibility that the defendant may be innocent, but may not have an alibi to prove his/her innocence. e.g. if someone I hate (and everyone knows I hate) is found dead due to foul play with no other leads, they might come looking for me. If all I can say is “I was home alone the entire time” with nobody else to corroborate that, then in the system you’re proposing it now becomes my job to prove that I didn’t kill someone. No thanks.
The answer is that it would not have been possible because I was asleep the entire time. I cannot walk, drive, walk again, and murder while sleeping. So, no, it was not at all possible.
Oh, you mean assuming I wasn’t really asleep, would have it been possible? I have no idea as I do not understand what it would take to commit murder in that time frame or any other time frame, as I have never before and did not this time commit murder. I would never murder someone and cannot imagine how long it would take me to recover from it or how to act normal around people after it. I think if I would ever, for some strange reason, commit murder, I would have to sob in my bed for days and would immediately confess because of guilt. Luckily, I’ve never been in that situation because I don’t have any desire to murder anyone ever.
Plus my lawyer objects to speculation.
Well, first, you want to talk down to me because of your apparent inability to follow my argument, and then prove it by repeating the current case law through the lens of modern jurisprudence.
Again, you are not a witness against yourself if you say that you were home the entire time. Even with no corroboration. This does not change the burden of proof that the state must proof that you were not at home alone beyond a reasonable doubt.
You said that you were home alone. That counts in your favor. You have not become a witness against yourself.
Ok, I’ll play.
“UV, you testified you were home, alone, during the time of the murder. But isn’t it true that you had good reasons to want Mr. Boddy dead?”
“And isn’t it also true that after you discovered your wife in bed in Mr. Boddy, you swore you’d ‘get him back when he least expected it?’”
Assuming those are true characterization of the facts, they certainly permit the jury to draw adverse inferences against you, and are thus fairly characterized as testimony against you.
But they are true, and not themselves illegal.
Moderator Warning
jz78817, you’ve been repeatedly warned about insults and jerkish remarks, but you don’t seem to be getting it. This is an official warning for being a jerk. Your posting privileges will be under discussion.
Colibri
General Questions Moderator
The question is not “could you have committed this murder?”; the question is “would it have been possible for you to leave your house without anybody noticing and go to the murder scene?”. What you did or might have done at the scene, or how long it might have taken you to recover or act normal, is not the question. Could you have left 123 Main Street and driven to 456 Oak Street, yes or no? Trying to avoid answering the question actually being asked and instead blathering about sobbing in your bed for days makes you look evasive, and to a jury, evasive might well equal guilty. (And “are you capable of driving? were you capable of driving on the day of the murder?” does not call for speculation, so your lawyer’s objections would likely be overruled.)