Category Archives: Fifth Amendment

Fifth Amendment Projectb

By: Bailey dotto

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Fifth Amendment Projectb - Video

In any court proceeding, witness testimony can be an important source of evidence.

It follows, then, that courts take calling witnesses pretty seriously. How seriously? Seriously enough that those who refuse to testify can, in some situations, be held in contempt of court, which may result in penalties including fines and even jail time.

What are the rules for testifying in court and how can you keep yourself from running afoul of them?

Fifth Amendment Right against Self-Incrimination

One person who can generally never be forced to testify in court is a criminal defendant. Under the Fifth Amendment of the U.S. Constitution, no person "shall be compelled in any criminal case to be a witness against himself." This means that a defendant that is charged with a crime can choose whether or not to testify in court. However, if the defendant does choose to testify, he generally cannot choose which questions to answer.

The Fifth Amendment also extends to other witnesses in criminal and civil proceedings; any time a witness' testimony might incriminate him or her in a crime, the witness can choose not to testify by invoking their Fifth Amendment rights. Unlike a criminal defendant, however, these witnesses can generally invoke their Fifth Amendment rights selectively during their testimony.

Being Subpoenaed to Testify

However, witnesses other than criminal defendants may also be compelled to testify in the form of a subpoena issued by a court. A subpoena may request a person to testify, provide documents, or bring other evidence to a court. If a person fails to obey the subpoena, they can be held in contempt and subject to fines, jail, or both.

There are several other types of witness who may be excused from testifying, even if they are subpoenaed:

Learn more about what happens in the courtroom and get some general tips for navigating a court proceeding at FindLaw's Learn About the Law section on Going to Court.

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Can You Go to Jail for Refusing to Testify?

Former Internal Revenue Service Director of Exempt Organizations Lois Lerner cited the Fifth...

Everyone in Washington has a P.R. machine, or at minimum, an agenda. That's certainly the case with Lois Lerner, the former IRS executive whose division targeted conservative nonprofit applicants with delays and harassment.

Lerner's division of the IRS systematically obstructed and denied status to Tea Party groups while subjecting many of the smallest ones those most vulnerable and least likely to be lawyered up to inappropriate demands for information that was not legally required. In one case, this included the content of the opening prayer recited in meetings, and in others, this IRS Inquisition demanded that leaders of certain groups pledge never to run for office.

Lerner is out of that business now, and on to a new campaign. This campaign, in which she has enlisted friends and former colleagues, aims to tell the side of the story that she has refused to give Congress under oath.

The resulting Politico piece includes this is no joke the revelations that she once baked brownies for colleagues and that she loves dogs. How delightful for her and the dogs! But so what? Lerner cited the Fifth Amendment and refused to answer questions about her involvement in this scandal. The reason for doing that is that she believes her answers could facilitate a criminal prosecution against her. The mysterious destruction of evidence in this case strongly suggests she is right to worry about that. So does her concerned email inquiry to government IT workers as to whether her instant messages with colleagues could ever be obtained by congressional investigators.

Lerner is willing to testify only in the news media, where the whole truth is not required and irrelevant information can be shared to make her seem less unsympathetic.

But Lerner's complaints about her treatment, her inability to find a job to supplement her pension, and her legal bills fall flat. She and her attorneys complain that the disparaging opinions she once expressed by email about conservatives, later obtained by Congress, should not be used against her. It would be unreasonable, she and her defenders point out, to expect her not to have opinions.

She is correct, America is a free country where all may express their views. But then, that's precisely why Lerner finds herself in so much hot water. Her IRS division used government power to suppress the political opinions of others to make private citizens unfree to express opinions she does not like.

If liberals are so irked that conservatives have freedom of speech, freedom of association, and freedom to spend their own money on advocacy, there is a proper channel for their frustration. They can weaken or even abolish the First Amendment to the Constitution. Democrats tried this in the U.S. Senate earlier this month, and good for them it is the right of every elected official to take such a political risk, because voters can hold such officials accountable.

But it's quite another thing for powerful, entrenched and unaccountable bureaucrats to abuse their power and attack others' constitutional rights from deep within the intestines of the government. This is why Lerner now finds herself a pariah, and it's also why she isn't a victim.

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Cry us a river, Lois Lerner

For Congress, Lois Lerner pleaded the Fifth, but for Politico, the embattled ex-IRS director gave a breezy biographical sketch that included her insistence that she had nothing to apologize for and that she did nothing wrong. Now Republicans are fuming.

Her decision to make unsubstantiated claims to a media outlet while claiming Fifth Amendment protections from answering Congress questions is telling, said House Oversight Chairman Darrell Issa, who headed up a panel to quiz Ms. Lerner about her agencys delay of nonprofit applications to tea party groups, Politico reported.

She appears to have great confidence that her allies in the Obama Administration will not consider legal action after she resigned and declined to discuss the IRS actions against private citizens, Mr. Issa went on, Politico reported.

Ms. Lerner admitted her division had paid extra attention to applications from groups with tea party in their names at the request of her boss, Politico reported. But she denied that her Democratic leanings influenced her scrutiny of conservative groups though Republicans have released emails showing that perhaps the opposite, in some cases, was true, Politico reported.

Mr. Issa is not the only Republican to criticize Ms. Lerner for speaking to the press, rather than Congress.

House Speaker John Boehners staff posted a blog blasting her claim to Politico that shes not sorry for anything I did, she said, in the article.

Thanks to President Obama and his cadre of cover-up artists, we still dont know what exactly that entailed, Mr. Boehners blog read, Politico reported.

And Rep. Jim Jordan, who chairs the IRS Oversight subcommittee, said Ms. Lerners interview with Politico was a poke in the eye to the American citizens who were targeted by the IRS, Politico reported.

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GOP fumes as Lois Lerner talks to press but snubs Congress

Silicon Valleys smartphone snitching has come to an end. Apple and Google have promised that the latest versions of their mobile operating systems make it impossible for them to unlock encrypted phones, even when compelled to do so by the government. But if the Department of Justice cant demand that its corporate friends unlock your phone, it may have another option: Politely asking that you unlock it yourself, and letting you rot in a cell until you do.

In many cases, the American judicial system doesnt view an encrypted phone as an insurmountable privacy protection for those accused of a crime. Instead, its seen as an obstruction of the evidence-gathering process, and a stubborn defendant or witness can be held in contempt of court and jailed for failing to unlock a phone to provide that evidence. With Apple and Google no longer giving law enforcement access to customers devices, those standoffs may now become far more common. You can expect to see more cases where authorities are thwarted by encryption, and the result is youll see more requests that suspects decrypt phones themselves, says Hanni Fakhoury, an attorney with the Electronic Frontier Foundation. And by requests, I mean demands. As in, you do it or youll be held in contempt of court.

In some cases, the Fifth Amendments protection against self-incrimination may block such demands, under the argument that forcing defendants to unlock their phone would compel them to testify to their own guilt. But the few cases where suspects have pleaded the Fifth to avoid decrypting a PCthe legal equivalent of a smartphonehave had messy, sometimes contradictory outcomes. This is not a settled question, says James Grimmelmann, a professor at the University of Maryland Law School. And it likely wont be, he says, until more appeals courts or the Supreme Court consider the issue.

Grimmelmann does, however, offer one general guideline for whether a Fifth Amendment argument will keep the cops out of your locked phone and you out of jail: If the police dont know what theyre going to find inside, he says, they cant make you unlock it.

In 2011, for instance, a Florida man identified only as John Doe had two computers and five external hard drives seized in a child pornography investigation. (He was never charged with a crime, so his name was not revealed in court.) Doe had encrypted his drives with TrueCrypt, and took the Fifth to avoid having to unlock them. The court ruled that forcing him to surrender his password and decryption keys would be the same as making him provide self-incriminating testimony, and let him off the hook.

In a Vermont case in 2009, by contrast, a child pornography defendant named Sebastien Boucher made the mistake of allowing police access to his computer following his arrest at the Canadian border. They found child pornography, but after seizing his computer realized the portion of the hard drive containing the incriminating files was encrypted. They demanded Boucher cough up the password. He refused, pleading the Fifth. A judge ruled against him, calling the contents of the computer a foregone conclusion. The police didnt need Bouchers testimony to get the files, in other wordsthey only needed him to stop obstructing access to them.

Not every case is so clear-cut. In 2012, a Colorado district court ruled thatRamona Fricosu, a defendant in a mortgage fraud case, had to surrender the password to her locked laptop after she was heard on a recorded phone call telling her co-defendant husband that the incriminating evidence was encrypted. That call was enough to nullify her Fifth amendment argument. As with Boucher, the judge ruled that she give police access to the files or be held in contempt.

Even if you have a Fifth Amendment right to avoid compelled decryption, you have to be very circumspect in how you behave, warns Grimmelmann. The court may only find in favor of defendants who have been very careful about not talking to law enforcement and who have been very well advised in keeping in their head down.

Depending on where the law settles, it could leave few cases where the Fifth Amendment protects locked phones at all. Former prosecutor and George Washington University Law Professor Orin Kerr argued in a piece for The Washington Post on Friday that merely confirming that a phone belongs to you and admitting you know the passcode circumvents the Fifth Amendment. If the phones in the suspects hand or in his pocket when the government finds it, thats not going to be hard to show, he wrote. He pointed to the Boucher case. Under the relevant case law, that makes all the difference: Entering in the password no longer raises a Fifth Amendment problem.

Using Apples TouchID to unlock a phone represents another way to compel suspects to open their phone. As defense attorney Marcia Hofmann wrote for WIRED last year, a fingerprint isnt testimony. So demanding a suspect extend their hand allows for no Fifth Amendment defense. Other biometric unlocking mechanisms would be equally vulnerable. We cant invoke the privilege against self-incrimination to prevent the government from collecting biometrics like fingerprints, DNA samples, or voice exemplars. Hofmann wrote. The courts have decided that this evidence doesnt reveal anything you know.

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Google and Apple Wont Unlock Your Phone, But a Court Can Make You Do It

4:43 p.m. The lead attorney for DeKalb County CEO Burrell Ellis, Craig Gillen, asked for a mistrial after Ellis former assistant testified.

Gillen said Hall prejudiced the jury after invoking her Fifth Amendment right not to incriminate herself 30 times.

Superior Court Judge Courtney Johnson rejected Gillens request.

Court is in recess until 9 a.m. Tuesday.

4:34 p.m. Nina Hall, an assistant to DeKalb County CEO Burrell Ellis, invoked her Fifth Amendment right not to incriminate herself 30 times during testimony Monday.

Most of those times, Superior Court Judge Courtney Johnson ordered Hall to answer the questions. Hall wasnt required to testify about whether she had accepted money from vendors or perjured herself before a special grand jury.

Hall said Ellis was upset that Joanne Wise, who worked for a technology contractor called Ciber Inc., hadnt returned his phone calls for campaign contributions.

He was angry they had not returned his phone call, that there was no excuse for them not having returned his phone call, Hall told jurors. He indicated he was going to tell their boss they provided poor customer service and they were rude.

3:47 p.m. A former assistant to DeKalb CEO Burrell Ellis, Nina Hall, will have to testify but she can assert her Fifth Amendment right against self-incrimination in response to some questions, Superior Court Judge Courtney Johnson ruled.

Johnson said Hall can be asked about a conversation with Ellis that she overheard, and she can be asked to identify Ellis handwriting.

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Assistant to DeKalb CEO Ellis invokes 5th Amendment 30 times

House Republicans are steaming that ex-IRS official Lois Lerner decided to talk to POLITICO for a profile on her life after twice taking the Fifth before Congress.

Lerner refused to answer questions before House Oversight Chairman Darrell Issas panel and quickly became the center of the tea party targeting saga that erupted 16 months ago. The former head of the IRS tax exempt unit declared her innocence in the interview, as she has maintained throughout, but would not discuss her time at the IRS in the run-up to the firestorm.

Republicans, who voted to hold Lerner in contempt of Congress and held countless hearings blasting her for refusing to speak, said it was unfair for her to speak to media and not lawmakers.

Her decision to make unsubstantiated claims to a media outlet while claiming Fifth Amendment protections from answering Congress questions is telling, Issa (R-Calif.) said in a statement on Monday. She appears to have great confidence that her allies in the Obama Administration will not consider legal action after she resigned and declined to discuss the IRS actions against private citizens.

(Also on POLITICO: Exclusive: Lois Lerner breaks silence)

The scandal erupted in May 2013 after Lerner, at the behest of her boss, acknowledged that her division had given added scrutiny to conservative groups using search terms like tea party. A damning inspector general report followed, which led to President Barack Obama firing the acting IRS chief, congressional hearings and an FBI probe.

Although Lerner acknowledged she is a Democrat, she said her political leanings never affected her work. Republicans have released emails showing she took an interest in GOP nonprofit Crossroads GPS, including asking why the group was not audited and suggesting the group should be denied tax-exempt status.

House Speaker John Boehners staff posted a blog calling out Lerner for telling POLITICO she is not sorry for anything I did.

Thanks to President Obama and his cadre of cover-up artists, we still dont know what exactly that entailed, his communications adviser, Matt Wolking, wrote in a blog.

Meanwhile Rep. Jim Jordan (R-Ohio), who chairs the IRS Oversight subcommittee, called the interview a poke in the eye to the American citizens who were targeted by the IRS.

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GOP fumes over Lerner remarks

Civics- The Fifth Amendment (Sarah Hutchinson)
Civics.

By: Sarah Hutchinson

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Civics- The Fifth Amendment (Sarah Hutchinson) - Video

Apple is really serious about privacy, guys.

Apple Apple wants the world to know that its really, really serious about privacy. Accompanying the launch of the iPhone 6 and iOS 8 was a personal letter from Apple CEO Tim Cook about the companys commitment to privacy and a new, revamped page about all-things-privacy on iDevices and a how-to guide for setting preferences to up your privacy if youre an iUser. Apple has long used privacy to differentiate itself from the competition; back in 2010, Steve Jobs said Apple always had a very different view of privacy than some of our colleagues in the Valley. We take privacy extremely seriously. Cook repeated the sentiment more strongly in his letter, taking direct aim at Google Google, saying Apple doesnt build a profile of its users or read their messages to get information to market to you.

Apple is getting serious about privacy because it has to. It wants the iPhone to become the only thing you need beyond oxygen. The iPhone is not just for communication and web browsing anymore. It wants to track your health (with HealthKit), be your wallet (with Apple Pay), and control the devices in your home (with HomeKit). Depending on how personalized the iPhone 6s vibration capabilities get, it could be your iSignificantOther. This is all set against the backdrop of concern about tech companies guardianship of our personal information amid the Snowden leaks. So Apple did something very smart. It announced that with iOS 8, the data encrypted on iPhones will only be able to be unlocked with your passcode. Unlike ourcompetitors, Apple cannot bypass your passcode and therefore cannot access this data, Apple wrote on its privacy page. So its not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS8.

So now, if law enforcement wants into your phone, theyll need to get you to enter your passcode. One Apple competitor felt the heat. Google-owned Android quickly issued an us, too! announcement, saying that its next operating system will also encrypt data on smartphones by default for those using a passcode. Privacy advocates are thrilled. Its not just about making it easier to protect civil liberties in the U.S. but exporting it to countries with restrictive governments where it will now be harder to get dissidents iPhone chats.

But former federal prosecutor and legal expert Orin Kerr was not thrilled. He says that if the po-po have a warrant, they should be able to get into a phone, and that Apple is making it harder for them to conduct lawful searches. People encrypting the content of their devices is not common practice now, but moving forward, it could become widespread, and law enforcement will have to force people to hand over or enter their passcodes in order to get evidence from those devices. Thats where the legal showdown will happen.

If the government obtains a subpoena ordering the person to enter in the passcode, and the person refuses or falsely claims not to know the passcode, a person can be held in contempt for failure to comply, writes Kerr.

Thats actually disputed legal territory. Back in 2012, Hanni Fakhoury, a lawyer at civil liberties group EFF, explored the issue of decryption as a Fifth Amendment issue. Is refusing to enter the passcode to your device the same as refusing to give incriminating testimony and pleading the Fifth? There is conflicting law on the issue.

A district court judge in Colorado ruled(PDF) that Ramona Fricosu could be forced to decryptinformation on a computer seized by law enforcement in connection with a mortgage fraud case.But the 11th Circuit Court of Appeals in Atlanta ruled (PDF) that the 5th Amendment prevented the government from forcing a suspect in a child pornography investigation to decrypt the contents of several computers and drives seized by law enforcement.

In one case, the court ruled that law enforcement already knew what it wanted off the computer and could get it. In the other, the court ruled that law enforcement was trying to force the alleged child porn possessor to testify against himself by performing the decryption.

Kerr thinks the Fifth Amendment shouldnt protect people against decrypting evidence that will be used against them, citing a 2009 case from Vermont, but suggests that if this turns out to be a problem, Congress should pass a new law upping the penalties beyond a simple contempt charge for people who wont hand over their passcodes, or pass a law forcing tech companies to design their systems in such a way that they can bypass the passcode.

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Apple And Google Will Force A Legal Battle Over The Privacy Of Your Passcode

The Fifth Amendment Eminent Domain
For Mr. Carter #39;s Government class Idaho.

By: Justin Myler

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