Category Archives: Fifth Amendment

Legal expert Christoper Melcher, a partner at California's Walzer Melcher LLP, recently sat down with The List to offer his opinions on Prince Andrew's upcoming trial.

There isn't much information regarding the trial that has been made public yet, so we asked Melcher when he thought Andrew's day in court would take place. Melcher weighed in, saying, "The trial might happen this year, depending on the time it takes for each side to obtain the information they need to prepare for trial. It will probably be in the fall or early part of next year."

Everyone is wondering what the next steps for the case will look like. Melcher shared, "The case is in the discovery phases, where each party can be compelled to answer questions and produce documents under oath. Andrew could still face criminal charges so he will have to decide whether to exercise his right to remain silent under the Fifth Amendment. That right applies to non-citizens who face potential prosecution in the U.S."

Melcher continued, "If Andrew refuses to answer questions in the civil case out of concern that it may be used against him in a criminal prosecution, the jury in the civil case will decide the case based on the evidence presented. Andrew did not make a credible appearance in the media interview he gave, so refusing to testify in the civil case could be his best strategy."

Time will tell what happens to Andrew when his trial goes to court.

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Legal Expert Reveals Why Prince Andrew Might Not Even Testify In His Own Trial - Exclusive - The List

Theres a reason Barry Bonds and Roger Clemens arent in the Hall of Fame: Congress.

The same goes for Mark McGwire. Sammy Sosa. Rafael Palmeiro. And perhaps, in the long-run, Alex Rodriguez. Maybe even Jose Canseco.

The path of these players to Cooperstown was once as direct as a stroll to first base after an intentional walk. Then lawmakers crashed through their careers with the abandon of a base runner busting up a double way.

Diehard fans, sabermetricians and devotees of Bill James will tell you the careers of these players mirrored or even topped the achievements of Babe Ruth, Stan Musial and Tom Seaver. Bonds could jack a three-run shot into McCovey Cove in San Francisco. Batters shuddered when facing Clemens 98-mph fastball. But all it took was one day in Congress to divert those players from baseball immortality.

Major League Baseball had a problem in the 1990s: Doping.

Still, baseball fans marveled at the home run race between McGwire and Sosa in 1998. Sosa and McGwire battled each other to break the single-season home run record of 61 set by Roger Maris in 1961. Sosa finished the season with 66 home runs. But McGwire surpassed Maris, cracking 70. Imagine hitting 66 home runs and not leading the league.

Bonds then shattered the all-time home run record of 755 set by the late Hank Aaron. Bonds ended his career with 762 home runs. Bonds toppled McGwires home run record in 2001, swatting 73 dingers that year. Clemens captured seven Cy Young Awards. He led the league with the lowest ERA seven times. "The Rocket" struck out 4,672 batters. Palmeiro collected 3,020 hits and slammed 569 home runs.

The only other players with 3,000 hits and 500 home runs? Hank Aaron, Willie Mays, Albert Pujols, Eddie Murray and Alex Rodriguez. Bonds. Clemens. McGwire. Sosa. Palmeiro. Bound for Cooperstown?

After what Congress put them through, theyd be lucky to make it to Utica. Bonds and Clemens didnt capture enough votes to qualify for the Hall of Fame this year. It was their final year of eligibility. McGwire, Sosa and Palmeiro fell off the ballot years ago.

Story continues

DAVID ORTIZ ELECTED INTO BASEBALL HALL OF FAME; BARRY BONDS, ROGER CLEMENS WERE DENIED

The House Oversight Committee convened a hearing March 17, 2005. Among those summoned to testify were Sosa, McGwire and Curt Schilling (another one whos not in the Hall, perhaps for other reasons) and Canseco. Cansecos stat line isnt as impressive as some of the others. But the case can be made that Canseco is a borderline Hall of Famer.

Every network in America carried the hearing live from C-SPAN to ESPN. The panel did not ask Bonds to appear at that hearing.

At the time, Bonds faced scrutiny as part of a federal investigation into the Bay Area Laboratory Cooperative (BALCO). In the eyes of many, the conspicuous absence of Bonds due to the federal inquiry spoke louder than anything said into a microphone at the witness table that day.

McGwire hunched over the witness table that day nearly 17 years ago, disappearing into his chair like a fourth-grader summoned to the principals office.

McGwire repeatedly invoked the Fifth Amendment against self-incrimination, refusing to "talk about the past."

Sosa claimed his English was so poor he couldnt understand the questions. Palmeiro lectured the members.

"I have never used steroids," declared Palmeiro. "Period."

Major League Baseball suspended Palmeiro for his use of performance-enhancing drugs a few months later just after Palmeiro secured his 3,000th career base hit.

Lawmakers berated some of the most storied players in the history of the game that day. Sen. Bernie Sanders, I-Vt., then serving in the House, marveled at the bank of TV cameras in the room. Sanders mused that perhaps lawmakers should haul in famous players when the House conducted hearings on health care or education. Rep. Stephen Lynch, D-Mass., blasted the players, saying he was "disappointed in the testimony."

The hearing shook the publics attention. And, it caught the attention of Major League Baseball.

MLB signed up former Senate Majority Leader George Mitchell, D-Maine, to investigate the use of performance-enhancing drugs. The "Mitchell Report" later accused 89 then-active or former ballplayers of using banned substances.

The report highlighted Clemens as one user. The House Oversight Committee invited Clemens to appear for a closed-door deposition. Later, Clemens requested an open hearing to clear his name. Things only devolved for Clemens from there.

Clemens told lawmakers he didnt use performance-enhancing drugs. But the late Rep. Elijah Cummings, D-Md., wasnt buying it.

"Its hard to believe you sir," Cummings told Clemens.

"Somebody was lying," said former Rep. Tom Davis, R-Va., then the top GOPer on the committee. "(Clemens) was a likable figure in sports. He was beloved. But he got up there and you had two different stories. And so we sent it to Justice."

The committee prepped a perjury referral of Clemens to the Justice Department. The Feds indicted Clemens. The case went to trial. The court finally cleared Clemens. But the die was cast. Clemens has never scored enough votes to reach the Hall of Fame.

BARRY BONDS, ROGER CLEMENS HALL OF FAME CANDIDACY RECEIVES SUPPORT FROM LEGENDARY CATCHER

In addition, Major League Baseball tightened its rules on performance-enhancing drugs. MLBs policy lagged far behind standards for the Olympics, NHL and NBA.

"We could have been a lot tougher on the players," said Davis. "They didnt want to testify against themselves. But they were all on board with changing the game. And thats what we did."

Debates about who deserves a plaque in the Hall of Fame are as heated as arguments over the infield fly rule and the designated hitter. The baseball writers elected former Red Sox star David Ortiz to the Hall this year. It was widely reported that Ortiz was part of a batch of players who tested positive for performance-enhancing drugs in 2003, but before MLB formalized a testing program.

Bonds never tested positive for drugs. So look whos in the Hall. Baseball will soon enshrine Ortiz. Bonds and Clemens remain on the outside looking in. We havent even probed questions about Pete Rose and Shoeless Joe Jackson. Rose and Jackson remain ineligible for Cooperstown for betting and allegedly throwing World Series games. But decisions about whos in or out are about as clear as a hard slider nipping the black of the plate.

Cap Anson won multiple batting titles and is in the Hall. But Anson helped keep the game segregated and refused to play with Blacks. Rogers Hornsby finished with a career average of .358. He feuded with management, gambled and was surly. Ty Cobb is said to have been one of the most repulsive persons to ever step into a batters box. And, dont think for a moment that some of Curt Schillings views dont curtail his chances for induction.

The debate about Bonds, Clemens, Sosa, McGwire and yes, Rose and Jackson are now a part of baseball lore.

And part of that lore evolved on March 17, 2005 the day Congress fired a brushback pitch at the national pastime.

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The congressional hearing that changed baseball - Yahoo News

Invoking The Fifth Amendment In Civil Cases

Although the actual wording of the Fifth Amendment to the U.S. Constitution says a person shall not be compelled in any criminal case to be a witness against himself, the right has been found applicable to civil actions as well. Natural persons in danger of facing criminal charges do not have to testify, answer interrogatories or produce documents about matters potentially incriminating to them.

What if an employer were to browbeat an employee and extract very damning admissions after she was involved in an wreck in the company vehicle? In a related civil action, parties could obtain the investigation made by the employer. The Fifth Amendment privilege would apply neither to the vicious interrogation nor to requests for production directed to the employer.

The Fifth Amendment does not prohibit all incriminating admissions: Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions. United States v. Washington, 431 U.S. 181, 187, 97 S.Ct. 1814, 1818 (1977); see, U.S. v. Kennedy, 122 F.Supp.2d 1195, 1198 (N.D. Okla. 2000) (privilege implicated only if government compels confession).

The Oklahoma Court of Criminal Appeals in Pierce v. State, 1994 OK CR 45, 878 P.2d 369, 375, quoted from U.S. v. Washington and agreed: The Fifth Amendment is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion. Statements coerced by non-governmental entities do not violate the privilege. See, Boyd v. State, 1987 OK CR 211, 743 P.2d 674 (physician on child abuse team); Wright v. State, 2001 OK CR 19, 30 P.3d 1148 (private citizen visiting jail); Stohler v. State, 1988 OK CR 52, 751 P.2d 1087 (news reporters outside courtroom). On the other hand, an interrogation done on behalf of law enforcement is subject to Fifth Amendment considerations. See, Dodd v. State, 2000 OK CR 2, 993 P.2d 778 (jailhouse informant working for government); Blanton v. State, 2007 OK CR 37, 172 P.3d 207 (DHS worker acting as an agent of police).

The Fifth Amendment will not be involved even if a private employer forces a confession. See, Colorado v. Connelly, 479 U.S. 157, 166-170, 107 S.Ct. 515 (1986) ( outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible ; [t]he sole concern of the Fifth Amendment, on which Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966)] was based, is governmental coercion.); U.S. v. Stein, 440 F.Supp.2d 315, 333-334 (S.D.N.Y. 2006) (amendment restricts only governmental conduct, and will constrain a private entity only insofar as its actions are found to be fairly attributable to the government. [S]tate action will be found where the government commands or significantly encourages a private entity to take the specific action alleged to violate the Fifth Amendment, as well as where the government is entwined in the management or control of specific conduct at issue.); see also, Scoggins v. State, 528 S.W.2d 641, 643 (Ark. 1975) (statement made to employers private investigator not protected). The court in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967) pointed out how coercive it can be to be interrogated by an employer when ones job is on the line, but Garrity involved action by a state attorney general, not a private employer.

In civil cases, documents may not be compelled from the person who might be incriminated by their production, but they may be obtained from third parties, including their employers or agents. In Giles v. Doggett, 1972 OK 91, 500 P.2d 574, the court held the Fifth Amendment applies to statements compelled in civil cases from the person who might be subjected to criminal charges. The privilege is personal to the individual who might be incriminated. Rogers v. United States, 340 U.S. 367, 371 (1951); United States v. Nobles, 422 U.S. 225, 233, 95 S.Ct. 2160, 2167 (1975). Therefore, if incriminating documents are in the possession of employees, they, personally, cannot be compelled to produce them not because their answers were compelled in creating the documents, but because they cannot be compelled to divulge incriminating information in response to government action such as a subpoena or court order. See, United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237 (1984).

In Giles, 500 P.2d at 576, financial documents were sought from the person who might have been incriminated for defrauding a company not from a third party. The person was not compelled to produce his own documents. In Rey v. Means, 1978 OK 4, 575 P.2d 116, the appellant had been subpoenaed to produce her own tax returns, divorce papers and other financial information. The court stated, Compulsion exists in the forced production of documents by a motion to produce or a subpoena duces tecum issued to the person claiming the privilege. The compulsion must be upon the claimant, not a third person. If the person claiming the privilege is not compelled to do something himself, his fifth amendment rights are not violated. An agency relationship does not alter this result. Id. at 119.

Therefore, an employer or insurer has no standing to withhold documents that might incriminate its employee or its insured and cannot invoke the Fifth on behalf of an employee. See, Flavorland Industries, Inc. v. United States, 591 F.2d 524 (9th Cir. 1979) (no standing for employer to assert Fifth Amendment rights of employees when depositions of employees and responses to interrogatories in a civil suit were subpoenaed by grand jury). In Hale v. Henkel, 201 U.S. 43, 69-70, 26 S.Ct. 370, 377 (1906), the court said the privilege was never intended to permit (a person) to plead the fact that some third person might be incriminated by his testimony, even though he were the agent of such person.

Even lawyers and accountants cannot invoke or waive the privilege for their clients. See, United States v. Lightly, 677 F.2d 1027 (4th Cir. 1982). In Fisher v. U.S., 425 U.S. 391, 397-399, 96 S.Ct. 1569 (1976) tax returns given by clients to their attorneys in order to obtain legal advice were not protected by the Fifth Amendment (although they might have been protected by attorney-client privilege). In Couch v. United States, 409 U.S. 322, 93 S.Ct. 611 (1973), Fifth Amendment rights of a taxpayer were not violated by the enforcement of a summons directed to her accountant requiring production of the taxpayers records in the accountants possession.

An employee cannot claim the privilege for documents belonging to the employer. In a case in which the Securities & Exchange Commission sought financial records, the court stressed, It is settled that a person inculpated by materials sought by a subpoena issued to a third party cannot seek shelter in the Self-Incrimination Clause of the Fifth Amendment. S.E.C. v. Jerry T. OBrien, Inc., 467 U.S. 735, 742, 104 S.Ct. 2720 (1984).

A corporation does not have a Fifth Amendment privilege against self-incrimination. Braswell v. United States, 487 U.S. 99, 105, 108 S.Ct. 2284 (1988). The Fifth Amendment privilege is limited to its historical function of protecting only the natural individual from compulsory incrimination. Bellis v. United States, 417 U.S. 85, 89-90, 94 S.Ct. 2179, 2184 (1974).

Contents of corporate records are not privileged under the Fifth Amendment. U.S. v. Rinehart, 539 F.Supp.2d 1334 (W.D.Okla. 2008); United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237 (1984); Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). A records custodian may not resist the production of corporate records even if those records would tend to incriminate the custodian. Braswell, 487 U.S. at 108-109.

As forcefully summed up in Thomas v. Tyler, 841 F.Supp. 1119, 1124 (D.Kan. 1993) (f.n.2): [T]he Braswell case makes clear that there is absolutely, positively no circumstance in which corporate records or the act of producing corporate records, by the corporation or any person connected therewith, falls within the scope of the Fifth Amendment privilege against self-incrimination. Furthermore, an individual may not invoke the Fifth Amendment privilege to avoid producing the documents of a corporation or other collective entity that are in his custody, even if his act of producing those documents might be personally incriminating. Id. at 1128.

In Oklahoma, a person must specifically invoke the Fifth Amendment in civil cases. See, Matter of C.C., 1995 OK CIV APP 127, 907 P.2d 241, 243: In civil cases, the privilege against self-incrimination is not infringed upon by merely being called as a witness and compelled to take the oath. See Oklahoma Dept. of Public Safety v. Robinson, 512 P.2d 128, 133 (Okla.1973). In this regard, the Robinson court stated, The privilege cannot be invoked to excuse the witness from appearing and taking the stand. The privilege of a witness not to incriminate himself is an option of refusal and not a prohibition of inquiry. [T]he privilege against being involuntarily called to the stand as a witness against oneself applies only in criminal cases.

The Evidence Code, 12 O.S. 2513, prohibits comment upon or drawing inferences from a claim of privilege. The 1993 Evidence Code Committee noted 2513 and other Oklahoma evidence rules do not embrace the privilege against self-incrimination but the principle is applicable. No cases have been found holding that an unfavorable inference may be drawn from the failure of a person claiming a privilege to testify.

However, in 1995 in Matter of C.C., the court did not apply the principle of 2513: [T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment does not preclude the inference where the privilege is claimed by a party to a civil case. Moreover, [f]ailure of a party who is present at the trial to answer questions based on the privilege against self-incrimination raises a strong inference that the answers would have been unfavorable and damaging to him, and comment to that effect is proper. Id. at 244.Practical considerations

A civil case may proceed even if a party may be subject to criminal prosecution. Evidence cannot be coerced from that party, but can be discovered and placed in evidence when it comes from another source. The question will be whether evidence from third-party sources will be sufficient to prove or defend a claim.

Lynn Brusin Mares

More here:
Invoking The Fifth Amendment In Civil Cases | Abel Law Firm

Wednesday, January 19, 2022

On Jan. 14, the Supreme Court agreed to hear five cases, which present the following questions:

Does the First Amendment permit a school to bar a coach from praying on the field after games?

Can a plaintiff bring a Section 1983 damages claim based on a police officers failure to provide aMirandawarning when the interrogation results in self-incriminating statements used against the suspect at trial?

When a veterans benefits claim is denied based on a regulation later deemed invalid as contrary to the statutes plain meaning, is the denial based on a clear and unmistakable error such that the veteran can challenge the otherwise-final denial?

When, if ever, should a death-row inmates as-applied method-of-execution challenge be raised via a habeas petition rather than via a Section 1983 claim, and if it should be raised in habeas is such a challenge subject to the bar on successive habeas petitions?

May federal habeas courts use the All Writs Act to order the transportation of state prisoners for reasons other than testifying or for trial, and may such courts allow habeas petitioners to develop new evidence without first determining whether such evidence would be admissible?

After granting three cert. petitions and relisting several more following its first conference of 2022, this week the U.S. Supreme Court filled out this years docket by granting cert. petitions in five additional cases.

The Court agreed to hear cases involving: 1) the application of the First Amendment to public school coaches postgame prayers, 2) the availability of Section 1983 claims based on police officers failure to provideMirandawarnings, 3) the ability of veterans to challenge otherwise-final benefit denials on the grounds the denials violated plain statutory meaning, 4) the procedural rules that apply to death-row prisoners method-of-execution challenges, and 5) the limits on federal courts authority to issue orders allowing state prisoners to develop evidence for their claims for habeas relief.

The First Amendment case drew 10 cert-stage amicus briefs and will undoubtedly receive the most public attention of this batch of cases. All five cases received some cert-stage amicus attention and likely will find interested audiences especially among governments, civil-rights litigators, veterans-advocacy groups, and criminal-law and habeas practitioners.

InKennedy v. Bremerton School District, the Court will address a football coachs claim that his public school employer violated his First Amendment rights when it terminated him for kneeling at midfield to say brief prayers at the end of football games. This case has made its way up to the Court once before three years ago, when the coach sought review of the lower courts denial of his preliminary-injunction motion. At that time, four justices wrote separately to indicate that while they found the lower courts reasoning troubling, the ongoing factual dispute over the schools precise reason for terminating the coach weighed against the Courts hearing the case.

The Washington district court and the U.S. Court of Appeals for the Ninth Circuit have resolved the factual dispute in question, concluding that the schools sole reason for its decision was its belief that the prayers presented a risk of liability under the Establishment Clause. And the Supreme Court has now agreed to take the case.

The schools Establishment Clause rationale could lead the Court to use this case to give public schools additional clarity on how the Establishment Clause and Free Exercise Clause interact in the educational context (its recent decision inEspinoza v. Montana Department of Revenueaddressed this issue, as will its upcoming decision inCarson v. Makinlater this term). Yet this case also raises an important Free Speech Clause question, and the Court could use it as an opportunity to clarify the private-speech/official-speech distinction it drew inGarcetti v. Ceballos, where it upheld governmental regulation of public employee speech made pursuant to official responsibilities an issue of interest to all public employers.

In any event,Kennedyis a case to watch for public schools and public employers more broadly.

Another set of public employers police departments will be watchingVega v. Tekoh, where the Court will consider whether a police officers failure to give a suspect a Miranda warning can itself give rise to a Section 1983 claim if the un-Mirandizedstatements are later used against the suspect in a criminal trial. InMiranda v. Arizona, the Court applied the Fifth Amendment to hold that a self-incriminating statement made by a criminal defendant while he was in custody cannot be admitted as evidence against that defendant unless the defendant first received the You have the right warnings specified inMiranda. The question inVegais whetherMirandasexclusionary rule constitutes a constitutional right the violation of which gives rises to a damages claim under Section 1983 (which authorizes a cause of action for deprivation of any rights . . . secured by the Constitution).

To answer this question, the Court will need to address a tension in its Fifth Amendment precedents. On the one hand, the Court has repeatedly characterizedMirandasexclusionary rule as a prophylactic measure that goes beyond what the Fifth Amendment requires. Yet, inDickerson v. United States, the Court held that the Fifth Amendment barred a federal statute that purported to override the evidentiary ruleMirandaestablishes.

Accordingly,Vegawill give the Court a chance to clarify the foundation and limits of theMirandarule, as well as an opportunity to address the contours of Section 1983 claims more generally. Given how common police interrogations and Section 1983 claims are, this case will be of interest to police departments and civil-rights lawyers around the country.

InGeorge v. McDonough, the Court agreed to decide a question that affects many veterans of Americas armed forces: Can a veteran challenge the otherwise-final denial of a benefits claim if the denial is based on a regulation later deemed invalid as contrary to the governing statutes plain meaning? This question arises from a provision of federal law that permits a veteran to challenge a decision denying a claim for benefits at any time after that decision is made even long after the ordinary appellate process has been exhausted so long as the veteran can show that the decision was based on clear and unmistakable error. InGeorge, the Court will decide whether it is a clear and unmistakable error to rely on a then-applicable regulation that a federal court later determines violated the clear meaning of the governing statute.

The veteran argues that such reliance is such an error because when a federal court interprets an unambiguous statute, it is declaring what the law has always meant, not announcing a change in meaning. The federal government, meanwhile, argues that the clear and unmistakable standard is met only when the agencys original decision is inconsistent with the prevailing view of the law at the time, and insists it is irrelevant whether that prevailing view is later held to have been incorrect (on the theory that decisions invalidating agency regulations change the law).

The parties arguments will give the Court occasion to address the difficult and recurring distinction between decisions changing the law and decisions proclaiming what the law has always been. Accordingly, whileGeorgehas obvious importance for the veterans-benefits system, it may turn out to be significant for the law more broadly as well.

The Court will address the applicable procedures for Eighth Amendment challenges to execution protocols inNance v. Ward. In this case, it will decide when, if ever, an as-applied method-of-execution challenge should be raised via a habeas petition rather than via a Section 1983 claim and if it should be raised in habeas whether such a challenge is subject to the bar on successive habeas petitions. Previously, inBaze v. ReesandGlossip v. Gross, the Court held that a death-row prisoner seeking to challenge a method of execution under the Eighth Amendment must allege a feasible alternative method.

InNance, the petitioner, a Georgia death-row prisoner, filed a Section 1983 suit that alleged that lethal injection (Georgias sole statutorily authorized method of execution) would be unconstitutionally painful for him, and he identified firing squad as an alternative method. The U.S. Court of Appeals for the Eleventh Circuit held that this challenge should have been brought as a habeas petition, not as a Section 1983 claim, reasoning that because the proposed alternative method of execution was not permissible under current law, the suit necessarily sought relief that can be obtained only in habeas an injunction that would imply the invalidity of the prisoners death sentence. And it further held that if a prisoner has already filed one habeas petition, any subsequent petition raising a method-of-execution challenge would be subject to federal laws stringent requirements for successive habeas petitions.

The Supreme Court has now agreed to review the Eleventh Circuits two holdings, and its decision will have obvious importance for death row prisoners, as it will clarify how method-of-execution challenges should be brought and may have significant effects on the practical availability of such challenges.Nancecould have significance beyond the context of capital punishment as well, for the Court could go some way toward clarifying the often-hazy distinction between relief that can be obtained in Section 1983 suits and relief that can only be sought via habeas petitions and that is a distinction that affects countless criminal defendants and incarcerated persons, not just death-row prisoners.

The Courts consideration of habeas procedures continues withShoop v. Twyford, a case involving state prisoners requests for court orders to assist them in developing evidence for use in their federal habeas proceedings. InShoop, the U.S. Court of Appeals for the Sixth Circuit approved an order requiring Ohio to transport a death-row prisoner to a hospital for a brain scan that the prisoner argues will produce evidence relevant to his habeas case.

Ohio contends this order suffers from two independent problems and therefore raises two separate questions. First, Ohio notes that the federal habeas statute allows federal courts to order the transportation of a state prisoner only if necessary to bring him into court to testify or for trial, and it argues that the catch-all All Writs Act does not expand federal courts authority to include ordering transportation for the sake of developing evidence. Second, Ohio argues that federal law authorizes an order allowing a habeas petitioner to develop evidence for his case only when the sought-after evidence would be admissible in the habeas proceeding; it is not enough, Ohio maintains, that the evidence in question plausibly relates to the petitioners claims.

The Supreme Court has agreed to address both of these questions, and while the Courts answers will be of greatest importance to habeas practitioners, its discussion of the All Writs Act should draw broader attention. Since the All Writs Act is used in a variety of contexts, criminal and civil litigators will do well to consider what the Court says on this score.

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SCOTUS: School Prayer, Section 1983, Veterans Benefits, And Habeas Corpus - The National Law Review

Pleading the fifth in real life is not as funny as Dave Chappelles skit on pleading the fifth, however, it may be necessary to protect yourself from self-incrimination. The Fifth Amendment of the United States Constitution guarantees that no person in a criminal case can be compelled to be a witness against themselves. An experienced criminal defense attorney at Moses & Rooth can help you determine if pleading the fifth is the right option for you when testifying.

In Malloy v. Hogan, the U.S. Supreme Court ruled a defendant has the right to plead the fifth in State criminal cases, as well as, Federal criminal cases. As a criminal defendant you can choose not to take the stand in order to protect yourself from self-incrimination, however, once you have chosen to do so you have waived your right to testify. Criminal defendants cannot choose to answer some questions and not others. Its an all or none scenario in criminal cases.

In Griffin v. California, the U.S. Supreme Court ruled that a jury may not infer that a defendant is guilty because the defendant pled the fifth and refused to testify. The U.S. Supreme Court later strengthened this ruling in Ohio v. Reiner.

Defendants in a civil trial may also plead the fifth, but not without risk. A jury in a civil trial, unlike a criminal trial, may make assumptions if a defendant chooses not to testify.

A witness, like a defendant, may assert their Fifth Amendment right to prevent self- incrimination. A witness may refuse to answer a question if they fear their testimony will incriminate them. The criminal activity that the witness fears does not have to pertain to the case at hand. If a witness chooses to plead the fifth, unlike criminal defendants, this does not allow them to avoid testifying altogether. Witnesses subpoenaed to testify must testify, but can plead the fifth for questions that they deem are self-incriminating. Prosecutors may offer witnesses immunity in exchange for their testimony. Witnesses with immunity will not be charged for any incriminating statements made while testifying. When immunity is not on the table there is another option. Prosecutors may offer to reduce the charges if the witness agrees to testify.

Defendants cannot assert their Fifth Amendment right to protect themselves from self-incrimination against evidence the Court deems to be non-communicative. A defendant cannot plead the fifth when objecting to the collection of DNA, fingerprint, or encrypted digital evidence. In Commonwealth v. Gelfgatt, the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation filed an amicus brief in support of a defendant whose right to protect himself from self-incrimination was being threatened by an order to decrypt his computer, however, the Court ruled it was not a violation of the defendants rights.

Before testifying as a criminal defendant or witness let the criminal defense lawyers of Moses & Rooth in central Florida advise you on your options of pleading the fifth and protecting yourself against self-incrimination. Our lawyers have a depth of knowledge because we only handle criminal defense cases. If you fear testifying will lead to criminal charges contact us today for information on how to protect yourself.

https://www.mosesandrooth.com/self-incrimination-defense-may-block-forced-decryption/https://www.mosesandrooth.com/supreme-court-limits-power-miranda-related-silence/

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What Happens if I Plead the Fifth Amendment? | Moses & Rooth

1. Eric Trump Invoked Fifth Amendment About 500 Times, N.Y. AG Says  Bloomberg
2. Eric Trump invoked the Fifth Amendment 500 times, NY AG says  syracuse.com
3. Eric Trump spent six hours pleading the Fifth Amendment more than 500 times  Salon
4. Eric Trump, Weisselberg Invoked 5th Amendment Rights More Than 500 Times  Business Insider
5. Analysis | 4 big points from the N.Y. attorney general's Trump allegations  The Washington Post
6. View Full Coverage on Google News

Excerpt from:
Eric Trump Invoked Fifth Amendment About 500 Times, N.Y. AG Says - Bloomberg

The police can legally steal your car. Did you know that? Im not saying they would, but they could. They would not call it stealing. Under Hawaii state law, Civil Asset Forfeiture allows law enforcement to take your property almost at will. All they have to do is claim the property, car, boat, house, gun or cash had something to do with an illegal activity. Proof is not needed, just suspicion. There is a judicial review process, but its one-sided, as easy as getting a search warrant. If you have more cash on you than they approve, they can suspect and conclude it was for an illegal drug deal. Civil Asset Forfeiture turns the Fifth Amendment: No person shall be deprived of life, liberty, or property, without due process of law. On its head.

The police can legally steal your car. Did you know that? Im not saying they would, but they could. They would not call it stealing. Under Hawaii state law, Civil Asset Forfeiture allows law enforcement to take your property almost at will. All they have to do is claim the property, car, boat, house, gun or cash had something to do with an illegal activity. Proof is not needed, just suspicion. There is a judicial review process, but its one-sided, as easy as getting a search warrant. If you have more cash on you than they approve, they can suspect and conclude it was for an illegal drug deal. Civil Asset Forfeiture turns the Fifth Amendment: No person shall be deprived of life, liberty, or property, without due process of law. On its head.

In San Diego, once the DEA found a small quantity of marijuana in the duffel bag of a student research assistant on a Scrips institute ship. They tried to confiscate the entire multi-million-dollar ship. Since the ship belonged to the University of California, the U.S. Attorney decided to drop the claim. What would DEA do with a 94-foot deep-ocean research ship anyway?

The breakthrough case involved a young man enroute from his home state to enroll in college in California. His dad gave him cash to secure an apartment. Local police in New Mexico stopped him for some minor traffic infraction, searched the car, discovered cash and concluded without any other evidence that the cash was intended to buy drugs. Dogs I hear will detect cocaine on 80% of $100 bills. Police took the car and the cash, then told him to go away, were keeping the car and cash, too bad. He went through the complex legal process to recover the assets. He had to sue in civil court. In some states the car would have to sue the police. He eventually won. New Mexico changed the law, the first state to do so. So far three states have ended Civil Asset Forfeiture. Hawaii is not one of them. Many have due process procedure that is more just. Hawaii is rated as one of the worst. Federal officers can still use Civil Asset Forfeiture, and sometimes split the take with local law enforcement. They especially like to confiscate sports cars, helicopters and fast boats along with cash. There have been tales of police chiefs enjoying cars they could not possibly afford.

Imagine you give a friend a ride. He has his prescription Oxycontin in an unlabeled container. When he gets out, he accidentally leaves the container in your car. The police stop you on some pretense and notice the container in plain sight. They can claim three felonies. Possession of a narcotic. Possession of a narcotic for sale. Having a narcotic in the wrong container. None of those charges would stand up in court, but they could easily confiscate the car. You on the other hand are stuck with huge legal expenses and no car.

Two years ago, the state Legislature, both houses, voted unanimously to restrict Civil Asset Forfeiture. Gov. David Ige vetoed the legislation at the last day of his first term, after the Legislature had recessed. The Legislature did not reconvene to overturn the veto. The 2021 session did not even bring it up. So much for government-for-the-people. This is a good time to point out there have been many corruption scandals involving Honolulu police and prosecutors. The state Legislature sometimes seems to operate as if Honolulu County and Hawaii State were one and the same.

Civil Asset Forfeiture started as a measure to deal with problems on the high seas, like piracy and smuggling where there was no real jurisdiction. Its use inland is just one of the many bizarre side effects of the war-on-drugs. Like the labor shortage aggravated by rejecting anyone who tests positive for having used marijuana in the past, even if there is no sign of impairment.

Ken Obenski is a forensic engineer, now safety and freedom advocate in South Kona. He writes a biweekly column for West Hawaii Today. Send feedback to obenskik@gmail.com

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As I See It: So much for government-for-the-people - West Hawaii Today

A TOP lawyer for victims of Jeffrey Epstein has slammed Prince Andrew for betraying Queen and country by associating with the late pedo financier.

Los Angeles-based Gloria Allred said of the Duke of Yorks relationship with Epstein: If you get down in the mud with pigs you are going to get mud on you.

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And she explained that Andrew, 61, could plead the Fifth Amendment and not answer questions when he is deposed in the civil lawsuit brought by his accuser Virginia Giuffre.

The veteran attorney - who has worked with 20 Epstein victims - also gave a scathing view of Andrews defence.

In comments to The Sun she said: There are so many unanswered questions.

To attend residencies and obviously see so many underage girls there - it is not just Virginia, there were others.

I represented 20 accusers of Epstein - a number of who were underage.

This is not the life that a member of the Royal Family should be choosing if they care about their duties to the country.

If you get down in the mud with pigs you are going to get mud on you.

This was always going to end badly. The benefit was never worth the risk.

He had a duty to think about others. He betrayed his duties and honours bestowed on him, and the Queen and the country.

It is a unique situation for a member of Royal Family.

There is only continued downside - anything and everything will be covered so it means continuing damage to the Royals and the Queen.

I am not passing judgment on whether he was guilty, but clearly the contact that we know of with Jeffrey Epstein, even after he was convicted of being a sexual predator, is very bad choices.

At best they are bad choices at worst they are something more than that.

The civil case against Andrew is going ahead after New York judge Lewis Kaplan rejected the royals attempt to get it tossed on a technicality.

Following the decision, Andrew was stripped of his military titles and the honorific His Royal Highness by the Queen.

The Duke of York is expected to be deposed by Ms. Giuffres star lawyer David Boies next month.

He has vehemently denied her claim that she was forced to have sex with him under Epsteins orders in London, New York and on the pedophiles private island in the Caribbean when she was 17.

Giving her view of Andrews car crash interview with the BBC in November 2019, Ms. Allred said: He gave the Newsnight interview where he gave the I don't sweat and went to a pizza parlour with my family defence.

Now that he said that, he has going to have to defend it, explain and provide evidence.

The Newsnight interview was not under oath. It is a different ball game now.

Ms. Allred also explained that Andrew could evoke the Fifth Amendment to any questions posed to him on camera when he is deposed by Ms. Giuffres lawyers.

It allows those involved in a criminal or civil trial to refuse to answer questions to avoid incriminating themselves.

Ms Allred said: What is especially interesting about the deposition will be if he decides to evoke the fifth amendment privilege against self incrimination.

That will be one of the issues - if he can or should invoke it.

Asked if Andrew should defend himself Allred said: I think he should sit for it. But does he have to answer the questions? No.

I am not going with a guilt by association. But in Jeffrey Epsteins depositions he answered the questions by pleading the Fifth Amendment, but he appeared in person.

So the Prince needs to appear, but as to which questions he needs to answer I am sure his attorneys will advise him.

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Andrew slammed for betraying Queen & country by getting in the mud with pig Epstein, lawyer for paedos... - The US Sun

"Pages of history" features excerpts from The News Journal archives including the Wilmington Morning News, The Morning News, the Every Evening and the Evening Journal.

President denies havingaffair with intern

President Clinton, firmly denying all accusations, sought Thursday to calm the firestorm over allegations he had an affair with a White House intern and then urged her to lie about it.

His friend Vernon Jordan acknowledged trying to find the young woman a job and taking her to see a lawyer when she came under scrutiny.

The former intern, Monica Lewinsky, meanwhile, received an indefinite reprieve in having to decide whether to stand by her earlier assertion in an affidavit that she did not have an affair with Clinton, take the Fifth Amendment or change her story.

A federal judge in Little Rock, Arkansas postponed a deposition scheduled for today for Lewinsky, 24, to testify in Paula Jones sexual harassment lawsuit against Clinton. Lewinsky remained secluded, telling CBS News by phone that she had no comment.

With Yasser Arafat at his side in a surreal moment of White House diplomacy, Clinton made his firmest denial yet to Lewinskys claims in taped conversations with a friend, Linda Tripp, that Lewinsky had an affair with Clinton and that he and Jordan asked her to deny it to Jones attorneys….

Unabomber will get life in prison

In a deal that averted the spectacle of the government pushing to execute a mentally ill man, Theodore Kaczynski pleaded guilty to being the Unabomber on Thursday in return for a sentence of life in prison without parole.

Kaczynski sat unflinching as a prosecutor recited in detail the horror of his 17-year reign of terror bombs that killed three men and injured 29, including one who had his arm blown off….

The 55-year old mathematics professor-turned-hermit entered the last-minute plea on the day a jury was to be sworn in an opening statements were to begin. The agreement avoids the possibility of his execution. Had Kaczynski been convicted, he could have faced death by injection….

CATCH UP ON HISTORY: News Journal archives, week of Dec. 5

Cost of electricity likely to jump 40 percent

Delmarva Power customers could see their electric bills jump more than 40 percent this year after price caps are lifted in May, the companys president said Tuesday.

Last year, Delmarva President Gary Stockbridge warned consumer groups and businesses that when price caps end in the final phase of deregulation, electricity rates could rise between 30 and 40 percent. Tuesday, Stockbridge said recent changes in the market for wholesale electricity made him increase his estimate…

Delmarva officials say the potential increase is the result of rate caps that have been in place since 1999 amid steadily rising prices for the major fuels that are burned to generate electricity: coal, natural gas and oil. The company has had only modest price adjustments since the rate caps went into place, while the cost of generating electricity has skyrocketed….

Strawbridges sets sell-off as store prepares to close

These days are full of bittersweet thoughts for employees like 17-year sales associate Joyce Miller and thousands of Delaware shoppers. By fall, the Strawbridge & Clothier department store name that stoodin Delaware for 56 years will be gone, swallowed up in a corporate merger with Federated Department Stores Inc.

At Strawbridges Concord Mall and Dover Mall stores, the merger will mean a name change to Macys, one of Federateds flagships.

At Christiana Mall, which already has a Macys, it means more of an end. Starting Sunday, all Strawbridges merchandise will be liquidated in a weeks-long sale….

MORE BUSINESS DEPARTURES: Lewes restaurant closing ends 'crab bomb,' Glasgow cafe and Peruvian eatery call it quits

Space shuttle Challenger explodes

A catastrophic explosion blew apart the space shuttle Challenger shortly after liftoff Tuesday, sending schoolteacher Christa McAuliffe and six NASA astronauts to a fiery death in the sky eight miles out from Kennedy Space Center in Cape Canaveral, Florida.

We mourn seven heroes, said President Ronald Reagan.

The accident defied quick explanation, though a slow-motion replay seemed to show an initial explosion in one of two peel-away rocket boosters igniting the shuttles huge external fuel tank. The tank burst into a fireball that destroyed Challenger high above the Atlantic while crew families and NASA officials watched in despair from the Cape….

In Delaware, though few students actually saw the heart-stopping explosion when it happened, the event will likely leave a permanent mark on their lives. The tragedy was particularly wrenching because of the drumbeat of publicity that had been given to McAuliffe and her scheduled lessons from space. Students in Delaware and around the country were planning to attend classes she was to begin teaching from space on Friday….

Reach reporter Ben Mace at rmace@gannett.com.

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Pages of history: From The News Journal archives, week of Jan. 23 - The News Journal

The quote from Kathy Schocks letter to the editor somehow got twisted to where I called her and her friends liars.

If the entire sentence from where she took the quote was read, I did not call her and her friends liars.

I asked the question if they believed that all government employees are liars.

There is no other time to be alive than in 2022.

Eighty-five million people want a leader for truth, freedom and justice.

This will be a better year then 2016.

The swamp dwellers and China bed sleepers are going down.

No more hug the thug, no bail or no jail B.S.

There is no peace, saith my God, to the wicked. Isaiah 57:21.

God bless this great country and lets protect law and border.

In his State of the State speech, Gov. Brad Little highlighted the important issues impacting our state and his plans for the coming year.

Once again, he failed to mention the plight of Idahos salmon and his plans to save them.

In April 2019, he formed the Governors Salmon Work Group and instructed them to find ways to save our fish.

Since he received their report in December 2020, a year has passed with no action from his office.

In October 2020, the four-state Columbia Basin Collaborative was formed to solve the salmon problem. As of this date, no clearly defined mission has been established for this group and its next meeting remains to be scheduled.

The two Idaho agencies directed by law to look out for our fish and wildlife, the Idaho Fish and Game Commission and the Governors Office of Species Conservation, remain mute.

Both the federal court and the governors of Washington and Oregon are working toward a July 31 deadline to come up with solutions for the survival of the fish.

It is well past time for Gov. Little to join with Rep. Mike Simpson and actually do something for our fish before they are gone.

The jury trial of Kyle Rittenhouse was used as a political weapon against self-defense and, thus, as a way to destroy the criminal justice system in America.

No white teenager is allowed to interfere with Democratic mob justice; so just send Rittenhouse to prison for the rest of his life.

The Associated Press and social media lied about almost every little detail of the Rittenhouse case. You should just assume that everything they publish is a lie.

Even after a jury acquitted Rittenhouse, Twitter continued to suspend accounts of users who declared him innocent.

Likewise, the House Jan. 6 committee is being used by woke Democrats to bulldoze the criminal justice system in America.

Jan. 6 committee Chairman Bennie Thompson said: If an indicted man dared to use the Fifth Amendment to the Constitution, the right not to incriminate himself, then he is guilty of a crime. Woke Democrats make their own laws; the Constitution be damned.

The committee sent federal agents to raid the home of Paul and Marilyn Hueper and seized their belongings, with no evidence they had done anything wrong or were even at the Capitol on Jan. 6.

The Democratic-dominated committee is crushing First Amendment rights to engage in political speech and discussion.

The purpose of the Jan. 6 committee is to criminalize political dissent and personal opinion.

The Chinese Communist Party, the woke Democratic Party and corporate media can all fabricate evidence, force confessions and prosecute any charge they want while completely ignoring the facts.

Excerpt from:
Jan. 23 Letters to the Editor, Part 2: Our Readers' Opinions - Lewiston Morning Tribune