Category Archives: Fifth Amendment

A former top Trump administration defense aide was among four witnesses to appear Thursday before the House select committee investigating the January 6 attack on the U.S. Capitol.

Kash Patel, the chief of staff to Christopher Miller, who was the acting Defense secretary when the Capitol assault took place, met with the committee behind closed doors for around four and a half hours. CBS News was first to spot Patel and his team as they arrived on the Hill and were greeted by a committee staffer. Though Patel did not respond to reporters' questions, he later issued a statement saying he had answered the panel's inquiries to the best of his ability.

"I have always been willing and able to share with the Committee, and the American people, the truth about the events of January 6including the Department of Defense's preparation for and response to unrest at the Capitol," the statement read, later adding: "The DOD Inspector General, under the Biden Administration, found no wrongdoing in its report on Jan. 6, as I shared with the Committee."

Patel is considered a major figure in the House select committee investigation, which is examining how the federal government including the Defense Department and the White House prepared for and responded to the events of January 6. The former aide to Republican congressman Devin Nunes was among the first set of witnesses to be subpoenaed by the committee in September.

On Thursday, the panel also questioned Stop the Steal organizer Ali Alexander for up to eight hours. The rightwing activist sought to persuade the committee he had "nothing to do with the violence or lawbreaking that happened on January 6," according to prepared remarks obtained by CBS News.

He told reporters as he arrived at the committee's offices that he would provide "thousands of records" to the committee, including evidence that would "exonerate" him and former President Donald Trump.

The committee also met with conservative law professor John Eastman and former Cybersecurity and Infrastructure Security Agency Director Christopher Krebs, a source familiar confirmed to CBS News.

Politico first reported Eastman's appearance. The select committee subpoenaed him for records and testimony in November, and its interest in him stemmed from post-election memos Eastman is said to have written that proposed ways former Vice President Mike Pence could overturn the 2020 presidential results on January 6 and throw the election to Trump.

It's unclear how much information Eastman gave to the committee on Thursday. On podcasts earlier this month, Eastman slammed the panel and vowed to assert his Fifth Amendment right against self-incrimination.

Meanwhile, Krebs is not among the 45 witnesses who have publicly received subpoenas from the committee. The former cybersecurity official was fired by the Trump administration last November after his agency issued a statement declaring the 2020 presidential election was secure. CNN first reported his appearance before the committee.

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Former top defense aide Kash Patel, three other witnesses appear before January 6 select committee - CBS News

When someone invokes the Fifth Amendment in American law, they refuse to answer a question if they believe it will reveal that they are guilty of a crime. The Fifth Amendment is also referred to as being invoked, pleaded, or claimed. The Fifth Amendment to the United States Constitution stipulates that no one can be forced to divulge damaging information about herself by the government the so-called right to be silent. When a person takes the Fifth, she exercises her right to remain silent and refuses to answer questions or offer information that could lead to her being indicted. The Fifth Amendment can only be used in specific circumstances.

Cop dramas and crime shows have made most people aware of the term I plead the fifth, but few actually know what the phrase refers to. It comes from the Fifth Amendment of the Constitution, which outlines several laws regarding due process and how an individual should be charged with a crime. When someone declares they are pleading the fifth, they are specifically referring to how the Constitution states that no individual shall be compelled in any criminal case to be a witness against himself. For many, pleading the fifth is shorthand for refusing to answer a question, however it is significantly more complex than that. Pleading the fifth only applies to specific scenarios and has its own benefits and costs to defendants.

A person can only use the Fifth Amendment in response to a legally compelled communication, such as a subpoena or other legal procedure.It is also necessary for the communication to be testimonial in nature. In other words, it must be related to factual assertions, either explicitly or implicitly.

I plead the fifth often follows a question that could lead to an individual incriminating themselves in a crime. Based on the fifth amendment, this is referred to as the right against self-incrimination and protects you from accidently confessing to a crime. However, while it is a constitutional right, that does not mean it is universal.

The language of the fifth amendment is very specific and only allows an individual to refuse to testify against themselves during a criminal trial and when they are on the witness stand. While its concept may overlap with your Miranda Right to remain silent when in police custody, it does not apply to police investigations and interrogations. In addition, like Miranda Rights, it is not automatic. You must expressly state that you are pleading the fifth for the court to uphold your right.

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What exactly does it mean to defend the Fifth Amendment? - BollyInside

The article written by Mark Shenefelt published Nov. 18, 2021, in the Standard Examiner targeted hangar owners. Quoting the article, hangar owners are drastic and radical. Is it radical to defend our fifth amendment rights (private property should not be taken for public use without just compensation)?

The city alleges the Ogden Regional Airport Assoc. is attempting to manage federal and statutory requirements. The City wants to follow these rules only as they benefit The City. Other federal regulations are customized by The City management.

The financial situation is highly debatable. Is The City a tourist destination? What are commercial airlines costing The City? For example, security, safety, improvements to the terminal, runways, and taxiways are costing millions. What is the payback to the people of Ogden?

The airport is landlocked. The only place for development is on the West Side. There can be development on East Side if drastic and radical measures are taken, once again denying owners Fifth Amendment rights. Who is being drastic and radical?

Ex-airport managers and advisory boards went against The City on this matter. They are no longer in their positions. Their expertise and advice are now worthless. Are people who disagree with The City drastic and radical? City policy is to eliminate the challengers.

The citys drastic and radical changes have never been fully disclosed to hangar owners. Why is The City supporting these drastic and radical changes in a draft not approved by any city officials and not authorized for public release (Standard)?

Documents prove The City wants to take over privately owned businesses at the airport. This is a violation of constitutional rights. Who is drastic and radical? What expertise does The City have in service and maintenance of aircraft? The City plans to become the sole FBO (Fixed Base Operator) supplier of aviation fuel and maintenance. Is this a drastic and radical monopoly? Fuel service is now provided by three FBOs. Is the objective of the airport management to eliminate small businesses?

Readers need to hear the whole story. The Standard Examiner article printed only one side!

Kelly Crozier

Roy

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Letter: Ogden City, airport officials the ones being 'drastic and radical' - Standard-Examiner

In brief

On 18 November 2021, the European Commission ("Commission") further prolonged the Temporary Framework for COVID-19 State aid ("Temporary Framework") until 30 June 2022. This 6th Amendment has also added investment support measures and solvency support measures to support economic recovery and increase certain aid ceilings.

Background: In March 2020, the European Commission adopted the Temporary Framework to support the economy in the context of the COVID-19 outbreak, which allows EU Member States to have State aid approved quickly by the Commission. It has since been amended six times: First, increasing possibilities for public support to research, test and produce products relevant to fight the COVID-19 outbreak. Second, to enable recapitalization and subordinated debt measures; and third, to further support micro, small and start-up companies and to incentivize private investments. A fourth amendment extended the coverage of the Temporary Framework again and prolonged its application into 2021. The fifth amendment prolonged the application of the Temporary Framework to the end of 2021, increased aid amounts that the Commission would approve and allowed for the conversion of limited amounts of repayable Temporary Framework aid to grants.

Key takeaways

The 6th Amendment prolongs the application of the Temporary Framework until 30 June 2022. In addition, it adds two new categories of support measures for which EU Member States can obtain quick Commission State aid approval:

In more detail

Prolongation

The Temporary Framework, which was set to expire on 31 December 2021, has now been prolonged until 30 June 2022 (except as noted otherwise). It remains subject to further extension if necessary.

Executive Vice President Margrethe Vestager noted that "[t]he limited prolongation gives the opportunity for a progressive and coordinated phase-out of crisis measures, without creating cliff-edge effects, and reflects the projected strong recovery of the European economy overall."

Two new categories of support measures

The 6th Amendment includes two new categories of support measures that EU Member States may adopt to help companies recover:

These investment support measures can be granted by Member States until 31 December 2022.

Provided appropriate justifications are made by the Member State, the Commission may accept alternative selection and remuneration methods, higher aid amounts per company, or extend the application to investments to larger companies.

Aid under these solvency schemes can be granted until 31 December 2023.

Other notable amendments

In addition to the prolongation of the Temporary Framework and the two new categories of State aid measures added, the 6th Amendment:

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European Union: COVID-19 State aid update - State aid Temporary Framework prolonged and additional aid for recovery possible (6th Amendment) -...

In a strong signal that Theranos founder Elizabeth Holmes will seek to blame her co-accused and ex-lover Sunny Balwani for alleged fraud at her failed startup Theranos, the defense team has asked the judge in her trial to let them put statements previously made by Balwani before the jury.

In a motion filed this week, Holmes attorneys said that they had sought to call Balwani the former Theranos president who she has alleged in court filings coerced, controlled and abused her in ways that affect the issue of guilt to testify at her trial, but his lawyer said that if called, he would invoke the Fifth Amendment, refusing to testify to protect against self-incrimination. A lawyer for Balwani did not immediately respond to a request for comment.

In lieu of Balwanis testimony, Holmes lawyers are seeking to introduce three depositions Balwani gave to the U.S. Securities and Exchange Commission, which the motion claims will illustrate details about Balwanis management of certain aspects of Theranos operations, including laboratory oversight and relationships with drugstore chain Walgreens and grocery chain Safeway, as well as Theranos financial model.

The motion is the clearest indication yet that Holmes legal team plans to pursue a line of defense outlined in court documents before the trial: That she was in an abusive intimate-partner relationship with Balwani, in which he exercised psychological and emotional control over her. Though Holmes has taken the witness stand for three days of testimony in her own defense, prosecutors have yet to bring up her relationship with the former Theranos president.

The pre-trial court documents claimed that the pattern of abuse and coercive control continued during the period of the charged conspiracies and referred to alleged sexual abuse by Balwani, as well as allegations that he disparaged Holmes, withdrew affection if she displeased him, and controlled what she ate, how she dressed, how much money she spent and with whom she interacted, erasing her capacity for decision making. The filings also claim Balwani monitored Holmes movements, calls, text messages and emails; committed physical violence such as throwing hard, sharp objects at her; and restricted her sleep.

The pre-trial filings suggested that the defense planned to introduce testimony from a psychologist specializing in relationship violence who has examined Holmes and referred to the potentially debilitating symptoms of post-traumatic stress disorder that Holmes suffers from as a result of the relationship.

Both Holmes and Balwani are both charged with fraud in connection with Theranos, which Holmes founded in 2003 as a Stanford University dropout. The government claims many hundreds of patients were defrauded by the Palo Alto startup and that investors were bilked out of more than $700 million. Holmes and Balwani have denied the allegations.

Balwanis name has come up frequently in Holmes criminal trial. Prosecutors claim that both she and Balwani knew Theranos blood-testing technology was unreliable, inaccurate and could conduct only a limited number of tests, despite their public claims that the companys machines could conduct a full range of tests on just a few drops of blood from a finger-stick.

Proseuctors have also introduced text messages between Holmes and Balwani in 2015 that include her referring to him as, My water. And ocean, and saying, Madly in love with you and your strength.

The documents Holmes lawyers are now seeking to introduce into the trial are three depositionsBalwani made to the SEC in August and September of 2017. In the statements, Balwani appears to take ownership over key areas of Theranos operations central to the prosecutions fraud case and suggests Holmes may have had limited knowledge of those areas.

In the statements filed with the motion, Balwani takes responsibility for managing Theranos lab operations, as well as for taking over the leadership role in Theranos failed partnerships with Walgreens and Safeway, and for building the financial model for Theranos though he made a distinction between that model and revenue projections, one set of which jurors have heard missed their targets by hundreds of millions of dollars.

In one statement, Balwani claims Holmes knew he had created a financial model for Theranos, but although she was generally familiar with the information he used for it, she might not have known about most or all of it. On the issue of the null protocol for demonstrations of the companys blood testing machine, which jurors heard could hide errors in the companys testing technology, Balwani told the SEC it was a deep software concept that he never discussed with Holmes.

Holmes is facing maximum penalties of 20 years in prison and a $2.75 million fine if convicted, plus possible restitution, the Department of Justice has said. She is expected to resume testifying Monday.

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Elizabeth Holmes trial: Holmes signals intent to blame ex-lover Balwani for alleged Theranos fraud - Silicon Valley

IN HIS LATEST book, Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights, Berkeley Law Dean Erwin Chemerinsky does not pull his punches. He opens our eyes to a critical reason that we continue to have problems of police violence and racism in law enforcement. Although justices claim to be calling balls and strikes, they have long been rooting for one side the police and have not taken the necessary steps to protect our citizenrys civil rights. While some might see Chemerinskys claim as blasphemous, others will praise the cleansing light he shines on the Supreme Courts role in perpetuating the problems of our criminal justice system. Racism is not new; excessive force by police is not new; flagrant disregard for constitutional rights is not new. What is new, however, is that someone as distinguished and respected as Chemerinsky is willing to lay out in black and white the Supreme Courts complicity in the problems that plague our justice system.

Chemerinsky masterfully presents his arguments by tying together current events with major Supreme Court decisions that laid the foundation for those conflicts. What better case to start with than that of George Floyd? The trauma is still with us watching Floyd die over the course of nine minutes while Derek Chauvin, a white Minneapolis police officer, put a knee on his neck is an event with which every reader will be familiar. How could this happen?

Chemerinsky quickly pivots from the facts of Floyds case to the troubling history of police practices, especially chokeholds, in American. And it does not take long for him to identify the Supreme Courts role in allowing these practices to continue. In 1983, in City of Los Angeles v. Lyons, the Supreme Court faced the issue in our own backyard: the Los Angeles Police Department routinely used chokehold against black suspects. Adolph Lyons, a 24-year-old African American man, was stopped for driving with a burned-out taillight. (Sound familiar?) Officers approached him with drawn revolvers. They forced him to assume the position with his face to his car, his legs spread, and his hands clasped behind him. After they patted him down, Lyons dropped his hands, but the officers slammed his hands on the roof and he complained about pain from a ring of keys he was holding that was digging into the skin of his palm. Perceiving Lyons as mouthing off, the officers then applied a chokehold. Lyons blacked out. When he awoke, he was face down on the ground, choking, gasping for air, spitting up blood, and had urinated and defecated on himself. The officers then issued him a traffic ticket and allowed him to go.

Lyons sued the City of Los Angeles to stop these practices. They were widespread throughout the department and the country. United States District Judge Robert Takasugi ruled for Lyons and ordered then-LAPD Chief Daryl Gates to stop the practice. The evidence supporting the judges order was overwhelming. Lyons was not looking to get rich off the incident. Instead, he and his lawyers wanted the practice to stop. The Supreme Court had the power to help make that happen, but the justices did not use it. Instead, in a 5-4 decision, the Court held that Lyons did not have legal standing to come to court because he could not show that he personally would be subject to the same police action in the future. Using this procedural gambit, the Court shut the courthouse doors to individuals seeking to stop the police from using this violent form of restraint. The Court did not stand up for the little guy; the Court did not stand up against police violence or racism. It created a procedural escape hatch in cases that could have led to significant changes in policing practices.

Since the Warren Court in the 1960s, the Supreme Court has continuously failed to recognize how race has infected policing in the United States. From the use of slave patrols to the current incarceration of blacks at 5.1 times the rate of white people, racial discrimination has been the reality. However, the Supreme Court seems to have tunnel vision when it decides many of the cases that have come before it since the Warren era.

My criminal procedure students know this to be true. They read another book written by Chemerinsky and his co-author that goes through the cases. In the future, they may be assigned this one as well. Because Presumed Guilty is a clear-eyed examination of some of the most notable Supreme Court cases, it puts these holdings in critical context. Terry v. Ohio, which authorized the police practice of stop and frisk, was a near permission slip for police to use their instincts even though those may certainly be influenced by racial biases to stop millions of Americans on the streets. The statistics do not lie. People of color are most likely to be stopped by the millions. In framing its standard for reasonable suspicion, the Court made it so low that it will be a rare case that an officer cannot justify such a stop and frisk. Subjective intent does not matter. The Court gave them the authority to do exactly what has happened using pretexts to stop people of color.

Chemerinsky presents both the historical and practical reasons used to explain why the Supreme Court has not been more engaged in protecting civil rights. The debate over how much federal authorities, including the Supreme Court, should dictate state practices rages to this day. It has been more than 150 years since the Civil War, but the Supreme Court is still reticent to dictate to states how their police departments should operate. In fact, over the years, it has given them cover from actions that are brought under the Constitution and statutes. Qualified immunity is still in the news. It is a concept created by the Court. Under this doctrine, police have immunity from civil liability unless their actions are so egregious that the Supreme Court has previously found they violated defendants rights and the officers did not act in good faith. Even beyond that, judicial officers and prosecutors have absolute immunity, no matter how egregious their actions. In other words, the Supreme Court created a doctrine that makes it clear and there is no doubt that officers know that they have limited if any accountability for their unconstitutional actions.

Presumed Guilty is a comprehensive review of the Supreme Court decisions affecting nearly every person in our criminal justice system. Just when it appears that the Court may seek to safeguard suspects rights, the next generation of justices pulls back on those rights. That is exactly what happened with the protection of the Fifth Amendment privilege against self-incrimination. Yes, the Warren Court in 1966 decided Miranda v. Arizona, which requires officers to advise suspects of their constitutional rights before subjecting them to custodial interrogation. However, since then, there has been a continuing stream of decisions to limit Miranda. Chemerinsky addresses head-on the arguments that advising defendants of their constitutional rights something that is not required when asking suspects for permission to search might impede the ability of police to do their job. As one Salt Lake City study demonstrated, suspects waive their Miranda right in 83.7 percent of interrogations. If anything, we have a problem with suspects providing false confessions, not the hypothetical claim that cases will go unsolved without allowing police to pressure suspects into confessing.

Chemerinsky is hard on the Court, but he should be. I founded the Innocence Project at Loyola Law School. Our clients spend decades behind bars for crimes they have not committed because the Supreme Court has not set more exacting standards for the police. The safeguards against inaccurate eyewitness identifications are woefully inadequate; the pressures on police to cut corners and stop people on a hunch has increased; and the lack of enforcement of basic constitutional rights, like the due process Brady right to exculpatory evidence, persists.

Ultimately, the goal of this book seems to be more than just to hold the Court accountable. After all, that is difficult to do with justices who have life tenure and who may not really care how they are perceived by the public. Although they have resisted being labeled political hacks, the connection between their ideologies and the presidents who appointed them is evident. Chemerinsky is holding the Court accountable, but he is not giving up on change. Instead, he asks reformers to pivot by working for reforms on the state and local levels. We could eliminate the pernicious practice of stopping and frisking individuals of color for very little suspicion, we could require consent for searches, we could have defense counsel involved in identification procedures, and we could automatically provide counsel when someone is interrogated by the police. All of that is possible. It just requires the will.

Rather than abolishing or defunding the police, install democratic controls. Authorize suits against officers who violate the Constitution and collect data about bad policing. Insist on civilian oversight if the Supreme Court is not going to play that role.

Years from now, Americans may ask, Did anyone stand up to the Supreme Court and pull back the curtain? The answer will be Yes. Chemerinsky did just that. Now, it is time for all of us to take a good look.

Laurie L. Levenson is a professor of Law and the David W. Burcham Chair in Ethical Advocacy, Loyola Law School, Los Angeles.

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Time for the Supreme Court to Look in the Mirror - lareviewofbooks

Stan Haynes is the author of a new historical fiction book, And Tyler No More, in which the explosion on the Princeton is part of the plot. Visit his website at http://www.stanhaynes.com.

Currier and Ives lithograph of the USS Princeton explosion, 1844

It is the stuff of political thriller novels and a recent television series (Designated Survivor). What if the government of the United States was decapitated by a single event? In reality, one man tried, and failed. In 1865, John Wilkes Booths conspiracy succeeded in killing President Abraham Lincoln, but two other targets, Vice President Andrew Johnson and Secretary of State William Seward survived. Fiction stories and Booth aside, such a calamity almost happenedon February 28, 1844, on the calm waters of the Potomac River.

President John Tyler, the first vice president to take the reins of power after a presidents death, wanted a better Navy. William Henry Harrison had died in 1841 after only a month in office. Tyler, a former Democrat, feuded over economic policy with the Whig Party, on whose ticket he had been elected, immediately after taking office. The Whigs tossed him out of the party. The Democrats, miffed at his prior desertion from their ranks, held him at arm's length. Unpopular, especially in the North, Tyler was a president without a party.

His plan to win a term of his own in 1844 focused on the annexation of the Republic of Texas into the Union. Texas, Tyler told his cabinet and friends, was the great object of my ambition. But there were two potential foreign problemsMexico and Great Britain. Mexico, still officially at war with its former province, and the British, still assertive of their power, especially on the high seas, were not expected to quietly stand by and let Texas be absorbed by the United States.

Part of Tylers strategy to defend against these potential foreign threats to Texas annexation was a new state-of-the-art warship, a steamship named the USS Princeton. The product of years of lobbying by Captain Robert Stockton, a friend and political supporter of Tyler, the Princeton, launched in September 1843, was a prototype for the modernization of the Navy. In an era when vessels of war were still sailing ships, steamships, with clunky paddlewheels, exposed engines, and limited range due to fuel requirements, were viewed with disdain by Navy Department officials. Incorporating the design and innovations of John Ericsson, a Swedish inventor that he had befriended, Stocktons Princeton was a steamship with a difference. Instead of a paddlewheel, it had a screw propeller system that connected to engines hidden within the hull, where they were protected from enemy fire. Its boilers burned efficient anthracite coal, increasing its range. It was a hybrid, also able to run under sail, with its smokestack collapsible, reducing wind friction and increasing its speed.

Moreover, Stockton determined to make his ship the most powerful warship afloat. He had two twelve-inch bore wrought iron cannons placed on her deck. Named the Peacemaker and the Oregon, each was designed to hurl a cannonball weighing more than two hundred pounds downrange, with accuracy, for almost five miles. His ship, bragged Stockton, was virtually invincible against any foe and her innovations and deadly force may be productive of more important results than anything that has occurred since the invention of gunpowder. After touting the ship in Philadelphia and New York, Stockton brought the Princeton to Washington in February 1844 to show it off to the nations political elite, and to get funding for a fleet of warships like her.

In order for those in power to see his ship up close, Stockton planned three afternoon excursions down the Potomac River, starting at Alexandria. The most important of these was set for February 28, when President Tyler, most of his cabinet, members of Congress, their wives, and other important guests, would be aboard. The ships massive cannons would be fired three times in route for all to see, a mid-nineteenth century version of shock and awe by the American Navy. The National Intelligencer proclaimed that that the cream of Washington society would see firsthand this splendid and unequalled specimen of our naval ingenuity, and to witness something of the performance of her formidable battery.

February 28 dawned a cloudless late winter day in the nations capital. Once the ship was underway, Captain Stockton, a wealthy man, spared no expense in entertaining his guests, serving a meal of the finest delicacies, along with plenty of wine and champagne. Stockton decided that the Peacemaker would be the cannon fired on the cruise. The first two firings went smoothly and all were suitably impressed. The third, to honor George Washington as the ship was on the Potomac near Mount Vernon, was scheduled for just after the guests finished eating. At the table, a beaming Tyler had offered a toast, To the three big gunsthe Peacemaker, the Oregon, and Captain Stockton.

Topside, on the Princetons bow, most of the cabinet, and several senators and congressmen, then gathered behind Stockton for the third firing. Word was received that the president was detained below and to proceed without him. As the Peacemaker was fired, it exploded, hurling chunks of iron, some weighing more than a ton, across the deck. When the smoke cleared, eight were dead and almost thirty wounded. Among the dead were two cabinet members, Secretary of State Abel Upshur and Secretary of the Navy Thomas Gilmer. Had Tyler been present, he would have been standing with them and likely would have met the same fate. As he was headed up the steps for the third firing of the cannon, several people began singing an old song that was one of his favorites from his youth, and he stopped to listen. Flirtation may also have been on his mind. The widowed president had earlier been sipping champagne below deck with a young New York socialite that he had his eye on, Julia Gardiner, who was on board with her father and sister. Her father was among the fatalities in the explosion. Within months, Tyler would make Julia his bride.

In early 1845, in the waning days of his administration, President Tyler, after many political battles over the issue, accomplished his goal and signed a law formally annexing Texas into the Union.

The office of vice president had been vacant since 1841, when Tyler became president upon Harrisons death. There was no procedure for filling a vacancy in that position until the enactment of the Twenty-Fifth Amendment to the Constitution in 1967. Had Tyler been killed in the explosion on the Princeton, the president pro tem of the Senate, Senator Willie Mangum of North Carolina, would have assumed the presidency. Mangum was a Whig, a loyal member of the party that had kicked out Tyler, and was an opponent of the annexation of Texas. But for a song, history would likely have been changed.

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The Accident that Almost Decapitated the US Government - History News Network (HNN)

Recently, three of the most high-profile current defendants did what conventional wisdom says they shouldnt do; They took the stand in their own defense. Kyle Rittenhouse, on trial for killings at a Kenosha, Wisconsin protest, testified. Elizabeth Holmes, on trial in San Jose, California for fraud relating to her company, Theranos, also took the stand. Travis McMichael, one of three men on trial in Brunswick, Georgia for the killing of Ahmaud Arbery as he jogged through a neighborhood, also went on record. That is all in the space of about a week. The common thinking among criminal defense attorneys has been that, whatever might be the benefit of telling your side of the story, it generally isnt worth the risk that comes with an effective cross-examination from the prosecutor. That common calculation, however, might be changing. We will see if the move benefits Holmes or McMichael, but Rittenhouse was acquitted of all charges.

Conventional wisdom, of course, still has a lot going for it. It is little consolation if defendants, after having the chance to make their case, just end up wilting under cross examination or conceding to one or more damning admissions. The right to avoid that situation of self-incrimination, the Fifth Amendment, is there for a reason. At the same time, the attorneys in these and other cases know that they need to make an individual calculation, and the move that may be right in many cases is not necessarily right in your case. That is why it is best to approach your case criminal or civil not as a type or a pattern but as a sui generis situation that deserves to be assessed on its own terms. In this post, Ill share a few thoughts on why the conventional wisdom on defendant testimony, and conventional wisdom generally, isnt always a foregone conclusion.

Why the Defendant Testimony Convention Might Be Changing

It may be that in our current message-saturated age, juries are less satisfied with relying on the formalities of burden of proof and the right against self-incrimination, and expect to hear from the accused. The nature of defenses can also create an implied or actual burden of proof that might be practically met only through testimony.

It is also the case that many defendants are closely evaluating their options. In the Rittenhouse defense, for example, defense attorney Mike Richards told CNN, We had a mock jury and we did two different juries, one with him testifying and one without him testifying. It was substantially better when he testified and that sealed it. As close as the case was, and with key evidence being kept out by a largely helpful judge, taking the stand seemed the right call for that team. As of press time, the jury is still out on whether testimony helps Holmes and McMichael. It may not swing a tough case, but the question that remains is whether it may help.

How Conventional Wisdom Generally Might Not Fit

In civil cases, there is a wide spectrum of common wisdom and lore: when to admit liability, whether to go on the offense, whether to have an alternate damages figure, whether the client representative should testify, or whether you need an expert. It is wise to examine all of that. What we take to be received wisdom might be invalid, or changing, or simply not applicable to your venue or your case. This is likely to be especially true in an age where there are fewer trials, and where those cases that do make it to a courtroom are for that reason atypical. When trial lawyers also have less regularity to their trial experience, there is a need to check your assumptions. It pays to do what the Rittenhouse team did: test it out. Whether by getting lots of opinions and applying informal sounding boards, or by running more formal mock trials and focus groups, it pays to know as much as possible about your own case. That involves focusing not just on what makes it conventional, but also what makes it unique.

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Criminal Defendants Taking the Stand: Expect Conventional Wisdom to Change - Lexology

One of the most important parts of our federal judicial system is the jury. Most people know the role of the trial jury in determining guilt or innocence in a criminal trial and liability in a civil trial. But there is another type of federal jury that is critical to the operation of our federal judiciarythe grand jury. Unless you have served on a grand jury or worked in the criminal-justice system, it is unlikely you know much about it. Nevertheless, both types of juries bring the will of the people into the federal judiciary.

The Fifth Amendment to the United States Constitution states in part that No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, with certain exceptions. An infamous crime is a felony, a crime for which a term of imprisonment of a year or longer may be imposed. This means that a person cannot be made to stand trial for the loss of life, liberty, or property unless a grand jury first returns an indictment against the person.

The name grand jury comes from its size compared to the trial jury. A trial jury is made up of 12 people; it is also called the petit jury, from the French word for small. A grand jury has 23 people, nearly twice the size of the trial jury. So the word grand just means it is bigger than the petit trial jury. Grand jurors must be selected at random from a fair cross section of their communities, so names are randomly selected from voter registrations and other sources.

The grand jury hears cases presented by federal prosecutors to determine whether there is probable cause to conclude that a federal crime has been committed and the suspected person committed the crime. Since what the grand jury is determining is only whether a suspect may be made to stand trial for the loss of life, liberty, or property, the standard of proof is probable cause, and not the higher trial standard of beyond a reasonable doubt. A majority of the grand jury, at least 12 jurors, must agree that the suspect should be indicted. The grand jury thus acts as a gatekeeper. Without the grand jurys assent, a person cannot be charged with a serious crime.The grand jury also has powerful investigative authority, including the power to issue subpoenas. With this authority, grand juries often investigate possible federal crimes. Witnesses before the grand jury are sworn to tell the truth and are subject to prosecution for perjury if they lie.

Grand juries meet in secret. Only the grand jurors themselves can be present during deliberations. Only the federal prosecutor and a court reporter can join them while any witness is being questioned. And unlike trial jurors, who may talk about trials after they are done if they want to, grand jurors are not allowed to talk about investigations even once they are over. This kind of secrecy is necessary to protect innocent suspects from having unfounded suspicions against them become known to the public. It also promotes the safety of witnesses who testify before the grand jury and protects the confidentiality of ongoing investigations.

In establishing the Legislative and Executive branches, the framers of the Constitution provided for the people to exercise democratic control through elections and limited terms of office. The framers established a different way for the people to limit the power of the Judicial branch. They did this through the jury system. Prosecutors and judges, although very powerful figures, cannot subject a person to the loss of life, liberty, or property on their own. The people, through the grand jury, reserve that power to themselves, and only the petit jury can actually cause a person to lose their life, liberty, or property by conviction after trial of a serious crime.

The federal grand jury represents the people in We the People when it comes to the federal criminal system. It not only enables the detection and prosecution of serious crimes in violation of federal law, but it also stands as a barrier to the exercise of power by the Executive branch in prosecuting crimes and the power of the Judicial branch in trying crimes. It is the peoples gatekeeper to the federal criminal system.

Curtis L. CollierUnited States District JudgeChair, Eastern District of Tennessee Civics and Outreach Committee

Carrie Brown StefaniakLaw Clerk to the Honorable Curtis L. CollierImmediate Past President, Chattanooga Chapter of the Federal Bar Association

Kristen A. DupardLaw Clerk to the Honorable Curtis L. Collier

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The Grand Jury - The People's Gatekeeper - The Chattanoogan

Former President TrumpDonald TrumpRittenhouse says Biden defamed his character when linking him to white supremacists Overnight Health Care White House touts vaccine rate for feds Trump endorses challenger to Hogan ally in Maryland governor's race MORE's inner circle is leaning on unanswered legal questions about the scope of his authority to invoke executive privilege in their defiance of the House Jan. 6 select committee's subpoenas.

The former aides and advisers are following the example set by Trump, who is fighting in court to block the panel from obtaining hundreds of pages of internal White House records and arguing that he has the right as a former president to keep them out of Congress's hands.

Lawyers for former White House chief of staff Mark MeadowsMark MeadowsJan. 6 panel subpoenas Roger Stone, Alex Jones Christie: McCarthy, not Trump, will be the next Speaker Lofgren: Many Jan. 6 panel witnesses are former Trump officials MORE and former strategist Stephen Bannon argue that it would be premature to comply with the subpoenas before the courts can address the dispute over the scope and weight of Trumps executive privilege claims.

Democrats dispute the rationale offered by the Trump camp, accusing them of seeking to delay or stymie the Jan. 6 investigation, but the deadlock is raising the stakes for the committee as it seeks a quick and decisive court victory to secure the internal White House records. A ruling against the lawmakers could have a cascading effect among their would-be witnesses and sources.

The crux of Trumps suit isn't about his former aides but about his presidential records, held by the National Archives and Records Administration (NARA), which had been set to release a sweeping trove of documents covering every top staffer and even Trumps family on Jan. 6 following approval from President BidenJoe BidenRittenhouse says Biden defamed his character when linking him to white supremacists Man accused of threatening Congress sentenced to 19 months in prison 91 House Dems call on Senate to expand immigration protections in Biden spending bill MORE.

But lawyers for those aides say that the former presidents lawsuit will resolve unanswered questions about the weight of Trumps executive privilege claims now that hes no longer in office and provide legal clarity for how they should proceed in regards to the committees subpoenas.

Evan Corcoran, Bannons defense lawyer in the criminal contempt proceedings that the Justice Department brought earlier this month for defying a subpoena, told a federal judge last week that his clients case should not be rushed, partly because Trumps lawsuit will guide Bannons legal defense.

It'll be useful as we're shaping the arguments in the briefs for our motions practice to have the benefit of the judicial record and determinations that are made in that matter, Corcoran said during a pretrial hearing earlier this month.

George Terwilliger, a former deputy attorney general under the George H.W. Bush administration whos representing Meadows, has said that the sharp dispute over the scope of executive privilege between the select committee and Trumps inner circle should be aired in court.

Our correspondence over the last few weeks shows a sharp legal dispute with the committee, Terwilliger said in a statement earlier this month. The issues concern whether Mr. Meadows can be compelled to testify and whether, even if he could, that he could be forced to answer questions that involve privileged communications. Legal disputes are appropriately resolved by courts. It would be irresponsible for Mr. Meadows to prematurely resolve that dispute by voluntarily waiving privileges that are at the heart of those legal issues.

House Democrats have dismissed those objections as an effort to hinder the select committees investigation ahead of next year's midterm elections, which could bring the probe to an abrupt halt if Republicans recapture the lower chamber, as many poll watchers expect.

That's the same stall tactic that they've had for weeks, said Rep. Pete AguilarPeter (Pete) Ray AguilarAll eyes on Garland after Bannon contempt vote First senator formally endorses Bass in LA mayoral bid Bass receives endorsement from EMILY's List MORE (D-Calif.).

They're going to continue to, you know, make up reasons not to have conversations with us. It's not a new argument.

For Meadows, the dance around whether to appear for a deposition has been going since he was first subpoenaed in September, engaging with the committee past his initial October deposition date until lawmakers lost patience and demanded November testimony, for which the former chief of staff failed to appear.

Meadows now risks the same consequences as Bannon if the select committee chooses to hold him in contempt and the House refers him to the Justice Department for prosecution for criminal contempt of Congress.

Rep. Jamie RaskinJamin (Jamie) Ben RaskinOversight panel eyes excessive bail, jail overcrowding in New York City Jan. 6 panel may see leverage from Bannon prosecution Maryland Democrats target lone Republican in redistricting scheme MORE (D-Md.), who sits on the committee, said the NARA case and the question of witness compliance have nothing to do with each other.

That's just obfuscation. That's just confusion, he told reporters last week.

The committee scored a swift initial victory in the NARA case earlier this monthwhen a federal judge rejected Trumps lawsuit to keep the records under wraps.

The D.C. Circuit Court of Appeals has granted Trump a brief reprieve by temporarily blocking NARA from turning over the records while it hears the legal challenge, which could soon head before the Supreme Court.

But the court also set a swift pace for Trumps appeal, with oral arguments to be heard on Nov. 30, making it unclear just how long the former president will be able to run out the clock.

Democrats say that Trump and his allies are pushing a maximalist interpretation of executive privilege that is at odds with the law and how it has been employed by previous administrations. Raskin said that the Trump camps arguments about the privilege would expand it beyond any credulity.

To say that it would apply would mean that there's an executive privilege covering insurrectionary activity in the country. Do we really want to say that there's an executive privilege for people to try to overthrow the U.S. government? ... I mean, it's just ridiculous. It makes the Constitution sound like some kind of death warrant for the democracy, and we know it's not that.

Anybody who was subpoenaed by a court or by the U.S. Congress to appear at a time and date certain with particular materials has a legal obligation to do that, Raskin said. You can't blow off a subpoena and you can't stay home and sit on your couch and talk to people about the Fifth Amendment or executive privilege, but not show up. You have a legal duty to show up.

Whether former aides are obligated to comply with the subpoenas may only be partially settled by Bannons prosecution.

Bannon was not a White House employee on Jan. 6, leaving lawmakers confident he has little chance of prevailing in court, even as his legal team argues that executive privilege remains a valid excuse for defying the committee because presidents must feel free to consult their former aides.

And its still an open question whether Bannon will stand trial soon enough for the committee to point to his case as a way to deter witnesses from defying its subpoenas.

Less clear is whether the committee has an open and shut case with Meadows, who was still serving in the White House on the day of the attack.

Lawmakers largely dodged that question when asked by reporters if the committee will have a more difficult time seeking to enforce the subpoena against Meadows.

Mr. Meadows has clear information that the committee needs and the committee will get access to that information and nobody can hide behind claims of executive privilege when you're talking about an assault on the Capitol that was a clear effort to stop the democratic process of counting electoral votes, select committee Vice Chairwoman Liz CheneyElizabeth (Liz) Lynn CheneyTwo Fox News contributors quit over Tucker Carlson's Jan. 6 documentary Trump throws support behind Gosar after censure vote McCarthy pledges to restore Greene, Gosar to committees if GOP wins House MORE (R-Wyo.) told reporters last week.

How the D.C. circuit, and potentially the Supreme Court, decides Trumps legal challenge against the committees document request could help shape the course and effectiveness of the investigation. In an appeals brief filed on Monday, lawyers for the select committee argued that the records are vitally important and of the utmost urgency.

Delay itself would inflict a serious constitutional injury on the Select Committee by interfering with its legislative duty, the filing reads. "The Select Committee needs the documents now because they will shape the direction of the investigation.

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Trump allies leaning on his executive privilege claims | TheHill - The Hill