Category Archives: Fifth Amendment

WASHINGTON (Tribune News Service) Seaman Nancy L. Castillo was already in hot water with the Navy when she was busted near Bremerton, Wash., for suspected drunken driving.

What didnt happen next has now brought Castillos case all the way from Washingtons Kitsap County to the nations highest military court.

On Wednesday, in a dispute potentially important to myriad servicemembers, the U.S. Court of Appeals for the Armed Forces will consider whether the Navy can require sailors to self-report civilian criminal charges, despite the Fifth Amendments protection against self-incrimination.

The self-reporting requirement provides a real and appreciable danger of legal detriment, Castillos defense attorney, Navy Lt. Carrie E. Theis, argued in a brief, adding that it is reasonable for a service member to believe that disclosing would lead to incriminating evidence.

Theis, who declined to comment Tuesday, has some support for her argument, although in the end she may be going against the tide in a court respectful of military discipline.

In a 2009 case also involving an unreported drunken driving charge filed against an East Coast-based Navy enlisted man, a divided U.S. Navy-Marine Corps Court of Criminal Appeals concluded a self-reporting requirement covering alcohol arrests violated the Fifth Amendment.

The Navy-Marine Corps court noted that a self-reporting rule demands the revelation, directly or indirectly, of facts relating a service member to an offense. The higher-ranked U.S. Court of Appeals for the Armed Forces also struck down the rule concerning alcohol offenses, although not on constitutional grounds.

The appellate court could also on Wednesday try to resolve Castillos case without digging deep into the Fifth Amendment.

Navy Secretary Ray Mabus, a former governor of Mississippi, issued new regulations in July 2010. Sailors must now report the basic civilian charges, but not all the factual details. For doing so, they receive Navy immunity unless military investigators independently obtain evidence.

Arrest records are not covered by the Fifth Amendment privilege, Marine Corps Capt. Matthew H. Harris wrote in a brief for the Navy, adding that the fact that (Castillo) was arrested and charged, by itself, could never form the basis for prosecution against her.

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Appeals court to hear sailor's case that pits military rules against 5th Amendment

WASHINGTON Machinists Mate Fireman Nancy L. Castillo was already in hot water with the Navy when she was busted near Bremerton, Wash., for suspected drunken driving.

What didnt happen next has now brought Castillos case all the way from Washingtons Kitsap County to the nations highest military court.

On Wednesday, in a dispute potentially important to myriad service members, the U.S. Court of Appeals for the Armed Forces will consider whether the Navy can require sailors to self-report civilian criminal charges, despite the Fifth Amendments protection against self-incrimination.

The self-reporting requirement . . . provides a real and appreciable danger of legal detriment, Castillos defense attorney, Navy Lt. Carrie E. Theis, argued in a brief, adding that it is reasonable for a service-member to believe that disclosing would lead to incriminating evidence.

Theis, who declined to comment Tuesday, has some support for her argument, although in the end she may be going against the tide in a court respectful of military discipline.

In a 2009 case also involving an unreported drunken driving charge filed against an East Coast-based Navy enlisted man, a divided U.S. Navy-Marine Corps Court of Criminal Appeals concluded a self-reporting requirement covering alcohol arrests violated the Fifth Amendment.

The Navy-Marine Corps court noted that a self-reporting rule demands the revelation, directly or indirectly, of facts relating a service member to an offense. The higher-ranked U.S. Court of Appeals for the Armed Forces also struck down the rule concerning alcohol offenses, although not on constitutional grounds.

The appellate court could also on Wednesday try to resolve Castillos case without digging deep into the Fifth Amendment.

Navy Secretary Ray Mabus, a former governor of Mississippi, issued new regulations in July 2010. Sailors must now report the basic civilian charges, but not all the factual details. For doing so, they receive Navy immunity unless military investigators independently obtain evidence.

Arrest records are not covered by the Fifth Amendment privilege, Marine Corps Capt. Matthew H. Harris wrote in a brief for the Navy, adding that the fact that (Castillo) was arrested and charged, by itself, could never form the basis for prosecution against her.

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Former sailor fights Navy rules on civilian offenses

Kelly Clarkson is hardly shy when it comes to how candid she'll get in an interview. So when she sat down on Thursday night's Watch What Happens Live, with a glass of wine, the "Heartbeat Song" singer was characteristically real.

She and host Andy Cohen shared a few laughs during a game of "Plead the Fifth" on the late-night Bravo talk show. Needless to say, Clarkson didn't use her Fifth Amendment rights during the conversation.

Kelly Clarkson's Response After Online Bullying? 'I'm Awesome!'

Cohen first asked the singer about her 2013 tweet during which she referred to "#pitchystrippers" during that year's VMAs.

"I never said Miley Cyrus. The fact that I tweeted 'pitchy stripper' and people said Miley Cyrus is not my problem," she said. "I'm just saying. I never said Miley Cyrus, my man. Everyone else said Miley Cyrus. I'm not saying who it was."

Kelly Clarkson Q&A: The Pop Superstar on 'Piece By Piece,' Recording While Pregnant & Bringing a Crib on Her Tour Bus

Additionally, Clarkson was open about her past dating fellow season one American Idol contestant Justin Guarini, who first confirmed their past as a couple last year.

"We didn't date during Idol," Clarkson clarified. "We did date. I feel like we weren't dating through the movie [From Justin to Kelly]. We did date a little bit. I think any two people who were thrown together that much... guy, girl, you put 'Timeless,' that song from From Justin to Kelly, you can't fight it!"

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Kelly Clarkson Dishes on Justin Guarini, Miley Cyrus on 'Watch What Happens Live'

Bill of Rights in Action: Due Process of Law - 1971 Educational Film - S88TV1
An open-ended film in which lawyers present their arguments concerning the due process of law clause of the fifth amendment during a hearing to reinstate a s...

By: Tomorrow Always Comes

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Bill of Rights in Action: Due Process of Law - 1971 Educational Film - S88TV1 - Video

Bill of Rights in Action: The Privilege Against Self-Incrimination - 1972 Educational Film - S88TV1
A legal argument in a futuristic setting in which a "Truth Machine" extracts past actions by reading minds. The film explains that the Fifth amendment protec...

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Bill of Rights in Action: The Privilege Against Self-Incrimination - 1972 Educational Film - S88TV1 - Video

Cylvia Hayes is asserting her constitutional right against self-incrimination in an attempt to block the release of work-relatedemails she sent from her personal accounts.

Hayes asserted that right in a lawsuit filed Thursday against The Oregonian/OregonLive in Marion County Circuit Court. She has been under a state order to turn the emails over to the news organization.

That order is one of the several legal fronts on which Hayes and her fiance, former Gov. John Kitzhaber, are battling. The couple is the target of a joint investigation by the FBI and the IRS, which have sought records from 11 state agencies and organizations, and a separate state criminal investigation.

The lawsuit is the only legal remedy open to Hayes to escape complying with Oregon Attorney General Ellen Rosenblum's order that she turn over the emails.

The Oregonian/OregonLive first requested that Kitzhaber's office provide Hayes' state-related emails as questions arose last October about her consulting work and her roles as first lady and as a volunteer policy adviser to Kitzhaber. His staff repeatedly said it was working on complying with the request, but said in January it had no access to Hayes' records.

Rosenblum subsequently granted a petition from the news organization that she order Hayes to provide the records. Rosenblum ruled Feb.12 that Hayes was a public official subject to the Oregon Public Records Law.

As first lady and a volunteer policy adviser, Hayes regularly communicated with state employees and agency leaders through two personal email accounts and one from her Bend-based consulting business, 3E Strategies. In court filings she said she wasn't issued a state email account because she wasn't an employee.

Hayes and her attorney, Whitney Boise, argued in the lawsuit the same point they had made with Rosenblum - that Hayes is not subject to the state public records law because she is not a public official.

Rosenblum concluded otherwise, writing that she was persuaded that the former first lady earned public official status from her "extensive, high-level involvement in the executive branch of Oregon's state government."

The order noted that Hayes had said she asked for a state email but was ineligible without employee status.

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Facing criminal investigations, Cylvia Hayes asserts Fifth Amendment rights in hopes of keeping emails private

Former first lady Cylvia Hayes is asking a court to block release of her emails in response to a Jan. 29 public records request made by The Oregonian newspaper.

Hayes asserted her Fifth Amendment right against self-incrimination in a court document filed Wednesday, Feb. 25, and stated that her Constitutional rights supercede Oregon public records law.

The complaint filed by Hayes attorney in Marion County Circuit Court also restated many of her previous arguments against the records release, which the Oregon Department of Justice rejected early this month. It included the claim that Hayes was never a public official and therefore her emails are not subject to the states public records law.

According to Hayes attorney, Whitney P. Boise, Any functions Hayes performed for the state were unpaid and largely advisory or ceremonial in nature. Hayes is engaged to marry former Gov. John Kitzhaber and for most of Kitzhabers third term, Hayes served as an unpaid adviser on state energy and economic development policy. Kitzhaber resigned Feb. 18 amid state and federal criminal investigations into allegations that Hayes used her position for financial gain.

Private email accounts

The Oregonian newspaper sought Hayes emails concerning state business received or sent by Hayes after Jan. 1, 2011. The newspaper also requested emails specifically containing the phrase first lady or the acronym FLO that Hayes sent, received or was copied.

Hayes used several private email accounts to correspond with public employees regarding state policy, travel arrangements and her private consulting business. She never had a state email account, and instead used a Gmail account with the signature Cylvia Hayes First Lady State of Oregon.

On Feb. 12 the Oregon attorney generals office ordered Hayes to turn over the emails, after The Oregonian filed a petition seeking the records. Hayes opposed that petition and argued that she was not a public official and thus not subject to Oregon public records laws. Deputy Attorney General Frederick M. Boss rejected that argument.

It is clear that Ms. Hayes worked extensively on government matters, and did at least some of that work by email, Boss wrote in the Feb. 12 order.

Records already released to the Pamplin Media Group/EO Media Group Capital Bureau and other news organizations have revealed Hayes directed the work of state employees, including at least one executive level employee.

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Hayes goes to court to block release of emails

Cylvia Hayes has claimed her constitutional Fifth Amendment right against self-incrimination while suing to block release of emails related to her state-related activities.

In a lawsuit filed Thursday against The Oregonian/OregonLive in Marion County Circuit Court, the fiance of former Gov. John Kitzhaber also repeatsearlier assertions that she is not a public official.

In an earlier public records order, Attorney General Ellen Rosenblumrejected Hayes' arguments in ordering her to release the records. The order responded to a petition by The Oregonian/OregonLive under the state's public records law.

In her lawsuit, her lawyer, Whitney Boise, adds a new argument. "Under the Oregon and United States constitutions, ordering Ms. Hayes to provide documents that are related to the conduct of public business compels her to admit that responsive emails exist, are in her control, and authenticate that the email relates to state business, violating her right against self-incrimination ... Ms. Hayes' constitutional rights supersede the Oregon Public Records Law."

Invoking Hayes' right against self-incrimination suggests there is a plausible argument that the information could be used as a link in a chain of evidence against her, said Tung Yin, a criminal law expert who teaches at Lewis & Clark Law School. But it doesn't necessarily mean the emails contain "smoking guns"

-- Nick Budnick and Laura Gunderson nbudnick@oregonian.com lgunderson@oregonian.com 503-294-5083 503-221-8378 @nickbudnick @LGunderson

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Cylvia Hayes claims right against self-incrimination to block emails as feds scrutinize Kitzhaber fiancee

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Brain imaging can already pull bits of information from the minds of willing volunteers in laboratories. What happens when police or lawyers want to use it to pry a key fact from the mind of an unwilling person?

Will your brain be protected under the Fourth Amendment from unreasonable search and seizure?

Or will your brain have a Fifth Amendment right against self-incrimination?

These are issues the United States Supreme Court is going to have to resolve, said Nita Farahany, a professor of law and philosophy at Duke University in Durham, North Carolina, who specializes in bioethical issues.

Those legal choices are likely decades away, in part because the exacting, often finicky process of functional magnetic resonance imaging (fMRI) could be thwarted if a reluctant person so much as swallowed at the wrong time. Also, a brain exam couldnt be admitted in court unless it worked well enough to meet the legal standards for scientific evidence.

Still, the progress being made in brain decoding is so intriguing that legal scholars and neuroscientists couldnt resist speculating during a law and memory session earlier this month at the annual conference of the American Association for the Advancement of Science in San Jose, California.

Our brains are constantly sorting, storing and responding to stimuli. As researchers figure out exactly where and how the brain encodes information, the fMRI also becomes a tool that can decode that information. The fMRI can identify the portions of the brain that are active, based on the increased quantity of freshly oxygenated blood they draw. Already, brain decoding can perform a version of that old magicians trick guess what card someone is looking at with better than 90 percent accuracy, University of California, Berkeley neuroscientist Jack Gallant told the group.

Farahany predicts that like most new science, brain decoding will break into the courtroom for the first time through a cooperative witness, someone who wants to use it to advance his or her case.

Stanford University law professor Henry Greely, who moderated the Feb. 13 law and memory session, suggested that a court might be especially open to novel techniques during the sentencing hearing in a death penalty case.

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Nita Farahany: In the future, could brain imaging be used as legal evidence?

SAN JOSE -- The Santa Clara County District Attorney's Office signaled Monday it is willing to give immunity to a former San Jose city councilman to testify against former Supervisor George Shirakawa Jr. in his upcoming corruption trial.

Shirakawa faces felony criminal charges that he was behind a fraudulent 2010 campaign mailer designed to benefit Xavier Campos, his buddy and political ally who was running for a council seat. Campos has repeatedly invoked his Fifth Amendment constitutional right against self-incrimination in Shirakawa's case, refusing to answer any questions before the grand jury, even what he does for a living.

Even with immunity from prosecution, Campos could still refuse to testify. But if he does, Superior Court Judge Ron Del Pozzo could hold him in contempt of court and put him in jail for the duration of the two- to four-week trial.

The prosecution's willingness to offer immunity surfaced Monday in court after Campos' attorney, Gregory Ward, moved to block a prosecution subpoena for his client's testimony, saying Campos would once again invoke the Fifth.

Prosecutor John Chase argued that Campos has no grounds to invoke the privilege because he is not in danger of being charged in connection with the mailer. The statute of limitations has run out on local prosecutors filing charges against Campos under state law, and federal prosecutors who have until May to file under a federal statute have said they won't pursue a case.

The vicious campaign piece mailed to Vietnamese American voters in the June 2010 primary painted opposing candidate Magdalena Carrasco as a communist and probably cost her the San Jose City Council District 5 seat won that fall by Campos. Last year, Carrasco defeated Campos in his bid for re-election.

Chase argued in a brief filed Monday that the judge should compel Campos to testify. But if Del Pozzo declines, then the prosecution under the immunity offer will not use the Campos' own testimony or any evidence derived from the testimony against him.

"If the Fifth is invoked, we are prepared to grant use immunity," Chase said Monday in court.

"I appreciate the heads-up on that, as the chess match continues," the judge said dryly, referring to the highly strategic legal battle which Monday alone generated a five-inch stack of briefs.

Ward, Campos' lawyer, declined to comment.

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Shirakawa case: Former Councilman Xavier Campos could get immunity to testify