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Old 10th May 2019, 08:15 PM   #1
Major Major
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Procedural Question -- Fifth Amendment

What would happen in a trial if a prosecution witness declined on the stand to testify "because the defendant shouldn't be on trial"?

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Old 10th May 2019, 08:26 PM   #2
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Contempt of Court, stay in prison until you apologise to the judge and agree to testify?

I can't see anything in the fifth that gives you special powers as a witness, except for the provision that you can't be forced to testify against yourself.

Wild guesses on my part. I am not a lawyer, I am not your lawyer, etc. etc. etc.
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Old 11th May 2019, 12:43 AM   #3
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Also keep in mind that invoking your Fifth Amendment rights is not absolutely guaranteed to get you out of testifying.

If you take the fifth, the prosecution can grant you immunity from self-incrimination. If they do, then you MUST testify, or be held in contempt.
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Old 11th May 2019, 12:55 AM   #4
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Originally Posted by Major Major View Post
What would happen in a trial if a prosecution witness declined on the stand to testify "because the defendant shouldn't be on trial"?

Huh? They'd say "you're not the defendant and you're not on trial".
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Old 11th May 2019, 06:47 AM   #5
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A subpoenaed witness would have to file a timely motion to quash.

Why shouldn't the defendant be on trial? How does that relate to the Fifth Amendment?

I suppose the witness could claim that they should not have to testify because the defendant should not be on trial because there is a lack of a valid indictment by a grand jury where one is required. If there is no indictment, that would obviously throw a big wrench into the whole trial.
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Old 11th May 2019, 07:44 AM   #6
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Originally Posted by Major Major View Post
What would happen in a trial if a prosecution witness declined on the stand to testify "because the defendant shouldn't be on trial"?



: blackcat :
I give up. In what way is your question related to the fifth amendment?
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Old 12th May 2019, 12:49 PM   #7
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Originally Posted by DevilsAdvocate View Post
A subpoenaed witness would have to file a timely motion to quash.

Why shouldn't the defendant be on trial? How does that relate to the Fifth Amendment?

I suppose the witness could claim that they should not have to testify because the defendant should not be on trial because there is a lack of a valid indictment by a grand jury where one is required. If there is no indictment, that would obviously throw a big wrench into the whole trial.
Woke persons thinking that members of oppressed groups are victims of white supremacy, even when it has to do with those who have attacked/robed them.

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Old 13th May 2019, 06:36 PM   #8
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Originally Posted by Major Major View Post
Woke persons thinking that members of oppressed groups are victims of white supremacy, even when it has to do with those who have attacked/robed them.

I'm not sure what that means. In that scenario, who is the witness? Who is the defendant? Who are the "woke persons" and the "members of...groups" and "those who have attacked"? I don't know what roles those different people have in your imagined scenario.

The witness says that the defendant should not be on trail because...?????

This sounds like the Smollett case? Is this related to that?

I think the answer to your question is that a subpoenaed witness cannot get out of testifying by claiming that the defendant should not be on trial. Whether or not the defendant should be on trial is not up to the witness or the defendant or even the judge.

Whether or not there is a trail is determined by whether or not there is a valid presentment or indictment and the prosecution chooses to pursue that presentment or indictment.

A witness can't get out of testifying by claiming that the defendant is not guilty because the whole point of the trial is to determine whether or not the defendant is guilty.
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Old 16th May 2019, 12:35 PM   #9
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Originally Posted by Major Major View Post
Woke persons thinking that members of oppressed groups are victims of white supremacy, even when it has to do with those who have attacked/robed them.

Originally Posted by DevilsAdvocate View Post
I'm not sure what that means. In that scenario, who is the witness? Who is the defendant? Who are the "woke persons" and the "members of...groups" and "those who have attacked"? I don't know what roles those different people have in your imagined scenario.

The witness says that the defendant should not be on trail because...?????

This sounds like the Smollett case? Is this related to that?

I think the answer to your question is that a subpoenaed witness cannot get out of testifying by claiming that the defendant should not be on trial. Whether or not the defendant should be on trial is not up to the witness or the defendant or even the judge.

Whether or not there is a trail is determined by whether or not there is a valid presentment or indictment and the prosecution chooses to pursue that presentment or indictment.

A witness can't get out of testifying by claiming that the defendant is not guilty because the whole point of the trial is to determine whether or not the defendant is guilty.
The woke person is the witness (and victim).

Are you saying that defendants in general can't have witnesses testifying that they weren't guilty? That would make trials so much quicker.

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Old 16th May 2019, 12:50 PM   #10
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Originally Posted by smartcooky View Post
Also keep in mind that invoking your Fifth Amendment rights is not absolutely guaranteed to get you out of testifying.

If you take the fifth, the prosecution can grant you immunity from self-incrimination. If they do, then you MUST testify, or be held in contempt.
I have always wondered how this works. In the US there are many jurisdictions If the county DA gave you e.g. immunity from a crime why can the state or feds not come after you? Or even another state?
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Old 16th May 2019, 12:53 PM   #11
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Originally Posted by Major Major View Post
What would happen in a trial if a prosecution witness declined on the stand to testify "because the defendant shouldn't be on trial"?

No 5th Amendment question involved.

Even prosecution witnesses can be classified as being a "hostile" witness, and can be found in contempt if they refuse to testify.
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Old 16th May 2019, 01:02 PM   #12
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Originally Posted by Planigale View Post
I have always wondered how this works. In the US there are many jurisdictions If the county DA gave you e.g. immunity from a crime why can the state or feds not come after you? Or even another state?
Depends on the type of immunity that was granted and the testimony of the witness.

If Joey Meatballs from the Cusamano Crime family gets transactional immunity from the feds and fully discloses every crime they participated in and also testifies in court against his former family members he's golden.

If the feds then prove Joey held back information about his involvement in a mopery-with-intent-to-creep crime committed in 1960 they can pull his immunity and that's the end of his story on every crime he previously disclosed.

If a witness is granted immunity on the basis of their involvement in one particular criminal incident, that immunity is only in effect with that incident and no others.
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Old 16th May 2019, 01:05 PM   #13
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Originally Posted by Planigale View Post
I have always wondered how this works. In the US there are many jurisdictions If the county DA gave you e.g. immunity from a crime why can the state or feds not come after you? Or even another state?
It's a question of jurisdiction. The district attorney is a state official, so it applies to the state government. I'm sure the state could override a DA's grant of immunity, but they are probably reluctant to do so.

Such grants have no effect on other jurisdictions, and are not binding on federal prosecutors, nor on prosecutors from other states where the accused may have committed crimes.

It's also important to understand that crimes are only crimes in the jurisdiction where they are committed. A DA in Texas can't prosecute someone for a murder in California, not because of any immunity that may have been granted by a California DA, but because the state of Texas does not have standing to prosecute crimes committed outside of Texas.
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Old 16th May 2019, 01:06 PM   #14
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Originally Posted by Major Major View Post
What would happen in a trial if a prosecution witness declined on the stand to testify "because the defendant shouldn't be on trial"?


Not nearly as rare as you'd hope - there are many reasons a witness can clam up: fear of retaliation; desire not to testify; general hatred of police; some specific love for the defendant. And I guess there are some circumstances where the person can be held in contempt (most likely if he/she is contradicting previous sworn testimony). But those circumstances are rare. What happens is the prosecution loses their witness and they have to prove their case without that testimony or, more likely, drop their case entirely.

If someone testified at an EBT that the car was "red," there's not much you can do if at trial he says, "On further reflection, I realized that I don't remember what color the car was."

While it might seem unjust, the remedy -forcing people to testify - just gives you bad witnesses. It's like when Edward Norton refused to play Bruce Banner. They could have contractually forced him to do it, but you're not likely to get a good performance out of an actor who doesn't want to be there.
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Old 16th May 2019, 06:27 PM   #15
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Originally Posted by Major Major View Post
The woke person is the witness (and victim).
I still just don't follow. Perhaps if you gave an example.

Originally Posted by Major Major View Post
Are you saying that defendants in general can't have witnesses testifying that they weren't guilty? That would make trials so much quicker.
I'm not saying that at all. You asked about a prosecution witness, not a defendant's witness. You asked about refusing to testify, not testifying that a person is not guilty.

What I said was that a subpoenaed witness cannot refused to testify simply because the witness believes that the defendant is not guilty. Under threat of contempt and/or perjury, the witness can be compelled to truthfully answer any questions asked at trial.
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Old 16th May 2019, 06:46 PM   #16
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Originally Posted by Loss Leader View Post
Not nearly as rare as you'd hope - there are many reasons a witness can clam up: fear of retaliation; desire not to testify; general hatred of police; some specific love for the defendant. And I guess there are some circumstances where the person can be held in contempt (most likely if he/she is contradicting previous sworn testimony). But those circumstances are rare. What happens is the prosecution loses their witness and they have to prove their case without that testimony or, more likely, drop their case entirely.

If someone testified at an EBT that the car was "red," there's not much you can do if at trial he says, "On further reflection, I realized that I don't remember what color the car was."

While it might seem unjust, the remedy -forcing people to testify - just gives you bad witnesses. It's like when Edward Norton refused to play Bruce Banner. They could have contractually forced him to do it, but you're not likely to get a good performance out of an actor who doesn't want to be there.
Yeah. What happens in theory is a bit different than what happens in practice.

The prosecution is unlikely to call a witness who has been hostile to or uncooperative with the prosecution. In the vague scenario provided, it is unclear why the prosecution would be calling this witness.

If the witness doesn't show up or refuses to testify, the judge could find the witness in contempt. Or not. It's up to the judge. The judge could order the witness to be held in jail. But the witness can only be held until the trial is over. Most trials don't take very long. The judge would likely be reluctant to extend the trial simply to compel a witness to testify. If the trial is going to be over in a day or so or even a few hours, the judge probably won't bother with a contempt charge.

A witness could take the jail time or try other tactics to get out of testifying, or testifying in any meaningful way (I don't remember, I might have been mistaken, etc.), but the question in the OP was specifically about refusing to testify on the grounds that the defendant is not guilty.
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Old 16th May 2019, 06:56 PM   #17
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Originally Posted by Major Major View Post
What would happen in a trial if a prosecution witness declined on the stand to testify "because the defendant shouldn't be on trial"?

Are you perhaps hinting that the witness is, himself, the guilty party?

He could take the fifth and let them wonder.
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Old 16th May 2019, 07:15 PM   #18
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Does a witness even have to specify why he is taking the 5th amendment? If he simply says that he is taking the 5th, is that not the end of the process?


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Old 16th May 2019, 10:08 PM   #19
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Originally Posted by fromdownunder View Post
Does a witness even have to specify why he is taking the 5th amendment? If he simply says that he is taking the 5th, is that not the end of the process?

Not really. The 5th protects a person from incriminating himself in a crime. If it's unclear what crime might have been committed, the court could ask for an offer of proof - basically a definition of which crime the witness is afraid of. If the prosecutor has formally declined to prosecute a case or if that case has been settled, there is no 5th Amendment defense. Before his criminal trial, OJ could plead the 5th at a civil trial for Nicole Brown's murder. After he was found not guilty, he no longer had that protection. He had to testify if called. If he pleaded the 5th, the civil court could have held a hearing to determine what crime, if any, Simpson could base his 5th Amendment invocation on.

We actually don't know exactly what happened. The civil court closed the proceedings to the press. Apparently, Simpson was subpoenaed and did testify. Jurors later said he was not a credible witness.
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Old 17th May 2019, 06:11 AM   #20
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Originally Posted by fromdownunder View Post
Does a witness even have to specify why he is taking the 5th amendment? If he simply says that he is taking the 5th, is that not the end of the process?


Norm
There's no 5th Amendment right not to testify as a witness.

The 5th Amendment recognizes that an individual can not be compelled to testify against themselves in a court of law
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Old 17th May 2019, 06:53 AM   #21
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Originally Posted by smartcooky View Post
Also keep in mind that invoking your Fifth Amendment rights is not absolutely guaranteed to get you out of testifying.

If you take the fifth, the prosecution can grant you immunity from self-incrimination. If they do, then you MUST testify, or be held in contempt.
Wouldn't the witness have to agree to the deal though?

And what everybody else said about the 5th, it wouldn't apply in this case. Would this be "Witness Nulification"?
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Old 17th May 2019, 06:26 PM   #22
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Originally Posted by BStrong View Post
There's no 5th Amendment right not to testify as a witness.

The 5th Amendment recognizes that an individual can not be compelled to testify against themselves in a court of law

Um ... If you, as a witness, were doing something illegal, then you're protected by the 5th Amendment.

If I break into Steve's house just in time to see Steve shoot Mary, they might call me as a witness in the murder case against Steve. But I can take the 5th because it's impossible for me to admit what I saw without admitting I was somewhere I legally had no right to be.

The fact that this particular case isn't about my trespass doesn't mean I lose my 5th Amendment protections. Now what the prosecutor might do is grant me immunity for all my acts that night. That way, I'm in no jeopardy of being found guilty of trespass or any other crime that night. Thus, I lose my 5th Amendment protections and am required to testify.

But, then again, if I lie, what can the system actually do to me? Generally, unless it's the clearest and most baldfaced lie, they can't do much.
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Old 18th May 2019, 07:11 PM   #23
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Originally Posted by BStrong View Post
There's no 5th Amendment right not to testify as a witness.

The 5th Amendment recognizes that an individual can not be compelled to testify against themselves in a court of law
Originally Posted by ahhell View Post
Wouldn't the witness have to agree to the deal though?

And what everybody else said about the 5th, it wouldn't apply in this case. Would this be "Witness Nulification"?
Okay.

Mx. A. B. is found beaten by the side of the street.

The attack was seen on a surveillance camera, and Mr. X. Y. Z. is taken in.

On the stand, Mx. A. B. says, "My privilege was the cause of the attack, and therefore I decline to participate in the prosecution of this oppressed person."

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Old 18th May 2019, 07:32 PM   #24
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Originally Posted by Major Major View Post
Okay.



Mx. A. B. is found beaten by the side of the street.



The attack was seen on a surveillance camera, and Mr. X. Y. Z. is taken in.



On the stand, Mx. A. B. says, "My privilege was the cause of the attack, and therefore I decline to participate in the prosecution of this oppressed person."



Still not a fifth amendment question.
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Old 18th May 2019, 09:26 PM   #25
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Originally Posted by Major Major View Post
Okay.

Mx. A. B. is found beaten by the side of the street.

The attack was seen on a surveillance camera, and Mr. X. Y. Z. is taken in.

On the stand, Mx. A. B. says, "My privilege was the cause of the attack, and therefore I decline to participate in the prosecution of this oppressed person."


Asa professional lawyer, admitted to the bars of two states, I can say with absolute certainty that I have no earthly idea what you're talking about.
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Old 18th May 2019, 10:10 PM   #26
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Originally Posted by Loss Leader View Post
The fact that this particular case isn't about my trespass doesn't mean I lose my 5th Amendment protections. Now what the prosecutor might do is grant me immunity for all my acts that night. That way, I'm in no jeopardy of being found guilty of trespass or any other crime that night. Thus, I lose my 5th Amendment protections and am required to testify.
And that isn't in the constitution - at ALL! The 5th amendment merely says, "...nor shall be compelled in any criminal case to be a witness against himself, ....". Nothing about immunity there, and certainly not about use immunity which the SC has ruled is sufficient to override the 5th amendment.

What this means is that not only can you be compelled to testify against yourself, but if - as a result of your testimony - the prosecutor seeks and finds evidence that can be used against you, then you can be charged and convicted of the thing you testified to.
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Old 19th May 2019, 03:44 AM   #27
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Originally Posted by psionl0 View Post
And that isn't in the constitution - at ALL! The 5th amendment merely says, "...nor shall be compelled in any criminal case to be a witness against himself, ....". Nothing about immunity there, and certainly not about use immunity which the SC has ruled is sufficient to override the 5th amendment.

What this means is that not only can you be compelled to testify against yourself, but if - as a result of your testimony - the prosecutor seeks and finds evidence that can be used against you, then you can be charged and convicted of the thing you testified to.
This thread is very confusing. I don't follow or understand what you are saying at all. It makes no sense.

Are you saying that...

Well, I don't think I should even try to guess what you are saying because that seems to just make things more confusing. Say exactly what you mean. Give examples if needed.

This thread seems to be a game of "Guess what I am saying?".
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Old 19th May 2019, 03:52 AM   #28
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Originally Posted by Major Major View Post
The woke person is the witness (and victim).

Given that you say that they were robed, wouldn’t they be more likely to be the judge?
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Old 19th May 2019, 04:07 AM   #29
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Originally Posted by DevilsAdvocate View Post
This thread is very confusing. I don't follow or understand what you are saying at all. It makes no sense.

Are you saying that...

Well, I don't think I should even try to guess what you are saying because that seems to just make things more confusing. Say exactly what you mean. Give examples if needed.

This thread seems to be a game of "Guess what I am saying?".
A child could understand that. Read Loss Leader's post if you are confused.
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Old 19th May 2019, 06:07 AM   #30
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However Mx A. B. considers zierselves to be guilty because of privilege, and does not wish to see an oppressed person punished for practicing justice. Being guilty, Mx A. B. invokes the right against self-incrimination.

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Old 19th May 2019, 06:26 AM   #31
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Originally Posted by Major Major View Post
However Mx A. B. considers zierselves to be guilty because of privilege, and does not wish to see an oppressed person punished for practicing justice. Being guilty, Mx A. B. invokes the right against self-incrimination.

: blackcat :
Is the emoji supposed to convince the court that this is a serious question?
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Old 19th May 2019, 09:06 AM   #32
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Originally Posted by DevilsAdvocate View Post
This thread is very confusing. I don't follow or understand what you are saying at all. It makes no sense.
It is possible that you are not aware that there are two types of immunity that can apply to somebody testifying in a court of law.

Under transactional immunity, you can not be prosecuted for a crime that you admit to under any circumstances. Even if evidence other than your testimony is available, it can not be used against you.

Under use immunity, what you say on the witness stand can not be used against you. However, if a prosecutor finds independent evidence against you then you can still be charged and convicted. The problem is that you are giving the prosecutor information against you that they might otherwise not have been aware of. They can then do an investigation to find other evidence that they can use against you.

The SC has ruled that use immunity is sufficient to allow a prosecutor to compel you to testify against yourself.
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Old 19th May 2019, 10:37 AM   #33
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Originally Posted by psionl0 View Post
It is possible that you are not aware that there are two types of immunity that can apply to somebody testifying in a court of law.

Under transactional immunity, you can not be prosecuted for a crime that you admit to under any circumstances. Even if evidence other than your testimony is available, it can not be used against you.

Under use immunity, what you say on the witness stand can not be used against you. However, if a prosecutor finds independent evidence against you then you can still be charged and convicted. The problem is that you are giving the prosecutor information against you that they might otherwise not have been aware of. They can then do an investigation to find other evidence that they can use against you.

The SC has ruled that use immunity is sufficient to allow a prosecutor to compel you to testify against yourself.
OK, I see what you are saying.

Under use immunity the prosecution cannot use the testimony you provided against you, but also cannot use any information derived from the testimony you provided. The prosecution could use other evidence against you, but would have to prove that evidence was obtained wholly independent of the information provided by your testimony.

Theoretically, the prosecution can't seek out evidence based on your testimony because any such evidence would be derived from your testimony and therefore not admissible. Of course there can be a gray area in determining what evidence is derivative.
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Old 19th May 2019, 11:15 AM   #34
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Originally Posted by Major Major View Post
However Mx A. B. considers zierselves to be guilty because of privilege, and does not wish to see an oppressed person punished for practicing justice. Being guilty, Mx A. B. invokes the right against self-incrimination.


What crime would their testimony incriminate them of?
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Old 19th May 2019, 11:40 AM   #35
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Originally Posted by DevilsAdvocate View Post
Under use immunity the prosecution cannot use the testimony you provided against you, but also cannot use any information derived from the testimony you provided. The prosecution could use other evidence against you, but would have to prove that evidence was obtained wholly independent of the information provided by your testimony.

Theoretically, the prosecution can't seek out evidence based on your testimony because any such evidence would be derived from your testimony and therefore not admissible. Of course there can be a gray area in determining what evidence is derivative.
That I don't know. It would take a legal expert to answer that.
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Old 20th May 2019, 01:36 AM   #36
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I was thinking of this topic because of this.

https://blogs.spectator.co.uk/2016/0...ctims-of-rape/
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Old 20th May 2019, 09:39 AM   #37
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Originally Posted by Major Major View Post
I was thinking of this topic because of this.

https://blogs.spectator.co.uk/2016/0...ctims-of-rape/
What does the "Norway syndrome" have to do with the 5th amendment?
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Old 20th May 2019, 10:11 AM   #38
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Originally Posted by psionl0 View Post
What does the "Norway syndrome" have to do with the 5th amendment?
Nothing, I think.
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Old 21st May 2019, 07:39 AM   #39
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Originally Posted by psionl0 View Post
What does the "Norway syndrome" have to do with the 5th amendment?
Because an American who had it could try to use the Fifth Amendment as his justification.

Do you agree with the Norwegian guy, by the way?
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Old 21st May 2019, 08:23 AM   #40
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I think I finally understand where you're going with this, but you question frankly still makes very little sense. One can only invoke one's 5th Amendment privilege in a case where one could conceivably be in legal jeopardy from testifying. If I follow you correctly, you're asking whether someone could "take the Fifth" because one feels moral guilt about the situation in which the defendant finds him- or herself. I would have thought the answer to that would be obvious, even to a non-lawyer.

One might make a (weak, IMO) argument that there's some sort of legal or ethical justification for such refusal to testify, but if there is, it is not based on the 5th Amendment. Spousal privilege might be (slightly) more on point.
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