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Can all testimony be used to help convict the person who gave it at a criminal trial? Are there certain categories of testimony that legally cannot be used at a criminal trial?
No, there isn’t. I’m inclined to believe if there were, it would make it a lot easier for Congress, police, grand juries, and many others to actually get useful testimony from people instead of scaring them into silence for fear of prosecution.
Great question, and one I’m not going to answer on this page. Because it’s going to be answered in the comic a few pages from now, and I don’t want to get ahead of things here.
Quick question;
When you’re charged with a crime, the presumption usually tends to be “guilty” and the trial is there give a chance to prove innocence. According to legal maxim “Silence is construed as consent,” being silent in the face of your accusers could be considered to be consent of their allegations.
So, how does one rebut the initial presumption of guilt and force the court to prove your guilt rather than require you to prove your innocence?
That’s not exactly what I wanted to ask, but it’s a good question nevertheless.
A better question, does the right to remain silent include the right Not to identify oneself?
No, the right to remain silent (a.k.a. the privilege against self-incrimination) does not always (or even normally) include the right to identify oneself.
Usually, one’s name isn’t a fact the prosecution will have to prove at trial, so it wouldn’t be considered incriminating. There are all kinds of “pedigree” questions the police are usually allowed to ask without any Fifth Amendment issue — name, date of birth, Social Security number, home address, etc. — because those facts aren’t relevant to whether you’d committed a crime or not.
There are extremely rare occasions, of course, where one’s real name (or SSN or DOB etc) really is a link in the chain the prosecution might have to prove. Most people would have a hard time thinking of an example off the top of their head. But in such cases, yes, the Fifth Amendment would apply, and it would be perfectly appropriate to assert the privilege rather than answer the question. (Any other time, one would simply be acting like an idiot and exposing oneself to contempt of cop, if not contempt of court.)
But, isn’t who I am, My business, and up for me to decide to whom I divulge my personal information? Why should I give that information to anyone who might be a danger to my freedom?
Anyway, what is Contempt of Cop? I’ve never heard of it, is it a lawful charge?
“contempt of cop” is shorthand slang for “failure to obey an officer’s commands”. Or, in more cynical fashion, “you pissed the cop off and he arrested you”
I thought you needed to be charged with a crime before you could be arrested – that’s what warrants are for – the only exceptions are for preach of the peace and being observed conducting felonious acts.
What remedy is provided for being arrested on false charges?
breach of the peace*
I don’t know where you heard that, but you were misinformed.
Arrest warrants are actually quite rare. Police usually make lawful arrests without warrants — and all they need is probable cause to believe that the individual had committed a crime, whether they witnessed it or not.
Review the Fourth Amendment section for more details.
“Darn, your taillight is broken!”
Supposedly, there is a presumption of innocence and it is up to the state to prove it’s case regardless of anything I do or do not say. The problem is, there are to many people who believe that they never would have arrested that man if he hadn’t done it. They also will not believe anything you say, so why say anything that might be misconstrued?
Consent only applies to requests. When someone accuses you of a crime, it is not a request, it is a descriptive statement. Their is no such thing as consenting to a descriptive statement.
To me, the interesting question is, what about the possibility of being charged with a crime IN A DIFFERENT COUNTRY?
For example, even if every state and federal prosecutor in America ALL signed a document SWEARING that they would never prosecute Janie for anything having to do with publishing a webcomic….
What if she has relatives in North Korea? and maybe wants to visit there someday? Being a publicly confessed webcomic authoress could get her in real trouble there… Besides, North Korea has hackers and assassins. And they’re not above targeting someone overseas who makes fun of North Korean senior leadership…
See my response to your followup question three pages hence (I saw that one first). The laws of the United States do not control or limit the laws of any other nation (absent a treaty to the contrary). So even if you’re immune from prosecution where you live now, that doesn’t prevent another country from prosecuting and punishing you under their own laws if you should visit.
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A good example of how all this works is the De Beers diamond cartel. For many decades, the people who ran De Beers were aggressively monopolistic in the worst way, shutting down any competition in the diamond market so that they controlled almost the entire world supply of diamonds—the mines, the supply chain, wholesale trade, etc. They used that control to dramatically restrict the number of diamonds that entered the market, creating an artificial scarcity that raised the price of diamonds far above what it ordinarily would have been. Not just gemstones, but also industrial diamonds.
This kind of conduct is a serious crime in the United States, and at the end of WWII in 1945 U.S. federal law enforcement charged De Beers with “conspiring to restrict production, monopolize sales, and arbitrarily inflate prices of 95 percent of the world output of gem and industrial diamonds.” What did De Beers do? The parent corporations for its various entities were based in Switzerland and South Africa, which did not criminalize such conduct. So all it had to do was withdraw all of its direct operations out of the U.S. to escape U.S. jurisdiction, and move its money out of U.S. banks to prevent U.S. authorities from seizing their assets.
That was all they had to do to avoid prosecution and punishment. For the rest of the 20th century, De Beers simply stayed out of the U.S. Its owners and executives were very careful to never set foot on U.S. soil, knowing they’d be arrested the minute they stepped off the plane. But they could happily keep doing what they did everywhere else, knowing full well that U.S. law did not affect the laws of other countries.
In other words, simply by exiting the U.S., De Beers literally prevented U.S. law enforcement from prosecuting it. It and its people happily ignored U.S. law from the safety of other countries with different laws. The De Beers people kept pocketing their huge profits, laughing all the way to their Swiss banks.
In 1994, the U.S. again charged them with these crimes. This time, their claim of jurisdiction was based not on De Beers dealing directly with the U.S., but on U.S. law making it a crime to take such actions in other countries with the intent that they’d have an effect in the U.S. But again it didn’t matter. The U.S. can criminalize foreign conduct all it wants, but that doesn’t magically convert the conduct into crimes that foreign countries can prosecute.
Things changed after the new millennium, but not because U.S. law somehow gained force in foreign courts. Things changed only because De Beers WANTED to be prosecuted in a U.S. court. It was De Beers’ decision, not anything to do with laws having effect outside their own country. It simply made good business sense for De Beers to willingly consent to U.S. legal jurisdiction.
What happened was, the Soviet Union dissolved between 1989 and 1992. Russia produces lots of diamonds, and suddenly De Beers no longer controlled the world supply. (De Beers also was starting to take a hit in sales because the United Nations had taken a stance against “blood diamonds” funding wars and terrorism, but that was just an easily solved marketing issue. It wasn’t about their monopolistic practices.) As De Beers no longer controlled the world supply of diamonds, collaborators in its cartel started pulling out over the decade of the 1990s. By 2000, it was clear that De Beers was no longer able to effectively restrict the diamond supply and artificially manipulate prices worldwide.
They couldn’t do business the old way. But they needed to keep doing business. Because they couldn’t act as a monopolitic cartel any more, they wanted to get back into the U.S. and take advantage of its huge market, get access to its powerful financial system, and enjoy the protection of U.S. laws. So in 2004, the De Beers corporation agreed to let the U.S. authorities assert jurisdiction and fine them $10 million for any criminal charges arising out of their prior monopolistic conduct (regardless of whether the U.S. actually had jurisdiction or not), in exchange for wiping the slate clean, allowing De Beers to re-enter the U.S. market, and helping it continue to dominate the world diamond market in more competitive ways.
That was chump change so far as De Beers was concerned, a cheap price to pay for access worth far, far more. For comparison, that same year De Beers spent $543 million on marketing. It’ll happily drop $20 million—double the fine it accepted—on a single holiday-season ad campaign in the U.S. This was De Beers spends twice as much—$20 million—for a single holiday-season advertising campaign in the U.S. alone. (As for the federal prosecutors, they’d been sitting on their most recent indictment for ten years, and they were happy just to close the damn case and call it a win.)
The point is, the U.S. only got to prosecute and punish De Beers because De Beers wanted to be prosecuted and punished. If the Soviet Union hadn’t collapsed, they could still be out there doing business the old way, happily violating U.S. laws, secure in the knowledge that U.S. law has no effect in any other country’s courts (and vice versa).
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Now consider this: Shift gears from criminal prosecution by a government, to a civil lawsuit filed by private individuals.
I know we haven’t gotten to civil lawsuits yet (I’ve been eager to do Torts Illustrated since the beginning of this comic, and it involves tons of amazing human stories, but Constitutional Law won the coin toss for what to do next.) But the main difference is that it’s not the State seeking to impose punishment, but a harmed individual seeking money from the offender as compensation for the harm. (Remember how police and prosecutors don’t represent the victim’s interests? That’s because it’s the civil courts where victims seek justice. Two very different things, and two separate bodies of law.)
So in 2004 when De Beers accepted U.S. criminal jurisdiction to pay that $10 million fine, two class-action civil cases were filed in the U.S. against De Beers on behalf of parties who believed that De Beers had cheated them into paying more for diamonds than they should have. These cases weren’t about punishing De Beers for committing what the U.S. defined as a crime, but about getting compensation according to local Tort laws.
There are interesting issues of causation here (think back to the discussion of proximate cause, bowling balls, voodoo, etc.). Because De Beers had acted only in foreign countries, its causation with respect to U.S. prices was only indirect. The prices paid by U.S. consumers were directly set by local retailers, indirectly influenced by local wholesalers, more indirectly influenced by the rough-and-tumble wholesale market in midtown Manhattan, and still more indirectly by the importers who purchased the diamonds from abroad. Obviously it was De Beers who had set the floor price from which all of these indirect actors raised it, but was De Beers trying to defraud Americans? Were there legal theories under which they could be held directly liable in U.S. courts?
None of that actually got resolved in real life. What happened was, in 2008 De Beers agreed to settle the cases out of court, putting up a lump sum of I think $130 million to be distributed among all the members of the plaintiff class. Again, chump change to make it all just go away. Factoring in the cost of lawyers and litigation, and whatever the chance of a verdict might be, this was the much cheaper option. But that’s not the interesting bit. This kind of thing happens all the time.
The interesting part is that, as part of the settlement, De Beers agreed to be BOUND by a court order requiring them to immediately cease all monopolistic conduct EVERYWHERE ELSE in the world. Whoa, really?
Obviously, De Beers didn’t really care at this point, as it couldn’t be a monopoly any more even if it wanted to. But think about it:
If De Beers DID start getting up to its old tricks, what could the U.S. court do about it? De Beers promised not to do it as part of its settlement, by so what? Can a U.S. court enforce that promise? How? Would it matter if it did?
Now suppose that, as part of getting up to its old tricks, De Beers also withdrew its presence, dealings, and assets from the U.S. What now? Would a U.S. court have jurisdiction to penalize De Beers for breaking its promise? Do you think foreign courts would enforce the deal De Beers made with the U.S. court?
In reverse, what if the legal sytem of Switzerland, back in the 1990s, had granted De Beers immunity from civil lawsuits for any monopolistic behavior. Would that have nullified the U.S. lawsuits? What if South Africa had granted De Beers immunity from criminal prosecution, would that have prevented the U.S. from enforcing its own laws if De Beers had come back to the U.S. prior to its 2004 deal?
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What are your thoughts? Would you have done anything differently than what the various parties all did in real life?
Thanks for the lengthy reply, and yes, that’s a real puzzler…
But to me, the more interesting question is, if Janie receives immunity from congress, and still refuses to testify, on the grounds that she has a very credible fear of prosecution/torture in North Korea or by North Korean agents acting abroad, as a result of any honest testimony she gives before congress…
Is the US Attorney General really going to prosecute her for contempt of congress for refusing to testify under that circumstance? CAN he prosecute her under that circumstance?
I think technically he CAN do so, but that’s a REAL moral mess if he actually DOES do so…
And it’s not entirely a hypothetical question. There are modern-day accusations that if you go to an American university with a high percentage of Foreign Chinese students, in a class about Modern Day China which has an even higher concentration of Foreign Chinese students…
There’s a pretty good chance that at least one of those students is the son of a medium- or high-ranking Chinese Security Official, and that he will report any truly treasonous statements against the Chinese Communist Party which are made by other Nationals of China who are sitting in an American classroom. And every Chinese National in the room suspects that to be true.
If Congress wanted to compel a few dozen such visiting foreign students, or their American citizen friends and relatives, to testify on exactly that question, publicly, things could get REALLY dicey…. Federal Immunity quickly loses a lot of meaning, there.
Unfortunately for someone in that situation, the U.S. Supreme Court has made it very clear that even a very “real and substantial” fear of prosecution in a foreign court is not a basis for asserting the privilege against self-incrimination. The U.S. Constitution only protects individuals from the U.S. federal and state governments—what foreign governments may or may not do is “beyond the scope” of Fifth Amendment protection. That was United States v. Balsys, 524 U.S. 666 (1998), and it’s still the controlling rule here.
In that case, Balsys was required by subpoena to provide information which was certain to get him prosecuted for very serious crimes in Lithuania and in Israel. But there was no chance of that information leading to criminal prosecution in U.S. federal or state court. He was in the same situation as someone who’s been granted immunity. But the government can only be restricted based on what the government itself could do. It can’t be restricted based on what some other sovereign power might do elsewhere.
Another way to think about it is the collateral consequences of a criminal conviction. Suppose you own a bar, and you accidentally served whiskey to a minor you believed to be of legal age—you even checked their driver’s license, and even a cop would have thought it was genuine, but it turns out they were in fact slightly under-age. In your state, that’s a strict-liability felony, and there’s no way you’re not getting convicted. So you appeal to the court, pointing out that even if the judge agrees to give you no jail time, your life is going to be ruined. The state licensing commission is going to revoke your bar’s liquor license. You’re going to lose your right to vote. Your conviction will pop up on every background check, and the only job you’ll be able to get is bagging groceries at Walmart for minimum wage. The spouse you’re divorcing is going to get custody of your kids because you’ve got a record of endangering minors now. You’re going to be ineligible for many government benefits. Forget about being able to run for office, serve on a jury, or otherwise participate as a citizen in your own government. There are literally hundreds of really bad consequences that will stem from this felony conviction, and even the judge agrees you’re a good person who never did anything actually bad.
But none of that gives the judge the power to dismiss your case, or even reduce it to a lesser offense. You’re charged with this felony, and all the judge can do is impose a sentence that the law authorizes for that felony. He can’t do anything more than let you off lightly. He can’t deviate from what the criminal law requires just because other unrelated agencies and communities and individuals are likely to make your life miserable as a result. He cannot control what they’d do, and what they’d do doesn’t let him dismiss your case. The collateral consequences are beyond the scope of whether you should be convicted for the crime you committed.
But that’s not fair! You’re right, it isn’t. And that’s where the prosecutor comes in. We give prosecutors sweeping discretion in the United States, specifically so they can use their judgment to ensure that the law doesn’t work an injustice. If what the law requires would be unjust or unfair, or if it would expose you to consequences disproportionately bad for what you did, then prosecutors have all the power in the world to decide not to even prosecute you. Good prosecutors decline to prosecute people all the time “in the interests of justice.” That’s a major part of the job of a prosecutor, preventing the law itself from causing unjust outcomes.
But the prosecutor is the only one in that courtroom with that power. Cops don’t have that power. The judge doesn’t have that power. Victims, witnesses, and defense attorneys don’t have that power. Only the prosecutor can decide not to take a case, to dismiss a charge, or to charge something else instead. (Okay, yes, juries technically have the power to acquit when a law is unjust, but you’re not allowed to tell them so. More on that when we get into the Bill of Rights.)
So what you’re going to need, to avoid unjust collateral consequences—and what the people you describe need, to avoid being compelled to incriminate themselves for foreign prosecutions—is a prosecutor with strong morals and sound judgment. You need a prosecutor who knows that prosecuting you accomplishes nothing worthwhile, but would only add to the world’s miseries for no good reason. The people you describe need a prosecutor who understands that his subpoena isn’t worth getting someone sent to the camps or executed, and so refrains from demanding a court order compelling the testimony.
Unfortunately, there are loads of prosecutors who are too stupid or unethical to do their job properly. They commit the grave offense of abusing their vast discretion by failing to exercise that discretion, thereby undermining the whole purpose of giving them that power in the first place. It happens all the time, and that’s how cases like Balsys’ wind up going all the way to the Supreme Court only to be told that even though the outcome may be dire, there’s nothing the judges have any power to do about it.
So yes, things could get REALLY dicey, as you say. The only protection ensuring that immunity doesn’t lose its meaning is the prosecutor who realizes that even immunity isn’t going to be good enough, and she should just stop asking the damn question.
Great answer, thanks!
And it looks like the next big potential problem in fifth amendment law may turn out to be the “Canadian Two-Step”… I could see a strategy where prosecutors on either side of the Canadian-US border flat-out divided up their labor when dealing with criminals who committed crimes in both jurisdictions…
Flip a coin. Losing prosecutor grants immunity in his jurisdiction, demands complete testimony to all crimes on both sides of the border, and then sends a copy of his notes to the OTHER prosecutor, who then files charges in HIS Jurisdiction….
I don’t think anyone has thought of it yet, but wait a hundred years, and someone probably will. should be an interesting line of future cases.