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There are now 63 comments... what are your thoughts?
  1. Librarian says

    Wait wait, so Government forms can also be pled to the fifth? Wow…
    I suppose the IRS doesn’t count here because it’s a private, non-governmental agency?

    • I don’t see why the IRS wouldn’t count.

      The IRS already knows roughly how much you owe in federal taxes though. Your employer provided the relevant information. They could do your tax return for you and have you just approve it, but that would put Intuit and a bunch of accountants out of business.

      • I thought that your employer cannot do your tax return because your employer does not know how much money you spent on medical expenses and other deductible items. Deductible items are payed for with before-tax income. So they affect how much money you owe the I.R.S. in taxes.

    • More to the point, the idea that “the IRS doesn’t count here because it’s a private, non-governmental agency” is patently false. The IRS is absolutely a government agency, by law, and anyone who tells you otherwise needs to do some research.

    • No. The IRS is a government agency.

      You can decline to answer a question on a tax return if that answer would be incriminating — but you have to say so, and you still have to file the return.

      We’ll be covering all this in more detail in a few pages. Hang in there.

      • Oh, I got my facts mixed up, it was the Federal Reserve that’s not government, and the organization I was thinking about, not the IRS.

        Though, correct me if I’m wrong, but, the IRS is still federal agency with jurisdiction exclusive to Federal “United States” territory and citizens only, with no authority over “State” citizens or territory, no?

        • @Librarian:
          Just to clarify:
          You appear to be asking if Federal authority is limited to federal matters, or if they have Jurisdiction in state matters. Is this correct?

        • You are wrong. Payment of federal taxes is a federal issue, and the IRS has jurisdiction there (in fact, enforcement of said tax payment is pretty much the only reason the IRS exists)

        • Librarian, there is no such thing as a citizen of a state who is not also a citizen of the United States. You’re a citizen of both. Says so right in the Constitution.

          Judging from your comment history, you seem to have been informed by some reaallllly bad sources. I don’t know who they are, but I regret to say you shouldn’t rely on them — someone who acted on their misinformation would only make things a lot worse for themselves. Whoever your sources are, you should be very wary of what they’re saying.

          • I am wary, that’s why I read law dictionaries (Bouvier’s), and “the illustrated guide to law,” and check what I read against logic, maxims of law, and constitutional interpretations, among other sources.

            I lack a method to check court cases against things, except those that are already cited in my sources, but it seems from what I see, that many have been argued from the wrong angle, thus the reason for their particular outcome.

            If I am not mistaken, and I don’t expect myself to be, but, All law Must be interpreted in accordance to Legal Maxims. When I apply this rule to certain fundamental laws, I often result in a completely different outcome than what government tells me it can do.

            • BTW, I presume the reasoning behind your assertion that all State citizens are US citizens, is with regards to the 14th Amendment, in the which case, I propose a closer inspection of the plural and singular cases of “United States” throughout the whole of the document, and the words Thereof, in comparison to the 13th Amendment and Article 6, and Their words, would give rise to the more appropriate interpretation.

              But You’re a lawyer, so I don’t expect I need to spell out what you can check for yourself. If I’m full of it, I’m sure you’ll know after your examination.

            • “All law Must be interpreted in accordance to Legal Maxims.”
              That is your mistake.

              The courts and legal scholars used to say that. However, ever since the 19th century people have been attacking that concept and now every court and legal scholar knows that what actually drives how courts interpret the law is public policy considerations.

              The courts can say that they base their rulings on legal maxims as much as they want. Before they 19th century they said it constantly. But every Common Law court throughout history has actually been basing their rulings on whatever they think is best for their respective society, corruption not withstanding.

              • I believe you mistake.

                Precedent is a New Maxim, one applied where no other maxim exists to address the issue at hand. In the face of an existing maxim, law must be interpreted accordingly, else it is an error of judgement.

            • Wikipedia|Common_Law|Decline_of_Latin_maxims.2C|adding_flexibility_to_stare_decisis
              “All law Must be interpreted in accordance to Legal Maxims.”
              That is your mistake, courts and legal scholars used to think that. However, they now recognize that precedents are, and always have been, determined more by public policy considerations than they are by legal maxims. In real life, precedents and interpretations are written to justify whatever outcome the court wants, which corruption not withstanding, is the outcome that they think is best for their society.

            • You don’t seem to get it, do you? The issue has been argued in every concieveable angle and way for decades. You do not hold some secret key, it doesn’t exist. Even if you were technically correct, do you really think the courts, especially the Supreme Court, would ever give you a license to ignore the law of the land? Laws are not founded on grammatical mistakes, because they do not change the plain meaning or intent of the law. You cannot turn letter againsy spirit in such a contrived matter.

              Fact is, if the government decided tomorrow to ban firearms, from the President to the last bureaucrat, the Constitution and the courts are unlikely to save you, especially when the specter of national security is raised. The SCOTUS demonstrated that with Schenk, Korematsu, Hamadi, and Manning. If you don’t like the way things are, don’t look to the courts for salvation. They are just one more gear with which to grind you down.

              • I never said I held a secret key, but please show me the court case where this argument has tried and failed. If you can’t provide one, I can only assume, until further evidence is provided, that one does not exist.

                If you want to argue letter of the law vs spirit, then I can tell you that the 14th amendment has the spirit of making non-citizen Slaves in the south, into US citizens wherewith they could be turned into state Citizens before jurisdiction over the conquered South was returned to the states. And with regards to Spirit of the Law, the Federal US was never intended to has the vast jurisdictional reach it seems to have today, thus making much of it’s contrived de facto power wholly unlawful from a law perspective.

                Of course the Courts aren’t going to overturn a century of overreach in one court ruling, in spite of the true unlawfulness thereof, but perhaps small steps might be made?
                If not, then let us remember the spirit of the Constitution is that it is to protect The People and their God-given unalienable rights as established by the Declaration o Independence, and that by such, no governmental power has lawful authority to infringe those freedoms, with Revolution as the people’s remedy against such Tyranny, be it overt or covertly oppressive.

      • Didn’t there use to be an “illegal income” line that was removed in the wake of some decision building off Leary?

          • I’d guess she’s the senator’s Legal Assistant. Though she could be an Aide who recently graduated law school. I didn’t ask.

        • Not quite – there’s no line for it, but the instructions do indicate that you have to report any income gained through illegal means on the form – you do so under “other income”. Mostly they do it so they can nab criminals for tax evasion when they’re having trouble making other charges stick (it’s how they famously got Al Capone in jail). The Supreme Court has apparently ruled that forcing a person to declare the income doesn’t violate the 5th Amendment, but they cannot be forced to reveal the source of the income, just that they earned it (and good luck getting a conviction when all you have is a tax form that says “Criminal Gains – $30,000”).

  2. austin says

    wait, wait! so i don’t actually HAVE to fill out a government form? like…really?

    ok, someone mentioned above irs forms (i can see that, i mean you still have to pay them) but what about census information (not that i wouldn’t wanna fill out census info, that’s really useful information that helps everyone in the community and future historians) they say you have to fill those out, like it’s against the law to NOT fill them out…are they lying to make you fill it out?

    • Someone correct me if I’m wrong but I don’t believe Point 4 would apply to the census because it specifically cannot be used to incriminate you. As far as I’m aware, your census answers can’t be submitted as evidence against you in a criminal proceeding.

    • Don’t read too much into this. If there’s a government form you must file, then you must file it. But if there is a particular answer on that form that would be incriminating, then you can take the Fifth for that answer. How one does this will be described soon.

    • Correct me if I’m wrong, but as far as I understand it, the only Census answer that you need to answer is the number of people in your household, the government is not entitled to anything else.

      • Nope. Refusing to answer census questions can actually be punished with a $100 fine, $500 if you willingly provide false answers. The only questions you can refuse to answer are those about religion. Check out 13 U.S. Code § 221

        There’s really no good reason to not answer the questions, though. The answers can only benefit your community (census data is used to determine where federal money goes), and the questionnaires remain confidential for 72 years.

        • Yes, the census has *never* been used against people. I’m not saying that answering the census is bad, but pretending that there’s no potential issues is ignoring history.

          • Actually, the Census is forbidden from disclosing personal information it gathers. Can’t even disclose statistics that might identify a person. It’s a federal crime for any census employee, past or present, to share personal info with anyone, including the IRS and FBI. See 13 USC §§ 9 and 214.

        • ” The answers can only benefit your community (census data is used to determine where federal money goes), …”

          Did the Jews of Weimar Germany think this way?
          What about when the Nazis came to power?

          Why will NONE of you understand, it’s not a question of IF the government will abuse information – but WHEN.
          E.G., illegal aliens are now supposedly going to be granted the right to VOTE in US elections. Anyone NOT saying WTF?!!! is, point blank, a TRAITOR.

          You might as well say ONLY the KKK or Black Panthers can vote. It’s THAT stupid.
          And just because it’s YOUR guys making the rules now, doesn’t mean they’ll be able to block laws when the guys you DON’T like take control – which will happen, eventually.

          As for things being “confidential”? That’s the same lie they used to make your Social Security number pass Congress. It’s such a big secret that by the 80s it was used on damn near every form you had to fill out, and these days, you cannot OPEN A BANK ACCOUNT, or ENROLL IN SCHOOL, without one. And that number is vulnerable, as in, “Identity Theft.” So….

          What about the forms that gun dealers must keep, which are mandatory to be at the dealer’s location? The forms the BATFE “cannot” take? Bear in mind, to NOT have the forms on file is a Federal crime. To lose them or have them stolen? Federal crime. So if the BATFE comes and takes them – I.E., the FedGov takes them – who do you call to report it, and NOT go to prison?

          EVERY. Government. Program. is. designed. to. help. them. and. hurt. you.
          Just because they aren’t literally sticking a gun in your ribs and emptying your wallet on April 15th doesn’t mean it’s not LITERALLY theft.
          This “information” is no different.
          It’s all meant to be datamined, as in, they’ll determine how Hispanics or Latinos vote… What they buy… Where they congregate… How they save and spend money, what’s culturally important to them, etc, etc, etc.
          Key examples: They (a) vote, (b) Democrat. Despite being nominally Catholic, they support the part of partial birth abortions, infanticide, prophylactics, gay rights, Trans rights, etc, etc, etc. (Note: the “rights” are really privileges granted by the government. If you hit a woman going into the abortion clinic with your car – pure accident – even if she’s essentially uninjured, if she miscarries? You’re going to face murder charges – for the unborn “child” she was going to “abort”. It’s a contrived example, but still true.The Law doesn’t care – it just wants more meat for the grinder. I.E., it runs counter to freedom. And the examples in this strip should show you that the way it’s SUPPOSED to work, is a bald-faced lie. We’re just numbers to the court… “336-09-3419, you have been found guilty of not paying as much as we THINK you owe in taxes. Because you have this money concealed, and are not allowed to profit from criminal enterprise, we are freezing your accounts. But you have money, obviously, in your accounts – so you cannot claim you have no assets and cannot afford a lawyer. ” Translation: If you get money from somewhere to pay for a lawyer, you’re admitting guilt. If you can’t get money from somewhere else, we just haven’t hurt you enough to admit guilt. E.G., it’s the f*cking star chamber all over again. AND THAT’S THE PLAN. ALWAYS. EVERYWHERE. Government will prove to you it OWNS you. Just be a good little serf and work the land for the Master…)

          Sorry for the rant – but WAKE UP!!!!
          The words you use have meaning, and you’ve accepted the premise of being governed. So you’re going to be controlled by someone who is unknowledgeable, unknowing, and doesn’t care – but will tell you what you can and cannot put in your body, grow or build on “your” property, add to (or remove from) your car, what fuel you can use in that car, what price you’ll pay for that fuel, and where the taxes on that fuel will go (and it ain’t going to the highway maintenance, and that is also public record.)

          these people are controlling most of your life already – and you’ve been told since you were a child that anarchy means people killing each other in the streets.
          Guess why you’re disarmed…? (And the merry-go-round keeps spinning, man, with D.C. deciding if you can raise chickens in your yard, or grow vegetables, or if the puddle in your driveway is actually “wetlands.” No joke! )

          [Final portion of comment deleted as super-inappropriate.]

          • Government employees are also citizens, and they are also human. They’re like everyone else. Just like commercial businesses, you’ll find entire offices, branches, divisions which are full of bullies who want to pick on you (because the managers tend to hire like people), and entire offices, branches, divisions which are full of conscientious people who are limited in what they can do to reduce side-effects.

            If you have a problem, look to your Representative, Senators, and Governor / President. They’re the ones creating the law; everyone else just implement it. Supreme Court? They do what they can (and Nathan is doing a fantastic job of making it simple to understand, stripping away all the BS); there’s only so much they can do about a law which is unjust but Congress shows no sign of interest in changing.

            You can vote in a new Representative or Governor / President of your choice, but the fact is that in many / most cases, you need a lot of complexity in order to get desired results — and chances are you’ll get lots of strange side effects out of left field. For example, encouraging biofuels, to reduce dependence of foreign oil, results in higher food prices, harming the poor, which apparently didn’t occur to anyone until afterwards.

  3. Jason says

    Is that an immunity grant I see on the horizon?

    And if so, will there be a separation of powers “discussion” because of it?

    • Believe it or not, immunity wouldn’t require a separation of powers discussion, or even a separate sovereign discussion like Double Jeopardy might. The reason is that a grant of immunity by the feds will apply to the states, and vice versa (though the feds don’t do “transactional” immunity, only “use” & “derivative use” immunity).

      It’s a cool topic, and one we’ll be getting to in Advanced Crim Pro, but probably too much of a digression for our purposes here.

  4. Gregory Bogosian says


    No that is wrong. The courts do overturn precedents when they think that public policy justifies it. Such as in the case of Brown v. Board of Education where they overturned Plessy v. Fergusson because they thought that following Plessy v. Ferguson would prevent black people from becoming successful in American society. At least that is what they said that they were doing. I know that Nathan already told me that Brown v. Board of education is an impediment to racial justice disguised as an aid to racial justice. Nevertheless, the opinion of the court did explicitly void certain language in Plessy v. Ferguson while simultaneously acknowledging that Plessy v. Ferguson is the relevant precedent.

    More to the point, no one has the legal right to reward or punish any court for ruling a certain way, including overturning or otherwise explicitly contradicting the relevant precedent and/or maxim, and once a court sets a precedent, that precedent can still be overturned by a higher court, or by that same court in a future case. So even if contradicting existing precedents and maxims is “an error of judgement” in some sense. It does not matter for practical purposes because there is no way to prevent the courts from doing it or any way to give them an incentive to not do it.

    • “I know that Nathan already told me that Brown v. Board of education is an impediment to racial justice disguised as an aid to racial justice.” Wait wait wait. [citation needed]. When did he say this? I’ve only heard one colorable but unconvincing argument to this effect.

      • I believe it was when I was wrapping up the history of Miranda. I posited that the Warren Court abandoned individual justice for a bright-line rule in both Brown and Miranda, with the result in each of killing further advancement.

        Here’s my thinking, very VERY briefly: When Brown overturned “separate but equal,” they threw out the “equal” along with the separate. Integration was necessary, but the way they did it, integration was all you needed. Inequality persisted, but now was easy to excuse as being the black guy’s own fault for keeping himself down. There had been a movement toward real fundamental guarantees of equality — of opportunity, of representation on school boards, of a voice in lawmaking — but Brown took away the perception of necessity. Like Miranda, it’s one of those ironies where everyone thought it was a great liberal leap forward, when in reality it practically enshrined the status quo.

        • I think “killing further advancement” is a bit of an exaggeration – it makes it sound like there haven’t been any other civil rights advances since 1954, which is obviously untrue.

    • You are very right, courts can and will corrupt judgement based upon political considerations (aka public policy). This does not make the corruptions lawful however, in any manner, regardless of how powerless (or complicit) the (supposedly) sovereign people are against such judgements.
      I can tell you that the people do have remedy however, even if they choose not to use it, which is why judges are supposed to be Bonded, and criminal cases are tried by jury.

      What matters is how far the people are willing to go to retake their freedom. If the courts, even up to the Supreme Court, won’t strike down unlawful precedent of themselves, then it is up to the juries to nullify such unlawfulness case by case, and the victims to sue on the public officials’ bonds. There is no excuse for a Public Servant to breach the sacred Trust of their office, save willful complacency and negligence on the part of the Sovereign People.

      And I’ll say this on the matter of Racial Justice:
      Equity does not mean Equality.
      No one, Black, Yellow, Red, or even White, whether they be Poor, Rich, Smart or Incompetent, Homosexual, or Heterosexual, Male, or Female, or of any Nationality, has any right to equality of station or equality of benefit, only equal Treatment and Protection Under the Law, according to the law.

      Personal Societal Position is a personal responsibility.
      To add special cases, or to promote quotas, or force positive prejudice (that is discrimination in favor of one over another rather than against), is no less racial and wrong than segregation at its height.
      Justice is Equity, not Equality.

          • Despite being rather opinionated, I’m actually quite open to correction, if in fact, I am wrong and can be shown to be such. The problem however, is that no one ever takes the time to actually disprove the argument or the roots thereof; they only deny it, step around it, ignore it, and fight it with more illogic, and improperly based assumptions.

            Which only serves to solidify my beliefs, because, if it was so easily a wrong belief, why is it so hard to show me that?

            My opinions deal with the roots of the law, definitions, so to speak, and the hierarchy of power, so trying to argue against them with branches from a different root is utterly and completely meaningless.

            • It seems that you and I have different ideas about what the true roots of the law are. I understand you to be arguing that the roots of the law are the philosophical and technical principles that justify what the law says. I think, that the true roots of the law are the social conditions that lead to people creating and recognizing the law as legitimate. I suppose that the most obvious problem with my position is that it makes it very hard for any reasonable person to regard the law as “legitimate” in any but the loosest of senses. The most obvious problem with your position is that it makes it very hard to explain and justify the law to non-lawyers, even perfectly intelligent, perfectly reasonable ones.

  5. tycho says

    Is it possible for a witness/testifying person to be deposed by friendly counsel, and take the 5th against any other questioning?

    • Excellent question, and I think it’ll be answered when we start to fine-tune the general rule in the coming pages. Remind me later on if you don’t think I’ve answered it fully.

  6. Always seems like move and countermove with abusive authorities.

    Life of a victim, or a lawyer of such?

  7. Y. Exeter says

    Sounds like you’ve got a sizable discussion on your hands here in the comments. I’ll have to come back and read them when I’ve got a moment.

  8. illybay says

    Does taking the 5th hold true for traffic stops as well?
    e.g. “Do you know how fast you were going?”

    Or maybe just anything a police officer asks ever? When you say “4. That could be used to incriminate her”, couldn’t ANYTHING be used that way? Based on your section on strict liability back in Criminal Law, where mens rea isn’t taken into account, it seems to follow that I should never give any information ever, always taking the 5th, in case I’m breaking a law I don’t know about, or am under investigation for a crime I don’t know about.

    • “Do you know how fast you were going” is a classic example of an incriminating question, answered at one’s peril.

      As for whether anything could be used to incriminate you, we’ll be addressing this shortly.

      • How WOULD you answer this question? I’ve never been quite sure how to not say anything when I have been asked this.

        • It’s a tough one to answer and probably depends on the situation. Sometimes, being upfront with an officer about the reason he pulled you over can lead to a warning instead of a ticket. Other times, it can lead to a ticket that’s harder to fight because you admitted to the infraction.
          If you’re nailed dead to rights, and the cop seems in a good mood, a bit of honesty and humility (and an apology) could be your best friend. If you’re not guilty, or the cop is being a jerk, I’d just keep my mouth shut – he wouldn’t pull you over if he thought he was wrong, and arguing with a police officer is never a winning situation and won’t help at all. Save it for the courtroom.

          When I get the question, I tend to answer, “I thought I was going (what I think the speed limit is). How fast did you have me?” It’s usually an honest answer too, usually when I get pulled over for speeding it’s because I didn’t notice a speed limit change. No speeding tickets yet.

        • Me? Car off, window down, hands on wheel. Smile pleasantly like I didn’t hear him. “Afternoon, officer. Here’s my license and registration.”

          If on the other hand they ask “do you know why I pulled you over,” the best answer is probably a friendly “no.” Because you don’t know, for one thing. And it lets you find out. Last time I got pulled over, I’d been scratching my face and the cop thought I’d been on my phone. Letting him do the talking made it easier to clear up his mistake, and I was soon on my way. If I had answered by suggesting things I might have done, it would have ended much differently.

        • Answer their question with a question of your own? I wouldn’t let others dictate the situation for me. Course, it depends on what you’re looking for? Convenience? Apologize and pay the ticket.
          Freedom? It’s not for the faint of heart, and will require a fight in court.

            • Nah, don’t think I will.

              How can I confirm what I know to be true or false if I don’t prove it?
              May as well do that here rather than in a courtroom where a single slip-up will be immensely costly.

              But, just for fun, and to stir the pot;
              How do the rules regulating commerce ( that is, Traffic, or Trafficking), even apply to a Private Traveler and his or her Guests exercising their freedom of mobility?
              Such a thing would be unheard of, and an outrage, in the 18th and 19th centuries.

  9. MBB says

    Of course, if you did wrong, and know you did so, one might argue you deserve whatever fine you get, admitting to it. A story:
    My sister was pulled over after making a turn, and was asked the ” do you know why I pulled you over” question, to which she responded “I turned into the wrong lane (supposed to be the closest, in general)”. The officer responded that he found her to be the first who knew this to be a requirement, and let her off. I presume she was apologetic at the time, as well.

  10. I am not a US citizen, and when entering as a tourist, I had to fill a form stating that, among others, I had not taken part in espionage activities against the US in some period. Could I have pledged the fifth there? Would they be right to deny me entry solely on that ground?

    Another of the questions was if I was planning to kidnap a US minor. That would be something that has not happened, so if I were indeed planing so, and didn’t want to lie (because only bad people lie, unlike kidnapping children), would the fifth apply here too?

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