If the government grants immunity, then you cannot assert the privilege against self-incrimination.

As mentioned in a previous comment, I’m not going to get into the difference between the “transactional,” “use,” and “derivative use” kinds of immunity in this section. The outcome is pretty much the same here, regardless. More details will come later when we get to Advanced Crim Pro.

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Join the conversation! There are now 102 comments on this chapter's page 57. Neutralizing the Privilege. What are your thoughts?
  1. Y. Exeter says

    We aren’t going to get into a terrible plotline where Pi has to stop a crazed rogue ex-CIA agent from killing webcomic artists and anyone remotely or tangentially related to them while in solitary confinement, are we?

  2. Gregory Bogosian says

    Can all testimony be immunized so that the fifth amendment does not apply?

    • I can’t think of a situation where that wouldn’t be allowed. Plenty where it wouldn’t be advisable, and some where the witness would rather they didn’t (coming up), but none where it was forbidden.

      • Do they have to immunize the testimony against being used in any way, or just in regards to specific crimes? Like, if you testify that you did in fact have those drugs in exchange for giving up your dealer and in the course of the testimony you admit to a different and unrelated crime (like, “Yeah, I bought them from Alice, using money I had stolen from Bob”) does that mean that they can’t use the testimony at all?

        • Some grants of immunity are all-encompassing — as when your value as a cooperator is being assessed, because the questioner wants you to bare your soul. But in a subpoenaed-testimony situation, if they’re asking about crime 1 and you go and bring up unrelated crime 2, then the immunity isn’t going to protect you from prosecution for crime 2.

          • I wonder if it is possible to lead your questioner into asking a specific question that would make you reveal a crime for immunity purposes. Like leaving a strange plot hole as to how you got something or somewhere so that you would be asked and you could get immunity through your answer?

  3. Mark C says

    Does the immunity apply to all prosecution? State prosecution as well as federal? Local? How about it being used in a civil suit?

    My question – how immune is she really?

    • Yes, a state/local grant of immunity will apply to the feds, and vice-versa. The only distinction that comes up is the feds don’t have “transactional” immunity — so where a state may have said you can’t even be prosecuted for the events you discuss, the feds would only say they couldn’t use your words against you. But the Fifth Amendment issue is only about your words, so the distinction doesn’t matter here.

      • So what you’re saying is, the feds can give you immunity, you confess to doing something, they can then charge you with doing it and prosecute you with other evidence (in other words, they can use your confession to go looking for other evidence) whereas the state, upon granting immunity, simply cannot charge you for the crime?

        • Not quite, Shayne.

          We’re getting off topic and way ahead of ourselves, but here’s a quick-and-dirty version off the top of my head:

          1) Transactional immunity is only available at the state level. It precludes prosecution for anything you answered questions about. In practice, it doesn’t happen often.

          2) Use immunity is available at both the state and federal level. It precludes the use of your immunized statements in direct evidence against you at trial, though they can be used to cross-examine you if you testify differently at trial.

          3) Derivative-use immunity is available at both the state and federal level. It precludes the government from using your immunized statements to develop other evidence to be used against you. They have to prove that the evidence they obtained was truly independent of your immunized statements.

          4) Use and derivative-use immunity almost always go hand-in-hand. They are the most common type of immunity granted at the state level, and the only kind at the federal level.

          5) Use and derivative-use immunity are usually granted when either (a) the government is trying to decide whether to use you as a witness against someone else, or (b) the government is giving you a chance to explain why you shouldn’t be prosecuted. Without such immunity, you couldn’t speak freely, which would defeat both purposes. But it leaves the door open for you to be prosecuted if it doesn’t work out. The idea is, you’re minimizing the risk of coming clean, while they’re not having to drop the case just to hear you out.

          6) Transactional immunity is usually conferred by statute, rather than by a human’s judgment. For example, in some states if you’re subpoenaed to testify before a Grand Jury or a legislative committee or what have you, and you’re asked a question that elicits an incriminating answer, the law itself imposes transactional immunity as a consequence. It’s not something the prosecutor or legislator decides to grant you.

          7) No matter what kind of immunity you got, if you lied under oath you can still always be prosecuted for perjury.

          • So one way to get a way with something that was a crime under the laws of New York State would be to arrange so as to be compelled give testimony about that crime by the defense attorney of someone else? I feel like this would make a good plot twist in a movie.

            • Nope. It has to be the GOVERNMENT that compels testimony, not some defense attorney.

              But there are ways that transactional immunity can be inadvertently conferred by a poorly-trained prosecutor in New York.

              Let me put it this way: If one of my clients were to be personally subpoenaed to deliver documents, I’d have him deliver them in the Grand Jury. The prosecutor would have to be VERY careful not to bestow transactional immunity on my client at that point.

              The properly-trained prosecutor would have addressed the subpoena to an unnamed “custodian of records” if at all possible. If the recipient had to be named, and he has a smart lawyer who makes him deliver the docs in the Grand Jury, then the prosecutor would have to limit his questioning to “are you so-and-so,” “did you receive a subpoena requesting this and that,” “did you bring them with you today,” and “I now receive them into evidence as Grand Jury Exhibit whatever-it-is.” The instant the witness starts going into substantive facts, shut him down and keep him limited to delivering the docs. It’s not as easy as it sounds. One little slip and the case is over.

              • Ah okay, so if I have been falsely accused of a crime, can I invoke my 6th Amendment right to have compulsory process for obtaining witnesses in my favor to call to the stand the person whom I think actually did it and then compel them to testify, not about positraction and independent rear suspensions, but about their crimes?

              • Just to clarify… a prosecuting attorney can give immunity, while a defense attorney can’t, correct? And presumably the right form needs to be filled out, signed by both sides, and filed.

          • Thanks, I was actually wondering about this exact topic myself. It’s been in the newspaper a lot lately with a couple of different federal agencies. I’m interested in seeing how this plays out, both in your comic and in real life.

  4. Avonidas says

    I see a huge problem with such immunity, for the same reason that I object to the practice of plea bargain:

    Equality before the law is, I believe, an integral principle of our legal system (at least in theory). Granting immunity for no other reason than that it is convenient to the state means that we treat the same offense (in the same circumstances) differently. We also encourage people to incriminate others, as Janie may well be doing here.

    • It can get even more topsy-turvy than that. A plea deal (or immunity) is going to be better, the more results you can get for the government. The person who can testify against the most offenders is usually the guy at the top of the criminal organization, while bottom-feeders don’t know enough to be worthwhile. That can sometimes result in the worst guy getting the best deal.

      All in all, though, plea bargaining works for a number of reasons, most of which involve better justice all around. The system would have to be changed dramatically — and in ways that are politically unlikely — for plea bargaining to stop making sense.

      • Judges normally give out lesser sentences if you plead Guilty, for instance- at least, if I remember things right.

        That said, isn’t a plea bargain only something between the defendant and the prosecutor? If the prosecutor asks for the minimum sentence, the judge is still able to hand out the maximum, IIRC.

        • Depends on the jurisdiction. In some states, the judge is bound by the plea agreement (so long as it’s lawful). In other states, and in the federal system, the judge is allowed to impose any sentence authorized for the pled-to offense.

  5. Rich says

    So if you have two actors here, grant both immunity to their own testimonies, and compel them to testify against each other, could the state still end up with effectively the same result as compelling the testimony of oneself? Perhaps not quite as good as a confession, but it would seem the “no reason to lie” argument might hold some sway with juries otherwise (from a lay perspective anyway).

    • The obstacle there lies more in the 6th Amendment’s Confrontation Clause and the rules of Evidence. That’s a whole nother discussion altogether.

      The quick answer is no, you’re not going to have two codefendants, immunize each as to their own testimony, but then use that testimony at trial against the codefendant. Not even if the case was split into two separate trials.

      • Then why has it already been done? Apparently it’s come up in some eco-terrorism cases, especially with regard to grand juries. It’s come to the point that some people have chosen to endure civil contempt rather that testify.

        • Are we talking about the same thing — both codefendants’ immunized statements being used against each other at trial? I’d be really interested to read how the court allowed that. Do you have a link?

          • It’s not really a rubber stamp, though. Prosecutors tend not to present cases if they think the grand jury won’t indict. The fact that someone’s going to have to decide whether there’s enough evidence usually results in the prosecutor making sure there’s enough evidence first. Just like with search warrants — few applications are rejected because the chance of rejection makes prosecutors ensure they’re legally sufficient first.

            And Grand Juries do vote not to indict now and then. Mostly in the states (federal grand jury practice sets a VERY low bar), and mostly after a defendant has testified to explain what really happened or to ask sympathy.

            One of the most important functions of the Grand Jury (and not of the trial jury) is to act as the “conscience of the community” — to say “yeah, he probably did it, but he still shouldn’t be prosecuted” because they feel it would be unjust to apply the law to this person. Prosecutors sometimes don’t tell them this is their job, but it is.

            • Is that Jury Nullification? Or is that a separate thing? Or not a thing at all?

              Huh. I also wonder to what degree this allows the prejudices of the times to show through. I suppose that is a problem in anything that allows the “conscience of the community” to have a voice.

              • It’s not too hard to indict a ham sandwich when it can’t defend itself. :)

                Jury Nullification is when a jury comes back with a Not Guilty verdict that isn’t based upon the facts of the case, but because they just plain don’t feel like the defendant should be punished. Juries aren’t supposed to do it, and attorneys usually aren’t allowed to bring it up, but if it happens there’s not much that can be done – once you’re acquitted, you’re acquitted.
                Note it doesn’t work the other way around – if a jury comes back with a Guilty verdict that can’t be supported by the facts of the case, the judge can overturn it.

              • @UsaSatsui
                Jury Nullification is one of the few ways citizens can fight unjust laws. A big advantage of having a jury of one’s peers instead of a professional jury is that it can ignore a law when it is contrary to the will of the people. Naturally, a prosecutor would rather the jury do what he tells them rather than think for themselves, of course.

              • I should also add that allowing jury nullification instills legitimacy on both the law and guilty verdicts. The convicted did not just break the law, he also went against the values of society, as determined by the jury. Blindly following the law could create a grave injustice, and that undermines the law as well.

              • @Bill – Sure, which is probably why it still exists. But we don’t want people trying to game the system and play the jury for a not guilty verdict when they are very, very guilty and the laws in question are perfectly fine.

      • One of the Digital Commons articles I linked for you, the Seattle one, made the point that part of the problem is the prosecutor’s near total control over grand jury proceedings. It is so complete, that some circuits have waved the white flag and authorized US attorneys to issue subpoenas in the name of the grand jury without even consulting them! To say that an action requires the approval of the US attorney is absolutely no check on the abuse of grand juries.

        On page 388 of the document: “This is not supposed to happen, according to the handbook given to each grand juror. Yet, because prosecutors wield so much power over the
        process, one could certainly subpoena a defendant that the government aims to indict, even if the prosecutor knew that she would invoke the Fifth Amendment. […] This procedure would strike the indigent the hardest, because they
        might be more likely to collect contempt charges for failing to appear at
        such hearings, particularly if these hearings are far from home. In addition,
        since these putative defendants have no right to counsel at the grand
        jury, it is unlikely anyone would inform them of their rights to potential
        immunity or duties to appear before the grand jury.”

        In cases where not only does the witness not only have their own fifth amendment privilege (i.e. possible conspiracy charges), but also is of the attitude and character that they will not give the testimony demanded of them under any circumstances whatsoever, the only possible purpose of subpoenaing them is to harass and neutralize them by way of civil and criminal contempt. If the US attorney truly was only interested in testimony, they would steer clear of these bloodless turnips. Instead, they intentionally target such people in the hopes of quashing all activism by them, legal or not.

        These are not the tactics of a justice system intent on preserving public order and safety. They are the tactics more appropriate to military intelligence (if that), a sort of judicial waterboarding. Indeed some activists have been repeatedly subpoenaed under consecutive grand juries for the sole discernible purpose of subjecting them to prolonged incarceration. If the Constitution has any meaning, this procedure should be disallowed, and all attorneys who try to use it should be disbarred.

        • You’re conflating two different things. A prosecutor does not need to confer with the grand jurors to issue a grand jury subpoena. All that’s required is to have an investigation opened in the grand jury, and then the prosecutor is free to issue as many subpoenas as he needs in furtherance of the investigation. The grand jurors themselves may want to subpoena stuff or witnesses, but that’s not common.

          That’s different from having to get approval up and down the chain of command within the DOJ — which is a very real impediment. In fact, it’s one of the reasons why many kinds of investigations are easier to accomplish at the state level rather than federally, because they don’t have to get all the same approvals as the feds do.

          The Seattle article you reference is about neither of those things — it just complains that grand jurors will think you’re guilty if you take the Fifth, so prosecutors shouldn’t be allowed to call you to testify if they know ahead of time that you’re going to take 5. First, a prosecutor’s instruction to the grand jury that taking the Fifth doesn’t indicate guilt one way or the other, and no inference is to be taken, would defuse that complaint. Second, though lay jurors may be mistaken about the law and view taking the Fifth as prejudicial, the fact is that under our law it is not prejudicial. So it’s an intriguing argument, but it doesn’t reflect how the law actually works now.

      • Nasthan, I’m disappointed in you…whole nother? One expects better from one who’s living is based on exact wording.

        • Inserting a word into another is called tmesis, which comes from ancient Greek (giving an indication of how old it is). The phrase “a whole nother” is itself well over a hundred years old. The English language does not have a central authority, like French does, so the language is defined by how people use it and there is plenty of precedence for the phrase.

  6. Nathan, I know you should never believe what you see on TV dramas, but there’s one thing I saw on a Law and Order episode that has always bothered the heck out of me, and I want to know if there’s even a shred of truth to it.
    The short version is that the ADA for Manhattan wants a mob associate to testify about illegal stuff, so he grants the thug “immunity from prosecution in New York County”. He gives the testimony, and as soon as he gets off the stand and out of the courtroom, the ADA from Brooklyn is here and arrests him based on his testimony (the gang operates out of Brooklyn). When he brings up his immunity, the Manhattan ADA says, “I granted you immunity in New York County. That’s Manhattan. He’s from Kings County. Next time, get a better lawyer.”
    Again, I know it’s television, but the dirtiness of the trick, along with how plausible it seems, always bothered me. Do you have any insight?

    • That’s more of a contractual agreement where that prosecutor’s office has agreed not to file charges — not a grant of transactional immunity. That agreement wouldn’t be binding on any other agency, just the office that signed it. And they would go out of their way not to call it “immunity.”

      Don’t rely on TV for the law — or CSI stuff, either. They have artistic license to make things more dramatic and compelling. If it was more like real life, their ratings would plummet. A good citizen relies on webcomics, instead.

      • Yes, I’m well aware Jack McCoy would likely have been disbarred very quickly for some of the stuff he does. That particular one just always stuck with me.

        So TV shows are out as study aids. Hmm. How about legal thrillers?

        • Actually, the episode referred to above featured Michael Moriarty as Ben Stone pulling that particular trick of political geography. I have to say that it made me lol. Good episode.

          • I was addicted to that show before I actually started doing it for a living. Kinda sucked to get off work, go home, and watch work on TV. Ditto for the Sopranos, couldn’t watch it any more after going to Rackets. Never watched a single episode of the Wire. I’ve missed out on a lot of good shows, actually. /pity_party

      • Wait, so if that’s a contractual agreement do the principles of contract law apply? As I understand it, the burden of clarify falls on the writer of the contract. I’d also assume they’re something requiring a contract to benefit both parties.

        • I’d be very interested to hear about a case where contract law did NOT apply to a contractual agreement, whether it be verbal or in writing.

          I have my own understanding of contract law however, so I’d be curious to learn more.

          • If you have a contract, contract law applies. A lot of the time, though, you don’t actually have a contract. A contract requires an offer, acceptance of the offer, and consideration, or something given in exchange for the offer.
            Here’s a contract: “I’ll buy that knicknack from you for $10”, “Okay, sold”. You have the offer, the acceptance of the offer, and consideration (the $10). “If I get a new knicknack, I’ll give you mine” “Okay” is not a contract, because there’s no consideration involved. If I do get a new knicknack, I’m not obliged to give you mine.
            Also, contracts can be voided in some circumstances. There’s a lot of them, so…yeah.
            (I figure I should say something – I’ve had a couple of law classes, and have done a lot of independent research, but I;m nowhere near an expert. I just know the basics, and mostly, I’m just relying on the real lawyer/teacher to correct me if I’m wrong :) )

            • From Bouvier’s Law Dictionary:
              “CONSIDERATION, contracts. A compensation which is paid, or all inconvenience suffered by the, party from whom it proceeds. Or it is the reason which moves the contracting party to enter into the contract. 2 Bl. Com. 443. Viner defines it to be a cause or occasion meritorious, requiring a mutual recompense in deed or in law. Abr. tit. Consideration, A. A consideration of some sort or other, is so absolutely necessary to the forming a good contract, that a nudum pactum, or an agreement to do or to pay any thing on one side, without any compensation to the other, is totally void in law, and a man cannot be compelled to perform it”

              As I understand it here, Consideration is any action performed by the considering party, in accordance to the terms of the contract. Which action, when thus performed, is construed as consent of the contract, the consideration therewith, implied by the action thus taken.

              Your example is one of a nudum pactum, thus being void in law, however, if one were to say instead, “if I get a new nicknack, I will give you my own one, if you come to my house and pick it up.”
              The “going to the house of the person,” being an inconvenience to your person, becoming the consideration whereupon your consent is contracted.

              • Annnnnnnnd that’s why we have judges to decide such things. Consideration, though, has to have some sort of value to both sides. I don’t think “you have to come get it” counts as consideration, honestly, since I’m not receiving anything of value. “I’ll give it to you if you visit me”, though, absolutely does, since I receive and you give up something of value – your time.

            • UsaSatsui, I was specifically referring to the :law and order” example you provided earlier. Nathan said “more of a contractual agreement” so I was trying to double check if is actually a contract or just like a contract.
              The relevant (but maybe not applicable?) contract issue being that the language was chosen to confuse, and that one party gets no benefit.
              @Librarian: I don’t see anything odd with this particular citation, but I’d hesitate to accept Bouvier as an authority on modern law due to some absurd (contradicting Presumption of innocence) or archaic (rejection of induced confessions) citations you’ve produced from it.

              • It’s a contract – offer (“I won’t prosecute you in my jurisdiction”), acceptance, and consideration (“You’ll testify for me”). Whether or not it’s enforceable is up to a judge, but it’s absolutely a contract.

              • Bouvier not an authority on modern law?

                Definitions don’t change, not in law. They can’t, otherwise the law would be entirely meaningless, void for vagueness. If the law changed simply because language changed, there’d be no limit to the abuses that could occur.

                No, Bouvier’s is the dictionary to truly understand the roots of the law. And if you understand the roots, you understand the modern Perversions of language, and Law, that have occurred to the detriment of the Citizen, in this more modern time,

                If you’re referring to cites I’ve mentioned on previous pages, I was not making a statement of fact, but rather asking for clarification on their applicability. And if It wasn’t cited specifically, it wasn’t involved in my statements.

              • Here’s what you don’t seem to get librarian – what you call “perversions” is what everybody else calls “the law”.

              • @Librarian – The law, including legal definitions, is changing constantly. As society evolves, so does the law. That’s why lawyers needs hundreds upon hundreds of books, and keep needing new ones, because each new case is a new entry into the common law – there’s no point where we ever said, “This is the law”, and stopped evolving it.

              • @UsaSatsui – As for it being a bad deal: The offer is a complete illusion. By analogy: Alice borrows money from Bob and agrees to pay it back (with interest) on February 30th. Taken literally: it’s impossible for Alice to renege because there’s no 2/30 and no real offer; does Alice get to keep the money?
                @Librarian: “Bouvier not an authority on modern law? …..Bouvier’s is the dictionary to truly understand the roots of the law”
                Your second statement is a solid argument of the first.
                Apart from subtle things like case law and the English language changing, many slow, explicit, easy to follow changes have happened: like fifteen new constitutional amendments, introduction of police forces, and almost every legislative action valid today.

              • @SomeGuy – except in that case, he is offering something substantial. He absolutely does have the right to prosecute him in his county, and he is agreeing not to. Agreeing not to do something you have the right to do is enough consideration for a contract.

              • So I take it you’re not saying being prosecuted in King’s as opposed to New York county is a substantial benefit to the accused, but benefit of both parties is irrelevant; each party’s detriment being the relevant points.

              • I’m saying that just because you screwed up and made a bad deal doesn’t mean it isn’t a contract, and the courts will not necessarily void the contract because of that. Caveat emptor.
                Now, they courts may void it for another reason – you could probably argue this contract goes against public policy, since Stone was being deliberately obscure. But that’s another issue.

              • I should clarify what I mean – as a prosecutor, he was being deliberately obscure as to what the consequences of the guy testifying was. I didn’t mean to imply that being “deliberately obscure” could be a way to void any contract.

              • Saying “doesn’t prevent you from getting a bad deal” isn’t clarifying, it’s repetition, almost verbatim. I made it very clear this doesn’t (intuitively) seem like an real offer at all to me, and you seemed to agree that fictitious elements (Like Feb 30th) can invalidate a contract.
                I presented an example where only one party had a benefit, the other party had an illusion of benefit; an illusory offer and a real consideration. You countered by saying that the ADA’s offer was real because by describing a determent to the ADA, without contradicting that the other party doesn’t have a benefit (even potentially), or mentioning the offeree at all.
                Typically, the offer is a detriment to the offerer and a benefit to the offeree, and vice versa with the consideration. So if we evaluate the offer purely in terms of the offerer, benefit can’t be the metric used to evaluate the offer as there is only detriment.

  7. Jason says

    I appreciated receiving a reply so much that I made a reply, but you might not have seen it and I’m interested in your thoughts. Perhaps your original reply addressed this in a way I didn’t understand, but better safe than sorry.

    When I brought up the notion of “problems” with immunity grants, I was thinking less about the types of immunity and more about the manner in which a grant of immunity by the legislative branch might tie up prosecutions, which are inherently supervised by the executive branch. I have only started reading about it recently, but Eugene Volokh’s sister-in-law apparently wrote something about it. She actually argues that the Congressional grant of immunity is an unconstitutional violation of the separation of powers


    • It’s a fascinating argument. [Here’s a PDF of her note.] And it’s fun to argue against, as well (reductio ad absurdum: “by extension, you’d have to also say the legislature cannot hold anyone in contempt. Which means for their subpoenas to be enforceable they’d need the judiciary to sign off on all of them, and deal with all violations. Which the judiciary doesn’t want to have to do.” Or mere contradiction, for the lazy: “it’s inherent in Congress’s investigative power — without immunity they’d be just as stymied in their investigations as any executive-branch office would be.”)

      But it’s not the way the law works now. Right now, the legislature is allowed to grant immunity and throw the prosecution’s lengthy and expensive criminal investigation right in the toilet. If you’re a prosecutor and that happens to you, a good bureau chief will put a compassionate hand on your shoulder, look off into the distance, and say “man, sucks to be you.”

      • I’d point out that there’s a Separation Of Powers issue, too. If there was to be a systematic problem in the Judiciary (for example), there’d be no way to get a judge to sign off on the subpeona.
        Likewise, the few times that Congress goes off on a hostile tear investigating usually involve Big Problems, like Watergate or the Church commission. I suspect that for most cases where witnesses are announced well in advance that a call from a prosecuter’s office would result in that person being dropped from the witness list, mostly on account of attempting to play nice when it doesn’t cost you anything.

  8. I’m guessing this is when people need to band together. To prevent governing bodies from pulling this off.

  9. jameie says

    These coment hreads are more informative than any “discussion” in any class I have ever had. Wtf? This… this is still the internet, right?

    • I know what you mean! The consistently high level of intelligence and civility among the people who regularly post here, and the information shared in these threads, makes me wonder the same too. Truly, this is one of the few places where I look forward to reading the comments after the posts, instead of dreading what texture of sludge the trolls have stirred up.

      To everyone else who posts here, thank you!

  10. Librarian says

    @ UsaSatsui
    “The law, including legal definitions, is changing constantly. As society evolves, so does the law.”
    “Apart from subtle things like case law and the English language changing, many slow, explicit, easy to follow changes have happened: like fifteen new constitutional amendments, introduction of police forces, and almost every legislative action valid today.”

    Statutes Change, Definitions are added upon, and Precedent is added to the Case Law.

    Past Statutes Do Not change, except according to Legislative action where they are amended or repealed. How past Statutes were and are interpreted Does Not change, not legally, except through the ignorance of those bound, or those enforcing them – ignorance of the law is no excuse.

    Definitions Do Not change. What once defined as a lien/trust/corporation/person/State/Chattel/Contract/Court/Writ of Habeus Corpus/Marriage/etc, will always remain as such. New definitions may be introduced over time, through the misuse of common language in legal matters, and the ignorance (or malicious design) of those judging the matter, but, changing definitions overturns the natural order of the law, and perverts proper judgement.
    For instance, the Writ of Habeus Corpus is inalienable according to our Constitution, however, our Constitution does not define what that writ consists of – it was defined prior in the Common Law. To follow your argument that definitions change as society changes through to conclusion, would mean that the Writ of Habeus Corpus is an entirely maliable Construct, being an empty vessel wherewith malicious designers could fill full of an evil draft, turning it from something intended to prevent government overbearance, into a tool to enslave the citizens.
    If Definitions change, what is to stop one from turning that Writ into a mandatory procedural tool, wherein the invocation of such is an automatic confession of guilt punishable by death? Obviously under the cover and guise of some important policy entitled Bill, fathoms deep in unintelligible bureaucratic language.

    As to Case Law, it would not be just if case law were inalterable, to the detriment of victims, however, Precedent should Never be something one takes to change lightly – which is unfortunately the exact opposite of what so many partisan activist and ignorant or malicious judges have been doing for this past century.
    I’m sure you would agree to me that the Rules of Construction should never be altered, correct? And yet the rules which governed the construction of the US Constitution, and by extension, it’s proper interpretation, have been nigh forgotten.
    “Necessary and Proper” is an interpretive Language construct, it meant something very specific at the time of writing.
    “Swearing an Oath” was governed by a Legal Maxim completely forgotten today, yet never overturned to my knowledge, “To Swear is to call God as a Witness, and is an act of Divine Reverence,” which forbade Atheists from oathtaking.
    A Compact, which the Constitution is, is a form of Contract, which must therefore be governed by the established Rules thereof, not by any others’ wishful considerations.
    Constitution also, by definition, embodies the Whole law of the land, which must therefore, at ratification, also have enshrined the Common Law as it stood at that time, as the governance for the interpretation thereof.
    Because if the understanding of language changes, one can twist the words of any document to mean something it was never intended to mean, to the detriment of the beneficiaries thereof.

    • Speaking as a citizen, a iron and immutable law is not something that fills me with confidence. I do not want to be tried for violating an anachronistic law that no one bothered to remove from the books because everyone forgot about it. I want an evolution of law based on sound legal principles to be ongoing. Right now a host of problems are developing because our society is changing faster than the law (though I am sure writers in every generation say that). The modern example is the internet. Concepts of jurisdiction, definitions of consent, and the line between freedom of speech and hate speech all being challenged. The last thing I want is for myself or my fellow citizens to be tried according to rules that do not reflect the activities they engaged in. Many of the first cyber-bullies would fail Mens Rea – they just did not think that the people they vented their spleens at would read what they wrote, now that degree of exposure is expected.

      I want my lawmakers to move fast enough and with enough wisdom to keep the law up to date, but we all know that writing law includes a lot of trial-by-error and very good laws can be ruined by a few simple rulings (like not being able to call witnesses who saw a congressional hearing as evidence damaged immunity).

      In that space we have the strength of Common Law – the law describes the current beliefs and practices of the people. A hypothetical law may define libel as ‘printed on paper’ but common law lets a Judge say that the cyber-bully who wrote everything on facebook lets a judge apply yesterday’s law to today’s situation (though hopefully he draws some lawmaker’s attention so the thing can be re-written).

      This basic system is what lets a layperson like me have faith in the law. I am not going to be judged according to some medieval code. I am going to be judged by a human, who share similar values to me. Our values may not agree entirely, but I have an opportunity to present myself and explain why my actions seemed appropriate and necessary at the time.

      • I think you misunderstand what I am meaning.

        You say you do not want to be tried for violating an anachronistic law that everyone has forgotten. I can tell you right now that that can and does Still happen under our current system, actually it happens in far worse a case, as the “law” is simply too voluminous and vague for anyone to understand whether they are doing something wrong or not, however, with an iron and immutable law, that “anachronistic law everyone forgot about,” (oh wait, you mean like State Constitutions? No one thinks about protections ensured by those, or modifying them rather than the US Constitution), that anachronistic law doesn’t get forgotten.

        You believe society is in a host of problems because it is changing faster than the law. I disagree. The Roots of the law apply perfectly even in our current society, there’s no reason to add another 10,000 volumes of bureaucratic nonsense to address societal changes, especially when those changes are simply extensions of previous behaviors already governed.

        You speak on the common law, and we are not in much disagreement here. However, you seem to mistake, the common law comprises that body of law which from time immemorial has governed the customs and practices of a people. The only reason you can have a libel lawsuit for cyberbullying is because of some anachronistic, yet not quite forgotten, law, from the middle ages, which no one bothered to remove from the books, already defined the principle for cause of action.
        The libel law was not forgotten in this case, because it is a principle of law, it can not become outdated, rather it is a principle to apply to all similar cases. If humanity ceased to use Libel as a cause of action for 100 years, it could certainly be forgotten, but that doesn’t mean it became outdated as a principle of law.
        Likewise for any other cause of action or maxim, simply because it falls into disuse does not make it anachronistic, or outdated.

        Ignorance of the Law is no excuse. Simply because you get charged with some offense from the medieval code that’s been nigh-forgotten, does not make you any less liable for that action.

        You say the common law is what gives a lay-person faith in the law. I agree, this is because the common law provides all the remedy one needs – grievances can be addressed according to the immemorial laws and principles of the past (libel, murder, theft, ect,) and new circumstances can yet be applied to these principles. Why should anyone need a New Law, when they have the entirety of law and principles of 2,000 years past to provide them remedy?

        It is legislative action that causes one to lose faith in law. You say you want your legislators to work fast to keep law up to date – no, the common law is always up to date, legislative action will always be too much, and far too late. I would rather my legislators perform their menial administrative tasks, rather than keep pushing out 1,000 new 1,000 page volumes of bureaucratic nonsense titled as “laws” that serve to do nothing but over-criminalize crimes that already exist, criminalize non-criminal behaviors, steal money and property from the innocent and guilty alike, give money and property to the undeserving, and restrict, regulate, fine, penalize, criminalize and otherwise abolish freedoms and liberties that have stood uncontested during even the most tyrannical monarchies from the past.
        Or in other words, I prefer my legislators to legislate inside the Rule of Law, rather than legislate their Rules by Law.

        Anyway, You say you don’t want to be judged by some medieval code, but rather by a person with similar values as you.
        What is the measure of those values? Where is the baseline? Should not that base-line be the values and principles as understood in the past? If you were party to a contract, and all parties understood it in common, to mean something very specific, and then 5 years later someone comes and tells you that the contract now means something entirely different – you would be outraged, would you not?

        • Ignorance of the law IS an excuse thoug… reread the section on mens rea. Except for strict liability crimes, if you had know way of knowing what you were doing was illegal (wrong) then you have no mens rea.

          “Ignorance of the law is no excuse” is like an urban legend.

            • If I remember it, mens rea isn’t “ignorance of the law”, but “ignorance that you’re doing something that is against the law”. So if a “friend” slipped a briefcase of cocaine into your trunk without your knowing about it, your defense isn’t “I didn’t know transporting drugs was illegal”, but “I didn’t know I was transporting drugs”. Right?

              • My hypothetical first cyberbully would be arguing that he wrote things of facebook to share with family and friends and was unaware of the public reach of the site. He has a reduced Mens Rea because while he planned the act and wrote the offensive text, he did not intend to share it with his recipient. I would say he committed “Neglectful” as opposed to “Intentional” cyber-bullying.

                I probably made it look like he was innocent the way I phrased it above. I am not used to thinking of defense as innocent versus guilty. I usually think in terms of degrees of guilt and culpability.

  11. Librarian says

    Of all the things I said, people had to pick at “ignorance of the law is no excuse?”

    Kevin, your hypothetical cyberbully, is absolutely criminally guiltless regardless of whatever mens rea he may have had, because actions like cyberbulling, verbal abuse, and libel are not crimes – they’re not illegal to do. He would however, still be liable for the effects thereof in equity, should the affected victim desire to sue.

    I think a major problem with society is they want to criminalize everything, rather than make the affected persons responsible for obtaining their own remedy in courts of equity.

      • The theory he’s operating under (I think) states that only “common law” applies to people, and that statutes only apply to those people who willingly accept them and submit to their authority. It’s mainly an ultraconservative movement that also includes the perk of not recognizing the IRS and taxation as legitimate. It’s based upon some very creative interpretations of some legal theories, and courts (the source of the common law) have repeatedly struck these theories down.

        • There’s little harm in thinking the law ought to be more conservative/progressive/whatever. There is real danger, however, in thinking the law is different.

          I’m trying to show how (and why) the law really is, not least for the benefit of those who may hold mistaken beliefs about it. (Whether I succeed or not remains to be seen.)

          • Nate, you’re doing great work here. Despite some differences between our world views, I send my students to read your comic to hear ‘the other side of the story.’

            But you can’t win every battle. And there will always be those hell bent to prove their view is right, regardless of facts or reality.

          • @Kevin
            Speaking hypotheticals, I was referring to a time or place where cyberbulling law had no existence, before Legislative meddling turned what was and ought to be, a liability action (libel) in favor of the victim, into a full-on state penalized and malevolent criminal act.

            @UsaSatsi and Carl

            Statutes absolutely apply – to federal Citizens, Government officials/employees, and the administration of public property (held in Trust for the public benefit). It is my rule of Thumb though, to question the applicability of any statute that presumes to govern a State Citizen or his private capacity.
            My modus Operandi would be through various jurisdictional challenges and requiring full process of law, including a very clean papertrail from beginning to end as to how and when the power to govern that aspect of life was willfully ceded from The People to their State/Federal/Local Governments (Where in their charter was given the power to regulate that action, and was that chartered power granted under the proper authority in the first place?).

            The Internal Revenue Service absolutely applies to persons and citizens under the jurisdiction of Federal Law or present in or on Federal Property and land. My qualm is with with what and at where that jurisdiction is comprised.

            To my understanding, if argued and proceeded correctly, there would be no trial in the first place, and therefore, no public record of the successes. If one is actually forced to a trial, the only avenue available would be the interpretative meaning of the statutes’ wording, and swaying the jury to nullify.

            @ Nathan

            I appreciate you permitting my use of this forum to speak and to learn, and greatly your efforts in putting together this webcomic for all of us to benefit.

            I would say however, that, whether the law states one thing or another, what it ought to say can not be found if the system is not questioned.
            If we all just blindly accepted what is told us to be Law at face value, there would never be any new precedent, if Rosa Parks had not refused to get up and move to the back of the bus, we would still be living under the “Separate but Equal” interpretation of law (hyperbolic extrapolation).

            What the law ought to be, is what it is, but to achieve that result, requires the effort to attain it in court. I’m confident enough in truth and reason that even if a “judge” disagrees with me, the sense and logic of the arguments in fact, if presented properly and completely (which would be my biggest hurdle), would be enough to sway a jury to nullification, if such ends were to become necessary.

            I understand the dangers of challenging the status quo, but I value truth and freedom above it.

  12. @ Librarian
    This is the great part about discussing/studying US law: we all may have different opinions (no matter how wrong they may be) and we are entitled to them, for our system is based on this exact notion of adversarial pursuit. But, and it is a big but, the government holds the final decision on who has the correct interpretation. We could argue that it is a government of the people, but we know this is not true; it is a government of special interests, and has always been. With that said, you may be held accountable for all statutes: federal, state, or local. To think otherwise could be very detrimental to your living arrangements in the future.

    How else could Nathan make a living, if it weren’t for the difference of opinion in interpreting the law? Based on his reputation, and past cases, I think I’ll stick with his opinion (the vast majority of the time).

    • We’re both entitled to our opinion, and you’re right, if the government really wanted to, whether it be liability for a statute I disagree with, voicing an unpopular opinion, or simply looking at one of their officials funny, they could easily slander and falsely represent my character, take me to court and imprison me, imprison me without ever taking me to court, and even quietly leave a bullet in my brain.

      It has a militarized police force, secret courts, assassin organizations, and a standing army, not to mention the arsenal of nukes and other expensive and destructive battle equipment, it doesn’t even need the regular law system it was designed to work under now. But if we’re going to talk about lawfulness, let’s not delude ourselves, simply because it has the biggest guns and the courts working for it, doesn’t make what it does lawful, even if it does so under guise of law.
      The system is a farce that needs to be exposed.
      You say that challenging it’s opinions on law may lead to a detriment to my living conditions is an understatement. But then, such is the risk All freedom fighters take – who am I, who holds such knowledge as I do, to NOT challenge tyranny and unlawfulness where I see it, whenever I see it? The least I can do is make others aware of the situation I see.

      I say this to all: who are you, to sit back and watch, doing nothing to help, pretending your sovereignty has nothing to do with you by shirking the responsibilities thereof, as your freedoms and the freedoms of your countrymen, are stripped away before our very eyes? Do you love servitude so much you would trade your bother’s life to remain in more comfortable chains than another? Who are you?

      *steps down*
      Sorry about the soapbox, but this is ridiculous, being advised against putting my self in peril to advance the cause of freedom and protect the People’s Soveriegnty against unlawful usurpations.

      • Keep in mind that “the government” is not a monolithic thing, it’s more like a cloud of different kinds of insects, each doing their own thing.

        If YOU were to accept a job with the government, and made it a point to do your job conscientiously, as I assure you nearly all do (or do an extremely good job of pretending to), and try to be reasonable about all things, as I assure you nearly all do (or do an extremely good job of pretending to), you’ll find that… things don’t change much. This is because there is an excellent reason for nearly all things; just because you don’t know the reason for them (and some reasons may have actually been forgotten) does not make them any less valid.

        When you think of “the government”, think of Wikipedia.

  13. Y. Exeter says

    I just have to ask, is this the current record-holder for most comments on a page in this series?

    Because holy frijoles, 89 comments (as of posting)… Must be a pretty complicated debate going on here.

  14. Jason says

    Does the immunity really protect her from any prosecution? If her creating that webcomic was really a crime, couldn’t the a prosecutor claim independent discovery and charge her anyway?

    • It doesn’t protect her from prosecution, but I would think the prosecutor would have to show how they discovered it independently (and if there were any points where the reasoning went “and then I had a hunch so I looked at etc. etc.”, that would probably not go over well.)

      Don’t actually know for sure, that’s just my best guess.

      • That seems to be correct. Nathan described above the different kinds of immunity: use, where they cannot use your words as evidence against your; derivative-use, where they cannot use your words to find other evidence to use against you; and transactional, where you cannot be prosecuted for the stuff you talk about ever period. He said that most of the time, you get use and derivative-use immunity, but not transactional.

        So yeah, if the prosecutor could prove that stuff independently of her testimony, then she could be charged for it, unless something happened which provided her transactional immunity somehow.

  15. WJS says

    I’m wondering how well known it is that the fifth is just to prevent you being forced to incriminate yourself, rather than a general right not to answer questions. I’m imagining someone pleading the fifth to avoid being made to testify against a friend, only to find out that if they immunize him, they can still make him talk. If he wasn’t actually complicit in his friend’s crime, so talking isn’t incriminating himself, would he face any kind of charges for trying to abuse the fifth?

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