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Join the conversation! There are now 48 comments on this chapter's page 61. Taking the Fifth to Protect Another?. What are your thoughts?
  1. Jason says

    Yes, I have an idea – DON’T WRITE IT DOWN NEXT TIME!

      • Fun Fact; Many investigators know HTML.

        Plus how to gather internet history from old hard drives.

        Forensic Science covers all the sciences, including computer science.

        • Plus a lot of companies still make a 100 printed copies of every file, even when they are technically “paperless”.

          • Ok, you need three things, and these are what the govenment themselves do. One, destroy documents after a certain amount of time, usually you must hold documents you produce for about 5 years in accordance with regs. Two, a strong magnet to wipe hard-drives, then toss the hard drives into an industrial shredder. All is perfectly legal, and if you do it as a matter of course, the government cannot reasonable assert it is just to destroy evidence of a crime. But anything you produce within those previous 5 years can be asked for by sub-poena and used. (Disclaimer: I only know this as this was how I was told to treat documents by the US Navy. If I am wrong, blame them!)

      • In white-collar cases especially, emails and texts can be the most deadly evidence. People often think of them more like conversing than memorializing, and they wind up creating a permanent, real-time record of their crime as it’s being committed.

        This perception of evanescence even by those who know better would be a great topic for a postgrad psych study. I wonder why it happens.

        • I use a text instead of a phone call because it’s quicker, easier, less formal then a phone call, like talking to someone who is already there instead of walking into someone’s office. Given that it’s more casual to me then a phone, it’s going to take active decisions to make me treat it as if I were putting something in writing.

          • Bear in mind, that the police are often able to get a lot of texts from peoples phones. A text message often leaves nearly as much of a record as an email.

            • Well, yeah. But that’s only going to change my behavior if I’m consciously thinking about what I’m going to do to avoid police detection. When I communicate by writing, I’m usually aware that I’m “putting something in writing”, both literally and figuratively.

              I suspect white-collar crime is pretty high in the number of crooks who don’t believe the cops will ever get involved. They’re not Al Capones making every phone call with the assumption the FBI is on the line.

  2. Gregory Bogosian says

    Will we cover any other aspects of the Fifth Amendment besides self-incrimination? Such as the presentment or indictment by a Grand Jury requirement for infamous offenses or the double jeopardy proscription?

    • Yup. And not just the criminal procedure clauses, either.

      My plan is to finish up Crim Pro I — the stuff that applies before you’ve been formally charged in court — with a course on Constitutional Law. Then when that’s done, come back for Crim Pro II for all the stuff from bail onward, which is more about judges and lawyers than cops and robbers. By the time that wraps up, there shouldn’t be an amendment left unturned.

      • I’m looking forward to Constitutional Law!

        Will you get much into the 7th, 9th and 10th Amendments?

        What about Article 1 sec. 8?

      • You mentioned in a post somewhere that most of your politically-identifying readers seemed to think that you were on “their side” with much of what you are covering.
        I worry that this won’t last past the coverage of the 2nd ammendment.

          • The law often appears to be on everyone’s side. It is supposed to provide a fair platform to protect all of our interests.

            One flaw with the ‘Common Law’ approach is that the law gets tied in knots when society cannot agree on what is right.

            This problem afflicts a lot of abortion laws. The issue is so politicized that no law can reflect the common viewpoint. What I find fascinating about the law is its inherent practicality. A lot of abortion laws have crumbled when judges simply found them to be written

            • What I find interesting about abortion and the common law is that any practice or assistance of Abortion (with malicious design) was and still is a crime under that common law, having existed as such since long before ever it was a political issue, potentially even before even America was a nation.

              The thing with common law is that it’s not about “what society thinks is right,” it’s about what the law already is, and how closely it follows to reasonableness and natural law. It’s very definition is that law which has existed to govern since time immemorial.

              • That’s not what is actually meant by “common law.”

                “Common law” is the kind of law that is created over time by the rulings of judges, evolving from precedents and principles as society evolves and new situations/mores arise, and also fine-tuning existing rules and thinking through the policies more fully. It lags a bit behind society as judges come to grips with these changes, but it does evolve to reflect society. And it evolves to get more precise and philosophically sound.

                In addition to common law, there is also constitutional law, statutory law, administrative law, international law… all of which have been important parts of our country’s body of law since always.

                (As for abortion… well, you’re going to have to wait until we get there in Con Law. I’m not going to spoil my fun by going over it in advance.)

  3. Mihal Zelenin says

    But what does “foxy with the proxy” actually mean?

    • I’m guessing they mean they’ll run the scraper software through a proxy server, giving a different IP address than the blocked one. Which I believe is the computer equivalent of trespassing (especially after a cease and desist order and content looting).

      • It’s the equivalent of being kicked out and coming back with a fake mustache. Nothing directly wrong with it, but it’s suspicious and being done to support a crime (intellectual property theft).

        • If you’re thrown out and told not to come back, returning can be trespass, and wearing a fake mustache is a clear sign you understand that you weren’t allowed back.

    • It looks like the company is stealing content from other sites and posting it on theirs. The comic sites are blocking their IP addresses, so the boss is saying to use a proxy to get around the block.

  4. Barry says

    I see the Gagster boss has grown stubble again so he goes from looking like a normal innocent boss to looking like a shifty criminal.

  5. Der_Whatkin says

    Am I right in assuming that the distinction between pleading the fifth on your own behalf and doing so on someone else’s is mostly relevant with regards to immunized testimony?

    Since there doesn’t seem to be(and shouldn’t be!) Any requirement to justify your use of the fifth otherwise.

    • Well, it can come up when person A has been immunized and is being made to testify against person B. But it’s more likely to be tried when person A and person B are closely related — as with a closely-held company and an executive, or a parent and a child — and A doesn’t need to be immunized, but just wants to protect B.

      It doesn’t matter one way or the other — the right against compelled self-incrimination is a personal right, and can only be asserted by the person who’s being incriminated. (And only as to their own compelled testimony.)

      • Under what umbrella do things like attorney-client privilege or therapist-client confidentiality fall? I am aware of the rough shape of the limits on those, but what is their justification?

        • If you thought your attorney or doctor might have to testify about what you told them, then you might not be frank and candid with them. And as a result you’d get the wrong advice or treatment. The law doesn’t want that to happen, and so it says they cannot be compelled to reveal what you’ve told them in confidence. (Same thing for things said to a priest in the confessional.)

          There are a few exceptions, as with everything, but that’s the general rule.

          Beyond the three “learned professions” — doctors, lawyers, and the clergy — confidentiality is less complete. It’s a fascinating topic to get into, with a lot of policy discussion, and I plan to cover it all in Crim Pro II.

            • Yes. There are two kinds of marital privilege. One is for confidential things you told your spouse — you can tell your spouse secrets without fear of their being compelled to divulge them on the stand. You had to have been legally married at the time you told the secret; it doesn’t count for secrets you said while dating or engaged.

              The other kind is actually more relevant to the Fifth Amendment discussion: one spouse cannot be forced to testify against the other. Not just about secrets shared, but anything. It goes back to the old concept that husband and wife were legally one person. So there’s the same repugnance against self-incrimination going on there, augmented by additional repugnance at making one spouse incriminate the other. (And if you get divorced, your former spouse can now be called to testify against you, as you’re no longer one person any more. Contrast this with the confidential communications privilege, which persists even after a divorce.)

              • It seems kinda contradictory/unfair/rude to not offer the same protection for parents, siblings, and children. As the saying goes, you gotta live with them. The same is not true of spouses.

  6. Jeff says

    Just as a random mention, I work in a bookstore while I’m waiting for that ultra-sweet public librarian job to come along, and today I ran across a copy of The Illustrated Guide to Criminal Law in our law section.

    I may have rearranged the rest of the shelf so that I could face it out for maximum visibility.

  7. Matt B says

    +2 for the Office Space references

  8. Jason says


    Promise me that when you get to the section on the First Amendment, you will do a few panels about the “popular” Internet uproar that results when a sports franchise owner gets in hot water after making some boneheaded remark, because his First Amendment “rights” were violated.

    Because I kind of just made that scenario up.

    Promise meeeee!

    • That, or some long-beared seller of hunting accoutrements.

      Because that happening is about as far-fetched.

  9. Librarian says

    Nathan, you said
    “In addition to common law, there is also constitutional law, statutory law, administrative law, international law… all of which have been important parts of our country’s body of law since always.”

    I noticed a very distinct lack of reference to Natural Law, which is in fact the very law upon which all law, and most particularly, American law, is and ought to be based.

    As to common law, what you referenced is case law, but when I say common law, I mean exactly this:
    “LAW, COMMON. The common law is that which derives its force and authority from the universal consent and immemorial practice of the people. It has never received the sanction of the legislature, by an express act, which is the criterion by which it is distinguished from the statute law. It has never been reduced to writing; by this expression, however, it is not meant that all those laws are at present merely oral, or communicated from former ages to the present solely by word of mouth, but that the evidence of our common law is contained in our books of Reports, and depends on the general practice and judicial adjudications of our courts.
    2. The common law is derived from two sources, the common law of England, and the practice and decision of our own courts. In some states the English common law has been adopted by statute. There is no general rule to ascertain what part of the English common law is valid and binding. To run the line of distinction, is a subject of embarrassment to courts, and the want of it a great perplexity to the student. Kirb. Rep. Pref. It may, however, be observed generally, that it is binding where it has not been superseded by the constitution of the United States, or of the several states, or by their legislative enactments, or varied by custom, and where it is founded in reason and consonant to the genius and manners of the people.” (Bouvier’s Law Dictionary 1856)

    Firstly, that it derives it’s authority from time immemorial and the universal consent of the people, and secondly, that it it must be founded in reasonableness, and thirdly, that it is not in and of itself, case law, but rather it is evidenced thereby, meaning that a determination by a court is not of itself law, but rather evidence of that court’s best attempt at finding what the true law is and ought to be, which may at times be inconsistent with what the law actually is, or ought to be, or as it may be written.

  10. WJS says

    Hmm, maybe this would have been a better place to ask about pleading the fifth to protect another. If you’re immunized and subsequently forced to testify, and it transpires that you weren’t complicit, are you open to contempt or perjury charges?

  11. Can you claim the fifth when your testimony could incriminate your legal dependents?

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