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There are now 35 comments on pg 62. Coercion, But Not State Coercion.
What are your thoughts?
  1. Deepbluediver says

    When you say “state” do you mean any government entity, or only the government who is actually doing the prosecuting? I guess the federal and state could both be considered the same, but I know there was something a few years ago about sending suspected terrorists to other countries that had fewer criminal protections.
    And I’m not sure I understand the final comment, about the biker-gang thing, but maybe you’re getting to that. The prosecutor chooses not to prosecute or the jury refusing to convict could be two ways out, I guess, but that doesn’t seem in keeping with everything else about protecting the individual.

    • When I say “the State” I’m usually referring to any U.S. governmental entity — whether federal, state, or local. When I use the word to refer to a state as in Nevada or Massachusetts, it should be apparent from the context. Otherwise, it’s a synonym for “the government.”

      If the government entity that did the compelling is different from the one doing the prosecuting, the Fifth Amendment doesn’t care — neither can take advantage of the acts of the other. Foreign governments, however, don’t count. So let’s say you were given full immunity in the U.S., but your testimony might incriminate you in Spain, then it sucks to be you — you can be compelled to testify because it’s no longer incriminating in the U.S. and that’s the only place the Fifth Amendment cares about.

      • In the case of the biker gang thing the victim cannot plead the 5th, (and prevent the jury from seeing it at all) but I would assume he could ask it to be discounted due to duress.

        I am pretty sure I could get a Jury to believe that I was just saying whatever the man with the gun wanted. (Crying a little on the stand might be a good idea too.)

      • So, if the government rendered you to a foreign power the 5th amendment wouldn’t bar evidence generated from that rendition? Isn’t there some kind of forbidden fruit rule? I heard that in Law & Order once.

        • . . . If the Government knowingly surrendered one of its own citizens to a foreign power for the deliberate purpose of interrogation it has a lot of problems. I am well aware this has happened recently in the United States, but that in turn is connected to a number of controversial government practices.

          But I would argue that because the second government acquire the information as a proxy of the State the fifth should still apply. The State still acted to procure testimony.

      • Wouldn’t then a plea to the jurisdiction apply in this case?

        A crime according to American law committed by an American citizen on American soil can’t be prosecuted in Spain because the laws of Spain doesn’t have jurisdiction in America.

        Except according to International treaties or the Law of Nations, somehow the laws of Spain were granted sole jurisdiction over the location where the act was alleged to be committed (much like the Federal US has sole jurisdiction over Military bases in the Several States), or joint jurisdiction in some other manner, as for certain acts like Piracy on the High Seas.


        • Let’s say you hacked a computer in New York that stole money from someone’s bank account in Madrid. In that case, you committed crimes in both countries — you committed the act in the U.S. and caused the harm in Spain. Both countries could prosecute you for the act. There’s no viable challenge to either’s jurisdiction in such a case.

          So a U.S. prosecutor could grant you immunity to force you to testify against a codefendant. That immunity wouldn’t apply to Spain, which could still prosecute you. So you try to take the Fifth on the grounds that your testimony could incriminate you in Spain.

          But you can’t. Because the Fifth Amendment only cares about a U.S. governmental entity taking advantage of an abuse of the might of a U.S. governmental entity that forced you to testify against yourself.

          • Ah, I see. So whereever you are liable to prosecution, the 5th Amendment protections only apply to the US jurisdiction.

  2. Andrew M. Farrell says


  3. Librarian says

    I would have to assume that the confession took place after these new laws were enacted? Otherwise wouldn’t the application of those laws be done ex post facto, and thereby null and void against the defendant?

    • Yes, the (fictional) state of Fremont passed its law first, and then poor old Skitz did what he did.

      Both the feds and the states are prohibited from enacting ex post facto laws (laws that retroactively criminalize conduct that was lawful at the time it was committed).

      • Which is actually very important for Fifth Amendment purposes! Remember that you can’t take the fifth to avoid testifying about totally legal activity, which means ex post facto laws could allow for the following:
        1) Bob is compelled to testify about doing legal activity X. As X is legal, Bob has neither cause nor ability to seek immunity.
        2) A few months later, the state makes X illegal, retroactive to one year.
        3) Bob is arrested for X and his earlier testimony used against him in court.

      • That’s what I thought.

        On another note though, couldn’t these pre-trial hearings on evidence be considered as proceedings in equity? And subject to all that entails?

        • I’m not sure what you mean by “all that entails,” but the short answer is “no.” Although there are some similarities (the judge both decides the facts and rules on the law at a pre-trial suppression hearing, and the remedy is an order directing one party on what they may or may not do) the suppression hearing is coming from a different place.

          Equity comes into play when the usual law and procedure would result in an injustice. So you get an injunction to stop the other guy from knocking down your house while you’re litigating whether he’s allowed to, or the court orders you to perform a contractual obligation. Back in the old days, there were separate equity courts (which also dealt with trusts and estates, corporations, and the like), but the feds and most states long since merged them into the regular courts, so you don’t have to go to another courthouse to get injunctive relief. Back in the day, equity proceedings were more inquisitorial than adversarial, but now they’re more of a hybrid — One side seeks equitable relief ex parte, going to the judge and making a one-sided case for the injunction or whatever (usually having to prove that he’s likely to win the case, irreparable harm will occur if the injunction isn’t ordered, and it’s the right thing to do), and then if the first side met the necessary burden the judge orders the other side to come in and explain why the court shouldn’t do that, at which point it gets adversarial.

          But equity only exists on the civil side of the law. It’s not part of criminal law or procedure. The suppression hearing arose very recently, through the evolution of the common law.

          Originally, the common law did not permit suppression; there was no exclusionary rule for constitutional violations. If evidence was obtained in violation of the Fourth Amendment, for example, the state could still use it against you at trial. It stayed that way until 1886, when a few courts tentatively started saying that the government shouldn’t be allowed to use evidence it shouldn’t have been allowed to get. Those courts got overruled, however, and it wasn’t until 1914 that the Supreme Court finally did away with the old common-law rule and instituted the first exclusionary rule. Weeks v. United States, 232 U.S. 383 (1914). And that’s when you started having suppression hearings.

          Hey, I just realized that the exclusionary rule’s 100th birthday was this year, on February 24. Damn, I should have thrown a party!

      • But the conduct in this case is inciting criminal conduct via webcomics. If Skitz posted the confession before the law was passed, and then continues making webcomics afterwards, his confession could be used to prove that the comics made after the law is passed broke the law. (“He posted webcomics, and he previously admitted that he did it to incite violence. Thus, it is likely that the webcomics he published now are made with the same intent.”)

  4. Gregory Bogosian says

    Would Skitz have a valid insanity defense in this case?

    • From the earlier pages I was thinking that “temporary diminished capacity” might be more reasonable, but with everything that we’ve read, it seems like if you are declared fit to stand trial than the jury isn’t likely to go for it.

      • Sorry to reply to my own post, had another thought- with the result for a successful insanity plea usually being indefinite confinement in a mental hospital, I wouldn’t think that people would go for it much unless the alternative was way worse, like the death penalty.

        Even in a prior era, was this tactic ever widely used for crimes less than murder? (or manslaughter, or something equivalent, like terrorism)

        • Actually, I’ve heard that, for example, if you were deprived of sleep for several days for a reason or another, you could be legally considered insane, at least at the moment.

          Or if your car broke down in the middle of a desert for no fault of yours and, after walking several days under a particularly harsh sun, you are delirious and attack the police officer who found you.

          There are likely situations like this where you can become temporarly insanes for actual reasons beyond your control. In which case, the insanity plea could lead to the conclusion that you were not in control of your own actions at the time, but that you are not a threat to society either, as the situation was caused by clearly identified elements which happened outside of your control and in an exceptional way.

      • Those are two different things. Temporary insanity is a defense to the crime, having to do with whether you ought to be punished for it. Competence to stand trial isn’t about that, but is instead at Due Process issue of whether you can understand the proceedings and assist in your own defense. One’s about guilt, the other’s about a fair trial.

        • The whole thing with proving that the defendant both physically did the actions for which they are accused AND did them with a criminal intention, right?

    • He might. It would depend a lot on his capacity to tell right from wrong while off his meds (just because you’re crazy doesn’t mean you’re legally insane), and the reasons he went off of them.

    • I can’t say I’m an expert, but I’d doubt it. He clearly in his ramblings seems to know right from wrong, legal from illegal, and that his actions are in violation of society’s rules. You generally need to show something along the lines of not knowing that the act(s) would be wrong; or not understanding the nature and quality of the act(s).

    • If I were on the Jury I would say guilty.

      It says the “poor guy went of his meds” without an outside actor to prevent him from taking them the responsibility for what he did while impaired was on him.

      If his doctor stood up and said his condition was poorly controlled at best I might let him off, but even then I would be curious why he was so poorly supervised that things got this out of hand and the prosecution could convince me to convict.

  5. Raen says

    Inspired by a certain Kickstarter?

  6. WJS says

    Poor guy, but I’m pretty sure that the 1st amd falls short of actually telling people to go out and commit crimes. (Inciting?) You might not even need a reactionary new law to prosecute this guy.

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