Only the GUILTY can "Plead the Fifth", and refuse to testify.

[Richard Steele]

Unless your answers are EVIDENCE OF A CRIME, you cannot
refuse to give them when Congress asks questions.

Not because you "feel Congress isn't gonna be fair",
not if you "feel" anything...

-ONLY- if you feel GUILTY of CRIMINAL ACTS does the
Fifth Amendment allow you to refuse to testify.

That is all.

[pinkpops]

1. Interesting - do you speak with legal knowledge?

[WorldResident]

2. Thanks for that totally screwed up reading of the 5th Amendment

Maybe we should start teaching that in the civics classes. :eyes: :)

[uppityperson]

4. How about enlightening we stupid people rather than just insulting, oh great world resident?

[WorldResident]

10. I apologize if that came across as insulting

I put the smiley face as a form of comic relief to attempt to not attack the person, but the idea itself.

[uppityperson]

13. How about enlightening ?

[Critters2]

14. This is the explanation I remember from my Constitutional Govt

class in college. Maybe accurate maybe not, but it always made sense to me.

The prof said the 5th amendment was added to the Bill of Rights to prevent people from being coerced (tortured, etc) into confessing to crimes, whether they committed them or not. If defendants can avoid incriminating themselves, prosecutors must build convincing cases without forcing defendants to make the case for them. The English kings, and most pre-enlightenment European governments, had regularly made cases by coercing defendants to confess. This precluded that possibility.

And seems mighty wise to me. But questions about what others have done or asked one to do don't seem like they should fall under this protection, imho.

[BuyingThyme]

6. Actually, s/he's pretty much correct.

[Richard Steele]

9. Maybe "you" should, since I am correct. nm

[WorldResident]

12. Where in the 5th Amendment does it say only guilty people can't testify?

I'll be waiting for your response.

[Richard Steele]

31. Did you try READING it?

"No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger;
nor shall any person be subject for the same offense to
be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken
for public use, without just compensation."
(my emphasis, of course)

It all hinges on that little word "against".
You cannot legally be forced to testify AGAINST yourself.

You certainly -CAN- be compelled to testify AGAINST
other people, and you can also be compelled to testify
-FOR- yourself, on the unlikely occasions that such
compulsion is necessary.

But your testimony is not "against" yourself unless
it tends to incriminate you. The Fifth Amendment only
allows you to refuse to answer when answering truthfully
would place you at risk of prosecution. NO other class of
testimony is addressed by that Amendment.

[RB TexLa]

88. No one can compel you to testify for yourself. No one can even compel you to plea

not guilty. Pleading guilty or nolo contendere is a right of a defendant.

[WorldResident]

97. I can be innocent, but still feel my testimony can be used to incriminate me

By my accusers

[Richard Steele]

99. I have no doubt of that. What's your point in mentioning it?

:shrug:

[philosophie_en_rose]

111. You misunderstand the 5th Amendment.

You are not compelled to testify against yourself in a criminal matter, but testifying against yourself does not necessarily mean that you are guilty.

Evidence can be circumstantial, as well as direct. And sometimes there's unflattering evidence that could support a conviction, but which really has nothing to do with whether you committed the crime itself.

For example, say you were at a certain location on the night of a murder. You didn't kill anyone, but people saw you there and you're now charged with the crime. You hated the murder victim and yelled some vile things at him prior to the murder. No one heard exactly what you said, but the prosecutor would ask you if you were on the stand. You're counsel advises you to plead the 5th. That's a good idea, even if you're not guilty.

The defendant has no obligation to testify whatsoever, because it is not their job to testify in a legal matter against them. However, if they are on the stand, they are entitled to plead the fifth, even when they are innocent.

[CTLawGuy]

106. law student here

the fifth amendment's no-self-incrimination clause specifically exists to PREVENT a jury from thinking someone is guilty because they do not testify.

The jury is instructed not to conclude that a defendant who does not testify is guilty (or even that he or she is more likely to be guilty) becuase he or she does not testify. If the jury does, there would be a mistrial and the verdict would be invalid.

So, in short, refusing to testify under the 5th Amendment does not mean you are guilty.

[Kingshakabobo]

114. But we are not talking about a defendant in a criminal trial.

The person is a witness. Surely there is SOME difference. No? For instance, a defendant can refuse to take stand. The witness in a hearing can not. Furthermore, the witness can not refuse to answer ALL questions. For instance, they can't take the fifth on names and dates of employment. Can not a determination be made if the person is obstructing or TRULY looking out for their best interest?

Anyway, I think immunity will clear this all up.

[ayeshahaqqiqa]

18. Here's the text of the 5th

that pertains to testifying:

nor shall be compelled in any criminal case to be a witness against himself

WorldResident, is your reading of this that a person simply does not have to testify in a proceeding against himself? I don't see anything in the text that implies that the person must be guilty of something to use the 5th. However, how is the phrase "witness against himself" usually interpreted? Does that mean a person can be compelled to testify in an investigation that is not centered upon themself about questions not involving themself?

Thanks in advance for answering my question.

[WorldResident]

98. My understanding of the 5th Amendment is as follows

I do not have to speak anywhere if I feel that my testimony can be used to incriminate me. I do not have to believe I'm guilty; I just have to believe someone can use my words to secure legal punishiment against me.

(i.e. I am a non-white Southerner at the store and I saw someone get shot there. No one knows I was at the store and I don't want people to think I killed this guy. Stupid for me to do this? Possibly. My constitutional right? Absolutely.)

[PhilipShore]

117. Are you sure?

(i.e. I am a non-white Southerner at the store and I saw someone get shot there. No one knows I was at the store and I don't want people to think I killed this guy. Stupid for me to do this? Possibly. My constitutional right? Absolutely.)

I am not a lawyer; but I think if a person is the witness to a crime they have to report it. It is against the law to discriminate on the base of the colors of ones skin, so the person that was the witness to the crime has to report it.

My theory of the Fifth, is that one can plead the Fifth, if they may be asked for information unrelated, to the actual crime or inquiry, that could make them chargeable to false crimes.

However, it seems to me she is in contempt of congress "now" -- because, they have not even questioned her yet. How does she know their questions are prejudicial to justice, when they have not even asked the questions yet?

[fooj]

3. Here's what she's doing...

Got this from WIKIPEDIA.

Self-incrimination
The Fifth Amendment protects witnesses from being forced to incriminate themselves. To "plead the Fifth" or to "take the Fifth" is to refuse to answer a question because the response could form incriminating evidence.

[bullimiami]

5. and not because someone else is guilty of a crime and told you to

keep your mouth shut.

[progdonkey]

7. no, you can plead the 5th anytime you wish...

You can't be punished for doing so, either.

The reason people don't generally take the 5th is because in public opinion it's practically an admission of guilt, but legally it's nothing of the sort.

Edited to add: you'd be largely correct if you said that only the guilty do plead the 5th, since there's an inference (though not legally) made that only the guilty have something to hide and therefore plead the 5th, but there's no restriction on who is allowed to plead the 5th.

Just think about it logically: if only the guilty can plead the 5th, wouldn't that make it totally pointless, since you'd have to be found guilty (perhaps due to your own testimony) before you're allowed to invoke the right to not self-incriminate... to avoid being found guilty?

[Richard Steele]

22. Not true.

The 5th does not allow you to refuse to testify "anytime you wish".
If it did, half the Court trials in our Nation's history
never would have happened.

The Fifth only prohibits being compelled to testify AGAINST yourself,
and that "against" is the key word. If you have committed no crime,
truthful testimony cannot be considered to be "against" yourself.

If you recall the famous Iran/Contra hearings, certain criminal
asshats from the Reagan Administration were (foolishly, IMO) granted
IMMUNITY from prosecution in order that they could legally
be FORCED to answer questions.

When no risk of criminal conviction exists, the Fifth Amendment
cannot be used as grounds to refuse to answer questions.

[philosophie_en_rose]

113. Defendants don't have to testify at all.

They don't even have to "plead the fifth."

They just might not be very good witnesses. They may be jerks or unsympathetic to a jury.

They don't have to answer questions during an investigation. They really do have the "right to remain silent."

You're trying to judge defendants based on a poor reading of the constitution. Constitutional law involves a myriad of supreme court cases that interpret the constitution. I sense that you haven't read them, but I don't think that you understand what it means to testify "against" someone.

I can testify against someone without seeing that person commit a crime. Testimony "against" someone can be as simple as confirming or providing information that someone was in a certain place. While, in itself, that does not prove the elements of the crime, that information can be taken with other information to establish guilt.

Therefore, a defendant can choose not to give information that can be used against him, regardless of his actual guilt.

[Richard Steele]

124. That's one of the things that is so telling: Ms. Goodling is not a "defendant".

There is no trial, and she has not been charged with any crime. (yet)

This is simply Congress wishing to ask a Government employee
some questions related to her job, on behalf of her employer:
"We, the People".

For her to immediately announce that she will refuse to answer
those questions, and quote the Fifth, tells us a great deal
about HER OPINION of her potential answers.
Clearly, -SHE- feels that answering those questions will
place SOMEONE in legal jeopardy.

She is not a defendant.
But, with this action, she has informed us
that she thinks she WILL be one if she
answers Congress' questions.

That little "(yet)" at the end of my first sentence?
SHE put it there.

[Raven]

8. News to me. Source please?

Been a lawyer for a long time and never heard this version of the 5th...hope you never have to take it!

[ayeshahaqqiqa]

21. Ok, Counsellor, help me, please

I understand that I can take the Fifth if a question is asked that involves me. But can I also take the Fifth if the question is asking about something that I merely witnessed or knew about? Like can a person who witnessed a gang shooting and got the license number use the Fifth to refuse to testify to that information because they are afraid they will be attacked by the gang?

[Raven]

28. No. The 5th is a Constitutional right

against self incrimination...can't be used to protect you against recriminations although I imagine that has been tried.

[ayeshahaqqiqa]

41. That is what I thought

Thank you. So if this Monica person only wishes to shield a third party and not herself, she cannot use the Fifth, correct? Let's hope the folks phrase questions carefully so she can't wiggle out of testifying about others.

[Patsy Stone]

70. Right

Only you. You can't use it to cover for others. But, I always thought one had to be accused to invoke the Fifth. I guess in a Congressional setting, and as a whole, it also covers witnesses under oath.

[fishwax]

11. anyone can plead the fifth

The 5th amendment doesn't say anything about guilt or innocence, nor does it limit itself to thsoe who feel guilty.

[BuyingThyme]

16. Not true at all. The Fifth only applies to criminal matters.

[progdonkey]

20. no, it applies whenever someone is compelled to testify...

"Fifth Amendment protections apply wherever and whenever an individual is compelled to testify. The U.S. Supreme Court has ruled that the privilege against self-incrimination applies whether the witness is in Federal or state court (see Malloy v. Hogan, 378 U.S. 1 (1964)), and whether the proceeding itself is criminal or civil (see McCarthy v. Arndstein, 266 U.S. 34 (1924))."

http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution

[BuyingThyme]

23. It only applies in criminal matters.

Just because you're in a civil court doesn't mean you can't be putting evidence of a crime on the record under oath.

[treestar]

46. A civil court is allowed to draw an adverse inference

A criminal court cannot.

[Marie26]

79. Doesn't apply to witnesses in general

Only witnesses who are asked to give testimony that is self-incriminating.

[fishwax]

25. But that doesn't change the truth of what I said

The right against self incrimination isn't restricted to the guilty. Anyone can take the fifth. Guilt or innocence is not a determining factor in whether or not you can take the fifth.

The Fifth only applies to criminal matters.
But it also applies to civil cases, if the testimony in those cases could incriminate the witness in a criminal matter.

[BuyingThyme]

30. You're right, but I think the point here is that no criminal activity

have been raised by anybody in Congress (as far as I know), so the argument that Goodling is making is not valid.

You can't invoke the self incrimination clause simply because you're worried about fairness. It doesn't apply.

[fishwax]

34. I see what you're saying

This is actually the first thread I saw upon logging into DU today, so I'm still getting up to speed on these latest developments, so I was only responding to the characterization of the 5th in the OP, rather than any specific argument Goodling is making.

[BuyingThyme]

38. Yes, the title line is aggressively misleading, but

I think the point is well made.

The Fifth is not an admission of guilt, but it is (supposed to be) an admission of one's fear of criminal prosecution.

[fishwax]

43. aggressively misleading, sure, but also an

unfortunately common and potentially dangerous distortion of an important constitutional protection.

I think the point is well made.
I think you've made the point more effectively than the original post in the thread.

:hi:

[BuyingThyme]

45. I like the way the OP did it because it pissed so many people off.

:hi:

[fishwax]

51. yeah, distorting the bill of rights does tend to raise hackles here

:)

[Richard Steele]

53. I'm sorry that this was the FIRST thread you saw today....

It's really, REALLY not the best thread to
start from re: all the Goodling hooplah.
And it wasn't meant to be. I assumed folks
would have some backround on all this.

Apologies! :evilfrown:

[fishwax]

61. no worries

't's been fun just the same :)

I only wish I weren't so busy so I wouldn't have so much catching up to do.

:hi:

[Hepburn]

85. Not true....

....the 5th applies to any situation wherein a person may tend to incriminate him/her self by making a statement.

[BuyingThyme]

86. That's a criminal matter. Thus the "crim" in incriminate.

[Hepburn]

109. No...

....I will say it again: In ANY matter. One can incriminate him/her self in ANY statement.

For example: When I have been trying a case in Family Law Court, I have seen and heard judges and bench officers advise a litigant on the stand that he/she has a right to remain silent. Clearly ~~ a family law case is a CIVIL matter. However, the protection of the 5th Amendment has been expanded to cover ANY situation in which a person may incriminate him/her self. Luckily, in those cases, it has NOT been my client who received the warning. Incriminating ones self can and does occur in statements made in civil matters and whether done in or out of court or even if NO litigation is pending and/or even contemplated.

The protection of the 5th Amendment does NOT merely apply to court testimony in criminal matters.

[BuyingThyme]

122. Again, those are criminal matters, thus the "crim" in incriminate.

[mr_hat]

15. You're overlooking the unitary fifth.

[Critters2]

17. Hehehe. Oh yeah, there's that

That pesky ol' Constitution.

[Richard Steele]

36. That's true. Anything's possible with this crowd of crooks.

This bunch- I'd say that -NO- claim is too ridiculously
outrageous for them to make. I'll not be the least bit
surprised if they try to make some sort of claim that's
basically identical to your "unitary fifth" response there.

[Lone_Star_Dem]

19. From what I understand of taking the fifth

A person cannot be compelled to be a witness against their own self.

That's what pleading the fifth comes down to.

[ConsAreLiars]

24. What utter nonsense.

The fifth amendment simply says that people cannot be compelled to give testimony when those words might be used to incriminate them. Where did you get such a strange idea?

[w4rma]

91. Probably from the logical inference that if someone is worried that their testimony might be used to

incriminate them, then they are most likely guilty of a crime.

[Oak2004]

102. Except that inference is wrong

There is always a danger that a clever and ruthless interrogator can get an otherwise innocent subject so completely twisted up as to make the subject's responses sound like a confession or like lying to authorities. This isn't hypothetical -- it really does happen, and it is why one should *never* submit to questioning by the police without a lawyer.

Think about it another way: you're Jane Doe, Democratic activist who honestly registered voters in a previous election. You have been called to testify before a committee, headed by one of Rove's minions known for his ability to trip up witnesses, about "voter fraud". The right wing media is howling about Democrats buying votes with crack or some such nonsense, and already media figures are speculating about what crime you will be charged with after your testimony. Do you walk into the committee room, sit down, and let your words be twisted and yourself be tricked into what appear to be admissions of guilt or instances of perjury? Or do you size up the situation and plead the fifth?

And here's yet another scenario: you're called to testify about some matter by a fair, honest committee. You've done absolutely nothing to betray the public trust, and in fact are proud of your work. Except for one thing -- it's impossible for you to testify about a series of incidents of interest to the committee without revealing to the world that you had been having an affair at the time. You've since come clean with your spouse, and the two of you have reconciled, but you do not want your kids to learn about it and to be teased and ridiculed for it. Do you testify honestly, testify but perjure yourself to try to hide the affair, or do you plead the Fifth? Substitute a stigmatized illness whose disclosure might result in job loss, loss of housing, etc., for the affair, and ask yourself again what you might do. Substitute membership in some noncriminal yet stigmatized group likely to be discriminated against, and again ask yourself the question of what to do.

This is not to say that the Loyal Bushies being called before my senator's committee are facing these scenarios. In this instance I believe they would be treated fairly, and that they are trying to hide something that is of bona fide interest to the public. It is to say that the Fifth Amendment protects both those who have something to hide and those who have nothing to hide but who have reason to fear that nonetheless their words would be turned against them.

[w4rma]

104. I should have said "currently most of the time in America" instead of "most likely". (nt)

[WinkyDink]

26. The 5th Amendment is for any citizen, period.

FIFTH AMENDMENT - 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.'

The Fifth Amendment 'can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.' Kastigar v. U.S., 406 U.S. 441, 44-45 ('72). A reasonable belief that information concerning income or assets might be used to establish criminal failure to file a tax return can support a claim of Fifth Amendment privilege. See U.S. v. Rendahl, 746 F.2d 553, 55-56 (9th Cir.'84).

The only way the Fifth Amendment can be asserted as to testimony is on a question-by-question basis. Rendahl, 746 F.2d at 555, citing with approval U.S. v. Bell, 448 F.2d 40, 42 (9th Cir.'71) (Fifth Amendment challenge premature on appeal from enforcement order; appellant must present himself for questioning after enforcement and as to each question elect to raise or not to raise the defense).

The appropriate device for compelling answers to incriminating questions is a government grant of use immunity. See Sharp, 920 F.2d at 1172.
http://www.lectlaw.com/def/f083.htm

1. Yes, this claims that a "criminal prosecution" must be a threat, but that is not in the Amendment, which merely declares that one cannot be compelled to testify against one's self. Aren't jurors instructed not to infer guilt?

2. Nevertheless, this particular DoJ woman is, IMO, clearly seeking immunity.

[BuyingThyme]

32. Many people will disagree with this:

The only way the Fifth Amendment can be asserted as to testimony is on a question-by-question basis. Rendahl, 746 F.2d at 555, citing with approval U.S. v. Bell, 448 F.2d 40, 42 (9th Cir.'71) (Fifth Amendment challenge premature on appeal from enforcement order; appellant must present himself for questioning after enforcement and as to each question elect to raise or not to raise the defense).

[hedgehog]

112. That's what i thought! I've always heard the 5th invoked on a

question by question basis, not to refuse to even show up to answer any questions!

[WinkyDink]

118. I didn't write it; I just copied case law. Don't know what you mean by "many people".

[BuyingThyme]

125. Some people, like me, believe the Constitution gives people

the right to choose not to answer on a question by question basis. Others insist that once you start answering questions on a particular issue, you have forfeited your Fifth Amendment right to refuse testimony in regards to that issue.

[grytpype]

27. Can't you people use Wikipedia at all?

[karlrschneider]

29. Uh, you just testified against yourself (or perhaps mis-spoke)?

"not if you "feel" anything...

-ONLY- if you feel GUILTY of CRIMINAL ACTS does the
Fifth Amendment allow you to refuse to testify."

[Richard Steele]

33. Wouldn't be the first time, Karl!

And likely not the last!

At least it's gotten people TALKING, without getting
them angry at me first. (It's a new thing I'm trying out!)

[karlrschneider]

37. LOL! Well good luck with -that-!

Hey, it's all good. :-)

[Richard Steele]

129. After-action report: I'm gonna call this one a success.

A lot of people discussed this, a lot of ideas
and information were back-n-forthing, and flaming
was remarkably minimal. Seeing so many diagonal
subthreads that AREN'T flamefests is damn refreshing!

Not everyone "got" where I was coming from, but
that's hardly new. As a whole, it was indeed "all good". :evilgrin:

[alcibiades_mystery]

35. That is absolute bullshit and a completely dangerous, stupid, RW opinion

That is FUCKING ALL.

[TroglodyteScholar]

40. I think most reasonable people will agree with that point...

How can the OP have such strong feelings about the 5th without even understanding it? Scary stuff :scared:

[BuyingThyme]

42. If guilt is a state of mind, an insecure feeling stemming from one's

personal knowledge, the post is spot on.

If guilt is a Constitutional verdict handed down by a jury of one's peers, the post is off in some respects.

But I don't believe the poster is under the impression that a verdict has been handed down.

And there's also a gray area between the two.

[alcibiades_mystery]

48. The notion that the refusal to testify is of itself

an indication of even a guilty state of mind is not only mind-numbingly stupid, it is also fascist, pure and simple. And Un-Amercian. Yeah, I said it. It is contrary to the very principles that our country was founded on, and is nothing but a result of the right wing attempt to dilute our civil rights by appeal to the lowest nonsense of mob rule.

[BuyingThyme]

52. You couldn't be more wrong.

Being that no criminal accusations have been made, the witness' preemptive refusal to answer ANY questions by way of the Fifth can only lead me to believe that there are questions out there that she believes would tend to incriminate her.

But I understand why you had to call me an un-American fascist. That kind of thing is very common with ignorant little people like yourself. But I thank you for sharing your reality with the rest of us.

[alcibiades_mystery]

67. What it "leads you to believe" is irrelevant

And, for the record, I never called YOU fascist or un-American. You're the only one making personal attacks. I called your silly opinion fascist and unAmerican. And it is. Of course, you associate your silly little opinion with your own precious selfhood, when it is really just a common ideological belief promulgated by the right wing noise machine. You just don't know it. Which is pathetic, but typical.

The right to refuse testimony before any government body is one of the basic rights that founded this nation, which is why it is enshrined in the bill of rights. The founders didn't put it there because they assumed anyone who would use the right was a criminal. They put it there to defend the rights of the people against government gone haywire. And that applies across the board. But then, what do you care. After all, your OP is just about what you believe. It's not about anything serious, in other words.

[BuyingThyme]

75. What you say is complete nonsense.

And I'm not just referring to your silly denials about attacking me on a personal level, or your new attacks, or your lack of education, or your inability to see who wrote the OP.

What makes you a walking poster child for the Nonsense Nation is that there is not, and has never been, a right to "refuse testimony before any government body," as you claim.

But I would love to see your Bill of Rights -- just for fun.

Thanks for playing.

[Richard Steele]

83. Well, then, I'm not calling -YOU- arrogant, ignorant and stupid- just your "opinion", OK?

Because it very clearly is, IMHO.

Is that how it works now? Do you imagine that your
pathetic little Rovian excuse is gonna convince anyone
that your personal insults aren't really personal insults?

Pfft.

[onenote]

107. thanks a_m

Its scary how some DUers either don't understand, or willfully distort, this basic constitutional protection. Glad you spoke up.

[Forkboy]

57. You said it nicer than I wanted to.

:applause:

[H2O Man]

39. The Constitution of the United States

protects the innocent as well as the guilty. We should never allow our emotions to cloud our appreciation of that.

[halobeam]

50. what a classy way to answer that

thank you. sometimes it's a bit much to see others so crass, so aggressive and cruel.

[treestar]

44. That's what the republics have been saying for years

They really do deserve to have it thrown back at them.

[Richard Steele]

47. Exactly so. Let them CHOKE on it! nm

[Name removed]

49. Deleted message

Message removed by moderator. Click here to review the message board rules.

[BuyingThyme]

54. Wrong.

You can't take the Fifth simply because you believe your testimony can "somehow be used against you."

It can only be used in/for/regarding criminal matters.

[Kelly Rupert]

55. I assumed we were talking about criminal cases,

since that's what the fifth amendment explicitly refers to. I mean, you might as well say, "Wrong, the Fifth Amendment only applies to court cases in America," or "Wrong, the Fifth Amendment only applies if you are not deceased."

And in that situation, to say it only "applies to you if you're guilty" is just flat-out bizarre.

[BuyingThyme]

58. Not bizarre if you read your own post.

Being that there is no criminal proceeding underway, "guilt" is not a judgment handed down by a court of law. So, what is it in this context?

[Kelly Rupert]

60. Okay, what on Earth are you talking about?

I assume you are talking in reference to some non-criminal case which is neither mentioned in your reply nor in the OP. If the case you are talking about is not a criminal affair, then that's a different matter, and one you really ought to have brought up, rather than immediately deploying your usual condescension.

[BuyingThyme]

63. The point is that if the would-be witness believes

she has knowledge about something that may tend to incriminate her (or somebody else), but is for whatever reason unwilling to share it with Congress, that, in itself, may be identified as a form of guilt. Not guilt in a criminal-verdict sense, but guilt in an emotional sense. Guilty conscience, not guilty verdict.

[Kelly Rupert]

64. Okay, so I now gather that we're talking about Congressional testimony.

This would have been useful to put in the OP, since it seems that every single one of the replies disagreeing with the OP was doing so because they assumed (as did I) that if you are talking about the 5th, you are talking about criminal cases.

[BuyingThyme]

65. Oh well... It's just fun, isn't it?

[Richard Steele]

66. It is in the OP, you know.

Just sayin'. ;)

[Solon]

74. Not necessarily, think of the Communist McCarthy witchhunt...

Plenty of folks ended up pleading the fifth in front of his committee, does that mean ALL of them were Communist spies hell bent on the destruction of the "American way of life"?

[Patsy Stone]

76. Yes

This is about Monica Goodling. If you missed the beginning of the show, she's stated that if asked to testify before Congress, she will take the Fifth. Your confusion is not only understood, it was unavoidable considering the lack of information in the OP coupled with the complete and utter inaccuracies contained within the OP.

The other question (I think) was whether Congress (which can not try you for a crime and can grant immunity), is really the best place to invoke the Fifth if you were truly innocent and not just trying to protect someone.

[Hepburn]

87. Actually....

....one can invoke the 5th Amendment in a civil matter as well. The issue has come down to whether or not the statement will tend to incriminate the declarant. Most who take the 5th, do so on the advice of counsel and since that communication is a privileged matter, it is rather impossible to discover the substance of any conversation between lawyer and client.

I am a lawyer and I have seen the 5th taken in civil cases ~~ particularly in family law matters when there are potential issues of tax fraud and/or evasion and there are questions pending about these issues. I have on one or two occasions seen a family law judge advise a litigant of his/her 5th Amendment rights because of the nature of the questions which were bring presented. Luckily, in both cases, it was NOT my client being so advised!

[Marie26]

78. I don't think so.

You can only refuse to testify if the testimony can be used against you in a criminal proceeding. You might subjectively believe you're innocent, but you can only invoke the privilege if you have an objective, good faith basis to believe that the testimony implicates you in a criminal act.

[PhilipShore]

56. But, then does their refusal to testify prove a conspiracy?

I am not a lawyer, but -- it seems to me as being true, that anyone cannot be forced to testify, and give information that would incriminate them (make them chargeable to a crime, that they did not commit) under the Fifth Amendment.

However, I am assuming; because she is a lawyer, she came across information, that could charge someone -- but she could not report the -- crime -- because she was their attorney, and she does not have to report it.

But she has to take steps to inform her client (The White House?) to correct the mistake (the crime), under the attorney/client privilege attorney rules -- and she could not be charged with a crime -- if she was aware of her client committing a crime, because she would be protected under the attorney/client privilege for attorney rules.

However, if she was aware of the "crime" outside of the Attorney/client privilege -- and she does not report it -- then she is part of the crime of conspiracy and would be charged, and -- she has even admitted via her lawyer, that if she testifies, she "would be charged with a crime" not with breaking attorney/client rules -- but exposed for breaking the law (a crime); and if so, how can she argue immunity under the Fifth Amendment?

Her wording is not "may" be charged with a crime if she testifies, which would be covered under the Fifth Amendment, but her lawyer says she "would" be charged with a crime-- so she cannot -- plead the Fifth.

In any case, even if all is untrue above, she basically says that a crime has been done, so that falls under conspiracy, that should be investigated, -- and she only works for mostly the Republican Party, so that opens the door -- for the entire Republican Party to be subpoenaed by Congress.

[LostinVA]

59. Totally not true

You can't self incriminate. It doesn't mean you're guilty -- like the people who were blacklisted, etc. The Fifth Amendment is to PROTECT Innocent people, even if the person taking it isn't innocent.

[Hepburn]

110. Exactly. n/t

[texpatriot2004]

62. And if you are guilty, what are you hiding? nm

[johnnydrama]

68. forgetting one point

There's an important point being missed. She can't just say i'm pleading the 5th before she's asked any questions.

She hasn't been asked a question yet. Despite how broadly the 5th can be used, there are questions to be asked, and ways to ask those questions that can get around it.

If she's asked if AG Gonzales was present at a meeting on so and so date, what grounds would she have to plead the 5th?

[Patsy Stone]

71. Zero.

I think the answer is zero.

[dsc]

72. I don't know how Congress works

but in grand juries a person can only do an all or nothing on the 5th. That also applies to some extent in criminal proceedings. If a witness takes the 5th on one question the entire testimony is stricken.

[H2O Man]

73. Correct. n/t

[Laurier]

89. Not so in court, though. n/t

[Marie26]

80. It sounds like she's

just saying this now so that Congress will offer her immunity. And I hope they do!

[dsc]

69. That is simply not true

Here is one example where a person can be not guilty of the crime at hand but still invoke the 5th. Say a gay man is accused of a robbery and his only alibi is that he was having sex with his boyfriend on the night of the robbery. Assuming that having gay sex were a crime, as it was until 2003 in 14 states, he would be entitled to invoke the 5th but still not be guilty of robbery.

[Marie26]

77. That's a way of saying it

People can only refuse to give self-incriminating evidence - meaning, testimony that would implicate them in a criminal action. In pleading the Fifth, the witness is stating that he believes his testimony would possibly put him/her in danger of criminal prosecution. Monica Goodling believes her testimony could implicate her in a crime. That doesn't automatically mean she's guilty of a crime, in the legal sense. So that's where I quibble w/your characterization. It just means that her testimony could potentially incriminate her in some way.

[Richard Steele]

81. EVERYTHING ever written is a "way of saying it", you know.

My way often involves hyperbole. A bit. ;)

[Marie26]

82. Just a little

:) I know what you're trying to do, though. It seems like people think anyone can refuse to testify in front of Congress if they want to, & that isn't right. They can only refuse to give self-incriminating testimony. That's what makes this story so important. This news is HUGH, because Republicans have claimed all along that the firings weren't illegal. But Goodling's decision blows that talking point out of the water. By taking the Fifth, she's effectively stating that she believes illegal activity occurred here. So what was that illegal activity? Almost no one thinks that simply firing the US attorneys was illegal; just unethical. So Goodling's decision points to other, potentially criminal reasons for these firings - obstruction of justice, corruption, bribes, dodging records requirements w/secret email servers? Who knows? But it's now much more likely that some crime occurred, and it gives Leahy & Conyers a valid reason to keep digging.

[HCE SuiGeneris]

84. ahhh

that was refreshing... very nice post!

[Richard Steele]

93. She's quite brilliant, you know. I don't often use the word "outstanding"....

...because it's a sad, wimpy little word that utterly FAILS to
sum up the exceptionality of truly outstanding folks' BRILLIANCE.

Like Marie, for example. :thumbsup:

[HCE SuiGeneris]

95. I can see where one

could come to that conclusion. :kick:

[Richard Steele]

96. Hey, I just happen to be "one"!

And I'm one who often uses extreme arguements from
very oblique angles to "make a point".

I'm not the easist guy to "get", if ya know what I mean.

I know I come across as an asshole most of the time, and that's
because I -AM- an asshole most of the time...I have made my
peace with that fact.

But there is METHOD to my madness. Every once in awhile, someone
somewhere "gets" where I'm coming from.

Like Marie.

[HCE SuiGeneris]

100. I have read many of your posts,

and oblique, or obtuse, or insidious, your arguments resonate with me. However, I probably get the a-hole award, as more of my posts disappear than stay on board.

Kudos to you and Marie. Many people here bring great insights -- and you both hit the proverbial nail on the head on a consistent basis.

[Marie26]

119. Oh, jeez

:blush: I'm embarrassed. Thank you for the compliment!

[TX-RAT]

115. ??

(By taking the Fifth, she's effectively stating that she believes illegal activity occurred here.)


Not sure how you come up with that. The judge would also warn you not to take that position.

[Marie26]

120. It's only meant to protect against criminal prosecution.

You're conflating a little what happens in a courthouse & in the real world. In a criminal trial, prosecutors can't argue that pleading the Fifth is evidence of guilt, and a judge or jury can't infer that it is evidence of guilt. But we're not in a courthouse - we can infer all we want.

It's one clue to try and figure out what really happened here. What can we infer from Goodling's decision? In this case, no one has alleged that a specific crime occured & the facts, as we know them, don't show that any criminal action occured. If this was true, if no crime occured & no one did anything illegal, Goodling wouldn't plead the Fifth because she'd have no reason to believe that her testimony would implicate her in a crime. The fact that she DID plead the Fifth indicates that there are facts, still unknown, that create the danger of a criminal prosecution. It means they're hiding something - and that something involved illegal actions. We can infer that from Goodling's actions here, in the sense of an inference about what the truth is. In a courtroom, the jury can't infer anything about Goodling's legal guilt based on this. But the public certainly can. Pleading the Fifth, when no one has yet alleged any criminal action, is a definite clue that there is much more to this story.

Goodling's attorney is trying to spin this to say that she was just worried about those "unfair", mean Democrats twisting the facts. But he's not fooling a single member of Congress, or the Judicial Committee. They know that this signals possible illegal activities, and this will inspire them to dig even more for the truth. Actually, I think Goodling is really just asking Congress for immunity so that she can then spill the beans about everything, legal and illegal. :bounce: Let's hope!

[PhilipShore]

116. I agree, I even considered it a non-story...

the firings, and at most the breaking of some ethics code; but now with her pleading the Fifth, she is at the very least implying that a crime has occurred -- by her or someone in the Republican Party.

[Laurier]

90. Yet, anyone can simply lie.

That is all.

[w4rma]

92. Lying under oath is perjury. Perjury is an easily prosecutable crime. (nt)

[Richard Steele]

94. Exactly. Just ask Scooter! nm

[Laurier]

128. I agree entirely.

But I think you missed my point.

Edit to add since my point was subtle and obviously was missed - My point was that anyone can lie, whether under oath or not. The OP aside (which is wrong by the way), people lie under oath every single day. The oath means nothing to them. They will lie with or without it. I don't believe that the oath matters one whit to the likes of Bush or Cheney. They have lied about so many things, so often, that I really don't think it would matter to them whether they were under oath or not, they would still lie. Therefore, the oath is meaningless to those who would lie anyway.

[LeftishBrit]

101. I am sure this is not true

In the McCarthy era, people 'pleaded the Fifth' because they were afraid that whatever they said would be twisted by politically motivated people to get them into trouble; or, perhaps worse, to use their words to get other innocent people into trouble.

I hasten to add that I do NOT regard the current congressional investigations in this category; and suspect that those who are 'pleading the Fifth' here really do have something to hide; and I hope it comes out! But I think that the 'presumption of innocence' is one of the cornerstones of any civilized legal system, and that it would be extremely dangerous ever to get rid of it.

[unblock]

103. this is a very dangerous and ignorant mischaracterization of the right to refuse to respond

i will grant you that it LOOKS bad because that is certainly one POSSIBLE reason for choosing to take the fifth instead of responding. but it is not the only.

for example, the forum, e.g., testifying before congress, might not permit you enough opportunity to introduce additional evidence to time for additional testimony to convey the whole truth. thus, a response to the one question might be a PARTIAL truth leading to the APPEARANCE of commission of a crime where no crime actually exists.

more fundamentally, though, even if your argument were true, liberal use of the fifth would still have merit in preventing congress and prosecutors from going on fishing expeditions that rely on self-testimony.

[CTLawGuy]

105. that's it

you're off my jury :)

[rateyes]

108. If you gave that answer to an attorney questioning

you about your understanding of the 5th amendment right of his client during jury selection, you would be removed as a juror. It's as simple as the first part of the Miranda rights: You have a right to remain silent.

However, Congress could IMMUNIZE her (conditioned on truthful responses), and since she would be free from self-incrimination, her testimony would then be compelled. If she refuses to answer questions at that point, she can be jailed for contempt of Congress.

If she lies after having been given a grant of immunity, she could be prosecuted to the full extent of the law.

[leftofthedial]

121. yeah, we should just throw away the FIfth Amendment

along with the rest of the Bill of Rights.

[librechik]

123. Her decision makes plain that crime was involved (unlike WH claims)

otherwise, why not just testify?

[frazzledmom]

126. Not going to argue the finer points of law here

enough of that in this thread already. The fact is if she is taking the fifth it means that she feels that something she says might get her in trouble. Period. I don't care what a Judge says and I don't care what the law says, taking the fifth is covering your ass. A person takes the fifth because they are afraid.
You know the one thing I've noticed here is that many people think that no real crime has been committed with these firings. Maybe it's just me but isn't firing an attorney who is in the middle of an investigation obstruction of justice?

[Richard Steele]

127. Indeed. Many ordinary actions can be "crimes", if they are intended to obstruct justice.

And it's pretty clear that each of these attorneys was fired
for one of two reasons:

A: to obstruct justice, when their investigations got close
to repub bigwigs.
-or-
B: Because they refused to abuse their authority for Repub
political gain.

Of course, I doubt that any charges are gonna be filed
from the "obstruction of justice" angle. But if enough
of the whole sordid affair comes to light in the MSM,
the public will be able to figure out what's what for
themselves, which is almost as good. (politically, anyway)