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The 5th Amendment

Discussion in 'BBS Hangout' started by Major, Feb 8, 2002.

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  1. Major

    Major Member

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    OK, this is something I've never understood. Apparently, Ken Lay may use the 5th Amendment to avoid testifying before Congress next week.

    However, if you use it, doesn't that automatically mean you are guilty? After all, if you weren't guilty, you could not legally use the 5th Amendment, and if you did so, you'd be committing perjury, no?

    That brings up another question... WHY do we have the 5th Amendment?
     
  2. haven

    haven Member

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    The actual text of the Amendment (emphasis mine). It was originally meant, I think, to prevent confessions from being extracted.

    It also provides a nice alternative to straight outlying. If they take the 5th, then they're not going to ruin the proceedings with disinformation.

    I'm sure there are other meaning as well.
     
  3. TheFreak

    TheFreak Contributing Member

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    Lay should just flee the country instead. Seemed to work in the campaign finance investigation.
     
  4. Major

    Major Member

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    <B>It also provides a nice alternative to straight outlying. If they take the 5th, then they're not going to ruin the proceedings with disinformation. </B>

    True, but at least if the person lied, you might be able to prove him lying and then get him for perjury and discredit his testimony. That's at least an incentive to not lie. Right now, it seems like people can just get a free ride by taking the 5th.

    For example, in the Enron case, Ken Lay has details that are probably very important to the investigation of both him and others. If he lied about those details, you could trap him and get him jailed that way. As it stands, he and other board members can just say nothing and the investigation is screwed -- and there's nothing law enforcement can really do.

    I'm sure I'm missing something, but I don't see the benefit of it. Also, to clarify, I am just referring to the clause you highlighted about self-incrimination, not the whole thing.
     
  5. haven

    haven Member

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    How helpful... as far as I can see, Major's question was pretty politically neutral. Why start deriding the other "side" when it's Major simply requested information?
     
  6. haven

    haven Member

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    Yeah, I agree, it's infuriating. Because if they take the 5th, you know they're hiding something. But still, maybe it points the feds in the right direction.

    :D

    I actually think this is one of those Amendments that you have to look at in the context it was written. Our Founding Fathers were some seriously paranoid individuals... I'd guess most revolutionaries are. They wanted to limit the power of the federal government... and they did. Also, remember... this Amendment originally only applied to the federal government. The states weren't hit with the Bill of Rights till after the Civil War Amendments. So you might not want to look at this as an individual "right" so much as a prohibition on federal power.
     
  7. Major

    Major Member

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    <B>this Amendment originally only applied to the federal government. The states weren't hit with the Bill of Rights till after the Civil War Amendments. So you might not want to look at this as an individual "right" so much as a prohibition on federal power.</B>

    That's true. But suppose RM95 does something really bad. :) It makes no sense that I could be compelled to testify about it as a witness (as long as I was not doing anything wrong) but he would be allowed to stay silent. f we're limiting government power, it seems strange that we would give them full right to throw ME in jail for not talking, but not RM95. :mad: :)
     
  8. haven

    haven Member

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    Ah, but perhaps RM95 isn't involved at all. Suppose you're growing mar1juana in your basement. Suppose the police chief really, really suspects it because he saw you at the last hemp fest, and because you have a mar1juana sticker on your back pack. The 5th Amendment gives you an alternative to lying, I suppose.

    I guess it could allow a person not to lie if they're engaged in a personal crime? I guess it could also have helped out those people who used birth control before Griswold.

    It does seem a bit meaningless. But I don't see how it really hurts anything, since they'd just lie anyway. I guess it'd be possible to catch someone perjuring themselves now and then... jsut doesn't seem like a great risk.

    I still think it's probably an ideological thing more than anything else. Not wanting the big, bad federal government to be able to force a private citizen to hurt themselves.
     
  9. Pole

    Pole Houston Rockets--Tilman Fertitta's latest mess.

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    I wonder if it was implemented because of the fact that you can't actually force someone to talk.

    I mean, if we were not "civilized," we could, of course, stick bamboo sticks (or whatever it is) under people's fingernails or do whatever it takes to get someone to admit something. But that's not the type of Judicial process our founders were after. Maybe as they were framing our structure, someone said, "Hey....what if so-and-so defendent just refuses to answer any questions, what can we do?" The simple truth of the matter is that there is nothing "civilized" that you can do. So...let's just address that matter up front, and hence....the 5th amendment.

    then again, maybe not....
     
  10. JuanValdez

    JuanValdez Contributing Member

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    It makes no sense to try someone for a crime and, when they say they didn't do it, hit him for perjury. The Fifth Amendment is there so that a person can stand trial without lying and without giving his case away. That's common sense.

    As for Enron, I'm sure the Justice Department will be able to build a pretty good case without the testimony of executives. Even with all the paper-shredding (which should put some people in jail all by itself), there's plenty of documentation, plus there's all the lackeys and secretaries and petty officials who can testify against them. I think they'll be fine with their case.
     
  11. haven

    haven Member

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    And if not, I'm sure they'll be lynched by an angry mob of ex-employees...
     
  12. HayesStreet

    HayesStreet Member

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    If its design is to prevent coerced confessions, why is that bad? And if the government can't prove its case without a confession (testifying against yourself) the alleged perpetrator they shouldn't be prosecuting it. And doesn't it INCREASE the credibility and legitimacy of the courts when they don't FORCE defendants into a situation where they feel they must lie on the stand. Overall don't you decrease the amount of untruths testified to with the 5th?
     
  13. SamCassell

    SamCassell Contributing Member

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    Coffee man hit the nail on the head. In a criminal case, the state has to prove up its case beyond a reasonable doubt. The Fifth Amendment, when exercised, means that the State must do so without the testimony of the defendant. Waiving its protection is dangerous for the criminal defendant (sometimes whether he's guilty or not). That's why so many criminal defense attorneys counsel their clients to take the Fifth. It's definitely not meaningless.
     
  14. Joe Joe

    Joe Joe Go Stros!
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    The 5th amendment is good. Yeah its a pain. I would not want to have to defend myself in court.

    My lack of confidence when accused makes me look guilty.
     
  15. Princess

    Princess Member

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    I think it's totally relevent. SamCassell is completely right. Lawyers are known to be particularly honest people. I think this protects people from answering questions that could hurt them.

    If the guy wasn't growing pot in his closet, but had smoked it once, he can plea the Fifth when asked if he smoked it because that would possibly incriminate him. Does that work? It makes sense to me. It doesn't always have mean you're guilty, I don't think.

    Does anyone know why Clinton didn't just plea the Fifth instead of committing perjury?
     
  16. Pipe

    Pipe Contributing Member

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    The Fifth Amendment only applies to criminal prosecutions, not civil.

    Speaking of Slick Willie, last night when I was watching the news clips of Skilling, I thought to myself, "He's good, but he's no Bill Clinton."
     
  17. Major

    Major Member

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    OK, I was gone for a while. Nice to see this thread still up here. :)

    <B>The simple truth of the matter is that there is nothing "civilized" that you can do. So...let's just address that matter up front, and hence....the 5th amendment.
    </B>

    Pole: That's true, you can't force them to talk. However, if you didn't have the 5th Amendment, then you could hold them in contempt of court for not talking. Now, you can't do anything.

    <B>It makes no sense to try someone for a crime and, when they say they didn't do it, hit him for perjury. The Fifth Amendment is there so that a person can stand trial without lying and without giving his case away. That's common sense.</B>

    JuanValdez: Well, in this scenario, you can't hit him for perjury unless you can prove he committed the crime (otherwise you can't prove that he perjured himself). If you prove that he committed the crime, then the perjury is irrelevent anyway because you've got the more important charge.

    Where making someone give SOME answer (lie or truth) is that you then have a case to dissect. For example, in a murder, if the person doesn't have to talk, they don't need an alibi. If they had to answer to where they were and made up something, you could destroy his credibility if you could prove he was lying. This definitely goes to the guilt or innocence of a person, because an innocent person shouldn't be making stuff up.

    Another big problem in my mind is that it helps protect OTHER people. For example, what Ken Lay knows could incriminate others, but since it could also incriminate himself, he can say nothing.

    <B>If its design is to prevent coerced confessions, why is that bad? And if the government can't prove its case without a confession (testifying against yourself) the alleged perpetrator they shouldn't be prosecuting it. </B>

    HayesStreet: There are other laws to prevent coerced confessions, though. I agree with those, because then you can make someone lie for other reasons. If you take out this part of the 5th Amendment, I think coerced confessions are still illegal.

    <B>And doesn't it INCREASE the credibility and legitimacy of the courts when they don't FORCE defendants into a situation where they feel they must lie on the stand. Overall don't you decrease the amount of untruths testified to with the 5th?</B>

    Sure, you decrease the amount of untruths simply because you've decreased the amount of information. It's my contention that more information is better -- even if false -- because at least then you have a chance to demonstrate that its false.

    <B>In a criminal case, the state has to prove up its case beyond a reasonable doubt. </B>

    SamCassell: A bit off-topic, but is a Congressional Inquiry a criminal investigation? If not, why can people plead the 5th when dealing with Congress?

    <B>If the guy wasn't growing pot in his closet, but had smoked it once, he can plea the Fifth when asked if he smoked it because that would possibly incriminate him. Does that work? It makes sense to me.</B>

    Princess: However, that information alone (that he smoked pot) does not help prove that he grew pot. The prosecutor has to prove beyond reasonable doubt and this information doesn't help him do that. Millions of people smoke pot that don't grow it. If you didn't grow pot, there should be no problem answering those questions.

    <B>The Fifth Amendment only applies to criminal prosecutions, not civil. </B>

    Pipe (or other law-people): So if someone sued Ken Lay for damages caused in the Enron collapse (can they?), would he be required to answer all these questions? And if so, could that testimony then be used in a criminal proceeding?

    Sorry to be a pain in the ass, everyone, I'm just curious about this. :) I guess part of the problem is that I'm assuming everything in a theoretical environment, and that's where the fallacy comes into play. While saying that you smoked pot SHOULDN'T affect that case above, it might in real life, I guess.
     

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