For Questions That Don't Merit Their Own Thread

[Shpaget]

Probably depends on jurisdiction, but...

In most countries there is no legal requirement that, in court hearing/trial/whatever, you must implicate yourself with your own statements. It is often explicitly stated that a perfectly legal option is to remain silent.
However, it is also commonplace that courts ask you to promise to tell a variation of "truth, whole truth and nothing but the truth". If it turns out that you've broken that promise, there are prescribed penalties.

As I see it, those two principles can, on occasion, collide. If you're guilty of whatever and not particularly keen on admitting it, you can not keep the promise of telling the whole truth while still exercising your right to not implicate yourself.

So what happens? You can "take the 5th" and hope to not be convicted of the crime you're being tried for, but still by default end up in jail for contempt of court because you didn't tell the whole truth? Surely not, but then what's the point of the swearing in if it's not enforced?

[kerbiloid]

Afaik, in Russia they don't ask for the ancient mystic rituals like promises, they just warn you about responsibility for the false statements.

The accused one isn't responsible, and may say or not say whatever he wants. The witnesses mayn't.

[SunlitZelkova]

There are people who have actually been involved in the justice system/legal defence so they can probably answer better, but I shall do my best to answer as well.

2 hours ago, Shpaget said:

As I see it, those two principles can, on occasion, collide. If you're guilty of whatever and not particularly keen on admitting it, you can not keep the promise of telling the whole truth while still exercising your right to not implicate yourself.

People don't want to get caught when they commit a crime. So if they get called to the witness stand, they can lie all they want. They won't get tried for contempt of court so long as they are not found guilty, because whatever they are saying (which is effectively the lie of "I didn't do it") will be considered the truth.

2 hours ago, Shpaget said:

So what happens? You can "take the 5th" and hope to not be convicted of the crime you're being tried for, but still by default end up in jail for contempt of court because you didn't tell the whole truth? Surely not, but then what's the point of the swearing in if it's not enforced?

You won't get charged with contempt of court for lying in order to not implicate yourself if you aren't found guilty, because if you aren't found guilty no one will know you are lying.

If you lie in order to not implicate yourself, but then get found guilty, you will receive are far harsher sentence, so even if contempt of court gets tacked on, it practically shouldn't matter anyways.

If I had to guess, the affirmation of telling the truth is intended for normal people so they don't get nervous and lie or miss things. The accused isn't expected to obey it, and it falls on the prosecution to find evidence (ideally beyond mere testimony anyways) implicating the defendant.

[Shpaget]

I'm not talking about telling a lie. I'm talking about refusing to say anything other than to invoke (verbally or otherwise) the right to refuse to answer. That is in collision with the swearing (or affirmation) to "tell the whole truth" and is separate from guilt (actual or determined).

[Terwin]

3 hours ago, Shpaget said:

I'm not talking about telling a lie. I'm talking about refusing to say anything other than to invoke (verbally or otherwise) the right to refuse to answer. That is in collision with the swearing (or affirmation) to "tell the whole truth" and is separate from guilt (actual or determined).

Taking the 5th is roughly the same as 'I do not wish to comment on this and the constitution ensures that I cannot be coerced or punished for that'

It may not be the truth they are asking for, but it is still a full and complete truth in and of itself.

If you are called to testify, you can take the 5th on everything(up to and including your name), and there is nothing they can do so long as you are consistent.

(if you answer a question for one side, the other side can ask questions about that, and I am uncertain if you can take the 5th on a topic after already talking about it)

The prosecution can try to take advantage of this by asking you questions that make you look guilty to the jury if you refuse to answer, but that is all they can do if you consistently take the 5th.( to the best of my understanding, not a lawyer)

 

[JoeSchmuckatelli]

Taking the 5th can't be used against you in a criminal trial - but juries are allowed to infer the refusal to answer indicates that the answer would be adverse to that person's claims or protestations of innocence in a civil case 

 

https://www.lanepowell.com/Our-Insights/221205/Taking-the-Fifth-in-a-Civil-Context#:~:text=“Once a witness in a,to testify.” Chaffee v.

9 hours ago, Shpaget said:

still by default end up in jail for contempt of court because you didn't tell the whole truth? Surely not, but then what's the point of the swearing in if it's not enforced?

You cannot (in America) be jailed for asserting a Constitutional right. 

Also - see above 

[Shpaget]

20 minutes ago, JoeSchmuckatelli said:

You cannot (in America) be jailed for asserting a Constitutional right. 

Yeah, Constitution trumps laws, that's universal, which brings us back to my final observation - no point to swearing to say the "whole truth" since you can always fall back to Constitutional right to not say it.

2 hours ago, Terwin said:

(if you answer a question for one side, the other side can ask questions about that, and I am uncertain if you can take the 5th on a topic after already talking about it)

So it's basically all or nothing? You can "take the fifth" but then you can't testify, or choose to testify but then waive the constitutional protection of the 5th?

Thank you guys for explanations. Keep in mind I am taking all my USA law lessons from TV shows.

[kerbiloid]

First of all, if they require a "promise" (so to appeal to mystic/religious force) of "whole truth", it's a blasphemy itself  because a human can't know "whole truth",
so he doesn't just give a promise (so, pretends to do something without taking into account his limited possibility to avoid external circumstances like a deity will),
but pretends to be aware of the "whole truth" (i.e. pretends to know things beyond his limited mortal nature).

After that, everything other is nothing.

[Terwin]

37 minutes ago, Shpaget said:

Yeah, Constitution trumps laws, that's universal, which brings us back to my final observation - no point to swearing to say the "whole truth" since you can always fall back to Constitutional right to not say it.

By my understanding, you are asked to swear on something you hold sacred(traditionally an appropriate religious text like the bible for Catholics or protestants),  but the court can only go after you for falsehoods they can prove you knew were false, or more often, contradicting yourself(which means you must have lied at least once)

37 minutes ago, Shpaget said:

So it's basically all or nothing? You can "take the fifth" but then you can't testify, or choose to testify but then waive the constitutional protection of the 5th?

Thank you guys for explanations. Keep in mind I am taking all my USA law lessons from TV shows.

I am hardly a lawyer, and it is entirely possible that taking the 5th is a silver-bullet for any question you do not want to answer in a criminal case(but be careful because they may try to trick you by asking things in different ways).

Taking the 5th for every question, is sort of like refusing to talk to the police without a lawyer present.  It is the safest way to go but may cause a lot of head-aches(like turning a speeding ticket into an arrest because they do not have a lawyer for you sitting in their back seat).

If you are or may be under suspicion for a crime, then you really want to talk to a lawyer before taking the stand, because that is their field of expertise.

[magnemoe]

1 hour ago, kerbiloid said:

First of all, if they require a "promise" (so to appeal to mystic/religious force) of "whole truth", it's a blasphemy itself  because a human can't know "whole truth",
so he doesn't just give a promise (so, pretends to do something without taking into account his limited possibility to avoid external circumstances like a deity will),
but pretends to be aware of the "whole truth" (i.e. pretends to know things beyond his limited mortal nature).

After that, everything other is nothing.

The ritual it to make it feel more formal and serious, and its obviously everything about the case you know and believe is relevant for the case. Say you saw someone got shot but not the shooter. 
5 minutes before you saw a man who stopped, took an gun out out an briefcase, looked at it and put it back in, an old lady walks by. 
You obviously tell about the man with the gun as its suspicious, you did not tell about the old lady as its irrelevant as you see it. 
She was the shooter the man with the gun was on his way to an shooting range and feared he had forgot the magazine for the gun. Most would do this mistake. 

You do an crime if you suspect the old lady because you know her and want to cover her.

[SOXBLOX]

1 hour ago, kerbiloid said:

First of all, if they require a "promise" (so to appeal to mystic/religious force) of "whole truth", it's a blasphemy itself  because a human can't know "whole truth",
so he doesn't just give a promise (so, pretends to do something without taking into account his limited possibility to avoid external circumstances like a deity will),
but pretends to be aware of the "whole truth" (i.e. pretends to know things beyond his limited mortal nature).

After that, everything other is nothing.

Ehhh, not exactly... The oath is basically saying that you are going to tell the truth, and you agree to be held accountable* if you intentionally do not tell the truth. The "truth, the whole truth, and nothing but the truth" part is just the qualifier that says you won't make anything up, or omit details in a way that deceives. It's not about the fundamental concept of Truth.

*by the court. With the Bible, you'd also say you're accountable to God on Judgement Day, which was considered extremely serious during the centuries when our legal system was cemented.

[JoeSchmuckatelli]

OK - in America it is your choice whether to swear or Affirm that the testimony given will be truthful.  It isn't a magic spell (although the history does reflect a past belief in someone putting their soul in jeopardy <swear >) it is merely a commitment to be truthful.  Legally swearing or affirming is the same thing. 

If you are not - if you lie under oath - you trigger the legal jeopardy of perjury. 

I've mentioned it once before, but early in my practice I found a witness that a plaintiff and his counsel were attempting to conceal.  He basically proved that not only was the plaintiff lying - so was the lawyer (I won't go into details but there were multiple corroborating details discovered after I found the witness). 

Because testimony under oath and official statements and assertions had been made the court not only dismissed the case - it sanctioned the plaintiff and the lawyer (my firm's fairly expensive bills to our client all got paid, plus a penalty). The court could have recommended criminal liability... But didn't need to. 

 

So to go back.  We ask or command a person to testify in a case.  When they do, they swear or affirm that the testimony will be truthful. At risk of prosecution or civil penalty if they lie.  Under certain circumstances, some witnesses enjoy the right to not testify because of their Constitutional rights or because of other exclusions (e.g. Spousal privilege).  When those exclusions apply, a witness may be able to avoid testimony to prevent a greater harm.  But they are fairly narrow cut outs.  You cannot claim spousal privilege against a girlfriend or ex spouse.  You cannot claim the 5th if the government has granted immunity and requires you to testify against another. 

 

Does that clear anything up? 

Edited February 27, 2022 by JoeSchmuckatelli

[kerbiloid]

9 hours ago, SOXBLOX said:

Ehhh, not exactly... The oath is basically saying that you are going to tell the truth, and you agree to be held accountable* if you intentionally do not tell the truth.

No, exactly.
If it was not, they would say "the whole (part of) truth which I'm aware of", _{correct it to sound more Englishly}.

So, everything listed above is just weak excuses.

[Shpaget]

8 hours ago, JoeSchmuckatelli said:

Does that clear anything up? 

Yup. Thanks.

[SOXBLOX]

6 hours ago, kerbiloid said:

If it was not, they would say "the whole (part of) truth which I'm aware of", _{correct it to sound more Englishly}.

So, everything listed above is just weak excuses.

That's exactly what it means. It's in the context.

[Gargamel]

What was the first musical album? 

[K^2]

9 hours ago, Gargamel said:

What was the first musical album? 

Define "album". Technically, this is the oldest known recording of singing. This was recorded on a medium not meant for playback, but only for visual recording of the sound using phonautograph, but has since been reconstructed into its audio form.

https://en.wikipedia.org/wiki/File:1860-Scott-Au-Clair-de-la-Lune-05-09.ogg

[Gargamel]

43 minutes ago, K^2 said:

Define "album".

That's the rub of the question.   I'm thinking first compilation of a selection of music by an artist (group or individual) that was recorded to some medium for purpose of distributing it.    But that definition is up for debate. 

The first recorded music is well documented, as you show,  but album...

Edited February 28, 2022 by Gargamel

[mikegarrison]

On 2/26/2022 at 11:01 AM, JoeSchmuckatelli said:

You cannot (in America) be jailed for asserting a Constitutional right. 

You can "assert" all you like, but that doesn't mean you actually *have* that right. I've seen people assert that they have constitutional rights to ignore speed limit laws or not pay income taxes, and they certainly can get jailed for both of those, because despite their assertions, it is not generally believed that these actually are Constitutional rights.

As for music, I thought David Byrne's book How Music Works was very interesting. In particular, he talked about the way in which the creation of audio recording devices changed music from "something people do" to "items and later data that they own". Basically, music used to be entirely what we think of now as concerts -- transitory performances that exist only in your memory of the event. But now music is recordings that can be bought, sold, duplicated, collected, etc.

[SunlitZelkova]

10 hours ago, Gargamel said:

What was the first musical album? 

No one knows. The first albums were literal physical photo album-like collections of multiple records, with a series of related compositions in them. They were released in the 1910s and 1920s, so WWII probably destroyed a lot of physical evidence in relation to their history 

Unfortunately, leisure items of that era have a deep and untouched history because they were widespread, and as consumables, no one really bothered to document them in the same way scientific developments or military equipment was. It makes me wonder just how much of an enigma our current era will be 100 years down the line.

[JoeSchmuckatelli]

1 hour ago, mikegarrison said:

can "assert" all you like, but that doesn't mean you actually *have* that right

Obviously.  I can assert the Constitutional right to fly the Space Shuttle but unless the text of the Constitution (or subsequent court cases interpreting the text) agree that such a right exists - it doesn't.  America has a bunch of people who don't know what's in the document making up nonsense.  That's nothing new. I presumed y'all knew I was talking about asserting rights that actually exist. 

To reiterate: if the right actually exists you can assert the right and not be punished by the government for clinging to the constitutional protection against government overreach. *

However - in a fight between two private actors, certain things that protect you against government harm don't apply in the civil case. So if the question asked only implicates your civil liability (i.e. 'did your actions breach a contract' or 'were you negligent') you cannot successfully assert a right against self incriminating testimony.  On the other hand, if answering the question puts you in jeopardy with the government via criminal liability ('did you murder your wife for the insurance proceeds') you can assert the constitutional right and not be jailed for it.  In the first example, refusing to answer questions that might implicate your civil liability can be contempt of court and you can be jailed - but in the second, refusing to give testimony that might incriminate you... you cannot.  However - as I tried to highlight, asserting your constitutional right against self incrimination in the civil trial (about insurance fraud) - while they cannot force you to testify - the jury is allowed to infer from the refusal to speak that the testimony, if given truthfully, would be adverse to your interests.  Only the jury in a related criminal case is not 

 

*

Quote

This does NOT mean you can refuse to provide answers to questions because they could lead to a jury finding for the opposing party in the civil litigation. What it means is, if your answers to the questions you are being asked could result in you facing criminal prosecution, you do not have to provide the answers. You also do not need to provide answers if the information you would provide could be enough to lead police to evidence that could be used to incriminate you

https://www.bc-llp.com/do-you-have-a-right-to-remain-silent-in-a-civil-case/#:~:text=In 1976%2C the U.S. Supreme,your reply may incriminate you.

 

Edited February 28, 2022 by JoeSchmuckatelli

[mikegarrison]

However, Joe, if the government offers immunity, can they then compel you to testify? I thought I've seen cases of that happening, where they jail people for contempt of court when the court tries to compel them after offering immunity.

[TheSaint]

34 minutes ago, mikegarrison said:

However, Joe, if the government offers immunity, can they then compel you to testify? I thought I've seen cases of that happening, where they jail people for contempt of court when the court tries to compel them after offering immunity.

Well, generally, immunity deals are offered as a contingency on testimony. So if the witness then refuses to testify the immunity goes away. It seems like a misdemeanor contempt charge would probably be the least of their worries at that point.

[kerbiloid]

12 hours ago, Gargamel said:

What was the first musical album? 

This one.

Spoiler

A-side, B-side.

Or maybe vice versa, who knows.  Still lacking a player.

P.S.

Btw, as  is the most common here, probably some punk-rock.

[JoeSchmuckatelli]

55 minutes ago, mikegarrison said:

However, Joe, if the government offers immunity, can they then compel you to testify? I thought I've seen cases of that happening, where they jail people for contempt of court when the court tries to compel them after offering immunity.

Of course.  

The purpose of the Constitution (Aside from, but also including, describing how our government works) is to immunize (protect) the citizens of America from Government harm (overreach).  Where another route has been taken to protect a person from criminal liability from the government, then the right is already protected (or rather the jeopardy against which the Constitutional right protects is already protected against via a grant of immunity) then there is no jeopardy.  At that point, testimony may be compelled.

So where you have a right against self incrimination - that you can assert in the absence of some kind of agreement with the government - if you DO have an agreement with the government for immunity against the self incriminating testimony, and refuse to testify, you can be penalized.  Sometimes by having the grant rescinded, sometimes by contempt charges.

Let me add this: if you have a valid grant of immunity, and are compelled to testify, and do... and lie?  Guess what?  You get Criminal Perjury charges levied against you.

1758. Perjury Cases -- Special Problems And Defenses -- Immunity | JM | Department of Justice

Here's a defense oriented primer:

Perjury: Laws and Penalties | CriminalDefenseLawyer.com

Edited February 28, 2022 by JoeSchmuckatelli