Cerberus said:
Yes, I understand that, but if I was complicit in the rape, refusing to hand it over would be part of my fifth amendment rights.
your fifth amendment rights do not extend to documents or objects in your possession, or even to your DNA; they only allow you the freedom to refrain from having to
say incriminating things about yourself.
OK imagine this situation. I'm a friend of Armstrong and Landis tells truthfully that I was there to see Armstrong using doping. Being a friend of Armstrong I don't want to roll over on him, so I say I pledge the Fifth, The prosecutor points out that Landis has only said I was present not involved to which I reply "well that's what Landis knows of".
a couple of problems: first, floyd can't testify about why you were there. he could only testify about why he was there; or, if it was a planned meeting, the purpose of the meeting as he understood it. otherwise, it would be hearsay.
second, he could only testify that he saw you there and that lance was doping openly in front of the both of you. he can't testify about what you saw, or how you interpreted, or understood, what you saw. you could get on the stand and say, "i didn't see anything," or "that's not how i interpreted it," or even "i wasn't there;" and then it is up the the prosecution to prove you are lying.
third, you can't partially take the fifth. if you take it, you have to say nothing. you would waive your rights by saying, "well that's what Landis knows;" by doing so, you would immediately open yourself up to cross-examination.
also, if you plead the fifth, you can't then testify on lance's behalf for the defense to try to counter floyd's testimony. if you do, you would, likewise, waive your fifth amendment rights and open yourself up to cross-examination.
if you had already refused to cooperate, and had already plead the fifth, and the prosecutor couldn't get you to change your mind with the carrots of immunity and plea bargains, or the sticks of jail time for obstruction, then you would not be called to testify in all likelihood. the prosecutor will interview you out-of-court before he ever contemplates putting you on the stand.
Clearly if I was involved is for example acquiring the drugs then I could pledge the fifth, but if I'm not involved I'm guilty of obstruction. thus creating a rather odd catch 22-like situation where in order to be innocent I have to be guilty.
you do not have to say anything that is at all about yourself. if you were there, and you feel that admitting you were there incriminates you, you may refuse to answer the question and any questions that naturally follow from it. obviously, if you refuse to comment as to whether you were there or not, you cannot then be pressed to discuss what you witnessed while you were there.
you can't be charged with obstruction for simply asserting your constitutional rights, but it is true that the less related to you, personally, that the information requested is, the greater you expose yourself to the possibility of obstruction charges for refusing to cooperate.
you are also right in that if you have committed no crime, nor participated in anything that places you personally in legal jeopardy, but that you have witnessed something of value that does not involve you, that you cannot assert the fifth amendment and refuse to cooperate. but you are still innocent, you have not somehow become guilty--it's just that you do not have a legal right not to participate and help further justice, if you are able to in a manner that does not incriminate yourself.
to refuse to do so, would make you guilty of obstruction, and you would actually be guilty of obstruction, since in your hypothetical you are purposely not helping the prosecution against your friend because you do not want it to succeed. it's not really a catch 22, it just a question of what you value more, lance or justice (or not going to jail)
I realize the hypothetical is sort of bizarre, but it's possible and I'm curious how it would work. I understand I could be given immunity from charges thus forcing me to testify, but in certain cases the prosecutor might not want to give me immunity if the crime I might have been involved in was very serious.
the seriousness of the crime does not usually preclude grants of immunity, especially if the prosecutor wants/needs the kingpins and you are just a small fry. though if you have killed someone you will probably only be offered a plea bargain (a reduced sentence for confessing and cooperating).
avanti said:
One problem with the USA system of justice is that a prosecutor gets brownie (and political) points for getting a grand jury indictment with often no rebuttal. Then a different prosecutor has the difficult job of presenting the case during a trial.
except for in very rare circumstances, the same prosecutor is usually in charge of both phases of the case. (BTW grand jury indictments never have rebuttal. )
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