1. Ryan Elder
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    Ryan Elder Contributing Member

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    Question about how 'taking the fifth' works in court.

    Discussion in 'Research' started by Ryan Elder, Mar 4, 2016.

    I was wondering of how this law works for a court scenario I thought up, to see if it would work this way.

    Let's say a witness, witness A, is going to testify in a criminal case, but another witness in the case, witness B, is going to testify against the defendant, and his testimony, although against the defendant, will incriminate witness A.

    Can witness A take the fifth, and get immunity from being charged with a crime, if another witness is going to incriminate her in the process of his testimony against the defendant?

    Let's say this is true and she can get immunity for this. Witness B testifies and incriminates her, but she has immunity from being charged. After the case is over, will the police be able to investigate her for the crime, if the method of discovering her crime, was through the testimony if a witness she was given immunity from?

    Immunity means you cannot be charged with the crime if the crime is discovered through the testimony of the witness you are immune from? But are the police allowed to use the information in the testimony to investigate her after?

    Because if immunity means you cannot be charged, does it mean that an investigation can also not legally come out if it? Does immunity from prosecution also legally equate to immunity from investigation, if the only way the police know about the crime, is through the witness, that the person was legally immune from?

    And perhaps taking the fifth is the wrong term since the fifth is a right for a person to not incriminate yourself. When a witness says she will only testify in case, if she gets immunity from another witness, that law is probably called something else, right?

    Does anyone know? I cannot find a law that is this specific of a scenario and how it would legally go down.
     
    Last edited: Mar 4, 2016
  2. BayView
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    BayView Contributing Member Contributor

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    A witness can't refuse to testify because someone ELSE may incriminate them. That makes no sense.

    Even if there were, prosecutors don't put witnesses on the stand without knowing what they're going to say, so the police would already have been told what the second witness knows, and could investigate based on that.

    Also, the Fifth Amendment (as understood by this non-American) doesn't give anyone immunity from prosecution - it just allows them to not answer questions without being charged with contempt of court. When someone pleads the fifth, they don't answer the questions with the understanding that they can't be charged, they just don't answer the questions. ("On the advice of my counsel I respectfully exercise my rights under the fifth amendment and decline to answer that question").
     
  3. NobodySpecial
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    NobodySpecial Active Member

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    Fifth amendment protections just mean you can't be made to say something that would incriminate your self. It doesn't protect you from anything some one else might say. If you were given immunity from prosecution in exchange for your testimony it wouldn't matter what anyone says, you're protected. Immunity for testimony is a common trope used in TV shows like Law and Order, but it's not something I've seen done is actual court cases I've followed.
     
  4. Ryan Elder
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    Ryan Elder Contributing Member

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    Oh okay, I was told that if a witness is subpoenaed that they have to answer, but they will be given immunity.

    As far as the police knowing what witness B has already said, witness B does not know that witness A is also testifying in the case. As soon as witness B sees witness A in the court room, he will very likely point out that he knows witness B from before, and will realize there is a set up going on. So even though witness B did not say anything to the police before about witness A, witness A knows that as soon as he sees her, he will point something out, and that she does not want.

    This is not a trial though, it is a pre-trial deposition to find out what the witnesses will say on the stand, so the prosecutor is more flexible to subpoenaing them, to find out what they are going to say first, before deciding on whether or not to go to trial.

    So if witness B hasn't said anything yet, but witness A knows that B, will as soon as he sees her, cause he knows her from before, can B get immunity from A, in exchange for testimony under those circumstances, if B hasn't said anything to incriminate A yet? ...And this is not a trial but a deposition to find out what they are going to say first?

    The prosecutor knows that witness A is the most important witness in the case, and wants to keep her, so if the witness says she will only testify, if she gets immunity from B, will the prosecutor say 'gee, if witness B is going to say something to incriminate her after he sees her, maybe I should give her immunity' to have her testimony?
     
    Last edited: Mar 4, 2016
  5. NobodySpecial
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    NobodySpecial Active Member

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    Going by the television program they would give a witness immunity for some valuable testimony needed to get someone bigger, a give and take kind of arrangement. They could give a little fish immunity in exchange for his testimony againt a bigger fish so they could get the bigger score.

    Typical in the television show is for that testimony to be labled as unreliable since it was 'bought' with immunity.

    Your witness A vs B senario doesn't merit immunity as far as I can see. That's just the way it happens sometimes, but it does present you with opportunity for a wicked plot twist.
     
  6. Ryan Elder
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    Ryan Elder Contributing Member

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    What wicked plot twist would that be, if the court does not have to grant her any?
     
  7. Sack-a-Doo!
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    Sack-a-Doo! Contributing Member Contributor

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    I never understood this loophole. How does it help society as a whole when a criminal can refuse to answer a question because he'll be implicated in a crime? That crime needs attending to as well, doesn't it?

    But then, I've always felt the justice system is a joke, anyway. There's very little justice involved; it's about one of two things: 1) who can win the argument, or 2) who can confuse the court/jury best. And whoever's got the most money can hire the best arguer or best snow-job guy and they win.

    For most cases tried these days, it would save a lot of time if both parties simply reported their net worth and the judge sided with whoever has the most. Seems to me, the outcome would be the same 99% of the time.
     
  8. NobodySpecial
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    NobodySpecial Active Member

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    That one you're going to have to figure out how to make work with what you have, but as Sack-a-Do has mentioned trials tend to come down to who believes whom.
     
  9. X Equestris
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    X Equestris Contributing Member Contributor

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    The fifth amendment protects citizens in general. Say you didn't actually commit a crime, but your testimony would make it look like you did. You can plead the fifth and not have to give it. Of course, pleading the fifth can make you look like you have something to hide.
     
  10. Ryan Elder
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    Ryan Elder Contributing Member

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    Yep. I can write so she pleads the fifth no problem, in which case the prosecutor can give her immunity for her testimony. But can the prosecutor give her immunity if another witness incriminates her in a crime. That's the dilemma.
     
  11. Sack-a-Doo!
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    Sack-a-Doo! Contributing Member Contributor

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    You're gonna have to give me an example of that.
     
  12. X Equestris
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    X Equestris Contributing Member Contributor

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    Like your spouse had been murdered, and you had found out they were cheating not long before they were killed.
     
  13. NobodySpecial
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    NobodySpecial Active Member

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    "Why yes, I hated him and wanted him dead...And yes, I found him in my back yard with my axe planted in his skull, but I didn't kill him. I was in bed, asleep, honest."
     
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  14. Sack-a-Doo!
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    Sack-a-Doo! Contributing Member Contributor

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    LOL!

    Yeah, I suppose that could happen... if I owned an axe. ;)
     
  15. Sack-a-Doo!
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    Sack-a-Doo! Contributing Member Contributor

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    Frankly, if I were questioned by police, I'd say nothing at all about anything. They're allowed to lie to mislead people, so the best thing is to keep your mouth shut.
     
  16. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    I agree you're generally better off not taking to the police.
     
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  17. Ryan Elder
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    Ryan Elder Contributing Member

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    Yep, for sure. Unless you are subpoenaed to testify at a deposition in which case they want you to speak as a witness, but you can either take the fifth or lie, depending on who is testifying against you.

    I could write it so that witness B, incriminates A, but then A either has to lie with an alibi, or take the fifth. If she takes the fifth, it looks like she has something to hide, but I do not want the police to investigate her after. They can follow her around for a few days, but I do not want them getting warrants to tap her phones, email, or search her property. So what is if witness B incriminates A, in his testimony, what is a better option for witness A to get off? Should she lie, and make it seem like B's word against hers? Or should she take the fifth and not lie at all, but it looks like she may have something to hide as a result?

    What is better for not being investigated as much afterwards? If a person takes the fifth, in response to being questioned, can that legally predicate the person to be investigated? Like in order to get search warrants, and tap phones and emails, you need probable cause, to get the warrant, right?

    But you can get a warrant to search and tap a person, if the person takes the fifth alone? But then again you have A incriminating her, so perhaps they could still get warrants to investigate based on A's accusations, since there is nothing to legally protect her in that case.

    If you don't say anything can the police think it's suspicious and get warrants based on that suspicion? Because if that's the case, then isn't theoretically better to lie, than not say anything, if lying will keep them from getting warrants to investigate?
     
    Last edited: Mar 5, 2016
  18. NobodySpecial
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    NobodySpecial Active Member

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    In the standard timeline the trial comes after the investigation is concluded. They often will introduce new investigative elements mid trial on television but in real trials they tend to have their case buttoned up before the trial starts. The arguments may change but the basis of the case and evidence is pretty solid.

    You could have A and B incriminate eachother, that goes back to the question of who believes whom. It's something that can further engage the reader by making them try to figure it out on their own based on information you already gave them.
     
  19. NobodySpecial
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    NobodySpecial Active Member

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    In a concealed carry class I took that's something they tried to drive home from the start. The police have one job, to find a guilty person and build a case against him. They aren't interested in being your friend or helping you out. The police aren't out to get anyone, but there's a reason the miranda warning has the line about "anything you say may be used against you in a court of law".
     
  20. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. But if you keep your mouth shut the police will get suspicious. Can they use that suspicion alone, as legal grounds to get warrants to search your email, tap phones, etc?

    Cause if they can use the fact that the person is remaining silent as grounds to tap phones and spy on you, wouldn't it be better to lie your way out of it and have alibis, so therefore they cannot have grounds to spy on you after?
     
  21. BayView
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    BayView Contributing Member Contributor

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    They'd need concrete evidence of some sort in order to get warrants for that sort of spying. Not just a vague suspicion.
     
  22. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay well she can either take the fifth, or choose to talk, but have an alibi to throw the suspicion off, cause she has an alibi, right from the start. Whichever is smarter.

    So if witness B gets on the stand and says "She was a part of the crime", that is not enough to get warrants alone?
     
  23. BayView
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    BayView Contributing Member Contributor

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    Reliable information could be enough to get a warrant, yes. You were asking about her refusing to testify as being grounds to get a warrant.

    Are you really sure you want to be writing a book with this much legal detail in it? You don't really seem comfortable with a lot of the background...
     
  24. Ryan Elder
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    Ryan Elder Contributing Member

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    Well I am trying to do as much of the research as possible but seeing a lot of mixed opinions so far, which is why I asked on here. I want to write a crime story with character driven themes, but it seems that any crime story that involves murder, the police and courts will always want to get involved, so I have to deal with that section of the plot in order to get to the character driven parts I would like to tell, if that makes sense?
     
  25. Jack Asher
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    Jack Asher Wildly experimental Contributor

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    What if the question is, "Did you commit this crime?" Or do you think that everyone should be required to incriminate themselves just because a cop asks them a question?
     

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