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I didn't realize this about US law but if you've already been convicted of a crime OR they give you immunity you can be forced to testify. They did this in Aar

I didn't realize this about US law but if you've already been convicted of a crime OR they give you immunity you can be forced to testify. They did this in Aaron Swartz's case and gave people immunity to force them to testify. I was friends with Aaron and felt that he was mostly a hero in this situation though he was probably guilty of misdemeanor trespass. It was troubling to see how upset it made my friends that they were going to be forced to testify against someone they loved or were friends with.

tptacek 7y ago
Of course you can be forced to testify. That goes all the way back to English common law. The public has a claim to every man's evidence. A strict privilege against self-testimony is somewhat distinctive to our US system. Even countries that share it with us, like the UK, limit it; for instance, in the UK, your refusal to testify against yourself can be held against you.
- saagarjha 7y ago
  In what way? Can they automatically assume the worst possible thing you could have said?
  - dogma1138 7y ago
    No, it’s called adverse inference basically the prosecution can say that because you didn’t cooperate you are guilty. That said you cannot convict anyone on adverse inference alone.
- yeahforsureman 7y ago
  Privilege against self-incrimination is a generally recognised international standard and, for example, lies at the heart of the notion of a fair procedure under Article 6 of the European Convention of Human Rights.
  - mehrdadn 7y ago
    Related link: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016L0343#d1e578-1-1 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A...
    - austincheney 7y ago
      Juries are not frequently comprised of people with objectivity, intelligence, or education. Refusing to answer questions on the grounds of self-incrimination looks incredibly guilty even though guilt is clearly not established. A good prosecutor will use that in closing arguments or to influence other witnesses.
      - Pyxl101 7y ago
        Are prosecutors allowed to imply in closing arguments that asserting one's fifth amendment right should be considered evidence that the person is guilty? I would hope that judges would instruct juries not to consider assertion of this right as evidence one way or another, and would not allow a prosecutor to say so either. It seems that this is the case, based on Griffin v California: https://caselaw.findlaw.com/us-supreme-court/380/609.html https://caselaw.findlaw.com/us-supreme-court/380/609.html > Comment to the jury by a prosecutor in a state criminal trial upon a defendant's failure to testify as to matters which he can reasonably be expected to deny or explain because of facts within his knowledge or by the court that the defendant's silence under those circumstances evidences guilt violates the Self-Incrimination Clause of the Fifth Amendment of the Federal Constitution
      - bob_doggo 7y ago
        isn't the jury system an american thing?
        dredmorbius 7y ago
        No. https://en.wikipedia.org/wiki/Jury_trial#History https://en.wikipedia.org/wiki/Jury_trial#History
- arethuza 7y ago
  Nitpick: I believe that is England and Wales, not the whole of the UK. https://en.wikipedia.org/wiki/Right_to_silence_in_England_and_Wales https://en.wikipedia.org/wiki/Right_to_silence_in_England_an... https://en.wikipedia.org/wiki/Right_to_silence#Scotland https://en.wikipedia.org/wiki/Right_to_silence#Scotland I think NI is also different.
xxpor 7y ago
That's right. The 5th amendment only protects you from self-incrimination. If theres no risk of you being charged with a crime you can't refuse to testify. You could perhaps come up with a 1st amendment case but I think that wouldn't have much of a chance of going anywhere.
- umanwizard 7y ago
  How can there be no risk of self-incrimination? Even if they give you immunity for the specific thing you’re testifying about, what if your testimony reveals that you’re guilty of some completely different crime?
  - WrtCdEvrydy 7y ago
    Generally immunity is qualified to include anything that comes out of asking you.... and you'd have your lawyer to give you a hand.
    - waterhouse 7y ago
      Is there anything to protect against parallel construction? Bob mentions he was selling drugs to a guy near the scene of the crime. A police officer then finds out who the buyer was, and gets him to testify to bring drug charges against Bob. Or: During the following weeks, a police officer just happens to be in the same place at the same time of night every week, and eventually catches one of Bob's future transactions. https://en.wikipedia.org/wiki/Witness_immunity https://en.wikipedia.org/wiki/Witness_immunity seems to be the reference. Seems to cover the exact issue: "In the United States, the prosecution may grant immunity in one of two forms. Transactional immunity, colloquially known as "blanket" or "total" immunity, completely protects the witness from future prosecution for crimes related to his or her testimony. Use and derivative use immunity prevents the prosecution only from using the witness's own testimony or any evidence derived from the testimony against the witness. However, if the prosecutor acquires evidence substantiating the crime independently of the witness's testimony, the witness may then be prosecuted."
mehrdadn 7y ago
> I didn't realize this about US law but if you've already been convicted of a crime OR they give you immunity you can be forced to testify. Yeah, and it's not obvious why. The insight you're seeking here is that the right against self-incrimination was intended to be a solution to the problem of forced confessions (torture, etc.). It's not there because of some kind of belief that you really have some kind of fundamental human right to testify against yourself. In fact it's quite a bizarre thing to codify in a constitution otherwise.
- mehrdadn 7y ago
  Here's some reading since it seems many were interested in the topic: https://apps.americanbar.org/abastore/products/books/abstracts/5090120chap1_abs.pdf https://apps.americanbar.org/abastore/products/books/abstrac... > The Supreme Court traces the roots of our Fifth Amendment right against self-incrimination to the protections the English courts and Parliament granted to those religious dissenters who were compelled to take oaths when called before the ecclesiastical courts, as well as the Court of High Commission and the Star Chamber. These courts used the “oath ex officio” to force heretics from the Church of England to swear before God to truthfully answer all questions, even before the heretics even knew the nature of the accusations against them. By use of the oath in conducting their investigations of religious heresy, these courts left witnesses with the “cruel trilemma” of (1) refusing to take the oath, which constituted contempt and subjected the person to torture; (2) taking the oath and telling the truth about their religious beliefs, which, if heretical, was punishable by death; or (3) taking the oath and lying, which was also punishable by death. In other words, this inquisitorial system countenanced methods of interrogating persons designed to lead only to confessions. > [...] Parliament eventually abolished the Court of High Commission and the Star Chamber and, in 1662, passed a law providing that “no man shall administer to any person whatsoever the oath usually called ex officio or any other oath whereby such persons may be charged or compelled to confess to any criminal matter.” By the late eighteenth century, as the English common law courts began to recognize the presumption of innocence, trial judges in criminal cases began to afford defendants the right not to incriminate themselves, establishing the privilege against self-incrimination as a fundamental rule of evidence.
- lixtra 7y ago
grecy 7y ago
> you can be forced to testify What does forced mean? What happens if you just say no? Contempt of court?
- redler 7y ago
  We may see this question explored publicly in great detail in the coming months.
  - pnw_hazor 7y ago
    Barr is safe. It is unlawful for him to divulge grand jury testimony.
- wespiser_2018 7y ago
  Yes, you will be issued a Subpoena, and the presiding judge for the case can sentence you with Contempt of Court if you fail to testify. The idea is to keep you in jail under Contempt charges until you do whatever the judge wants. The longest sentence for contempt of court is H. Beatty Chadwick (1994 - 2009), which was over a divorce settlement. Susan McDouglas went to jail over not answering questions about Bill Clinton in civil case, and was pardoned by him later. https://en.wikipedia.org/wiki/Susan_McDougal https://en.wikipedia.org/wiki/Susan_McDougal
  - grecy 7y ago
    Oh wow, thanks. I didn't know that.
- gdhbcc 7y ago
  You go to prison forever
wespiser_2018 7y ago
I would say that "forcing" testimony, can only be done under duress, in a situation like forcible coercion or torture. I'm not familiar with the Swartz's case and its parallel investigations, but in principle people aren't "given' immunity and "forced" to testify, but rather they choose a deal with the prosecution that included leniency for themselves and were no longer protected by the 5th amendment as a criminal defendant. Manning exactly illustrates this point, no one is "forcing" her to do anything. She doesn't want to talk, so she won't! You always have a choice.
- xenadu02 7y ago
  > in principle people aren't "given' immunity and "forced" to testify, but rather they choose a deal with the prosecution that included leniency for themselves and were no longer protected by the 5th amendment as a criminal defendant. That's not exactly true. In the US you can generally be compelled to testify if you are not the one on trial unless you claim the 5th (the law generally recognizes that court proceedings are part of the record and testimony there could be used to bring charges against you later). There can be a series of escalations and motions before the judge, eg where the judge asks you in closed court to give more details so he/she can rule on whether the 5th applies. In theory you could refuse to give any details by claiming even the tiniest detail would put you at risk of prosecution. Ultimately if the prosecutor offers you blanket immunity you can no longer claim the 5th because the threat of prosecution has been eliminated. Similarly if you refuse to testify for fear of your own safety the government can offer to protect you, up to and including putting you into witness protection which eliminates the objection. The general principle seems to be you have a series of objections you can raise. Each one imposes a higher and higher cost on the government, forcing them to decide just how important your testimony really is. This is all separate from the material witness procedures, which have been abused somewhat in recent times. The theory there is there is an imminent thread to your life _or_ you are a serious flight risk. In those cases you get jailed until trial despite not even being accused. As you can imagine prosecutors have sometimes used the threat of losing your job, house, etc while jailed awaiting trial to coerce testimony.
  - jrs235 7y ago
nullc 7y ago
They can't, however, force the testimony to be useful. I don't fully understand why she didn't testify here. The events were so long ago and so stressful. If it were me I wouldn't be able to remember much with any confidence. But I'm glad she has been released now and I hope it did some good.
- pacificmint 7y ago
  > But I'm glad she has been released now and I hope it did some good. Well, she’s only been released because the term of the grand jury expired. She’ll be called to testify again, and if she refuses to testify again, she will most likely be locked up again. So this is more a temporary development, rather than a resolution of the issue.
- StanislavPetrov 7y ago
  I think its pretty clear that she refused to testify out of principle. None of the war criminals exposed by Manning's leaks have been charged or tried for their crimes. The government's refusal to charge the war crimes, which are central to the entire case, completely undermine any pretense of "justice". As usual, the government is using its infinite power to punish those who exposed wrongdoing, while completely ignoring the actually wrongdoing that was exposed. I find it quite admirable that Manning refuses to be used as a tool to further this charade of injustice, at great personal expense. Being held in "contempt of court" is no vice when the court, and the prosecutors, have done everything possible to earn that contempt. For those unfamiliar with the still unprosecuted war crimes exposed by Manning (and published by Assange): https://www.youtube.com/watch?v=5rXPrfnU3G0 https://www.youtube.com/watch?v=5rXPrfnU3G0
  - acqq 7y ago
    Even much more serious information is this one: https://www.presstv.com/Detail/2015/09/10/428634/Syria-Assange-US-Assad-Wayne-Madsen-911 https://www.presstv.com/Detail/2015/09/10/428634/Syria-Assan... "US had planned to topple the Syrian government long before 2011, the year that the brutal conflict broke out in the country." "In his new book, Assange points to a cable pertaining to US Ambassador William Roebuck, who served as the Political Counselor at the U.S. Embassy in Damascus between 2004-2007, about plans for overthrowing the government of Syrian President Bashar al-Assad at the time." The book based on the Wiklieaks files (Assange wrote an introduction): https://www.amazon.com/WikiLeaks-Files-World-According-Empire/dp/1784786217 https://www.amazon.com/WikiLeaks-Files-World-According-Empir...
caprese 7y ago
The stitches factory is on overdrive
mysterydip 7y ago
Isn't that why they give people immunity? "We will let you get away with (whatever) in exchange for aiding us in frying this bigger fish"
- deleted 7y ago
  [deleted]
Miner49er 7y ago
Can anyone who knows law explain why the 1st amendment doesn't apply here? I understand the 5th doesn't apply, but it seems like the 1st should. Has this ever been decided in court?

tptacek 7y ago

Of course you can be forced to testify. That goes all the way back to English common law. The public has a claim to every man's evidence. A strict privilege against self-testimony is somewhat distinctive to our US system. Even countries that share it with us, like the UK, limit it; for instance, in the UK, your refusal to testify against yourself can be held against you.

saagarjha 7y ago
In what way? Can they automatically assume the worst possible thing you could have said?
- dogma1138 7y ago
  No, it’s called adverse inference basically the prosecution can say that because you didn’t cooperate you are guilty. That said you cannot convict anyone on adverse inference alone.
yeahforsureman 7y ago
Privilege against self-incrimination is a generally recognised international standard and, for example, lies at the heart of the notion of a fair procedure under Article 6 of the European Convention of Human Rights.
- mehrdadn 7y ago
  Related link: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016L0343#d1e578-1-1 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A...
  - austincheney 7y ago
    Juries are not frequently comprised of people with objectivity, intelligence, or education. Refusing to answer questions on the grounds of self-incrimination looks incredibly guilty even though guilt is clearly not established. A good prosecutor will use that in closing arguments or to influence other witnesses.
    - Pyxl101 7y ago
      Are prosecutors allowed to imply in closing arguments that asserting one's fifth amendment right should be considered evidence that the person is guilty? I would hope that judges would instruct juries not to consider assertion of this right as evidence one way or another, and would not allow a prosecutor to say so either. It seems that this is the case, based on Griffin v California: https://caselaw.findlaw.com/us-supreme-court/380/609.html https://caselaw.findlaw.com/us-supreme-court/380/609.html > Comment to the jury by a prosecutor in a state criminal trial upon a defendant's failure to testify as to matters which he can reasonably be expected to deny or explain because of facts within his knowledge or by the court that the defendant's silence under those circumstances evidences guilt violates the Self-Incrimination Clause of the Fifth Amendment of the Federal Constitution
    - bob_doggo 7y ago
      isn't the jury system an american thing?
      - dredmorbius 7y ago
        No. https://en.wikipedia.org/wiki/Jury_trial#History https://en.wikipedia.org/wiki/Jury_trial#History
arethuza 7y ago
Nitpick: I believe that is England and Wales, not the whole of the UK. https://en.wikipedia.org/wiki/Right_to_silence_in_England_and_Wales https://en.wikipedia.org/wiki/Right_to_silence_in_England_an... https://en.wikipedia.org/wiki/Right_to_silence#Scotland https://en.wikipedia.org/wiki/Right_to_silence#Scotland I think NI is also different.

xxpor 7y ago

That's right. The 5th amendment only protects you from self-incrimination. If theres no risk of you being charged with a crime you can't refuse to testify. You could perhaps come up with a 1st amendment case but I think that wouldn't have much of a chance of going anywhere.

umanwizard 7y ago
How can there be no risk of self-incrimination? Even if they give you immunity for the specific thing you’re testifying about, what if your testimony reveals that you’re guilty of some completely different crime?
- WrtCdEvrydy 7y ago
  Generally immunity is qualified to include anything that comes out of asking you.... and you'd have your lawyer to give you a hand.
  - waterhouse 7y ago
    Is there anything to protect against parallel construction? Bob mentions he was selling drugs to a guy near the scene of the crime. A police officer then finds out who the buyer was, and gets him to testify to bring drug charges against Bob. Or: During the following weeks, a police officer just happens to be in the same place at the same time of night every week, and eventually catches one of Bob's future transactions. https://en.wikipedia.org/wiki/Witness_immunity https://en.wikipedia.org/wiki/Witness_immunity seems to be the reference. Seems to cover the exact issue: "In the United States, the prosecution may grant immunity in one of two forms. Transactional immunity, colloquially known as "blanket" or "total" immunity, completely protects the witness from future prosecution for crimes related to his or her testimony. Use and derivative use immunity prevents the prosecution only from using the witness's own testimony or any evidence derived from the testimony against the witness. However, if the prosecutor acquires evidence substantiating the crime independently of the witness's testimony, the witness may then be prosecuted."

mehrdadn 7y ago

> I didn't realize this about US law but if you've already been convicted of a crime OR they give you immunity you can be forced to testify. Yeah, and it's not obvious why. The insight you're seeking here is that the right against self-incrimination was intended to be a solution to the problem of forced confessions (torture, etc.). It's not there because of some kind of belief that you really have some kind of fundamental human right to testify against yourself. In fact it's quite a bizarre thing to codify in a constitution otherwise.

mehrdadn 7y ago
Here's some reading since it seems many were interested in the topic: https://apps.americanbar.org/abastore/products/books/abstracts/5090120chap1_abs.pdf https://apps.americanbar.org/abastore/products/books/abstrac... > The Supreme Court traces the roots of our Fifth Amendment right against self-incrimination to the protections the English courts and Parliament granted to those religious dissenters who were compelled to take oaths when called before the ecclesiastical courts, as well as the Court of High Commission and the Star Chamber. These courts used the “oath ex officio” to force heretics from the Church of England to swear before God to truthfully answer all questions, even before the heretics even knew the nature of the accusations against them. By use of the oath in conducting their investigations of religious heresy, these courts left witnesses with the “cruel trilemma” of (1) refusing to take the oath, which constituted contempt and subjected the person to torture; (2) taking the oath and telling the truth about their religious beliefs, which, if heretical, was punishable by death; or (3) taking the oath and lying, which was also punishable by death. In other words, this inquisitorial system countenanced methods of interrogating persons designed to lead only to confessions. > [...] Parliament eventually abolished the Court of High Commission and the Star Chamber and, in 1662, passed a law providing that “no man shall administer to any person whatsoever the oath usually called ex officio or any other oath whereby such persons may be charged or compelled to confess to any criminal matter.” By the late eighteenth century, as the English common law courts began to recognize the presumption of innocence, trial judges in criminal cases began to afford defendants the right not to incriminate themselves, establishing the privilege against self-incrimination as a fundamental rule of evidence.
lixtra 7y ago

grecy 7y ago

> you can be forced to testify What does forced mean? What happens if you just say no? Contempt of court?

redler 7y ago
We may see this question explored publicly in great detail in the coming months.
- pnw_hazor 7y ago
  Barr is safe. It is unlawful for him to divulge grand jury testimony.
wespiser_2018 7y ago
Yes, you will be issued a Subpoena, and the presiding judge for the case can sentence you with Contempt of Court if you fail to testify. The idea is to keep you in jail under Contempt charges until you do whatever the judge wants. The longest sentence for contempt of court is H. Beatty Chadwick (1994 - 2009), which was over a divorce settlement. Susan McDouglas went to jail over not answering questions about Bill Clinton in civil case, and was pardoned by him later. https://en.wikipedia.org/wiki/Susan_McDougal https://en.wikipedia.org/wiki/Susan_McDougal
- grecy 7y ago
  Oh wow, thanks. I didn't know that.
gdhbcc 7y ago
You go to prison forever

wespiser_2018 7y ago

I would say that "forcing" testimony, can only be done under duress, in a situation like forcible coercion or torture. I'm not familiar with the Swartz's case and its parallel investigations, but in principle people aren't "given' immunity and "forced" to testify, but rather they choose a deal with the prosecution that included leniency for themselves and were no longer protected by the 5th amendment as a criminal defendant. Manning exactly illustrates this point, no one is "forcing" her to do anything. She doesn't want to talk, so she won't! You always have a choice.

xenadu02 7y ago
> in principle people aren't "given' immunity and "forced" to testify, but rather they choose a deal with the prosecution that included leniency for themselves and were no longer protected by the 5th amendment as a criminal defendant. That's not exactly true. In the US you can generally be compelled to testify if you are not the one on trial unless you claim the 5th (the law generally recognizes that court proceedings are part of the record and testimony there could be used to bring charges against you later). There can be a series of escalations and motions before the judge, eg where the judge asks you in closed court to give more details so he/she can rule on whether the 5th applies. In theory you could refuse to give any details by claiming even the tiniest detail would put you at risk of prosecution. Ultimately if the prosecutor offers you blanket immunity you can no longer claim the 5th because the threat of prosecution has been eliminated. Similarly if you refuse to testify for fear of your own safety the government can offer to protect you, up to and including putting you into witness protection which eliminates the objection. The general principle seems to be you have a series of objections you can raise. Each one imposes a higher and higher cost on the government, forcing them to decide just how important your testimony really is. This is all separate from the material witness procedures, which have been abused somewhat in recent times. The theory there is there is an imminent thread to your life _or_ you are a serious flight risk. In those cases you get jailed until trial despite not even being accused. As you can imagine prosecutors have sometimes used the threat of losing your job, house, etc while jailed awaiting trial to coerce testimony.
- jrs235 7y ago

nullc 7y ago

They can't, however, force the testimony to be useful. I don't fully understand why she didn't testify here. The events were so long ago and so stressful. If it were me I wouldn't be able to remember much with any confidence. But I'm glad she has been released now and I hope it did some good.

pacificmint 7y ago
> But I'm glad she has been released now and I hope it did some good. Well, she’s only been released because the term of the grand jury expired. She’ll be called to testify again, and if she refuses to testify again, she will most likely be locked up again. So this is more a temporary development, rather than a resolution of the issue.
StanislavPetrov 7y ago
I think its pretty clear that she refused to testify out of principle. None of the war criminals exposed by Manning's leaks have been charged or tried for their crimes. The government's refusal to charge the war crimes, which are central to the entire case, completely undermine any pretense of "justice". As usual, the government is using its infinite power to punish those who exposed wrongdoing, while completely ignoring the actually wrongdoing that was exposed. I find it quite admirable that Manning refuses to be used as a tool to further this charade of injustice, at great personal expense. Being held in "contempt of court" is no vice when the court, and the prosecutors, have done everything possible to earn that contempt. For those unfamiliar with the still unprosecuted war crimes exposed by Manning (and published by Assange): https://www.youtube.com/watch?v=5rXPrfnU3G0 https://www.youtube.com/watch?v=5rXPrfnU3G0
- acqq 7y ago
  Even much more serious information is this one: https://www.presstv.com/Detail/2015/09/10/428634/Syria-Assange-US-Assad-Wayne-Madsen-911 https://www.presstv.com/Detail/2015/09/10/428634/Syria-Assan... "US had planned to topple the Syrian government long before 2011, the year that the brutal conflict broke out in the country." "In his new book, Assange points to a cable pertaining to US Ambassador William Roebuck, who served as the Political Counselor at the U.S. Embassy in Damascus between 2004-2007, about plans for overthrowing the government of Syrian President Bashar al-Assad at the time." The book based on the Wiklieaks files (Assange wrote an introduction): https://www.amazon.com/WikiLeaks-Files-World-According-Empire/dp/1784786217 https://www.amazon.com/WikiLeaks-Files-World-According-Empir...

caprese 7y ago

The stitches factory is on overdrive

mysterydip 7y ago

Isn't that why they give people immunity? "We will let you get away with (whatever) in exchange for aiding us in frying this bigger fish"

deleted 7y ago
[deleted]

Miner49er 7y ago

Can anyone who knows law explain why the 1st amendment doesn't apply here? I understand the 5th doesn't apply, but it seems like the 1st should. Has this ever been decided in court?