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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 a

by 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
  But what if testifying could/can/does open oneself to civil suits? Can a prosecutor offer civil immunity or only criminal immunity?
  - xxs 7y ago
    I'd have thought that's a common knowledge (outside US) that "the 5th" applies only to criminal cases.
droithomme 7y ago
> no one is "forcing" her to do anything. She doesn't want to talk, so she won't! You always have a choice. Pedantically true, yes. If I hold a gun to the witnesses head and demand they testify or I will pull the trigger, no one is "forcing" them to do anything. They have the choice to refuse to testify and suffer the consequences. It's the same with Manning. She has the "choice" to be thrown in prison because she refuses. Usually doing something under threat of deprivation of live or liberty is legally considered being forced to do something. I can rob a bank at gunpoint and then argue that the bank "chose" to give me the money, since they always had the option to refuse, just as you are arguing here that Manning has the "choice" to testify. When there is a threat of deprivation of life or liberty, that is not considered a free choice. It's coerced, under duress, also known as forced.
- wespiser_2018 7y ago
  Testifying against a friend or community member is not coercion if people ascribe negative outcomes to not just their well-being, but to the well-being of their friends. For instance, my testimony gets me out of jail, but it helps put my friend in jail: the degree my testimony impacts that sentence, and the sentence itself, have to be factors in the decision. Thus, and without getting into Manning's thought process, I wouldn't be surprised if she believes the negative effects (real or perceived) of her testimony outweigh the stay in jail.

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
But what if testifying could/can/does open oneself to civil suits? Can a prosecutor offer civil immunity or only criminal immunity?
- xxs 7y ago
  I'd have thought that's a common knowledge (outside US) that "the 5th" applies only to criminal cases.

droithomme 7y ago

> no one is "forcing" her to do anything. She doesn't want to talk, so she won't! You always have a choice. Pedantically true, yes. If I hold a gun to the witnesses head and demand they testify or I will pull the trigger, no one is "forcing" them to do anything. They have the choice to refuse to testify and suffer the consequences. It's the same with Manning. She has the "choice" to be thrown in prison because she refuses. Usually doing something under threat of deprivation of live or liberty is legally considered being forced to do something. I can rob a bank at gunpoint and then argue that the bank "chose" to give me the money, since they always had the option to refuse, just as you are arguing here that Manning has the "choice" to testify. When there is a threat of deprivation of life or liberty, that is not considered a free choice. It's coerced, under duress, also known as forced.

wespiser_2018 7y ago
Testifying against a friend or community member is not coercion if people ascribe negative outcomes to not just their well-being, but to the well-being of their friends. For instance, my testimony gets me out of jail, but it helps put my friend in jail: the degree my testimony impacts that sentence, and the sentence itself, have to be factors in the decision. Thus, and without getting into Manning's thought process, I wouldn't be surprised if she believes the negative effects (real or perceived) of her testimony outweigh the stay in jail.