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In general, courts have held that Fifth Amendment protections against self-incrimination pertain to testimonial evidence, not broadly to any possible evidence t
by jawns 2y ago
In general, courts have held that Fifth Amendment protections against self-incrimination pertain to testimonial evidence, not broadly to any possible evidence that might be incriminating.
The Fifth Amendment does not extend to physical evidence or other non-testimonial evidence, even if such evidence is potentially incriminating. For example, courts have held that things like blood samples, fingerprints, handwriting samples, and even video or audio recordings do not fall under the protection of the Fifth Amendment because they are not considered testimonial in nature.
The report notes that it is the police chief, not a lawyer representing him, who is making the preposterous argument that the Fifth Amendment justifies his conduct. Any lawyer who tried to make that argument would be made a laughing stock.
Indeed, I would think that this internal affairs report, where the chief is essentially admitting that he knew he'd done something wrong and was trying to prevent incriminating evidence from being recorded, would be pretty damning in front of a jury, because it establishes that he was well aware of the recklessness of his conduct.
- dylan604 2y agoThe fact that the 5th protects from self-incriminating, WTF is a police chief saying officers are doing that would be incriminating? Like what an absolute asshat of a position to take.
- jrs235 2y agoRight?! Any police officer that pleads the 5th for turning off a body cam should be fired on the spot for, I hope it's policy, violating policy.
- conductr 2y agoThe question I always ask is, why is there even an off button? It defeats the entire point of the camera as it’s meant to keep cops honest and not abusing the inherent power of their position.
- wkat4242 2y agoMaybe in case victims don't want to be recorded?
- philipov 2y agoThat would give police officers the power to intimidate victims into not wanting to be recorded.
- wkat4242 2y agoWell imagine someone who's just been raped. You think she'd be happy to discuss that in front of a bodycam?
- conductr 2y agoProbably not. But, no less than she'd want to talk about it in front of a jury which we completely accept as part of the judicial process. My opinion is this is a bit of a straw man argument. Video and digital recordings are just increasingly part of the modern world. Everyone, victims included, need to come to terms with that. And, in turn, agencies need to secure the footage and make sure victim footage remains private, just like any evidence needs to be protected/private. Are there any cases of footage like this being hacked/leaked without the victims consent? While possible, it shouldn't hamstring our police policies around bodycams. It's also a conversation that doesn't necessarily need to occur with the uniformed cop in the field. The officer needs to take her in to the station and have that conversation with a detective and such. It's almost always recorded there (AFAIK in these types of crimes.)
- lupire 2y agoUnwillingness of the victim to testify is a source of failed rape prosecutions.
- giraffe_lady 2y agoThis is why abolitionists were mostly always against body cameras from the beginning. They would never have allowed them to become widespread without a way to control the usage of the camera and release of the footage. It is just another thing they can use against you but is powerless against them. It was never going to be a tool of accountability. Tools and training aren't the problem with police, tools and training won't fix the problems with police.
- drewcoo 2y ago> WTF is a police chief saying officers are doing that would be incriminating? What is anyone doing that might be incriminating? Both questions are equally invalid.
- jmye 2y agoNah. Being a police officer has implicit trust and, trivially and obviously, responsibility to the community served that being a private citizen does not. Pretending they’re the same, or that being an officer is essentially identical to any other profession, is absurd.
- whaleofatw2022 2y agoFinishing up road head?
- akira2501 2y agoCritically, if the government gives you immunity, your 5th amendment protections vanish, and you can be compelled to testify. Since police officers enjoy blanket qualified immunity they absolutely do NOT have 5th amendment protections when it comes to their jobs.
- lolinder 2y agoWhile I agree with OP that this is a clear cut case of no 5th amendment protections, I can't agree with your reasoning: the fact that police officers have qualified immunity means that in theory they can, in fact, plead the 5th when charged with something that would fall outside of the qualified immunity. We've had several high-profile cases of police officers being charged with murder recently, and I don't believe a single one was compelled to testify against themselves.
- akira2501 2y ago> they can, in fact, plead the 5th when charged with something that would fall outside of the qualified immunity. True, but this is not an arbitrary process, it must actually be adjudicated, which is where I would expect the protections to apply. The judge could, after removing the immunity, then decide that the bodycamera of the incident cannot be submitted into evidence without further proceedings.
- lolinder 2y agoRight, but that's where OP's point that these don't count as testimony comes in anyway. Qualified immunity does not imply no 5th amendment protection, so the question of whether these count as testimony will come up because pleading the 5th is possible.
- s3p 2y agoThey weren't acting in the scope of the job that qualified them to have immunity. If they were, it would apply, and seemingly they could testify about that specific job duty that they are unable to be prosecuted for.
- QuantumGood 2y agoIn the political arena of recent years, lawyers and judges "being made a laughing stock" has not turned out to the be the deterrant it was once thought to be.
- rayiner 2y agoIt was never a deterrent. There was a whole generation of old white guys who wrote phrases like "emanations from penumbras" with a straight face--waving their hands to establish what their legal analysis could not--who are held in high esteem today.
- QuantumGood 2y agoThe Overton Window is always shifting, but it was "more of" a deterrent in the past.
- rayiner 2y agoThe law is far more rigorous today than it was 50 years ago. The dumbest legal theory in recent memory, that the vice president can refuse to certify the election, is more rooted in in the constitutional text—the 12th amendment does assign the vice president at least a ceremonial role in the process—then a bunch of established mid-20th century precedent. Which is not to suggest that the VP certification theory isn’t terrible—it is. But at least it pretends to be a legal argument, based on constitutional text, rather than philosophical or sociological braying.
- QuantumGood 2y agoDouglas' "emanations" argument was that the right to privacy can be inferred from other enumerated rights (First, Third, Fourth, Fifth, and Ninth Amendments), i.e. a constitutional interpretation that unenumerated rights exists. Arguments against implied but unenumerated rights in the constitution can easily be made, but summarizing this as hand wavy leaves out a lot of detail.