4 ms·

> By refusing to testify on the basis of the right to avoid self-incrimination, they effectively admitted on the court record that they'd committed a crime I'm

by SEMW 13y ago

> By refusing to testify on the basis of the right to avoid self-incrimination, they effectively admitted on the court record that they'd committed a crime I'm not a US lawyer, or even from the US. But surely, if courts can draw adverse inferences from someone 'taking the fifth', that makes it a pretty pointless right, no? It's not much of a right to avoid self-incrimination if exercising it incriminates yourself. Can someone from the US clarify whether that's really how it's interpreted?

kolodny 13y ago
I think this video explains the how and why of the fifth amendment (it's also something every American should watch): http://www.youtube.com/watch?v=6wXkI4t7nuc http://www.youtube.com/watch?v=6wXkI4t7nuc Video description: [A] law school professor and former criminal defense attorney tells you why you should never agree to be interviewed by the police. Although lawers mid-trial taking the fifth may be different.
- silentmars 13y ago
  That's a little different. The message of that video: never talk to the police. The two cases being, 1. you are not under arrest, or 2. you are under arrest. If you are not under arrest you should just walk away or refuse any kind of engagement (except in a traffic stop which is a special case), and if you are under arrest then you have two explicit rights which you should always use - refuse to talk, and demand a lawyer be present. The situation is quite different in a trial. If you are summoned to appear in court, you must appear. If you are asked any questions, you must answer them (or assert fifth amendment rights explicitly in a refusal to answer, like the Prenda clowns did).
  - kolodny 13y ago
    Part of that video stressed the point that the fifth amendment's purpose is to protect the individual. Going "after" someone because they invoked that right is equivalent to opening an investigation because someone said something unpopular or controversial (first amendment). While by itself the fifth is a right of a person, taken into account the other legal maneuvers and stonewalling which the Prenda did, does imply foul play (putting it mildly).
jweese 13y ago
I'm not a lawyer, but I am from the US. The Judge's order includes the following footnote: "Even if their refusal was based on the Fifth Amendment privilege against self-incrimination, the Court still may draw adverse inferences against them in this civil proceeding. Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)" The way I read it (again, not a lawyer) is that you can't convict someone based on their refusal to testify, but this isn't a criminal proceeding. In civil matters the rules are different.
- SEMW 13y ago
  Aah, missed that footnote. Thanks!
- comrade_ogilvy 13y ago
  Ah. Interesting. So the fact that the lawyers are taking the Fifth can reasonably be used as evidence that some of the specific claims and assertions already made are materially fraudulent. Taking the Fifth in your own lawsuit must be quite startling for a judge to behold. One can imagine possible sound reasons why a defendant might take the Fifth or the Sixth (right to consult an attorney, i.e. you caught me off guard but I might answer your questions later), but that is not pretty either, in a civil case.
silentmars 13y ago
The fifth amendment only covers criminal caes - in fact, technically only covers felonies. The implication for this case is that the lawyers can refuse to answer questions with an assertion of their fifth amendment rights, and if and when they should ever be tried for those crimes then in that case it would be forbidden for the prosecution to mention that they did that or draw any inferences from it. There is no such protection in a civil case, however. You have no right to "not answer questions because it might help the other guys who are suing me win." I am not a lawyer this is not legal advice, etc etc, but there are other examples in civil cases of where this kind of thing can be used against you. I have a lawyer friend who does personal injury cases, and one of the first things lawyers do in those cases is send spoilation letters to the insurance companies demanding that they preserve any evidence. Absent this, it's common practice for insurance companies to have totaled vehicles destroyed, for example. If they destroy any evidence after receiving a spoilation letter, then in the lawsuit the jury will be instructed to assume that the destroyed evidence showed things in as favorable a light as possible to the other party.
narcissus 13y ago
To add to the other replies: from what I read at http://www.popehat.com/2013/04/02/prenda-laws-attorneys-take-the-fifth-rather-than-answer-judge-wrights-questions/ http://www.popehat.com/2013/04/02/prenda-laws-attorneys-take... : "In effect, the responsible lawyers for a law firm conducting litigation before a court have refused to explain that litigation to the court on the grounds that doing so could expose them to criminal prosecution." I'm not a lawyer, but what I took from that was that in this instance the Prenda Law guys were not being asked questions with relation to their role in the actual scheme. They were actually being asked questions in relation to their role as 'officers of the court' ie. as the lawyers for themselves that were involved in the scheme. Oh what a tangled web they weaved...
scott_s 13y ago
Everyone below has offered good explanations, but I'd like to make one further point. Typically, people take the fifth when they are on trial. The lawyers were not on trial; they were there as part of the court, and were supposed to not be involved in the matter. By taking the fifth, they are admitting "I am involved in the matter."
elehack 13y ago
There's the civil vs. criminal issue, as others have already pointed out. Also, in the order leading to the Prenda attorneys pleading the 5th, the judge basically said "I have drawn these inferences. Tell me why I'm wrong.", and they declined to do so (pleading the 5th). According to Popehat's coverage, that seems to leave him pretty free to stick with the initial inferences. IANAL and all that.

by SEMW 13y ago

kolodny 13y ago

I think this video explains the how and why of the fifth amendment (it's also something every American should watch): http://www.youtube.com/watch?v=6wXkI4t7nuc http://www.youtube.com/watch?v=6wXkI4t7nuc Video description: [A] law school professor and former criminal defense attorney tells you why you should never agree to be interviewed by the police. Although lawers mid-trial taking the fifth may be different.

silentmars 13y ago
That's a little different. The message of that video: never talk to the police. The two cases being, 1. you are not under arrest, or 2. you are under arrest. If you are not under arrest you should just walk away or refuse any kind of engagement (except in a traffic stop which is a special case), and if you are under arrest then you have two explicit rights which you should always use - refuse to talk, and demand a lawyer be present. The situation is quite different in a trial. If you are summoned to appear in court, you must appear. If you are asked any questions, you must answer them (or assert fifth amendment rights explicitly in a refusal to answer, like the Prenda clowns did).
- kolodny 13y ago
  Part of that video stressed the point that the fifth amendment's purpose is to protect the individual. Going "after" someone because they invoked that right is equivalent to opening an investigation because someone said something unpopular or controversial (first amendment). While by itself the fifth is a right of a person, taken into account the other legal maneuvers and stonewalling which the Prenda did, does imply foul play (putting it mildly).

jweese 13y ago

I'm not a lawyer, but I am from the US. The Judge's order includes the following footnote: "Even if their refusal was based on the Fifth Amendment privilege against self-incrimination, the Court still may draw adverse inferences against them in this civil proceeding. Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)" The way I read it (again, not a lawyer) is that you can't convict someone based on their refusal to testify, but this isn't a criminal proceeding. In civil matters the rules are different.

SEMW 13y ago
Aah, missed that footnote. Thanks!
comrade_ogilvy 13y ago
Ah. Interesting. So the fact that the lawyers are taking the Fifth can reasonably be used as evidence that some of the specific claims and assertions already made are materially fraudulent. Taking the Fifth in your own lawsuit must be quite startling for a judge to behold. One can imagine possible sound reasons why a defendant might take the Fifth or the Sixth (right to consult an attorney, i.e. you caught me off guard but I might answer your questions later), but that is not pretty either, in a civil case.

silentmars 13y ago

The fifth amendment only covers criminal caes - in fact, technically only covers felonies. The implication for this case is that the lawyers can refuse to answer questions with an assertion of their fifth amendment rights, and if and when they should ever be tried for those crimes then in that case it would be forbidden for the prosecution to mention that they did that or draw any inferences from it. There is no such protection in a civil case, however. You have no right to "not answer questions because it might help the other guys who are suing me win." I am not a lawyer this is not legal advice, etc etc, but there are other examples in civil cases of where this kind of thing can be used against you. I have a lawyer friend who does personal injury cases, and one of the first things lawyers do in those cases is send spoilation letters to the insurance companies demanding that they preserve any evidence. Absent this, it's common practice for insurance companies to have totaled vehicles destroyed, for example. If they destroy any evidence after receiving a spoilation letter, then in the lawsuit the jury will be instructed to assume that the destroyed evidence showed things in as favorable a light as possible to the other party.

narcissus 13y ago

To add to the other replies: from what I read at http://www.popehat.com/2013/04/02/prenda-laws-attorneys-take-the-fifth-rather-than-answer-judge-wrights-questions/ http://www.popehat.com/2013/04/02/prenda-laws-attorneys-take... : "In effect, the responsible lawyers for a law firm conducting litigation before a court have refused to explain that litigation to the court on the grounds that doing so could expose them to criminal prosecution." I'm not a lawyer, but what I took from that was that in this instance the Prenda Law guys were not being asked questions with relation to their role in the actual scheme. They were actually being asked questions in relation to their role as 'officers of the court' ie. as the lawyers for themselves that were involved in the scheme. Oh what a tangled web they weaved...

scott_s 13y ago

Everyone below has offered good explanations, but I'd like to make one further point. Typically, people take the fifth when they are on trial. The lawyers were not on trial; they were there as part of the court, and were supposed to not be involved in the matter. By taking the fifth, they are admitting "I am involved in the matter."

elehack 13y ago

There's the civil vs. criminal issue, as others have already pointed out. Also, in the order leading to the Prenda attorneys pleading the 5th, the judge basically said "I have drawn these inferences. Tell me why I'm wrong.", and they declined to do so (pleading the 5th). According to Popehat's coverage, that seems to leave him pretty free to stick with the initial inferences. IANAL and all that.