5 ms·

Does that make it a crime for a journalist to take the 5th?

girvo 13y ago
In Australia at least, yes. Many have been found in contempt of court and jailed because of it. Does the right to not self incriminating extend to incriminating your source?
- lukifer 13y ago
  You cannot be compelled to testify against yourself (or your spouse, law client, etc), but you can be compelled to testify against someone else, which is how subpoenas work.
  - troels 13y ago
    Even if they don't know who this third party is? What if the source is your spouse?
    - sigzero 13y ago
      In the US, spouses cannot be compelled to testify against each other.
      - troels 13y ago
        Then how can you be compelled to reveal your anonymous source? After all, it could be your spouse.
- vacri 13y ago
  Australia doesn't have a '5th' to take in the first place. It can be used against the common citizen that they refused to talk to police or to testify in certain circumstances. It's not going to prove that you're guilty, but it is allowed to add context. http://en.wikipedia.org/wiki/Right_to_silence#Australia http://en.wikipedia.org/wiki/Right_to_silence#Australia This being said, since the internet came of age, Australian journalists have hardly been behaving in a way that would suggest they deserve increased protections...
  - girvo 13y ago
    I know, which is one of the many reasons I (ineffectually, before I found out I was going to cause nothing to change at that point) argued for a Bill of Rights when I was involved in youth politics. I was just giving another perspective :) my final question was aimed at a US audience, I was truly curious how it worked there RE. Not incriminating other people A journalist here just went to jail for not revealing her source to the court because one of our mining moguls dragged her into a trust case due to reporting on info regarding to it. Pretty horrid in my opinion. We have no truly defined rights here in Australia. That's what my law degree basically taught me. (that is exaggerating a little :P)
- sigzero 13y ago
  It does not extend to your source. You invoke the 5th only for yourself.
_delirium 13y ago
No. What this holds is that (as has long been the case) there is no special journalists' privilege they can assert to avoid testifying. They still have a 5th-amendment right not to answer questions where the answers might incriminate the journalist themselves (rather than their source). However, usually this is not at issue, because the reporter republishing the material isn't a crime, so their testimony wouldn't implicate them in a crime. In cases where the witness the government wants to compel could plausibly be themselves accused of a crime, the government can avoid being stymied by 5th-amendment assertions by just granting the witness immunity from prosecution. Then the possibility to assert a 5th-amendment right disappears, because if the person cannot be legally incriminated in the case (due to immunity from prosecution) they no longer have a basis for asserting a right against self-incrimination.
- betterunix 13y ago
  "However, usually this is not at issue, because the reporter republishing the material isn't a crime, so their testimony wouldn't implicate them in a crime." Unless they are being charged with conspiracy: http://www.washingtonpost.com/local/a-rare-peek-into-a-justice-department-leak-probe/2013/05/19/0bc473de-be5e-11e2-97d4-a479289a31f9_print.html http://www.washingtonpost.com/local/a-rare-peek-into-a-justi...
  - _delirium 13y ago
    That's a good point. A plus side of such a precedent is that it might strengthen the position of journalists asserting a 5th-amendment right not to testify (assuming the government doesn't grant immunity up front). Conspiracy is so broad that anything they say about their relationship with the person in question could potentially be used against them, giving a good basis for invoking the 5th. On principle, though, it seems journalists typically wish not to appear as witnesses at all, which makes it harder for them to use that approach. Except in limited circumstances, like choosing not to appear as a witness in your own criminal trial, the 5th amendment doesn't protect failure to appear; to invoke it you'd have to show up on the witness stand and then refuse to answer questions whose answer you felt might be self-incriminating. Of course, you could blanket do that to every question except bare factual ones that ask for your name and the like. But you'd still have to show up, and on principle journalists seem to have a view that they should not appear as witnesses in such cases at all (which can lead to them being held in contempt of court for refusing to appear).

girvo 13y ago

In Australia at least, yes. Many have been found in contempt of court and jailed because of it. Does the right to not self incriminating extend to incriminating your source?

lukifer 13y ago
You cannot be compelled to testify against yourself (or your spouse, law client, etc), but you can be compelled to testify against someone else, which is how subpoenas work.
- troels 13y ago
  Even if they don't know who this third party is? What if the source is your spouse?
  - sigzero 13y ago
    In the US, spouses cannot be compelled to testify against each other.
    - troels 13y ago
      Then how can you be compelled to reveal your anonymous source? After all, it could be your spouse.
vacri 13y ago
Australia doesn't have a '5th' to take in the first place. It can be used against the common citizen that they refused to talk to police or to testify in certain circumstances. It's not going to prove that you're guilty, but it is allowed to add context. http://en.wikipedia.org/wiki/Right_to_silence#Australia http://en.wikipedia.org/wiki/Right_to_silence#Australia This being said, since the internet came of age, Australian journalists have hardly been behaving in a way that would suggest they deserve increased protections...
- girvo 13y ago
  I know, which is one of the many reasons I (ineffectually, before I found out I was going to cause nothing to change at that point) argued for a Bill of Rights when I was involved in youth politics. I was just giving another perspective :) my final question was aimed at a US audience, I was truly curious how it worked there RE. Not incriminating other people A journalist here just went to jail for not revealing her source to the court because one of our mining moguls dragged her into a trust case due to reporting on info regarding to it. Pretty horrid in my opinion. We have no truly defined rights here in Australia. That's what my law degree basically taught me. (that is exaggerating a little :P)
sigzero 13y ago
It does not extend to your source. You invoke the 5th only for yourself.

_delirium 13y ago

No. What this holds is that (as has long been the case) there is no special journalists' privilege they can assert to avoid testifying. They still have a 5th-amendment right not to answer questions where the answers might incriminate the journalist themselves (rather than their source). However, usually this is not at issue, because the reporter republishing the material isn't a crime, so their testimony wouldn't implicate them in a crime. In cases where the witness the government wants to compel could plausibly be themselves accused of a crime, the government can avoid being stymied by 5th-amendment assertions by just granting the witness immunity from prosecution. Then the possibility to assert a 5th-amendment right disappears, because if the person cannot be legally incriminated in the case (due to immunity from prosecution) they no longer have a basis for asserting a right against self-incrimination.

betterunix 13y ago
"However, usually this is not at issue, because the reporter republishing the material isn't a crime, so their testimony wouldn't implicate them in a crime." Unless they are being charged with conspiracy: http://www.washingtonpost.com/local/a-rare-peek-into-a-justice-department-leak-probe/2013/05/19/0bc473de-be5e-11e2-97d4-a479289a31f9_print.html http://www.washingtonpost.com/local/a-rare-peek-into-a-justi...
- _delirium 13y ago
  That's a good point. A plus side of such a precedent is that it might strengthen the position of journalists asserting a 5th-amendment right not to testify (assuming the government doesn't grant immunity up front). Conspiracy is so broad that anything they say about their relationship with the person in question could potentially be used against them, giving a good basis for invoking the 5th. On principle, though, it seems journalists typically wish not to appear as witnesses at all, which makes it harder for them to use that approach. Except in limited circumstances, like choosing not to appear as a witness in your own criminal trial, the 5th amendment doesn't protect failure to appear; to invoke it you'd have to show up on the witness stand and then refuse to answer questions whose answer you felt might be self-incriminating. Of course, you could blanket do that to every question except bare factual ones that ask for your name and the like. But you'd still have to show up, and on principle journalists seem to have a view that they should not appear as witnesses in such cases at all (which can lead to them being held in contempt of court for refusing to appear).