Comments on: The Fifth http://blog.bennettandbennett.com/2008/01/fifth.html the tao of criminal-defense trial lawyering Wed, 08 Feb 2012 02:41:57 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Mark Bennett http://blog.bennettandbennett.com/2008/01/fifth.html/comment-page-1#comment-821 Mark Bennett Sun, 13 Jan 2008 16:44:00 +0000 http://bennettandbennett.com/blog/?p=453#comment-821 Thanks for the comments, Anon and Scott. <br/>Why Anon is wrong and Scott is right about prosecutors advising people about taking the Fifth deserves a post of its own, as does the question of who needs to stand up and protect the witness's rights when he might have criminal liability and doesn't know it. Thanks for the comments, Anon and Scott.
Why Anon is wrong and Scott is right about prosecutors advising people about taking the Fifth deserves a post of its own, as does the question of who needs to stand up and protect the witness’s rights when he might have criminal liability and doesn’t know it.

]]> By: shg http://blog.bennettandbennett.com/2008/01/fifth.html/comment-page-1#comment-819 shg Sun, 13 Jan 2008 13:19:00 +0000 http://bennettandbennett.com/blog/?p=453#comment-819 When a witness pleads the 5th, there is a clear path that should be taken, no matter what any prosecutor thinks. The judge must give the witness the opportunity to consult with a lawyer of his own choosing or, if he can't afford a lawyer, assign a lawyer to advise the witness. The attorney's job is twofold; to explain and advise the witness, including the consequences of a frivolous assertion of the 5th, perjury and obstruction of governmental administration.<br/><br/>After consultation, the attorney for the witness (who is NEVER the prosecutor) should inform the court whether the witness will assert the right against self-incrimination. <br/><br/>If so, the prosecutor then has two options. Immunize or let go. If the prosecutor does not believe that there is any valid basis for the assertion, then conferring immunity to obtain testimony carries no downside risk. Should the assertion be frivolous or ill-intended, the prosecutor will then have the ability to address it.<br/><br/>But no matter how honest or sincere a prosecutor may be in "advising" a witness, there is an absolute conflict and it should never be permitted or sanctioned. When a witness pleads the 5th, there is a clear path that should be taken, no matter what any prosecutor thinks. The judge must give the witness the opportunity to consult with a lawyer of his own choosing or, if he can’t afford a lawyer, assign a lawyer to advise the witness. The attorney’s job is twofold; to explain and advise the witness, including the consequences of a frivolous assertion of the 5th, perjury and obstruction of governmental administration.

After consultation, the attorney for the witness (who is NEVER the prosecutor) should inform the court whether the witness will assert the right against self-incrimination.

If so, the prosecutor then has two options. Immunize or let go. If the prosecutor does not believe that there is any valid basis for the assertion, then conferring immunity to obtain testimony carries no downside risk. Should the assertion be frivolous or ill-intended, the prosecutor will then have the ability to address it.

But no matter how honest or sincere a prosecutor may be in “advising” a witness, there is an absolute conflict and it should never be permitted or sanctioned.

]]> By: Anonymous http://blog.bennettandbennett.com/2008/01/fifth.html/comment-page-1#comment-818 Anonymous Sun, 13 Jan 2008 05:26:00 +0000 http://bennettandbennett.com/blog/?p=453#comment-818 Hogwash? Is this 1830s week on your blog? Just kidding.<br/><br/>Before you are too hard on the D.A.s for telling a witness that they can't plead the 5th on the stand, you should realize how often that comes up for us. Too many witnesses believe that a lack of interest in testifying means that they can plead the 5th. Or the fact that they don't want to rat out their friend works for them too.<br/>I agree that if there is some true criminal exposure that we've got no business telling them that they can't plead the 5th. I don't know what everybody else does, but I will let a witness know if I think there is even a remote possibility that they need a lawyer.<br/>In all honesty, I think that the more common occurence is when the defense is calling a person with criminal liability because he may appear more culpable then their client. That can create a cluster of immense proportions, because then arises the question over who needs to stand up and protect the witness' rights?<br/>Discuss amongst yourselves. Hogwash? Is this 1830s week on your blog? Just kidding.

Before you are too hard on the D.A.s for telling a witness that they can’t plead the 5th on the stand, you should realize how often that comes up for us. Too many witnesses believe that a lack of interest in testifying means that they can plead the 5th. Or the fact that they don’t want to rat out their friend works for them too.
I agree that if there is some true criminal exposure that we’ve got no business telling them that they can’t plead the 5th. I don’t know what everybody else does, but I will let a witness know if I think there is even a remote possibility that they need a lawyer.
In all honesty, I think that the more common occurence is when the defense is calling a person with criminal liability because he may appear more culpable then their client. That can create a cluster of immense proportions, because then arises the question over who needs to stand up and protect the witness’ rights?
Discuss amongst yourselves.

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