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Do you presume that a person who "takes the 5th" as being guilty?

Do you presume that a person who "takes the 5th" as being guilty?

  • Total voters
    53
fredmertzz said:
To plead the fifth in a criminal case, as indicated, you would be referring to this section of the amendment "...nor shall be compelled in any criminal case to be a witness against himself..." If a person pleads the fifth, it's to prevent self-incrimination - to prevent a witness AGAINST themselves. To plead the fifth, it seems that by definition you are not speaking because what you would say would be AGAINST yourself.

So do I assume immediate guilt? No. It depends on the context. But I have to assume based on the laws of logic and the definition of the 5th, that whatever the person is not saying is something that is a negative on that person. But since it's not direct evidence against them, I wouldn't hold it directly against them. However, I would try to find what they weren't saying through whatever other means possible.
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"Witness against himself" simply means being compelled by the other side to help present the other side's case, not literally saying things against one's interest.

If the right entailed what you're saying here, then someone could be compelled to say nice things about himself, or compelled to be a witness as to things which don't incriminate, and that's not the way it works.
 
calamity said:
Exactly. As was explained to me several times when I used to get dragged into court for this or that, "we'll call you on the stand only if we need you." Most of the time they did not. The one time I was called, we had to prove the state was wrong. Most other times we left the proving to the state.

I think, for the most part, lawyers prefer not to have their client testify. Let the state prove their case. Don't make it easier for them by letting your client open his/her mouth and hanging themselves.
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Greetings, Calamity. :2wave:

My attorney told me years ago..."I want you to always tell me the truth - I'll do any lying that might be necessary." :shock: I always listened to my attorney... :lamo
 
radcen said:
Do you presume that a person who "takes the 5th" as being guilty?

A good reference:

Taking the Fifth

Taking the Fifth - Lawyers.com

Quote from link:
“Taking the Fifth” refers to a person’s invocation of his or her Fifth Amendment right under the U.S. Constitution to refuse to give statements that could be used against the speaker in a criminal proceeding. The right attaches when people are questioned by the police (it’s the basis for the Miranda warnings); at trial; and in any other proceeding, criminal or civil, where the answers might incriminate the speaker in the future. The right is enjoyed by everyone in the U.S., not just citizens or those in the country with permission. Only individual people possess the right; to date, a corporation, which the Supreme Court has recently been given person-like attributes, cannot invoke the right.

ETA: Automatically or reflexively presume, I mean.
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Do like/respect that law.

But when someone pleads that right in court testimony have to confess my antenna go up.

Although they deserve the presumption of innocence in the eyes of the court, I am also entitled to my cynicism about that innocence.
 
radcen said:
Do you presume that a person who "takes the 5th" as being guilty?

A good reference:

Taking the Fifth

Taking the Fifth - Lawyers.com

Quote from link:
“Taking the Fifth” refers to a person’s invocation of his or her Fifth Amendment right under the U.S. Constitution to refuse to give statements that could be used against the speaker in a criminal proceeding. The right attaches when people are questioned by the police (it’s the basis for the Miranda warnings); at trial; and in any other proceeding, criminal or civil, where the answers might incriminate the speaker in the future. The right is enjoyed by everyone in the U.S., not just citizens or those in the country with permission. Only individual people possess the right; to date, a corporation, which the Supreme Court has recently been given person-like attributes, cannot invoke the right.

ETA: Automatically or reflexively presume, I mean.
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Automatically no, but its likely that the majority of them are. Sometimes though someone isn't guilty themselves but knows who is and is protecting them.
 
Cardinal said:
Wouldn't that just be negotiating for immunity?
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Not really. It's a matter of preventing people from taking the 5th for any reason other than protecting themselves from criminal prosecution. If your boss is threatening to fire you if you testify, that should not be grounds for pleading the 5th (it's civil matter if she follows through on the threat). The 5th should be tightly restricted to criminal prosecution and nothing else.
 
americanwoman said:
No, I don't presume anyone is guilty. We got that right for a reason.
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You're right...but the reason is so the government can't coerce you into a false confession so it's not like that's what we're talking about here.
 
radcen said:
Do you presume that a person who "takes the 5th" as being guilty?

A good reference:

Taking the Fifth

Taking the Fifth - Lawyers.com

Quote from link:
“Taking the Fifth” refers to a person’s invocation of his or her Fifth Amendment right under the U.S. Constitution to refuse to give statements that could be used against the speaker in a criminal proceeding. The right attaches when people are questioned by the police (it’s the basis for the Miranda warnings); at trial; and in any other proceeding, criminal or civil, where the answers might incriminate the speaker in the future. The right is enjoyed by everyone in the U.S., not just citizens or those in the country with permission. Only individual people possess the right; to date, a corporation, which the Supreme Court has recently been given person-like attributes, cannot invoke the right.

ETA: Automatically or reflexively presume, I mean.
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depends on how much information I have.
 
Our judicial system is not about innocence or guilt but who can put on the best show. All they have to do is make it appear you are lying and you may be convicted. A lot of times answering certain questions may make it appear you are guilty whether you are or not. I presume someone to be intelligent when they take the fifth.
 
TurtleDude said:
that is the "correct answer" that you should say if you want to remain on a criminal jury or if you are running for judge or District Attorney.

I can tell you -having interviewed hundreds of jurors that the answer most people actually believe is YES-GUILTY
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It's one of my dreams in life to be on a criminal jury. Why does it seem like the people who actually want to be called for jury duty never get summoned?
 
PIPEWRENCH said:
Our judicial system is not about innocence or guilt but who can put on the best show. All they have to do is make it appear you are lying and you may be convicted. A lot of times answering certain questions may make it appear you are guilty whether you are or not. I presume someone to be intelligent when they take the fifth.
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Absolutely. One of the best ways to get tripped up is to hesitate when answering or doing a Hillary and trying to pivot. It's best to stfu and let your lawyer do the talking. A good lawyer will get a jury to like him, and by default like you.
 
PIPEWRENCH said:
Our judicial system is not about innocence or guilt but who can put on the best show. All they have to do is make it appear you are lying and you may be convicted. A lot of times answering certain questions may make it appear you are guilty whether you are or not. I presume someone to be intelligent when they take the fifth.
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Right, and that's an aspect that I think a lot of people gloss over, or even outright don't know. One does not have to actually be guilty to be incriminated by their own words.

Incrimination | Define Incrimination at Dictionary.com

verb (used with object), incriminated, incriminating.
1.
to accuse of or present proof of a crime or fault:
He incriminated both men to the grand jury.
2.
to involve in an accusation; cause to be or appear to be guilty; implicate:
His testimony incriminated his friend. He feared incriminating himself if he answered.
3.
to charge with responsibility for all or part of an undesirable situation, harmful effect, etc.:
to incriminate cigarettes as a cause of lung cancer.
 
faithful_servant said:
Not really. It's a matter of preventing people from taking the 5th for any reason other than protecting themselves from criminal prosecution. If your boss is threatening to fire you if you testify, that should not be grounds for pleading the 5th (it's civil matter if she follows through on the threat). The 5th should be tightly restricted to criminal prosecution and nothing else.
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I'm open to the direction you're going with this, but it seems a bit too narrow and strict. One, I'm not so sure I'd limit it to criminal only. Two, if the person could see themselves as possibly being prosecuted separately for knowing something and not reporting, as in some vague accomplice accusation, I can see that as legit.
 
americanwoman said:
It's one of my dreams in life to be on a criminal jury. Why does it seem like the people who actually want to be called for jury duty never get summoned?
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I was noticed for the county and my wife was for federal. My son at the time my wife was noticed had some medical issues, that the Chief Federal judge knew about and dismissed my wife after my wife requested it. I told the county court I was available and certain dates and the jury commissioner said don't bother since I was a federal attorney at the time. But you are right, I hear that a lot.
 
TurtleDude said:
that is the "correct answer" that you should say if you want to remain on a criminal jury or if you are running for judge or District Attorney.

I can tell you -having interviewed hundreds of jurors that the answer most people actually believe is YES-GUILTY
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This is always my suspicion. People generally know the correct answer to give, but when push comes to shove they go with "guilty". I even see it here at DP. Some people say the right thing, but then watch them talk in threads about specific topics and crimes and they clearly aren't that open-minded.
 
radcen said:
This is always my suspicion. People generally know the correct answer to give, but when push comes to shove they go with "guilty". I even see it here at DP. Some people say the right thing, but then watch them talk in threads about specific topics and crimes and they clearly aren't that open-minded.
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Here is how jurors think. They are told by the judge-at least three time usually, that if a person does not testify that cannot be held against him or her. They say it during Voir Dire, they usually say it during initial instructions once the jury is seated and they always say it during the charge to the jury. and that is all well and good. The defendant's attorney will tell them that if the client doesn't testify and the Prosecutor almost always does too.

but the average juror thinks like this:

Joe Defendant has been charged with raping and Killing his ex wife. AN INNOCENT MAN would not just sit there and have people claim he did without saying something
 
No, i would always do it no matter what. We have so many laws that are so selectively enforced that you can never be sure if anything you say will be used against you. What is it, on average people commit 3 felonies without even knowing? A courtroom and under oath is the last place i would make any kind of statement, whether i'm the defendant or a witness or whatever
 
No, I assume that they decided to listen to their attorney, since testifying rarely benefits you.
 
I am sure certain circumstances arise where a person must refuse to be a witness against himself. We have a decent and mostly fair justice system, but as with everything else, there are exceptions to everything.
 
radcen said:
Do you presume that a person who "takes the 5th" as being guilty?

A good reference:

Taking the Fifth

Taking the Fifth - Lawyers.com

Quote from link:
“Taking the Fifth” refers to a person’s invocation of his or her Fifth Amendment right under the U.S. Constitution to refuse to give statements that could be used against the speaker in a criminal proceeding. The right attaches when people are questioned by the police (it’s the basis for the Miranda warnings); at trial; and in any other proceeding, criminal or civil, where the answers might incriminate the speaker in the future. The right is enjoyed by everyone in the U.S., not just citizens or those in the country with permission. Only individual people possess the right; to date, a corporation, which the Supreme Court has recently been given person-like attributes, cannot invoke the right.

ETA: Automatically or reflexively presume, I mean.
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I voted no.The old me would have said yes because I had the silly notion that innocent people have nothing to hide. But since that time I have seen too many stories of innocent people who were questioned for hours,fed information and lied to by the cops in order to get that person to confess to something they didn't even do.
 
jamesrage said:
I voted no.The old me would have said yes because I had the silly notion that innocent people have nothing to hide. But since that time I have seen too many stories of innocent people who were questioned for hours,fed information and lied to by the cops in order to get that person to confess to something they didn't even do.
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You possess something that is truly rare in today's political world: An open mind and a willingness to consider new information.
 
Masterhawk said:
maybe they did something else illegal
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Maybe they could actually be charged with that then. Presumed guilt is not a very libertarian point of view. I am calling for a revocation of your membership, no wait, not that, a uh, I got it! A demotion to "Libertarian under review". Take that.
And am I glad I didn't caught that one time, or that other time.
 
trblmkr said:
Maybe they could actually be charged with that then. Presumed guilt is not a very libertarian point of view. I am calling for a revocation of your membership, no wait, not that, a uh, I got it! A demotion to "Libertarian under review". Take that.
And am I glad I didn't caught that one time, or that other time.
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I didn't say I presumed guilt for the crime being committed. It could also be something which would raise eyebrows
 
americanwoman said:
No, I don't presume anyone is guilty. We got that right for a reason.
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I was going to respond that after some years as a reprobate, three jury selections and couple of close calls, I now and then presume that I can presume guilt pretty well. Then, like it always does, that one time that I almost f'ed up someones life and I would have been so wrong, pops into my head. We have that right, and all the rest of them for a reason.
 
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