Brown supporter trial (Continued)

[LPC]

My subpoena says nothing about my succumbing to a search and I will refuse being further humiliated at the airport.

I wonder what will result from my decision but I am making a stand for my own dignity.

The words "sub poena" mean "under penalties." Refusal to comply with a subpoena can be punished as a contempt of court.

It's also interesting that Jose puts his own dignity above his son's freedom.

[ErsatzAnatchist]

I agree that defense counsel does not want the jury to see any witnesses who plead the fifth. That would imply that something related to the facts at issue in this trial would be likely to incriminate the witness. This could be interpreted by the jury that the witness and the defendants were engaged in a conspiracy.

But then again, when I am not running the secret world government, I am just some hack lawyer who has not handled a criminal case in more than a decade.

[webhick]

I'm starting to wonder if there will be *any* defense witnesses in this case. They all seem to be bailing.

What about Randy?

[wserra]

It seems that this judge doesn't want any witness to take the 5th on the stand in front of the jury so almost all of the defense witnesses that were on the Brown property are taking the 5th in chambers and not being allowed to testify. The prosecution is using this as a tool to effectively shutdown most of the defense witnesses (isn't that special?).

Actually, no, it's not special at all. It's the standard procedure. From Johnson v. United States, 318 U.S. 189 (1943) (quoting Phelin v. Kenderdine, 20 Pa. 354, 363 (1853)):

If the privilege claimed by the witness be allowed, the matter is at an end. The claim of privilege and its allowance is properly no part of the evidence submitted to the jury, and no inferences whatever can be legitimately drawn by them from the legal assertion by the witness of his constitutional right. The allowance of the privilege would be a mockery of justice, if either party is to be affected injuriously by it.

And, while there are times that defense counsel would like the jury to see a witness claim the privilege - a witness who would naturally be expected to support the govt's position, for example - this isn't one of those. These are defense witnesses. I agree with other posters here - were I defense counsel, I wouldn't want the jury to see any of these mopes refuse to answer what one would expect to be exculpatory questions.

is the jury allowed to draw inferences from a non-defendant witness's refusal to testify?

No. See above.

[webhick]

Out of curiosity, if you get subpoenaed: Does the court pay for your travel expenses and if so, do you get to demand your mode of transit?

[Mr. Mephistopheles]

My subpoena says nothing about my succumbing to a search and I will refuse being further humiliated at the airport.

I wonder what will result from my decision but I am making a stand for my own dignity.

The words "sub poena" mean "under penalties." Refusal to comply with a subpoena can be punished as a contempt of court.

It's also interesting that Jose puts his own dignity above his son's freedom.

Oh my it would be profound humiliation to have one's bag searched more thoroughly and perhaps suffer in the indignity of a pat down.

[webhick]

Oh my it would be profound humiliation to have one's bag searched more thoroughly and perhaps suffer in the indignity of a pat down.

They probably don't want to pat him down and touch his undies any more than he wants them to.

[ErsatzAnatchist]

Out of curiosity, if you get subpoenaed: Does the court pay for your travel expenses and if so, do you get to demand your mode of transit?

My recollection is that the Court will pay for standard air fare or the standard witness mileage rate (set by statute) if within driving distance. All air travel is to be by coach, not first class.

[The Observer]

I wonder what will result from my decision but I am making a stand for my own dignity.

The above statement is another compelling argument about TPs' lack of common sense and intelligent reasoning.

[Mr. Mephistopheles]

Oh my it would be profound humiliation to have one's bag searched more thoroughly and perhaps suffer in the indignity of a pat down.

They probably don't want to pat him down and touch his undies any more than he wants them to.

Ooh. Where's the "puking" smiley when it's most needed?

New TSA standard issue equipment for searching unsavory types:

[Imalawman]

I wonder what will result from my decision but I am making a stand for my own dignity.

I could take a wild guess and I'd probably be right, but why spoil the fun?

The question I am wondering is this - let's say he refuses to be searched and its booted from the airport. He loses his ticket that was bought for him. Does he now have to reimburse the government?

[Mr. Mephistopheles]

I wonder what will result from my decision but I am making a stand for my own dignity.

I could take a wild guess and I'd probably be right, but why spoil the fun?

The question I am wondering is this - let's say he refuses to be searched and its booted from the airport. He loses his ticket that was bought for him. Does he now have to reimburse the government?

Or, he really tweaks when they attempt to search him and ends up in the lock box...

[Demosthenes]

Short version of today.

Prosecution, Jason's Defense, and Danny's Defense have all rested. We've seen two Reno witnesses so far and new Reno witnesses will go on tomorrow (if they don't all take the 5th too.)

The case will go to the jury either tomorrow or early on Friday.

They didn't make Scoop take the stand. Hooray!

[ErsatzAnatchist]

Short version of today.

Prosecution, Jason's Defense, and Danny's Defense have all rested. We've seen two Reno witnesses so far and new Reno witnesses will go on tomorrow (if they don't all take the 5th too.)

The case will go to the jury either tomorrow or early on Friday.

They didn't make Scoop take the stand. Hooray!

Why was this an issue? Did Scoop not want to testify?

[Imalawman]

Short version of today.

Prosecution, Jason's Defense, and Danny's Defense have all rested. We've seen two Reno witnesses so far and new Reno witnesses will go on tomorrow (if they don't all take the 5th too.)

The case will go to the jury either tomorrow or early on Friday.

They didn't make Scoop take the stand. Hooray!

Why was this an issue? Did Scoop not want to testify?

I had the same reaction, but I think us lawyers are the only ones who would think that testifying is fun. hell, I'd be totally bummed if I didn't get to testify after I was slated to do so.

[Demosthenes]

Testifying in this case would be on par with novocain-free tooth extraction.

Imagine if you will...

Riley's lawyer asks Scoop the same question rephrased slightly, but not really, 20 times in a row. His focus is exclusively on whether the evil Marshals shot live rounds at Danny or doctored the Dogwalker tape, which Scoop doesn't know, or lied about it all through Marshal Monier. Reno's lawyer then asks two hours of completely irrelevant questions, 80% of which violate the hearsay rules and are disallowed. This is further delayed by a five minute sidebar every other five minutes so the judge can explain for the upteenth time what "hearsay" means to Reno's lawyer. Jason's lawyer then says "no questions", realizing that Scoop's testimony has no bearing on the case. The prosecution asks a single question, effectively undoing everything that Danny's lawyer asked but completely ignoring Reno's lawyer's questions, since everyone else is too. On redirect, Danny's lawyer re-asks the same questions he asked before, Reno's lawyer wastes another half hour on more hearsay questions, the others say no questions, and after a half day wasted, Scoop is finally released from her torture.

[Scoop]

Why was this an issue? Did Scoop not want to testify?

I had the same reaction, but I think us lawyers are the only ones who would think that testifying is fun. hell, I'd be totally bummed if I didn't get to testify after I was slated to do so.

Those of us in the reporting business don't much care to be in the testifying business. Not to mention the fact that I knew nothing of any consequence to Riley's defense.

[ErsatzAnatchist]

Why was this an issue? Did Scoop not want to testify?

I had the same reaction, but I think us lawyers are the only ones who would think that testifying is fun. hell, I'd be totally bummed if I didn't get to testify after I was slated to do so.

Those of us in the reporting business don't much care to be in the testifying business. Not to mention the fact that I knew nothing of any consequence to Riley's defense.

Having once testified as a "witness" in a case, it is a painful experience. Being a lawyer by training and a witness by accident is a conflicting. It is very difficult to separate the "witness" role from the "advocate" role.

[LPC]

From Johnson v. United States, 318 U.S. 189 (1943) (quoting Phelin v. Kenderdine, 20 Pa. 354, 363 (1853)):

If the privilege claimed by the witness be allowed, the matter is at an end. The claim of privilege and its allowance is properly no part of the evidence submitted to the jury, and no inferences whatever can be legitimately drawn by them from the legal assertion by the witness of his constitutional right. The allowance of the privilege would be a mockery of justice, if either party is to be affected injuriously by it.

Sorry to be tedious about this, but the issue raised by Bill Riley (and me) is whether it is proper for the jury to consider a 5th Amendment claim by a witness in determining the guilt of the defendant (not the witness), and the cases cited above don't really seem to be on point.

In Johnson v. United States, the defendant in a criminal case (tax evasion, by the way) took the stand in his own defense and on cross-examination claimed a 5th Amendment privilege when the prosecutor started asking about income receipts in years not at issue. The Supreme Court *affirmed* the conviction, even though the prosecution asked the jury to take the claim of the 5th Amendment into account. Briefly: The defendant was indicted for tax evasion for years 1935-1937, and there was testimony that the defendant received kickbacks in 1937, which the defendant took the stand to deny. On cross, the defendant was then asked about kickbacks in 1938 and invoked the 5th Amendment,which the judge allowed (wrongly, according to the SC). The SC opinion is hard to follow, because the court (Douglas, writing for the majority) seems to say that the jury should not have been allowed to consider the plea of the 5th Amendment, and yet the court affirmed the conviction.

The Pennsylvania case (from 1853) cited by the SC is even less relevant because it was a civil action brought by two parents for the seduction of their daughter. Two witnesses (young men) were asked if they knew whether the girl in question was "virtuous" and chose to invoke their 5th Amendment rights (apparently because of the age of the girl and their all-to-intimate knowledge of her "virtue" or the lack thereof). But my understanding is that a 5th Amendment claim *can* be considered in a civil action. See Baxter v. Palmigiano, 425 U.S. 308 (1976).

As I said before, I think that a jury should NOT be allowed to draw inferences from a 5th Amendment claim by a non-defendant witness, but because of the 6th Amendment and not the 5th. If a 5th Amendment claim by a witness could be considered by a jury, then a jury would be able to consider the "testimony" of a witness (i.e., the assertion that the testimony might incriminate the witness) without the defendant being able to cross-examine and "confront" the witness, as guaranteed by the 6th Amendment.

But I don't think that the Johnson (or Phelin) cases establish that.

[TheWatcher (MIA)]

From Johnson v. United States, 318 U.S. 189 (1943) (quoting Phelin v. Kenderdine, 20 Pa. 354, 363 (1853)):

If the privilege claimed by the witness be allowed, the matter is at an end. The claim of privilege and its allowance is properly no part of the evidence submitted to the jury, and no inferences whatever can be legitimately drawn by them from the legal assertion by the witness of his constitutional right. The allowance of the privilege would be a mockery of justice, if either party is to be affected injuriously by it.

Sorry to be tedious about this, but the issue raised by Bill Riley (and me) is whether it is proper for the jury to consider a 5th Amendment claim by a witness in determining the guilt of the defendant (not the witness), and the cases cited above don't really seem to be on point.

I seem to remember from somewhere that if a witness on the stand asserts their 5th amendment privilege then all of their testimony is stricken from the record. My guess would be that the judge instructs the jury that they can not consider any part of the witness's testimony for the purposes of their deliberation.

The only problem is I don't remember if I picked that up in a legal class/brief or if it was a Law and Order episode.

Time to do a little research I guess.