What does this imply?
The fifth amendment is only available to avoid testimony that could potentially implicate oneself in a crime. Proper exercise of 5th amendment rights cannot be used against a person in a criminal prosecution.
This isn't a criminal case (yet). It's a very high-stakes civil case. Pleading the fifth may result in an adverse inference jury instruction, or an adverse inference determination by a judge in a nonjury trial. In other words, it makes you look very bad, and the finder of fact is free to assume the worst.
Not applicable here yet, but in rare cases prosecutors will also get around the 5th is by offering immunity, in which case you may be ordered to testify, and your testimony cannot then be used as evidence against you in a criminal trial; refusal to testify under immunity can result in punishment for civil or criminal contempt. You cannot invoke the 5th to protect yourself from civil liability, or to avoid implicating another person in a crime.
There's all sorts of things that "pleading the fifth" doesn't protect you from. For instance, public employees are often required by law to cooperate with all public investigations, including criminal investigations. Pleading the fifth as a public employee in an public investigation can result in mandatory termination, even if there is no evidence of wrongdoing.
Pleading the 5th is rather extraordinary in a civil business dispute and is not a normal tactic when you have a strong defense. It immediately raises a stink of crime for everyone concerned, and can certainly spook shareholders/investors.
Yes, but they lose nothing as a strategy by having him do it unless the inference the judge threatens is so negative, and then, as they said, "his view on whether to claim the fifth may change as the case progresses".
....
Now, certainly, most companies are ethical enough not to try such a strategy, but ...
No, it means a hell of a lot, in this context.
Like, when you get pulled over and the cop asks you, "Do you know why I pulled you over?", you could say "On the advice of my attorney I invoke my 5th amendment right to remain silent because the answer to that question may incriminate myself. I'm not answering any questions without my lawyer."
This is almost always the wrong way to start off a traffic stop, no matter how many times people post the "NEVER SAY ANYTHING TO COPS" video.
I've been in positions where other people in a thread happen to answer a question I have expertise in, but they don't know what they are talking about. It happens so often on forums like HN/Reddit that I appreciate it when someone can call them out for "authoritative guessing".
It was a tiny slap on the wrist.
There is the sort of popular view that if you do this, it must mean you are guilty and by testifying you would actually be proven so. The problem with that is that you might actually be innocent but not be able to give evidence in a way that does not make you look guilty.
Any lawyers here willing to elaborate on how to better view this from a social point of view?
Will this actually work? Maybe. The fifth amendment is more complex than it might at first seem. One thing that's for sure is that if he is found to be withholding any documents that are relevant to the civil suit, but couldn't realistically incriminate him, this could backfire spectacularly. Hence the statement from his lawyers:
> One of Mr. Levandowski’s lawyers said the Uber executive’s position on invoking the Fifth Amendment may change as they examine the case.
On the other hand, if you did do everything you are accused of, then you're probably right, it can only hurt you.
What about obstetricians and neurosurgeons and such other high net worth people practicing in litigious environments, who are liable to be sued a few times through the course of their career? Even if the doctor committed borderline malpractice, answering every question in a document demand or deposition with "I plead the fifth" is a good way to lose everything on a case that could have been dismissed early on without trial. When pretty much zero doctors are prosecuted for injuring or even killing their patients in a professional context.
There's pretty much no way to build a multi-billion dollar enterprise without attracting at least a few lawsuits along the way. This is obviously not an ordinary case.
Lewandowski won't be financially ruined if Uber loses this civil case, and he won't even be very financially inconvenienced. On the other hand, there is huge potential downside if he gets charged personally with a crime.
Invoking the fifth makes it more likely that he (and Uber) will lose the present civil case, which would be very bad for Uber and pretty bad for him. But it could protect him from future criminal prosecution. So I guess he thinks it's pretty likely that he would be found guilty.
In the criminal context, the government is trying to punish you with jail. Actual deprivation of liberty. In such cases, we require they make be able to make their case without you saying you did it.
In the civil context, you can avoid saying you did it if it would cause you to possibly be convicted of a crime, but unlike the above, there is no possibility of deprivation of liberty. As such, if you do try to avoid saying you did it, people are allowed to use it to make their case that you did it.
Personally, I view it as more or less an admission of guilt, but I'm sure there are a host of legal reasons to do this (besides actually being guilty) that I am unaware of.
An interesting video on the topic: https://www.youtube.com/watch?v=i8z7NC5sgik
Having been arrested myself for driving a red car with 2 males inside where the crime happened miles away.
They really, really aren't your friends, repeatedly say yes for a lawyer. Your first arrest will disabuse you of any relic of your childhood "cops are your friends" bullshit.
Any parent who hasn't told you by the age of 17 that cops are not your friends anymore is wildly negligent of their basic duty as a parent. While you live in that wonderful pre-adult age, they are your first call.
But my first thought when I saw this headline was "oh fuck - that's bad"
Emotions are so good at getting in the way of critical thinking. And nowadays I think most people admit that they read headlines first, then comments, and then maybe (but probably not) the story. I wonder how horribly skewed my worldview is because of how I digest information.
The legal system is still run by humans, the normal (very large) margin of error exists.
That's true in theory. In practice, there are few cases where invoking the fifth appears less incriminating than speaking.
As you said, the legal is run by humans, and humans tend to view invoking the fifth as suspicious.
Take a real-life case:
-OJ criminal case for murder, doesn't take the stand (found not guilty)
-OJ civil case for wrongful death, takes the stand gives inconsistent statements/impeached - not regarding anything to do with the case itself but his prior record (found liable)
Yes, the standards are different in civil and criminal but the legal strategy is the same...the defendant doesn't have to do anything, the burden is on the other party to prove their case, and opening yourself up to cross when there are criminal allegations (whether in a actual criminal case or civil case) would be a questionable legal decision. All this is compounded in this Uber case where allegations of (potentially) criminal acts are being made in the civil case because potentially a criminal case may follow, but it does beg the question if this theft of intellectual property is so obvious why hasn't law enforcement brought the charges yet (they in fact may, but see how silence doesn't really indicate anything). FYI, yes in a acquisition Uber likely assumed all liabilities, but that would also generally exclude liabilities as a result of criminal acts.
That's not true at all where the act is done in an official capacity and inures to the benefit of the acquired firm. The entire case is basically that Otto was built upon the founder's stolen tech. If Uber purchased and received infringing and stolen property then they are very much on the hook for all applicable damages, including punitive damages for Otto's egregiously bad acts.
If you are suggesting Uber instructed the Otto founder to steal the tech and set up his own shop to be acquired...then, yes Uber would be liable, and while that may be the theme of the case, if there were any real evidence theft of IP was done as an official act of Uber this would already be settled.
An employer is generally liable for the acts of its employees done in their official capacity (respondiate superior) the employer will not be liable for criminal acts of its employees. That is unless you can find smoking gun evidence the employer instructed the employee to commit the act, otherwise legally criminal acts are outside the scope of official employment and employers are not liable...the same is true of an acquisition, whereas Otto would have expressly stated they own all IP and have authority to sell the same, which would be a breach and potentially void/invalidate the entire acquisition. Either way, If Uber is infringing IP they can be enjoined, but unless it can be shown Uber instructed the Otto founders to steal the IP or knew it was stolen I think they would be indemnified, assuming that's what occurred.
Wouldn't that be a reasonable time to do this?
Disclaimer: IANAL.
EDIT: I'm getting some downvotes, so I will link to this that seems to support what I'm saying:
http://criminal-law.freeadvice.com/criminal-law/white_collar...
Perhaps my use of 'falsely' is confusing, but what I mean is if what you are refusing to say is not actually a crime, and it is discovered, you could be charged with a crime (i.e. perjury, giving false statements under oath).
It seems like you're approaching the 5th amendment as a direct point/counterpoint arrangement: the police accuse you of robbing a bank, you know you didn't because you were cheating on your spouse, you can't take the 5th because cheating on your spouse isn't a crime, so you must answer "I couldn't have robbed the bank because I was cheating on my spouse at another location".
But the amendment is much broader than that. Since you don't know what other information the police are attempting to validate or even what crimes they're aware of, you have no way to know if "I was at $hotel with $other_person at $time" may incriminate you in this case or some other case.
However a judge could force you to testify in someone else's case. You can't broadly plead the 5th in that case unless the testimony is incriminating. Let's say you saw a murder happen at a hotel you were at while cheating with your wife. A judge is allowed to force you to answer the question.
The federal definition of misprision requires that, “(1) the principal committed and completed the felony alleged; (2) the defendant had knowledge of the fact; (3) the defendant failed to notify the authorities; and (4) the defendant took affirmative steps to conceal the crime of the principal.” See United States v. Baumgartner (6th Cir. Sept. 24, 2014)
(I only know because i am barred in maryland and dc, and virginia was the state that had adultery on the books)
It is unlikely to ever be held constitutional, so in practice, they use it as something to plea bargain to :)
More: If, therefore, you wish to construe what my silence betokened, you must construe that I consented, not that I denied.
Cromwell: Is that in fact what the world construes from it? Do you pretend that is what you wish the world to construe from it?
More: The world must construe according to its wits; this court must construe according to the law.
https://en.wikiquote.org/wiki/A_Man_for_All_Seasons_(1966_fi...
In a high-stakes (or even potentially high-stakes) legal situation, it is entirely rational to invoke your 5th amendment right, provided that it even remotely plausibly applies. You don't need to actually be guilty of anything to invoke the right and I don't draw a conclusion that you are likely guilty by your exercise.
Legally it doesn't imply anything. Innocent unless proven guilty.
[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.
Baxter v. Palmigiano https://scholar.google.com/scholar_case?case=774435244658025...
Doesn't imply guilt, but it shows that Uber recognizes the alleged conduct could be criminal versus just a tort.
...or that his lawyer is competent.
Of course, he may be more worried about the future, outside this case.
[1]https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
"Uber’s lawyers claim that the company doesn’t have the documents Levandowski allegedly stole from Waymo and therefore won’t be handing them over tomorrow as part of a scheduled document production."
So more like "I don't have those documents, and I can't say more."
https://techcrunch.com/2017/03/30/ubers-anthony-levandowski-...