Wedding Photographer Spent a Year in Jail After Pleading the Fifth | Hacker News Reader

Wedding Photographer Spent a Year in Jail After Pleading the Fifth

petapixel.com

47 pointsjakobdabo47 comments

The guy happened to be a photographer, but his being subpoenaed and held in contempt had to do with him refusing to testify against his corrupt DEA brother. He “pled the Fifth” to avoid, in his own words, testifying against his brother, which is not what the 5th Amendment protects. His lawyer claimed he was pleading the 5th to prevent accidentally perjuring himself, but there’s no such thing as accidentally perjuring oneself. Prosecutors have to prove you willfully and knowingly told a falsehood.

This is just someone paying the cost they have to pay to protect their criminal brother.

Seems like due process working well AFAICT.

> Prosecutors have to prove you willfully and knowingly told a falsehood.

No, they have to make someone else believe you did. How else would this burden of proof be lifted? some form of brain scan that can just say "yeah, he willfully did it!"? no, they put fourth some motive/set of circumstances, and if a bunch of people believe the spin, its "proved"

Good point! If you are under oath don’t give testimony that your average juror would take to be a willful and knowing lie.

Jurors by definition aren’t the brightest, since they don’t know how to get out of jury duty.

Factor that into your deception/truth-telling calculation if and how you want

Some people are willing to serve without resistance because it needs doing. I am one of them.

Me to, twice. Which is where my opinion of jurors was formed.

I try to get seated because jurors have the power to return not_guilty for any reason.

Wait, you’re saying incarceration someone for 18 months without charges or trial is somehow alright?

No. Not alright.

If you think it’s fine I encourage you to go through it. Oh you’re not interested in spending 18mo in jail? Then STFU.

So, what then? Allow people to be in contempt of court with complete impunity?

Surely there is some sense of proportionality?

Is refusing to speak worse than the average felony?

Yes I do think that we (society writ large, acting through the mechanism known as “a democratically elected government”) should be able to compel people to face our justice system.

It’s all part of due process.

> It is worth noting that the DOJ defines perjury as a declarant “willfully” making a false statement, that the declarant believed that what they were saying was untrue, and that the statement was related to a material fact. Misremembering a detail is not, in and of itself, perjury.

The prosecutors and judges have a lot of leeway with assuming "willfully". Plenty of people have been convicted because a prosecutor wanted to apply pressure / make an example and choose to believe an incorrect date was a willful lie.

Something about this smells like a bad attorney. Especially the part where he didn’t know that he was free until his card stopped working. But who knows, and it doesn’t matter anyway since the legitimacy of the court system is supposed to rely on common ideas of justice rather than process. If all we have from courts is process, it’s no longer justice, only bureaucratic oppression.

If not the 5A, on what can one use to refuse to testify in court? The law can not compel you to help the government investigate somebody, right?

Oh I believe they can. Isn't it called a supoena?

Yes. I mean, that's the whole point of that part of the fifth amendment. There would be no need for an explicit carveout of self-incrimination if the government didn't have the general ability to compel witnesses to testify.

Exactly. I suppose in some sense you have to admire America’s ability to produce people who believe the government has ~zero authority.

“The government can’t possibly do [basic function of every government since dawn of tribal life], can it?”

Yes indeed it can.

There’s just so much freedom over here it’s hard to tell where ends and where it begins.

They can compell you testify if they offer you immunity.

The standard other exemptions are doctor-patient, attorney-client, religious leader-religious person, and spousal confidentiality laws. Some, but not all, states also shield journalist's sources. In the last case, in states without a shield law, going to jail to protect a source's identity is considered a professional honor.

Clickbait headline.

Weddinga and photography have no relations to the substance of the article.

This is a loop hole that is often exploited to punish people without the application of due process.

Terrible.

He doesn't have the right to plead the 5th to avoid testifying against anyone but himself or his spouse, so his attempts to plead the 5th were just nonsense. Making an issue now seems to me like the "justice" connected criminals he was protecting by his contempt are somehow more worthy of rights than everyone they have used this tool on.

One always has the right to remain silent, for any reason. Compelled speech is immoral. (And rights do not come from the government)

The people telling you otherwise are not interested in protecting you or anyone else.

Rights don’t come from your government but the protection of those rights does, so tomato tomato.

You have the right to remain silent during questioning outside court. By the way have you seen how far this has degraded? You can't remain silent until you say you are remaining silent explicitly by claiming this right.

But, I'm not sure you have the right to not speak in court when called to testify.

For anyone who wants to read up on the erosion of the right to remain silent.

https://www.aclu.org/press-releases/two-supreme-court-cases-...

In particular, here's a quick overview of the idea that you need to speak to invoke your right to remain silent, rather than just remaining silent.

https://versustexas.com/blog/miranda-right-to-remain-silent/

Nitpick: When you refuse to testify against your spouse you are invoking spousal communication privilege, or spousal testimonial privilege, not 5A.

> He doesn't have the right to plead the 5th to avoid testifying against anyone but himself or his spouse, so his attempts to plead the 5th were just nonsense

That’s not true, you can invoke the Fifth anytime testimony might incriminate you, regardless of who it is directly against. If this is founded (which may itself be contested if it isn’t directly against yourself), you can’t be compelled to testify unless the potential for self-incrimination is neutralized by immunity.

However, in this case there was no real self-incrimination concern.

Yes, I meant the 5th is only to avoid testimony incriminating himself, which he couldn't do.

No, the "right to remain silent" is absolute. It's a refusal to testify to anything at all. The grounds of self-incrimination are there, but if nobody knows what you'll be asked or how you'll answer, those grounds are sort of immaterial.

What do you mean if nobody knows what you'll be asked? You have to actually have been asked something to decline to answer.

This is correct.

You can’t just say you are invoking the 5th and refuse to testify. If pressed, you actually have to get up there and invoke it — possibly to every question if needed.

The fear of perjury is an interesting twist, though. And the removal of immunity may affect things too.

(Although in your own trial you have the right to not testify, that doesn’t apply here).

> The fear of perjury is an interesting twist, though.

Its a nice try, but the right not to testify against yourself is not a right not to testify in a situation in which you might be tempted to choose (perjury not being a crime you can connit accidentally) to commit a crime.

What if you're a pathological liar?

Then you can choose psychiatric incarceration?

What about the belief that you can't selectively invoke it? That if you break that silence then they can compel you to answer everything else from that point on? How's that work?

They might as well abolish this right anyway. As if every device we ever touch won't testify against us in the first place.

> No, the "right to remain silent" is absolute.

Constitutionally, no, the right referenced by that phrase in, e.g., the Miranda warnings is the 5th Amendment right against self-incrimination (“No person... shall be compelled in any criminal case to be a witness against himself”).

The belief that a more general “right to remain silent” exists may be a moral belief of some people, but, it is not a legal right, and judges can and will conduct questioning to assess if the legal right applies.

When you say loophole, do you mean the fact you have no 5A right against self incrimination once you are grAnted immunity? Or something else?

I was talking about holding people in contempt and jailing them for long periods of time.

You can not be held in contempt for invoking your 5th amendment rights when they apply. That's one of the things the fifth amendment protects against.

Then why does it happen?

It doesn't. When has it in the past 50 years? (There were some violations during the 60s and earlier). You might find a counter example with some CIA involvement or something.

Like you cannot walk into a bank with a gun yelling 5th amendment and not go to jail. It's not blanket. It protects you from statements of self incrimination.

Are you serious?

Yes. What's your counterexample?

Held in a psych ward too, huh. I wonder what variety of insanity he was guilty of.

I wonder how many comrades were found insane after January 6th.

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