TV dramas that are loosely based on the American legal system often have a trial scene where a lawyer is asking the witness several questions and the witness “pleads the Fifth.” Once the character pleads the Fifth, he no longer has to speak on the subject and a loud gasp is heard in the courtroom as the witness defiantly walks off the stand.
Pleading the Fifth Amendment in real life is not as dramatic, but it does give the user several benefits. Here are some things you should know about invoking the Fifth Amendment.
What is the Fifth Amendment?
The Fifth Amendment of the U.S. Constitution provides, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury…nor shall [any person] be compelled in any criminal case to be a witness against himself…”
The Fifth Amendment protects witnesses from having to testify if they may incriminate themselves in the process through this testimony.
When Can the Fifth Amendment Be Invoked?
Witnesses can assert the Fifth Amendment against self-incrimination in both civil and criminal proceedings. They can claim the privilege in state or federal court in trials, depositions, administrative law proceedings, and investigatory proceedings such as grand jury hearings. However, the privilege does not apply to people who fear exposure to prosecution in countries other than the United States.
What’s the Difference between Invoking the Fifth Amendment in Civil versus Criminal Cases?
There really is no procedural difference in invoking the Fifth for Civil and Criminal cases. In both cases, a witness can invoke the Fifth in trials, depositions, administrative law proceedings, and investigatory proceedings.
It is not uncommon for a witness to be involved in a civil and criminal case at the same time. For example, a witness may be called to testify in a civil deposition while a criminal case against him is in its investigative stages. In this case, the witness will likely invoke the Fifth Amendment. Because a criminal proceeding’s consequences can be more severe than civil cases in that criminal findings can include prison or jail time, a witness may be able to get a judge to postpone (or “stay”) the civil matter until the criminal one is concluded. Even if no stay is granted, a witness would be better off invoking the Fifth Amendment in the civil case in order to prevent self-incrimination in the criminal case.
Can You Waive Your Fifth Amendment Privilege?
Yes. If a witness invokes the privilege, but later makes statements about the topic in question, he automatically waives the privilege as to that point. For instance, if a witness invokes the Fifth but answers questions about that specific subject matter later, the judge could decide that the privilege was waived. While a witness can waive the privilege after asserting it, judges are hesitant to rule that the privilege was waived because inadvertent waiver of the privilege can have serious implications.
Are There Any Limits on the Fifth Amendment Privilege?
There’s no limit on the amount of times you can invoke the Fifth Amendment in any proceeding. Hilary Clinton’s IT specialist recently invoked the Fifth Amendment 125 times during his deposition. However, not every disclosure can be subject of a Fifth Amendment assertion. Instead, only statements that the witness “reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used” are subject to the Fifth Amendment. The question then becomes whether the other side can use the statements against the witness. The witness is entitled to claim the privilege against self-incrimination if the other party could reasonably use the statements as evidence against the witness.
Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law
Should it be a crime for someone to sell life insurance policies to investors without the insurance companies consent? More importantly, should one go to jail for fraud even when the defendant didn't actually steal any property? Michael Binday doesn’t think so, and he’s taken his case all the way to the Supreme Court.
In a petition filed with the court on March 10, former insurance broker Binday asked that the appeals court’s ruling in his case be overturned, arguing that although he may have breached his contracts with insurance companies, he did not commit a crime in doing so. Binday argues that he didn’t actually steal anything from the insurance companies and so cannot be guilty of fraud under the statutes.
Is It Fraud If the Defendant Restricts the Victim’s “Right to Control Property?”
It depends on who you ask. Prosecutors considered the information on the insurance applications Binday obtained to be the insurance companies “property,” because the information influenced the companies “right to control” who they do business with, and charged him with mail and wire fraud based on their interpretation of federal fraud statutes. One of these statutes states, in part, that whoever uses the mail “for obtaining money or property by means of false or fraudulent pretenses” is guilty of mail fraud.
Another federal fraud statute similarly states that whoever uses means of interstate communication “for obtaining money or property by means of false or fraudulent pretenses” is guilty of wire fraud. In documents presented to the Supreme Court, prosecutors argue that Binday’s actions deprived the insurance companies of their right to make an informed decision about what to do with their money or property.
Binday’s defense team fired back that the insurance companies had not actually suffered a loss of tangible property as the prosecution never even attempted to prove that the insurance companies had lost money on the policies Binday procured. The defense further argued: “if depriving an insurance company of information necessarily deprives that company of property, then all lies to insurers are mail or wire fraud, full stop.” The defense went on to say that the “right to control property” doctrine worked to dramatically expand the scope of the federal fraud statutes.
So How Will the Supreme Court Rule in United States v. Binday?
Binday’s defense argued that that the Supreme Court’s review is especially important in their case because of how easily federal prosecutors could then apply the same “right to control property” reasoning to other cases. With these remarks, the defense recognized the Supreme Court’s power to set a precedent in how future, similar cases will be decided.
The prosecution argued that the harm suffered by the insurance companies in Binday’s case was significant, and that damages included fewer than expected premium payments as a result of Binday’s “fraudulent inflation” of the insurance applicants’ net worth due to insurers expectations that applicants with higher net worth tend to live longer and that insurers would supposedly receive less income than expected because while third-party investors typically fund policies at or near the minimum amount necessary, people with insurance often pay more than the required premiums.
Additionally, the prosecution asserted that, as a result of Bindery’s scheme, insurers would have to pay out on more policies than anticipated, because while a proportion of insured people terminate their policies, third-party investors do not.
In spite of the damages Binday’s insurance scheme supposedly caused insurance companies, it seems unlikely that the Supreme Court will apply the broad language of federal fraud statutes against him. Binday’s defense argued that the fraud statutes cited by the prosecutors were not a license to “punish all wrongdoing wherever found” with federal prosecution.
Binday’s own defense team admits that he violated the terms of his agreements with the insurance companies. However, in their petition to the Supreme Court, they argue that what should have been, at most, a state civil dispute was unjustly transformed into a federal criminal case. They suggest that a more appropriate way for the insurance companies to address their issues with Binday would be to sue him for breach of contract or terminate him as a broker.
Instead, it appears that the appeals court in Binday v. United States overstepped its boundaries to make an example out of the defendant. The Supreme Court should right this wrong and rule in Binday’s favor.
Authored by Andrea Babinec, LegalMatch Legal Writer
In 2013, Christine and Ronald Holt tragically lost their 6-year-old son, Brandon, when he was accidentally shot by his 4-year-old playmate. The young boy found a loaded .22 caliber rifle under his father’s bed and presumably got it out to play—the boys were playing “pretend shooting” and Brandon was shot in the head with the rifle.
Anthony Senatore, the 4-year-old’s father, was criminally charged with 6 counts of child endangerment for failing to secure the weapon (as well as other weapons around the house with ammunition nearby) that was used in Brandon’s death. Senatore never denied responsibility and ended up pleading guilty to 2 counts of child endangerment and was sentenced to 3 years in prison.
Afterwards, the Holts brought a wrongful death claim against the Senatores. Since the young boy’s father never denied his own responsibility in Brandon’s death, Judge Robert Brenner only had to determine how much the Senatores would have to pay the Holts. The award would be for the services and companionship Brandon would have provided to his parents throughout his life as well as the Holt’s pain and suffering and any unpaid medical and funeral expenses.
The court found Anthony Senatore 90% at fault for failing to secure his rifle. Photographs were produced as evidence at trial that showed a clean dark-wood floor under the bed, with no dust, which meant the area had recently been cleaned. Melissa Senatore, the boy’s mother, was found to be 10% at fault because, since the area had recently been cleaned, she should have known the weapon was under the bed.
The Judge ordered an award of $572,588.26 to the Holts and further ordered an investigation on the Senatore’s assets to determine whether they could afford to pay punitive damages.
Should Parents Be Liable For Their Children’s Actions?
It’s not exactly an easy answer because it should depend entirely on the circumstances of the case rather than automatic parental liability. At some point, children definitely need to be held accountable for their own actions but, in terms of criminal liability and a parent’s firearm, it’s not a new concept to hold parents responsible.
Twenty-seven states and D.C. have enacted laws regarding child access prevention laws. The strongest ones are specifically written for when a minor gains access to a negligently stored firearm, like in the case above, and those apply when the person “knows or reasonably should have known” that a child is likely to gain access to that firearm. Storing a loaded gun under a bed isn’t exactly a secure hiding spot.
Other states have broader implications, and the only restriction is directly giving a firearm to a minor. Currently, Massachusetts is the only state that specifically requires storing firearms with a locking device.
Civil liability is a different story because it’s much broader. Most states have laws on the books covering civil liability for any and all malicious or willful property damage done by their child. Most of these were originally enacted to cover automobile accidents and didn’t specifically apply in situations like the Senatores and Holts.
Now, parents can be held liable for their child’s civil wrongs (like wrongful death) just the same as employers can be responsible for the actions of their employees via vicarious liability laws. The idea is that parents are in a better position to be able to deal with the financial ramifications of the damage done by their children, but that doesn’t necessarily always seem fair.
Is There a Possible Alternative?
Not really. The good thing to keep in mind is that most state laws won’t hold a parent liable for criminal acts in which they had absolutely no control over, because most will handle the crime under the state’s juvenile laws. Senatore wasn’t convicted of murder on behalf of the crime his child committed, he was charged with child endangerment, which is entirely different and that’s taking on the liability for his own actions in and of itself.
So it really comes down to whether or not you agree with the idea that a parent can be vicariously liable civilly for their children. When it comes to firearms, parents should definitely be held responsible when they’ve negligently stored a firearm and giving a child access to it. For other crimes though, it seems like it could be a slippery slope to go down. A child driving their parent’s automobile or using their handgun is far easier to regulate because the parent has control over their possessions that a child may gain access to, but it’s a heck of a lot harder to regulate when a child goes out to purchase, and use, their own handgun.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
On March 24, 2016, the Oklahoma Court of Criminal Appeals declared that a person who forced to give oral sex while heavily intoxicated cannot claim that they were sodomized against their will.
The facts of the case are simple. The Defendant forced himself upon his intoxicated and unconscious 16 year old victim, resulting in forcible sodomy. Although the defendant and the victim knew one another prior to the sodomy, that didn't stop him. The prosecutors in the case charged the Defendant with the crime of forcible sodomy, but the Judges found him to be not guilty under the statute.
So what is the statute? What is the Judges’ reasoning? This is clearly problematic, but why?
Under the Oklahoma Statute, Forcible Sodomy is Very Specific.
In this case, the defendant and the victim did not fall under any other requirement except for the second requirement. So the Court only focused on the second requirement and applied it specifically.
Since the Statute Does Not Specify “Intoxication”, the Defendant Did Not Violate the Statute.
The Court unanimously voted 7-0, that the Defendant did not violate the statute. The statute only covers when consent could not be given due to mental illness or unsound mind. In this case the victim was intoxicated, but intoxication (no matter how severe) is not considered to be a mental illness or reflect unsound mind.
There is a separate law for protecting victims who are too drunk to consent to sex. But that law only specifies penetrative sex and not oral sex. The Court had two options: expand the interpretation of the statute or refuse to expand the meaning and take it as read. Here, the Court decided not to expand the meaning and apply the statute as it is written.
The law has a significant blind spot: persons 16 years or older who do not have a mental illness or unsound mind, who were sexually assaulted without force or threat of force. In this case, it was a 16 year old girl who was forced to engage in oral sex while she was too drunk to resist. Since the Court decided not to expand the law, there is now a large class of people who can be sexual assaulted without consequence.
What Does This Mean for the State of Oklahoma?
If this decision becomes binding, it could let assailants walk away from their crime due to the large gap of coverage. It is clear that there is a large gap in the statute. Prosecutors and victims will need to face this argument many times before the law changes.
Now, the law can only change through the legislative branch and that may take months or years before it can change. Until then, prosecutors may find their legal arguments frustrated by such a literal interpretation of the law. Defendants who may have otherwise been found guilty, could end up walking away from the charge of forcible sodomy.
But above all, the victims will suffer the most.
When the Law Fails the Victims It Is Built to Protect
In the United States, 44% of victims of sexual assault or rape are under the age of 18. Most sexual assaults or rapes are committed by a person that the victim knew. Only 32% of sexual assaults are reported to the police, meaning 98% of rapists will never spend a day in jail or prison.
The numbers make it clear. The majority of all cases of sexual assault or rape are never reported; victims tend to know their assailants. Half of victims are under the age of 18.
The United States claims to be dedicated to protecting the downtrodden and those that cannot defend themselves. Across the nation, women and children are protected, cherished, and cared for. But so often, the law fails them when it comes to protecting them from the dangers and risks of the world around them.
This case is a clear example of how the law has failed our women and children and that statutory law surrounding sex crimes need to be reformed to truly protect them.
Authored by Janice Lim, LegalMatch Legal Writer
North Dakota, among 11 other states, makes it a criminal offense to refuse to submit to a warrantless chemical test when arrested for driving under the influence. The case before the Supreme Court stems from a traffic stop where Daniel Birchfield was pulled over for driving under the influence. Birchfield failed a breathalyzer, was arrested, and then asked to submit to a chemical test for which he refused. Although Birchfield was not ultimately charged with driving under the influence, he was charged with refusal. Failing to submit to a chemical test is a misdemeanor in North Dakota.
Birchfield’s argument rests on the fact that because warrants are a prerequisite to a search, the current law requiring a warrantless search violates the 4th Amendment. North Dakota’s argument rested on implied consent laws, arguing that by driving a vehicle, you agree to submit to a chemical test of your breath, blood, or urine to determine blood alcohol level. Higher courts agreed with North Dakota and denied Birchfield’s motion to dismiss his case.
Are Warrantless Chemical Tests Legal?
The Justices raised some good questions that reflect they may lean towards requiring warrants for chemical tests. Besides the above arguments, let’s take a look at a few issues that were discussed in front of the Court.
Arguments in favor of keeping the law allowing criminal charges for a refusal:
Here’s a few reasons argued in favor of a finding these type of laws unconstitutional:
The argument that because a driver suffers from civil penalties, so a driver can equally suffer criminal penalties seems a bit off. Civil and criminal penalties are two totally different ends of the spectrum and that’s definitely not a good enough reason to excuse a constitutional warrant requirement. Despite the arguments made in favor of keeping the law, there seems to be some evidence the Court may lean towards the latter arguments in favor of traditional 4th Amendment protection.
Warrantless Chemical Searches May Be a Lost Cause, but Breath Tests Are Still Questioned
In the 2013 Missouri v. Mcneely case, the Supreme Court ruled, “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” This implies warrantless blood tests may already be a lost cause and, ultimately, the argument before the court ended on the question of whether a breath test, even if only minimally intrusive, should still require a warrant.
Safety of public roadways is a compelling enough interest and probably the strongest argument in favor of keeping the law, but, as evidenced above with their stance on a blanket exigency for blood tests, I don’t anticipate they’ll find any different for breath tests.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law