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Powergamz1 -> RE: Might get interesting... (5/23/2013 11:00:56 PM)
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If she is in a room with a sergeant at arms between her and the door, and an empaneled government official telling her to sit down and answer the questions, then by USSC rulings, she would have every right to feel as though she were under custodial interrogation... and the test is *not* whether the authorities say you aren't free to leave.
More compelling though is that the SSC has made it clear that any waiving of one's constitutional rights need to be an intelligent waiver, not something you are coerced into.
In the case of a court room, before any defendant gets up to testify, the 'neutral judicial authority'...(judge) is going to make damn sure that they go on record as understanding that they are waiving their rights... I doubt seriously that any such safeguard was given by Issa.
Congress postures about a lot of things similar things, I still don't see Issa getting very far with this one.
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ORIGINAL: muhly22222
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ORIGINAL: mnottertail
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ORIGINAL: muhly22222
Actually, she did waive her Fifth Amendment rights.
A witness, whether in a court proceeding or in Congressional testimony (they're subpoenaed and sworn, remember) can "take the Fifth" if testifying could subject them to criminal prosecution. However, that right can be waived, and it doesn't have to be done explicitly. Answering any questions beyond simple identifies ("What is your name?" for instance) or giving any testimony waives the Fifth Amendment right as to all questions. So when Ms. Lerner stated that she was innocent, that she had done nothing wrong, she was offering testimony. Because she offered some testimony, she opened herself up to the requirement that she answer any question asked of her. It's all or nothing...either you get to have your say, but have everything you say tested through questioning, or you don't get to say anything.
Think of it like this. Imagine a criminal defendant (I know that's not the situation she's in, but the same rules apply). This defendant is testifying on his own behalf at his trial. He can't take the stand and say "I didn't do it," and then take the Fifth when the prosecutor starts asking him questions to attack his story.
I hear you, and know you are a voicebox, so this is learned opinion, but I would ask you if she had been mirandized (*is that the word*) at that point? If not, we got some ways to go to get a judgement on that, don't we? I mean she is called as a witness, where she is compelled to take the stand, this is not a trial. This is not judge and jury at this point where outcome could be compromised by selective testimony. Isn't it in such a case well established that there can be selective invocation?
It's not relevant at all whether she had been "Mirandized," though she almost certainly wasn't. Miranda only covers statements made during custodial interrogations, and while you could argue that she was being interrogated, she wasn't in custody, so Miranda doesn't apply.
It's not a judge-and-jury situation, but the results of the hearing (Congressional action) could still be compromised by selective testimony (in theory, anyway). If Congress is not given the whole story, any reforms they try to make to ensure that something similar doesn't happen again may not be sufficient, or they may be unduly heavy-handed. And I don't know of any situation where selective invocation of the right against compelled self-incrimination is allowed.
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Worst circumstance is what? a year in jail and $1000 fine? Near elections and a very public court battle? Think Issa is that stupid? I mean I know he is an imbecile, but he does have some self preservation awareness, doesn't he? Big government crushing the rights of the small people and all? Forget reality, I saw it on the spin zone, on TV, which means it happened.
If it goes to court after that, it is a new question, no? In which case the 5th will hold will it not?
If that's the worst-case scenario for Ms. Lerner, and Issa knows that she won't be prosecuted even if she takes the full brunt of the blame, he could always grant her immunity. That would take away any danger for self-incrimination, and then she'd be forced to testify.
If there's a prosecution of some sort in the future, her ability to take the Fifth would be at issue there, too. Even assuming that she waived her right to do so in front of Congress, she could take the Fifth in court, although her Congressional testimony could then be introduced against her. If it's somebody else being prosecuted (say, the head of the IRS, if it goes that high), then they could grant her immunity and force her to testify.
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