Do you feel that the 4th amendment should protect them? Or perhaps a new amendment should be written to protect them and abolish power of subpoena?
I’m slightly biased as I ask this. I feel that the mind is “sacred” in a sense, that it should be considered a fundamental human right for an individual to be able to preserve privacy over their internally held thoughts and memories, and that the ability of the court to force an individual to speak or disclose part of their mind is a wild overreach of power and an affront to the personal liberty of the innocent.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
furthermore, you can always say ‘i dont recall’. no amendment required
A witness can still be punished if the court can prove that claims of poor recollection are being abused.
you mean like when an ex president gets on the stand and says i dont recall to very obvious things he should know?? like that?
Yes, exactly like that.
Of course, it depends on whether the court can prove their recollection whether or not they can be punished, but the bottom line is that it’s still illegal and the court remains legally entitled to forcefully procure truthful thoughts and memories from a person.
I don’t support any suggestion that updating the law doesn’t matter because it is sometimes difficult to enforce, if that was your intention.
I’m practice it only presents a problem to those who have previously testified but might be called as witness, so the def can confront them.
The only thing gained would be is now it’s easier to bribe or threaten witnesses into not testifying. If you wish to not testify at all as others have mentioned I don’t recall or I was tying my shoes are there for you to use.
So… How would a requirement to testify be enforced? If witnesses were thrown in jail for not testifying, couldn’t cops use that to threaten a “witness” into making a false statement?
How would you tell a witness who was hiding something from a witness who didn’t see anything?
I think you’re confused. The court already has the ability to force testimony, and witnesses can already be thrown in jail for refusing to testify.
I updated the title to make it clear that I’m referring to penalties that already exist, rather than suggesting that new penalties should be created.
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The prosecution generally does not call recalcitrant witnesses because they make bad ones.
How would you tell a witness who was hiding something from a witness who didn’t see anything?
Corroborating evidence. If multiple people say “yeah Jimmy saw the entire thing”, that’s how you know. The lawyers can’t just say “we think @[email protected] was there so they have to testify.” Mostly because you’d make a terrible witness for the prosecution (or the defense).
Let’s be very clear: a witness refusing to testify is a rare occasion. Why? Witnesses usually only get called if a party thinks they’re worth the hassle. So things like this are usually avoided. Also there’s only a few reasons to refuse to testify:
- self incrimination (5th amendment), which is protected by law and takes priority
- distrust for the legal process / the police
Basically the only way you can get in trouble is if you distrust the legal process / the police, you can not raise 5th amendment issues or there is an immunity deal that applies.
Currently you are only able to issue contempt charges, and that’s about it, and that stuff is also very much limited considering relevant case law.
I think it’s like a day to a month in jail.
Let’s also make clear that there is currently a court case going on against young thug, where basically the whole law community is mad at the previous judge (which has been overruled by the supreme Court in an emergency motion; the equivalent to a royal “you fucked up”), and there’s still an endless list of issues. A lot of issues surround a witness who has been lying his ass off and said as much in open court, but who has been part of highly improper ex parte communications and other shenanigans which basically aimed at intimidating him into testifying against young thug.
I bring this up because although there’s a lot of publicity, this is not how it usually works, and this is a bad reference, so I don’t want people to draw from this case.
Back to your question, the penalty, which I again think is about a day to a month in prison. I think it’s a bad thing that you can throw people in jail for this shit, but I also think it’s the best thing there is right now. Court does not have the resources nor the time to properly deal with hostile witnesses, and that means they are limited in what they can do.
Also let’s point out again that in any case, such witnesses only exist, when the moving party has made a huge mistake or something slipped through the cracks.
TL;DR I think it’s not a great penalty but it’s the best we have. Also there’s truckloads of context needed to have a very productive debate on this.
Disclaimer: specific cases get weird, because circumstances and jurisdictions are weird, so “it depends” is still the only viable answer to most things, and IANAL.
Do you feel that the 4th amendment should protect them?
No.
Or perhaps a new amendment should be written to protect them and abolish power of subpoena?
No. In fact I think people who refuse to testify should be held in contempt until they do. If they lie, perjury should be strictly prosecuted.
[T]o force an individual to speak or disclose part of their mind is a wild overreach of power and an affront to the personal liberty of the innocent.
I strongly disagree with the concept that “I was a witness to a rape, but I shouldn’t have to tell a court what I saw because my right to shut up is more important than the right of the state and victim to get justice or for the right of the defense to have a fair trial.”
It’s a multi-edged sword. It also means someone could be forced to testify against a friend or loved one, and in a slightly removed example, my beliefs also apply to laws that allow individuals to be imprisoned for failing to provide a password to locked electronics, regardless of whether or not they actually remember it.
Maybe it would be a good middle ground to instead expand the privileges that allow members of a marriage to avoid testifying against one another, to include friends and family. The same reasoning applies, except that the state believes it can determine the strength and meaning of a relationship by its title and type alone.
Maybe it would be a good middle ground to instead expand the privileges that allow members of a marriage to avoid testifying against one another, to include friends and family.
A terrible idea. Corruption, bribery and such things would grow and expand even more than now, and effectively destroy friendships, turning them into bad kinds of dependencies.
I’ve never heard this before, I just heard they can’t mislead. Where I live, everyone has the right to remain silent.
