Category Archives: Fifth Amendment

Tmc the Metals Company Inc. Enters into Fifth Amendment to Pilot Mining Test Agreement and Third Amendment to Strategic Alliance Agreement, Which Is Effective as of February 8, 2023, with Deepgreen Engineering Pte Ltd, Deepgreen Metals Inc. and Allse  Marketscreener.com

View post:
Tmc the Metals Company Inc. Enters into Fifth Amendment to Pilot Mining Test Agreement and Third Amendment to Strategic Alliance Agreement, Which Is...

The least controversial aspect of the Fifth Amendments Due Process Clause is also its least interesting. The clause may reiterate the rule of law itself with respect to the ways in which decisions are made. Whatever else it means, due process of law very likely means the government must follow procedure called for by the applicable law, other than the Due Process Clause itself. (For example, if an applicable statute says that the courts of appeals must hear oral argument in certain cases, they may not limit parties to written submissions.) While a promise by King John to respect the rule of law may have been significant in 1215, when an ancestor of the Due Process Clause first appeared in Magna Carta, in our legal system with a written constitution, it is simply assumed that the executive and the courts must operate in accordance with legal rules.

Whether the Due Process Clause adds any procedural requirements of its own is more doubtful, but it may. On one hand, due process of law is sometimes used to mean something more than compliance with whatever procedural rules the law contains. On the other hand, constitutional drafters who wanted to make sure that government decisions were subject to procedural requirements might have thought such a vague provision to be too unclear to impose specific requirements on top of the procedural rules contained in other laws.

The history of the Due Process Clause suggests another reading, one that was very important for many decades but that has largely dropped out of sight. According to this interpretation, due process of law means specifically the procedures that are used by, and only by, the courts. Courts decide according to existing law after giving parties notice and a hearing. According to this interpretation, the Clause is part of the separation of powers: it absolutely forbids the executive and the legislature from doing what the courts do, which is to deprive people of life, liberty, or property. As an historical matter, this reading was mainly deployed against legislation that directly altered property rights by pure force of law, like statutes cancelling corporate charters previously granted. While this reading played a very important role in constitutional history, it is subject to the objection that it just reiterates the separation of powers itself: if there are functions that only courts may perform, the separation of powers keeps the legislature and the executive from performing those functions. This reading of the Due Process Clause (and of analogous provisions in state constitutions) was the textual foundation of the nineteenth century doctrine of vested rights, according to which private property, and private rights created by contracts, were protected against legislative alteration.

Substantive due process as it is currently understoodmeaning that the government may not violate certain fundamental rights that do not appear elsewhere in the Constitution, and may not draw certain classifications (for instance, based on race or sex), without especially strong justificationis difficult to justify in light of the text and history of the Fifth Amendment. The text is at best a very indirect way of saying that government must be reasonable, that unidentified but important interests are protected to some substantial but unidentified extent, and that some unidentified grounds of distinction must have an especially strong justification. If the drafters wanted to convey any of those messages, they would have done so much more openly and in much greater detail. The history does not suggest that the Due Process Clause of the Fifth Amendment was anything like as important or ambitious as current substantive due process doctrine makes it.

Originally posted here:
Interpretation: The Fifth Amendment Due Process Clause | Constitution ...

IE 11 is not supported. For an optimal experience visit our site on another browser.

UP NEXT

Takeaways from the Jan. 6 Committee's 18-month probe07:55

Inside the January 6 Committee06:10

Rep. Stacey Plaskett: Midterms taught us we want this to remain a democracy06:50

A historic week in review09:42

Rep. Raskin on newly-released 1/6 transcripts13:16

January 6 Committee report shows Trump knew he lost 2020 election03:40

Trump team's inability to remember anything from Jan. 6 strains credulity04:14

Behind the scenes: How the January 6 Committee operation came together10:37

Jan. 6 Committee releases new tranche of interview transcripts04:37

Hutchinson dealt with turmoil, fear over whether or not to break with Trump, transcripts show06:04

Jan. 6 final report details organization behind Trumps 'fake elector' plot04:52

Capitol Police officers message to Trump: Accountability is coming07:48

Profile in courage: Cassidy Hutchinson01:48

Hutchinson description of Trump team pressure opens another avenue for criminal inquiry06:32

Awkward: McCarthy, Jordan could end up under investigation even as they take House control01:18

What's next for Congress after it released final Jan. 6 report04:54

To defy Trump world, transcript shows Cassidy Hutchinson draw courage from history06:40

McQuade: Text of Jan. 6 final report reads like a story02:46

Lawrence: Cassidy Hutchinson did not want a lawyer from Trump world15:51

Capitol Police Officer Harry Dunn on shocking revelations in Jan. 6 transcripts07:46

Rachel Maddow points out that in a batch of 34 transcripts of interviews released by the January 6th Committee, interviewees invoked their Fifth Amendment rights so frequently that they refused to answer even the most basic, benign questions.Dec. 22, 2022

UP NEXT

Takeaways from the Jan. 6 Committee's 18-month probe07:55

Inside the January 6 Committee06:10

Rep. Stacey Plaskett: Midterms taught us we want this to remain a democracy06:50

A historic week in review09:42

Rep. Raskin on newly-released 1/6 transcripts13:16

January 6 Committee report shows Trump knew he lost 2020 election03:40

Excerpt from:
Fifth Amendment invoked to the point of 'unintentional hilarity' by Jan ...

Donald Trump hasn't had the easiest month, with both the FBI search of his Mar-a-Lago residence and a New York deposition to contend with.

The hearing in New York centers on Trump's tax affairs and valuations of Trump organization assets.

Reports of the hearing said that Trump pleaded the Fifth amendment more than 440 times.

Trump, in a statement, said: "I once asked, 'If you're innocent, why are you taking the Fifth Amendment?' Now I know the answer to that question."

"When your family, your company and all the people in your orbit have become the targets of an unfounded, politically motivated Witch Hunt supported by lawyers, prosecutors and the Fake News Media, you have no choice," Trump said.

"Accordingly, under the advice of my counsel and for all of the above reasons, I declined to answer the questions under the rights and privileges afforded to every citizen under the United States Constitution," he added.

However, the circumstances of why Trump chose to use the Fifth are more complex than a simple "no comment" statement in a criminal matter.

To find out what it all means, Newsweek investigated Trump's past comments about the amendment, his potential reasoning for the apparent U-turn, and what it could mean for future hearings.

Trump is being rather coy in his statement, implying that in his past comments he merely questioned the reasons for taking the fifth. In fact, he openly criticized Hillary Clinton's aides during the 2016 presidential campaign for pleading the Fifth in the probe of her use of a private email server.

"So there are five people taking the Fifth Amendment, like you see on the mob, right? You see the mob takes the Fifth. If you're innocent, why are you taking the Fifth Amendment?" Trump asked the crowd rhetorically at an Iowa rally in September 2016.

Even though Trump made the admission that his previous comments may have been unwise, critics on social media were quick to point out the apparent hypocrisy.

There are a few things to unpack here. Firstly, Trump made a false equivocation comparing the Hillary Clinton email probe alongside "the mob." Although the investigation was led by the FBI, it examined whether criminal charges could be sought.

The comparison with the mob did imply, arguably, that Clinton was under criminal investigation.

On July 5, 2016, then-FBI director James Comey released a statement saying that the FBI "cannot find a case that would support bringing criminal charges on these facts" adding "we are expressing to Justice our view that no charges are appropriate in this case."

That being said, the comments on Twitter about Trump's use of the Fifth in New York do not make distinctions about the nature of the hearing either.

The civil case, led by New York District Attorney Letitia James, is investigating the valuation of Trump's assets, and whether the former president's business, the Trump Organization, misrepresented the stated valuations of some of its real estate assets for financial gain, including better terms on loans and insurance, as well as tax benefits.

Trump has strongly denied any wrongdoing.

Although the principle of the Fifth amendment remains the same whether in a criminal or civil case, the reasons for doing so are more nuanced, something that was not explained by Trump's social media critics.

To assess this in more detail, Newsweek spoke to a number of legal experts in constitutional law and criminal and civil litigation to find out more.

Professor Erwin Chemerinsky, Dean of Berkeley Law, told Newsweek: "A person has a right not to answer any questions, in a criminal or civil case, that might lead to statements that could lead to criminal liability.

"In a criminal case, no adverse inference can be drawn from invoking the privilege against self-incrimination," he added.

"In a civil case, an adverse inference can be drawn from invoking the privilege."

Adverse inference is a legal term, which effectively means that when plaintiffs try to present evidence on a point essential to their case, and cannot do so because the document has been destroyed by the defendant, the jury can infer that the evidence would have been adverse to the defendant, and adopt the plaintiff's reasonable interpretation of what the document would have said.

This was supported by Professor Katherine J Florey of UC Davis School of Law, who said that the consequences of taking the Fifth can have a more negative effect on the outcome of a civil case.

"In the criminal setting, juries are not permitted to draw an adverse inference from a defendant's decision to invoke the Fifth, but in some circumstances they may be permitted to do so in civil trials," Professor Florey said.

"It is also the case that, when a defendant in a civil trial relies on the Fifth, they will generally be barred from offering other evidence and/or testimony on the issue about which they refused to answer questions. The idea is to prevent defendants from selectively disclosing only information that helps them.

"In short, relying on the Fifth in a civil proceeding may have some negative effects in that proceeding, allowing an adverse inference and preventing the defendant from introducing some potentially helpful evidence.

"On the other hand, it may be the right choice for a defendant who has significant concerns that they may be criminally prosecuted."

So, while pleading the Fifth in the deposition could prevent Trump from providing other evidence at a later point, which could support his case, the prospect of criminal liability may be looming large.

Jimmy Gurule, a Professor of Law at the University of Notre Dame, added that anything Trump said during his deposition "could be used against him in a criminal trial on charges related to allegations that he unlawfully inflated the value of his real estate properties in NYC."

"If proven, Trump could be charged and convicted of tax fraud, as well as wire fraud and mail fraud," Professor Gurule said.

"Second, Trump fears that disclosing harmful information during his deposition could be used against him to prove the civil claims. For example, his deposition testimony could be used to prove that he 'knowingly' inflated the value of his real estate holdings to avoid paying taxes.

"Finally, Trump likely fears that if he testified untruthfully during his deposition, he could open himself up to perjury charges."

The possibility that his tax affairs may be exposed, or that Trump could end up saying something untruthful, may have given him enough reason to remain silent during the deposition.

Details of the hearing on Wednesday, August 10, 2022 haven't been revealed.

It's been reported that Trump pleaded the Fifth amendment more than 440 times, according to an NBC News source, who claimed to have knowledge of the deposition. Newsweek has not been able to independently verify this.

Trump's attorney Ron Feschetti said that the only question he answered was his name. A spokesman for Letitia James' office, confirmed the former president took the Fifth.

"Attorney General Letitia James took part in the deposition during which Mr. Trump invoked his Fifth Amendment right against self-incrimination," James' statement said.

"Attorney General James will pursue the facts and the law wherever they may lead. Our investigation continues."

Some commentators also speculated that James could expand her probe to bring criminal charges from a different Trump case, led by Manhattan District Attorney Alvin Bragg, who in the end decided not to indict the former president. While that remains a possibility, there is so far no evidence that she will do so.

Finally, as much as we can speculate on Trump's motivation for pleading the Fifth, that too is an unknown.

Trump has been openly hostile toward Attorney General James and believes the probe is politically motivated, that is part of a broader "witch hunt" targeting him and his allies.

Newsweek has contacted Donald Trump for comment.

Correction 08/12/22 10.53 a.m. ET: A spelling of Hillary Clinton's first name was corrected

View post:
Why Did Trump Plead The Fifth Amendment?What We Do Know ... - Newsweek

The Fifth Amendment right to remain silent is one of the most valuable rights we have. But there is a lot of confusion about what this right entails: when can you invoke the right to remain silent? Doesnt pleading the Fifth make you look guilty? Are there any consequences? Does this right apply to searches of my phone or documents?

In this article, we answer many of those questions.

Most of uslearned about theFifth Amendment in school but here is a refresher: it is one of the original ten amendments to the United States Constitution contained in the Bill of Rights. Heres the full text:

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.

As you can see, many important criminal procedure concepts come from this amendment. Theportion in bold is what we know today as the right to remain silent, 5th amendment privilege, right against self incrimination, and other names.

There is afascinating history to be told of the various abuses in colonial America that this amendment was designed toaddress but we are going to jump ahead to the 21st century and take a look at what role the amendment plays in our society today.

If you remember only onething from this post it should bethis: innocent people can (and often should!) invoke the their Fifth Amendment protection. The Framers included this amendment to protect both the guilty and the innocent. And, in a criminal case, the defendants refusal to testify cannot be used against him. The jury is specifically instructed that they are to draw no adverse conclusions from this fact.

The Supreme Court has recognized that there may be situations where a person is innocent, but may have rational reasons to invoke the 5th. Lets take a real-life example from the Supreme Court case of Ohio v. Reiner. In that case, a father was accused of injuring his baby son, resulting in the sons death. The fathers defense was that he did not injure the baby, and that the injuries were caused by the babysitter.

The babysitter maintained her innocence. The Supreme Court said that she was allowed to assert her 5th Amendment right. The Court made it clear that innocent people are entitled to protection of the right to remain silent. In fact, that right is designed to protect the innocent.

You might be asking: if she was innocent, why did she want to remain silent? Because facts that she would have to admit to if she was questionedlike the fact that she was alone with the baby on a number of occasionscould later be used as evidence against her if someone decided to prosecute her. She was with the baby in the time frame that the injuries happened. Under these circumstances, it would be reasonable for the babysitter to fear that her statements could be used against her and incriminate her.

This kind of situation also sometimes comes up in white collar cases. For example, an administrative assistant is called to testify. That assistant is asked about filling out certain paperwork for the supervisor, who is charged with creating fraudulent paperwork. The assistant may well not want to answer the questions, because they provide part of the evidence that could be used against him if prosecutors had concluded that the assistant was in on the scheme.

But keep in mind, you cannot use the right to remain silent just because you do not want to testify. The Supreme Court has referred to this as a danger of imaginary and unsubstantial character. So for example, if you are innocently standing at an intersection and you see a car crash, you cannot refuse to testify on Fifth Amendment grounds.

There might be. Many people fear that if they choose to remain silent, they will look like they have something to hide, or people may assume they are guilty. Unfortunately, this can be true in some cases.

This may also have other implications. If you take our administrative assistant example, the corporation he is working for may fire him if he takes the Fifth Amendment, based on a policy that employees must cooperate with investigators and legal proceedings.

As we discuss further in this article, refusing to testify in a civil case can have its own consequences too.

The consequences of exercising the right to remain silent are also different depending on whether you are a defendant or a witness. If you are defendant and choose to take the stand, you waive the right to remain silent at least on the subjects that you testified about on direct. For witnesses, there is the option to invoke the Fifth Amendment on some subjects and not on others.

Yes. Although the terms witness and criminal case naturally evoke visions of a criminal trial, the Supreme Court has long held that the Fifth Amendment applies outside a criminal courtroom.

It applies any time a person is forced to make a statement that could be used to incriminate him. A (non-exhaustive) list of situations where the Fifth Amendment applies outside a criminal trial includes: traffic stops, police interrogations, grand jury proceedings, arrests,civil depositions, civil trials, and testimony before the Unite States Congress. We examine some of these below.

Yes, you can claim your fifth amendment right in response to police questioning during a traffic stop.

Imagine you have justpulled onto the shoulderof the roadand thepolice lightsare flashing in your rear view mirror. After the officer receives your license and registration, what does he do next? Usually, the officer will ask some questionabout thereason for his traffic stop: Do you know why I pulled you over? Do you know how fast you were going? Did you know your license was suspended? Have you had anything to drink?

The officers questions are designed to elicit incriminating answers that he can use against you in traffic court. For example, if you admit you weredriving over the limit, you have confessed to speeding. The officer can testify that you admitted to exceeding the posted speed limit. Therefore, the Fifth Amendment gives you the right to refuse to answer questions like these during a traffic stop.

Yes, you can claim the Fifth Amendment following an arrest. In fact, law enforcement is required to remind you of this right by giving you the famous Miranda warnings.

In Miranda v. Arizona, the Supreme Court held that statementsmade duringquestioning of a person in police custody are inadmissible in court unless the person has first been warned by police thattheir statements could be used against them. The rationale for the Courts decision was that police custody is such an inherently coercive environment that the right to remain silent requiredan additional layer of legal protection to make it truly meaningful. Of course, whether someone is in police custody for Miranda purposes is not always obvious but that is a subject for another post.

In a typical case, police will take an arrested person they wish to question to an interview room at the station and may handcuff the person to a wall or desk. The person is clearly in custody. Before beginning the questioning, police will have the person sign a written Miranda waiver of the right to remain silent (and the right to have counsel present as well). The person has now waived his right to remain silent and his answers can be used against him.

It is usually a bad idea to waive your right to remain silent following arrest. If you wish to cooperate with police, you can do so much more effectively with the assistance of counsel.

Your case will not be dismissed. However, the prosecutors will not be allowed to use any statements you made while in custody during police questioning. This is called the exclusionary rule.

You can always refuse to talk to federal agents or the police. But remember, the 5th amendment right to remain silent is only triggered in custodial situations. If you are free to leave or stop the questioning at any time, that would not be considered a coercive setting for purposes of the right to remain silent. But, in these settings you have the right to decline to speak to agents, and there are many reasons why you should exercise that right.

Yes. The Supreme Court has held that forcing government employees to answer questions about potentially criminal conduct on pain of loss of employment constitutes compelled testimony under the Fifth Amendment. Because the Amendment only protects us against state action, the same is not true for employees in the private sector.

For a more lengthy treatment of this subject, you can read this blog post.

Yes, you can plead the fifth in a civil trial or deposition. But, whether you should or should not do so is often an issue that requires you to waive certain risks and benefits.

If you refuse to testify in a civil matter, there can be adverse consequences for the case. For example, lets say you are in a car accident and sue for negligence. But at trial, you take the 5th because you do not want to admit to drinking, which the defendants lawyer will definitely ask you about. The decision not to testify deprives you of the right to tell your side of the story, and if there are no other witnesses you can call, this may mean that you may not be able to win the case.

Also, if you invoke the Fifth Amendment during an earlier stage of proceedings, such as a pretrial hearing or in a discovery deposition, you will likely later be barred from testifying. And, in some cases, if you are the defendant in a civil case and you refuse to testify, the judge may instruct the jury that they can draw an adverse inference, which means to assume that the facts would not have been favorable to you had you testified.

Yes, you can claim the Fifth before a grand jury. Before we get into the details, recall that a grand jury is a group of 16 to 23 people impaneled to investigate cases and issue indictments. The prosecutor presents her witnesses, documents and other evidence to the grand jury and it decides if there is probable cause to indict.

So how does the grand jury implicate the Fifth Amendment? Because compliance with a grand jury subpoena is mandatory. Refusing to testify can result in a fine or imprisonment for contempt. In the language of the Amendment, you are being compelled to testify. So, the 5th Amendment right applies.

Of course, many grand jury witnesses have no need to plead the Fifth. The classic example is the man caught standing in the teller line during a bank robbery. Or, the example above with the witness to a car accident.

Other cases are not so clear. Lets say you are subpoenaed to testify about a work colleague suspected of fraud, as in the example of the administrative assistant. Might the prosecutor suspect you were in on it?

The best way to decide if you should plead the fifth is to consult an attorney with experience in grand jury matters. The attorney will review the facts, probably talk to the prosecutor, investigate the facts, and decide if you should take the Fifth.

Your lawyer may counsel you to take the Fifth even though you claim innocence. To repeat what has already been said in this post you can take the Fifth even if you are innocent, including before a grand jury. Even if you claim innocence, the government might still use your testimony against you if it can be combined with other evidence to show guilt.

Lets go back to our example of a work colleague suspected of fraud to see how this might happen. Even if you deny knowledge of his fraudulent activities, the prosecutor can question you before the grand jury about the extent of your relationship. If you admit to a close relationship, that admission could be a link in the chain of evidence used to convict you of fraud or perhaps acting as an accessory. You may therefore decline to answer questions about your relationship with your work colleague on Fifth Amendment grounds even if you claim ignorance of his alleged fraud.

Lets assume you do plead the Fifth, how would that work? If your attorney notifies the prosecutor of your intentions, your testimony may be called off. If the prosecutor does not withdraw the subpoena, you still have to appear. Federal grand juries usually sit at the courthouse and your attorney can accompany you there. However, your lawyer will not be able to enter the grand jury room itself. You should therefore be ready to assert your rights yourself with a simple prepared statement such as I decline to answer on Fifth Amendment grounds. You are also allowed to exit the grand jury room as many times as you like between questions to talk to your counsel.

In some cases, you can invoke the Fifth Amendment in response to a subpoena to produce documents. This is so because the act of production itself can indicate guilt. Here is how one federal Circuit Court of Appeals explained it:

Specifically, the act of production communicates at least four different statements. It testifies to the fact that: i) the documents responsive to a given subpoena exist, ii) they are in the possession or control of the subpoenaed party; iii) the documents provided in response to the subpoena are authentic; and iv) the responding party believes that the documents produced are those described in the subpoena.

Invoking the Fifth Amendment in response to a subpoena for documents is sometimes called the act of production privilege.

This does not mean that you can simply ignore the subpoena. You will quickly find yourself being called before a judge to explain why the subpoena went unanswered. You will have to notify the prosecutor that you are invoking your act of production privilege. An attorney experienced in investigations can be of great assistance in effectively exercising this right.

Yes. The Supreme Court has held that the Fifth Amendment right against self-incrimination is available to recipients of congressional subpoenas.

Your company does not have any Fifth Amendment rights. Therefore, if a subpoena is directed to a company rather than an individual, the company itself cannot plead the Fifth. Prosecutors are aware of this and will subpoena a company rather than an individual wherever possible to avoid Fifth Amendment litigation. However, you may still be able to claim an act of production privilege (see above) if you will be the one responsible for producing the documents on behalf of a company.

Yes, the right can be waived. We have already mentioned one obvious case of waiver in our discussion of Miranda rights above that is, where the privilege is explicitly waived in writing.

Other cases are not as obvious. If a witness attempts to plead the Fifth part way through his testimony on a particular subject, it may be too late. Why? Because he is considered to have waived the right by initially agreeing to testify about a particular subject. This is sometimes referred to as selective assertion of the Fifth Amendment and it is generally not allowed. The rationale for the rule is that allowing a witness to make selective assertions of the Fifth deprives his opponent of a fair right to cross examine him.

To guard against waiver, it is often advisable to make your Fifth Amendment claim as broad as reasonably possible.

If you resist a government subpoena to testify or produce documents on Fifth Amendment grounds, the government may respond by giving you immunity as to those statements or documents, meaning it will promise not to use them against you. Because the statements or documents may no longer be used against you in light of the immunity, you may no longer have a valid Fifth Amendment claim.

There are many details to consider where the government attempts to grant immunity, and a detailed discussion of them is well beyond the scope of this post. You should consult an attorney experienced in government investigations to represent you in negotiations with the government involving a grant of immunity.

As mentioned in passing above, a defendants decision not to testify at trial cannot be used against him. If the trial is before a jury, the judge will instruct the jury that they can draw no adverse inference from a defendants decision not to testify. Here is a standard jury instruction on this point, used by many federal judges:

The defendant chose not to testify in this case. Under our Constitution, a defendant has no obligation to testify or to present any evidence because it is the governments burden to prove a defendant guilty beyond a reasonable doubt. A defendant is never required to prove that he is innocent.

Therefore, you must not attach any significance to the fact that a given defendant did not testify. No adverse inference against a defendant may be drawn by you because he did not take the witness stand, and you may not consider it in any way in your deliberations in the jury room.

The prosecutor is also prohibited from making any comment during his closing argument about the defendants decision not to testify.

Read the original:
Understanding the Fifth Amendment Right to Remain Silent

");}

From the Constitution

Here is the text of the Fifth Amendment from the Constitution:

"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 offense 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."

The Grand Jury

The first part of the amendment talks about a grand jury. The grand jury is a jury that decides if a trial should be held. They look at all the evidence and then decide if a person should be charged with a crime. If they decide there is enough evidence, then they will issue an indictment and a regular trial will be held. The grand jury is only used in cases where the punishment for the crime is severe such as life in prison or the death sentence.

Double Jeopardy

The next section protects the person from being tried for the same crime more than once. This is called double jeopardy.

Taking the Fifth

Perhaps the most famous part of the Fifth Amendment is the right to not testify against yourself during a trial. This is often called "taking the fifth." The government must present witnesses and evidence to prove the crime and cannot force someone to testify against themselves.

Miranda Warning

You've probably heard the police on TV say something like "you have the right to remain silent, anything you say or do may be used against you in a court of law" when they arrest someone. This statement is called the Miranda Warning. Police are required to tell people this before they question them as part of the Fifth Amendment. It reminds citizens that they don't have to testify against themselves.

Due Process

The amendment also states that a person has a right to "due process of law." Due process means that any citizen charged with a crime will be given a fair trial that follows a defined procedure through the judicial system.

Eminent Domain

The last section says that the government can't take a person's private property without paying them a fair price for it. This is called eminent domain. The government can take your property for public use, but they have to pay you a fair price for it.

Interesting Facts about the Fifth Amendment

Works Cited

History >> US Government

Read the original here:
US Government for Kids: Fifth Amendment - Ducksters

In response to the journalist E. Jean Carrolls claim that Donald Trump raped her in the 1990s, the then-president said in January 2019 that shes not my type and that it never happened. That denial, of course, suggests that being Trumps type governs whether he would rape that person. Carroll sued Trump for defamation, and he has reached the point where he is out of good options, at least good legal options. The former president has been ordered to sit Wednesday for a deposition (yes, that means under oath) in a defamation case that centers on his denial of Carrolls allegation. As Ill explain later, this is one time where pleading the Fifth Amendment wont help him much.

That denial, of course, suggests that being Trumps type governs whether or not he would rape that person.

Represented by uber litigator Robbie Kaplan, whose successful advocacy led to the demise of much of the Defense of Marriage Act, Carroll alleges that Trump through express statements and deliberate implications, accused Carroll of lying about the rape in order to increase book sales, carry out a political agenda, advance a conspiracy with the Democratic Party, and make money.

To win, Carroll will need to show that Trump made a false statement of fact, that he knew or recklessly disregarded the fact that the statement was false, and that the statement caused injury to Carrolls reputation. That means that if Trump is telling the truth and he did not in fact sexually assault Carroll, that he cannot then be held liable for defamation. In this way, defamation cases can provide a type of backdoor way to litigate alleged underlying criminal behavior.

But there is likely another hurdle for Carroll in this case thats specific to the person shes suing. Trump claimed that the federal government should become the defendant in the suit and that he is in fact immune to legal liability, because he was president when he denied raping Carroll or even knowing her. This matters because there is a federal law, the Westfall Act, that provides that the federal government should defend its employees against certain civil suits arising from actions the employee took within the scope of his office or employment. The legal questions here are whether Trump, as president, was considered to be an employee of the government and whether he was acting within the scope of that employment when he said that Carroll is not his type and that he didnt rape her.

A divided panel of court of appeals judges concluded that Trump was an employee of the government when he spoke of Carroll. However, that panel asked the D.C. Court of Appeals to determine whether, with that denial, Trump was acting within the scope of that employment. That court has not yet ruled.

If Trump insulting Carroll and claiming not to have raped her 20 or so years before he became president is judged to be within the scope of a presidents official duties, then what type of statement would fall outside of those duties? I dont know about you, but it seems to me that a smarmy denial of having committed a rape years before he was president should fall outside that scope. Taxpayers should not be footing the bill for such a defense.

But, here is why Trump may have just blown his best chance at getting out of this suit. On Truth Social (Trump's social media site that often contains everything but the truth) he recently denied that he'd raped Carroll and reiterated the statements that are at the heart of this case. But heres the problem for him: He is no longer the president. So he no longer has the protection of the Westfall Act. Barbara McQuade, a fellow MSNBC columnist and legal analyst, told Vice News that Carroll "should amend her complaint to include an additional count based on the new statement. Because Trump is no longer president, this statement was most certainly not made in the scope of his federal employment.

Like hes done in so many legal cases against him, Trumps strategy in Carrolls defamation case has been to delay.

Like hes done in so many legal cases against him, Trump has adopted a strategy in Carrolls defamation case of delay, delay, delay. He asked the judge overseeing the case to hold off his deposition until theres a decision on the scope of employment issue. The judge said no, concluding, Given his conduct so far in this case, Mr. Trump's position regarding the burdens of discovery is inexcusable. Put another way: No more delays. Trump must sit for the deposition.

Trump responded to the judges decision to make him sit for a deposition with his usual respect for and deference to the legal process. Im joking. He called the legal system a broken disgrace and called Carrolls suit a hoax and a lie and a complete con job.

The scheduled deposition of Trump on Wednesday is vital not just for this case, but, in the event that the case is dismissed, its vital for a different sexual battery case that Carroll has said she plans to file next month. You ask: Why didnt Carroll file that suit long ago? She couldnt. A new law in New York gives the adult victims of sexual assault one year to file civil suits, even if it's beyond the statute of limitations.

As of Tuesday evening, it didnt appear that Trump was going to appeal the ruling ordering him to be deposed. Appealing that ruling would have been consistent with his typical delay tactics. But perhaps even Trump saw it would be nearly impossible to convince an appellate court that sitting for a deposition and answering questions under oath would cause such irreparable injury that he would be legally entitled to a delay. A successful appeal could have bought Trump some time, time which he'd have spent he hoping that the D.C. Court of Appeals would rule that his statements about Carroll were made in the scope of his employment as president and possibly dismiss her case.

Here are some additional, but less-than-desirable, options for Trump. He could decide not to comply with the court order for him to appear for the deposition. But then he almost certainly would be, and should be, held in contempt. He could invoke his Fifth Amendment right against self-incrimination, but a jury in a civil case is often allowed to draw a negative inference from that decision. He could admit he lied when he said he didnt rape her, thus handing her a legal win in her defamation case. He could try to settle the case, although many would view that as an admission of defeat. And, as we know from his response to the 2020 election, Trump does not like admitting defeat.

This isnt the end of the legal road for Carroll and Trump.

Obviously the best option for Trump is if he could consistent with his public, out-of-court statements honestly testify that he never raped Carroll and never knew her. But that's where his good options end.

No matter what he says during Wednesdays deposition, this isnt the end of the legal road for Carroll and Trump. Look for her and Kaplan to make aggressive use of New Yorks new law and put Trump back on the hot seat based on allegations of battery and intentional infliction of emotional distress. That suit could prove even more damaging than this defamation case.

JessicaLevinson, a professor at Loyola Law School, is the host of the "Passing Judgment" podcast. She is also the director of the Public Service Institute at Loyola Law School, director of Loyola's Journalist Law School and former president of the Los Angeles Ethics Commission.

Read the original:
Donald Trump loves to plead the Fifth. It won't save him this time. - MSNBC

Listen to the author discuss this piece with our Editor in Chief on the Lawfare Podcast.

Fulton County district attorney Fani Willis is closing in on Donald Trumps 2020 election meddling: CNN reports that Willis could begin issuing indictments as soon as December.

The news arrives just five months after a special purpose grand jury was empaneled to investigate Trumps gambit to overturn the results of the 2020 presidential election. Since then, she has subpoenaed testimony from an increasingly long list of the former presidents allies, including the former mayor of New York, Rudy Giuliani; former White House Chief of Staff, Mark Meadows; and the senior senator from South Carolina, Lindsey Graham. On Oct. 7, Willis added two more high-profile names to her list: former House Speaker Newt Gingrich and former National Security Adviser Michael Flynn.

All of which has America wondering: What the f@#% is a special purpose grand jury, anyway? Can it really not indict anyone? If so, what does it even mean to be a target of a grand jury that cant issue indictments? And why hasnt Meadows been held in contempt for dodging his scheduled appearance in Georgia?

What follows is a broad-strokes primer on the special purpose grand jury system in Georgia, how the special purpose grand jury operates, and what to expect as the probe accelerates toward an endgame.

Whats the deal with special purpose grand juries in Georgia?

While the Fifth Amendment requires indictment by a grand jury for any capital, or otherwise infamous crime, that right has never been incorporated to the states. As a result, the law and practice of grand juries varies state by state. In Georgia, the state criminal code establishes two distinct types of grand juries: regular grand juries and special purpose grand juries.

Lets start with a crash course on the regular old grand jury. As elsewhere, your run-of-the-mill Georgia grand jury is composed of 16 to 23 laypeople, plucked from a pool of grudgingly eligible residents on the county jury roster. Selected jurors meet periodically throughout a fixed term of courtin Fulton County, its two months. Broadly speaking, the activities of the grand jury during that period can be divided into two functional categories.

Most readers will be familiar with the first category, which might be thought of as the criminal or accusatory function of the grand jury. Georgia law, like the Fifth Amendment, requires indictment by a grand jury in most felony cases. As such, the bulk of a regular grand jurys work involves screening the states evidence to ensure it passes muster for probable cause. During the two-month term, prosecutors will present evidence and request indictments in hundreds of discrete cases, for crimes that range from perjury to murder. If at least 12 jurors find probable cause to believe that the accused committed a crime, then the grand jury returns a true bill of indictment or a special presentment charging that individual with a criminal offense. All of which is pretty standard Law and Order-type grand jury fare.

Likely less familiar to the general public is the second category, which is known as the grand jurys civil or investigative function. Per O.C.G.A. 15-12-71, regular grand juries carry out periodic civil investigations of certain government operations and facilities. Some of those investigations are mandatory; for example, the statute requires an annual inspection of the county jail. But regular grand juries also retain discretionary powers to inspect or investigate a wide range of county authorities. At the end of its term, the grand jury can issue a public reportcalled a general presentmentexplaining the results of its investigation. Federal grand juries used to issue reports too; thats why the word presentment actually appears in the Fifth Amendment alongside indictment. But at the federal level, the practice of grand juries writing reports has almost entirely died.

What, then, is so special about a special purpose grand jury? Its distinctiveness has at least three dimensions.

For starters, special purpose grand juries are convened to investigate a specific topic.While a regular grand jury might hear evidence in hundreds of discrete cases during its brief two-month term, a special purpose grand jury typically focuses on wrongdoing related to a single event or subject matter.Though special purpose grand juries empaneled in Georgia have primarily been used to investigate public corruption, they are useful vehicles to investigate organized criminal activity or other complex issues of inquiry. The idea is that special purpose grand juries, unburdened by the heaps of cases that bedevil regular grand juries, can develop a deeper understanding of the convoluted issue at hand.

Second, special purpose grand juries are not limited to the typical two-month fixed term of regular grand juries but, instead, are empaneled for any time period required to complete its investigation.That flexibility permits prosecutors to take on complex investigations that would normally exceed the brief term of a regular grand jury.

Finally, unlike regular grand juries, Georgias special purpose grand juries cannot return a true bill of indictment. But they do possess the power to issue comprehensive public reports, albeit after review by the supervising judge. The report can recommend indictments for criminal acts uncovered during the investigation, and the district attorney can then pursue those indictments by empaneling a separate, regular grand jury.

Yet a special purpose grand jury is not limited to recommendations concerning indictments. As I discuss later in this piece, special purpose grand juries have, in the past, made a slew of recommendations related to government and ethics reforms, as well as non-criminal disciplinary sanctions for wrongdoers.

Whats more, thereports factual findings need not be limited to criminal wrongdoing. Consistent with a rich common law tradition of grand juries functioning as watchdogs for misconduct by public officials, previous special purpose grand juries have published findings related to conduct that falls short of criminal culpability.

The legal basis for that specific reporting function is no longer rooted in the common law, but in statute. Georgia courts have held that only those grand juries vested with a specific statutory authority to file a report can issue findings that incidentally reflect negligence or incompetence of public officialsprovided, of course, that the criticism remains within the scope of the grand jurys investigation and subject to due process requirements.

Though no reported case has specifically applied that principle to the report of a special purpose grand jury empaneled to investigate alleged criminal law violations, there can be no doubt that special purpose grand juries are vested with a statutory authority to file a report. And, given the broad scope of the Fulton County special purpose grand jurys empaneling order, findings related to unindictable yet condemnatory behavior by public officials would arguably fall within its wheelhouse.

Are special purpose grand juries unique to Georgia?

Nope.

State statutes authorizing special purpose grand juries, or special grand juries as they are usually called in other jurisdictions, are common. According to a 2021 Thomson Reuters survey of state grand jury statutes (yes, there really is a 2021 Thomson Reuters survey of state grand jury statutes!), at least 26 states permit the empanelment of special grand juries or some variation thereof. While some of those statutes establish bodies similar to Georgias special purpose grand jury, others deviate in important respects. As one example: in Georgia, a special purpose grand jurys final report is generally made public at the behest of the special purpose grand jury; in Virginia, the default rule provides that a special grand jurys report will be sealed and not open to public inspection, other than by order of the court.

State statutes authorizing special grand juries followed the enactment of federal legislation in 1970, when Congress authorized the empanelment of federal special grand juries as a part of the Organized Crime Control Act. Today, 18 U.S.C. 3331 authorizes the attorney general to empanel a special grand jury to investigate criminal activity in a jurisdiction.

Like its Georgia counterpart, a federal special grand jury is dedicated to a single investigative focal point. And a federal special grand jury can also issue reports on noncriminal conduct: 18 U.S.C. 3333 (a)(1) allows a special grand jury to publish reports on misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee. Though initially used to investigate organized crime, federal special grand juries have been empaneled for other complex inquiries: investigations into the collapse of the Enron Corporation and environmental wrongdoing at a nuclear weapons facility in Rocky Flats, Colorado, are two examples.

So, variations of the Georgia special purpose grand jury statute exist at both the federal and state levels. In that respect, at least, Georgias special purpose grand jury statute isnt all that specialthough it remains special in our hearts.

Can you explain Georgias special purpose grand jury procedure in excruciating and unnecessary detail?

Why, sure! Lets break the process down into four phases: empanelment, investigation, dissolution, and publication.

Empanelment

O.C.G.A. 15-12-100(a)authorizes the empanelment of a special purpose grand jury for the purpose of investigating any alleged violation of the laws of this state or any other matter subject to investigation by grand juries as provided by law. The process begins when the chief judge of the county superior court, either on his or her own motion or on petition from the district attorney or an elected public official, submits a request for a special purpose grand jury to the judges of the superior court. Then the judges vote. If a majority vote in favor of the request, the special purpose grand jury can be empaneled.

Investigation

Following jury selection and the appointment of a supervising judge, the special purpose grand jurys investigatory work begins. While Georgia Code provides little guidance regarding the day-to-day operations of a special purpose grand jury, the statute carves out roles for three key players during the investigation: the jurors, the district attorney, and the judge. Lets examine each in turn.

First, there are the grand jurors. Like a regular grand jury, special purpose grand jury members gather periodicallyperhaps two or three times a weekto hear testimony or review evidence. In theory, at least, the grand jurors exercise significant control over the investigation. Collectively, the jurors can direct the investigation as they see fit, subject to constitutional limits and the lawful scope of the inquiry. They are vested with vast powers to compel the production of documents or testimony, and they can question witnesses following the prosecutors direct examination. It will be up to the jurors, and the jurors alone, to evaluate the evidence and decide what goes into the final report.

Nominally, the district attorney serves as the special purpose grand jurys legal adviser. In practice, however, the district attorney usually directs the investigation. Once the special purpose grand jury is empaneled, the district attorney can subpoena witnesses or compel evidence to present to the grand jury. She isnt bound by the usual rules of evidence, such as hearsay, and witness testimony isnt subject to cross-examination by defense counsel. And, while the special purpose grand jury members remain the final arbiters of the reports findings and recommendations, the district attorneys office draw[s] up all indictments and presentments requested by the grand jury. In other words: The district attorneys office ghostwrites the report for the grand jurors. Whats more, no matter what the special purpose grand jury recommends, its ultimately up to the prosecutor to decide if she will seek indictments through a separate, regular grand jury process.

A supervising judge oversees the investigation. O.C.G.A. 15-12-101(a) requires the chief judge of the countys superior court to appoint a judge to supervise and assist the special purpose grand jury in carrying out its duties and powers. The judge charges the special purpose grand jury as to the scope of its powers and duties, and shall require periodic reports of the special purpose grand jurys progress, as well as a final report. The supervisory role also involves issuing orders related to the special purpose grand jurys work.

Dissolution

The governing statute places no minimum or maximum time limits on the special purpose grand jurys investigation. Instead, the countys superior court judges decide when the special purpose grand jury should be dissolved. Heres how it works:

O.C.G.A. 15-12-101(b) requires the supervising judge to recommend that the special purpose grand jury be dissolved in two circumstances: (1) when he determines that the special purpose grand jurys investigation has been completed, or (2) when the special purpose grand jury issues a report announcing the completion of its investigation. Once the supervising judge submits his recommendation, the countys superior court judges put the question to a vote. If most judges oppose the recommendation, then jurors will be directed to conduct further investigation for a specified time period. But if most judges agree, then the special purpose grand jury stands dissolved.

Publication

O.C.G.A. 15-12-80 governs the publication process for special purpose grand jury reports. That provision authorizes the special purpose grand jury to recommend the publication of whole or any part of its final report. The statute further permits the special purpose grand jury to prescribe the manner of publication. In the past, special purpose grand juries have requested publication in local legal gazettes.

Once the special purpose grand jury makes its recommendations to the court, the statute provides that the judge shall order the publication as recommended. However, case law has established that superior court judges retain authority to review grand jury reports prior to publication and, if necessary, to order that the report be redacted, sealed, or expunged.

Whats the scope of the Fulton County special purpose grand jury investigation?

Extremely broad.

On Jan. 20, 2022, District Attorney Fani WillispetitionedChief Judge Christopher Brasher to empanel a special purpose grand jury for the purpose of investigating the facts and circumstances relating directly or indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the state of Georgia. On Jan. 24, following a vote by a majority of the 20 judges of the Fulton County superior court, Brasher issued an order approving Williss request. The order provided that the special purpose grand jury, in investigating the facts and circumstances set out in Williss petition, may make recommendations concerning criminal prosecution as it shall see fit.

Willis has signaled from the start that she will direct the special purpose grand jury to consider a wide range of potential criminal law violations. In a letter Willis sent to Georgia Governor Brian Kemp in February 2021, she described the scope of the inquiry as follows:

[P]otential violations of Georgia law prohibiting the solicitation of election fraud, the making of false statements to state and local governmental bodies, conspiracy, racketeering, violation of oath of office and any involvement in violence or threats related to the election's administration.

Notably, in approving Williss request for the special purpose grand jury, Brasher specified that theauthorization includesany overt acts or predicate acts relating to the subject of the special purpose grand jurys investigative purpose. That stipulation could allude to an investigative focus on violations of Georgias RICO statute, which legal analysts suspect could supply the basis for criminal charges against Trump and his associates involved in the fake electors scheme and multi-state plot to overturn the election.

Why cant the Fulton County special purpose grand jury issue indictments?

Because the Georgia Court of Appeals said so.

Interestingly, nothing in the statute explicitly prohibits special purpose grand juries from issuing indictments. As noted, O.C.G.A. 15-12-101 directs the supervising judge to require periodic and final reports from the special purpose grand jury. The statute remains silent on whether those reports could contain indictments. And another provision, O.C.G.A. 15-12-102, provides that special purpose grand juries are vested with all the powers and duties of regular grand juries unless the statute says otherwise. That provision would suggest that special purpose grand juries, like regular grand juries, can issue indictments. Right?

For nearly four decades, grand jurors and district attorneys seemed to operate under that assumption. During that period, at least one special purpose grand jury issued indictments without objection on appeal. (And its possible that more did so, though its difficult to provide a precise estimate because reported cases rarely indicate which statutory provision provided legal footing for the grand jurys work.)

But the Georgia Court of Appeals took a different approach in 2011, when the issue was raised in Kenerly v. State. Kenerly involved a special purpose grand jury empaneled in Gwinnett County to investigate land deals made by local political officials. The special purpose grand jury returned indictments against a county commissioner, Kevin Kenerly, charging him with bribery and failure to disclose financial interest. Kenerly moved to quash the indictment, arguing that special purpose grand juries are not authorized to return criminal indictments under the statute.

The Georgia Court of Appeals agreed. In construing the statute, the court appealed to the maxim expressum facit cessare taciturn, a canon of construction that presumes matters not expressly provided for by statute were deliberately omitted by the legislature. If the legislature intended special purpose grand juries to have the power to indict, the court reasoned, then it would have said so.

Additionally, the court noted that its earlier decision in State v. Bartel concluded that special purpose grand juries conduct only civil investigations. The supposedly civil nature of special purpose grand juries thus weighed against reading the statute to provide for a power to issue criminal indictments.

Kenerly is a confounding decision. O.C.G.A. 15-12-102 expressly provides that the statutory provisions governing regular grand juries apply to special purpose grand juries, too. Presumably, that would include the power to issue indictments or presentments, as set out in O.C.G.A. 15-12-74 and O.C.G.A. 15-12-71. And, as explained below, the idea that special purpose grand juries conduct only civil investigations is plainly wrong.

Nonetheless, the Court of Appealss decision still stands and, as a result, the Fulton County special purpose grand jury can only recommend indictments. If Willis ultimately decides to pursue criminal charges, she will need to empanel a separate, regular grand jury.

Wait a second. The special purpose grand jurys investigation is a civil investigation, not a criminal investigation? And why does it matter, anyway?

Sigh. No. But the question repeatedly crops up in litigation related to the special purpose grand jurys investigation.

Relying on Kenerly and Bartel, as well as the fact that special purpose grand juries cannot issue indictments, Trump associates have repeatedly argued that the Fulton County special purpose grand jury is a civil grand jury, not a criminal grand jury. (See here and here and here and here.)

Why? In short: The argument could help reluctant witnesses delay or dodge subpoenas to testify. If the special purpose grand jury is a civil body, the district attorneys authority to compel the testimony of witnesses could be weakened in two important respects.

First, the civil versus criminal distinction impacts the applicability of legal privileges or immunities that could shield public officials from being compelled to appear before the special purpose grand jury. At a hearing in August, Kemp contended that the doctrine of sovereign immunity bars the district attorney from hauling him into court to testify about his official duties. Similarly, Graham has maintained that his appearance before the grand jury would offend the Constitutions Speech or Debate Clause, which provides that for any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other Place.

But both sovereign immunity doctrine and the Speech or Debate Clause have been interpreted to contain exceptions for witness testimony by officials in criminal proceedings. As such, it is advantageous for the likes of Graham and Kemp to contend that the special purpose grand jurys investigation is categorically not a criminal proceeding; doing so provides a way to skirt those potential criminal exceptions.

Second, whether the special purpose grand jury is civil or criminal bears on the applicable procedure for compelling out-of-state witnesses to travel to Georgia for an appearance before the grand jury. While jurisdiction to subpoena a witness usually ends at a states borders, all 50 states have adopted some variation of a cooperative, interstate process to compel the testimony of out-of-state witnesses in criminal proceedings.

Under the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, a witness residing in State A can be compelled to testify in State B if a local judge in State A issues a summons directing him or her to do so. The statutory provisions require the judge to find that the witness is material and necessary to the out-of-state grand jurys investigation, and that a summons to appear in another state will not cause undue hardship on the witness.

As the Uniform Acts title would suggest, the statute applies only in criminal grand jury proceedings. By contrast, in civil actions arising under state law, there is no similar uniform interstate procedure to compel the live (that is, in-person) testimony of witnesses located outside the state. Ordinarily, when a witness resides out of state, the party seeking his or her appearance must rely on deposition testimony in lieu of live testimony.

But that option would saddle Georgia prosecutors with the burden of traveling to the state where the witness resides. And deposition testimony is not always a satisfactory substitute for live testimony: jurors might get a better sense of a witnesss demeanor and credibility in-person, and they can ask impromptu questions following the prosecutors direct examination of the witness.

It should come as no surprise, then, that several Trump associates have used Kenerly as a springboard to argue that Georgia prosecutors do not have standing to compel their testimony under the Uniform Act. That was the case with Jenna Ellis in Colorado and Jacki Pick Deason in Texas. As the two women fought subpoenas in their respective home states, they argued that the civil nature of the special purpose grand jury requires prosecutors to follow the more cumbersome rules of civil procedure to compel the appearance of out-of-state witnesses.

Thus far, judges in Georgia and elsewhere have overwhelmingly rejected the view that the special purpose grand jurys investigation is civil rather than criminal. Heres a running list of judges who have weighed in and explicitly rejected the idea: Judge Leigh Martin May of the U.S. District Court for the Northern District of Georgia; Judge Gregory Lammons of the Eighth District Court of Colorado; and Judge Robert McBurney, the special purpose grand jurys supervising judge on the Fulton County Superior Court.

Only the Texas Court of Criminal Appeals, which comprises nine elected Republican judges, has indicated that it would be receptive to the idea that the special purpose grand jury is a civil body. Last month, the court derailed prosecutors efforts to compel the testimony of Deason, a lawyer and podcast host who played a key role at two legislative hearings held in Georgia following the 2020 election. While a Dallas judge had ordered Deason to testify in Georgia by Aug. 31, she appealed on grounds that the procedure to compel the attendance of witnesses under the Uniform Act does not apply to civil grand jury investigations.

When the appeal reached the Texas Court of Criminal Appeals, the court dismissed the case as mootsaying, basically, that Deason was no longer obliged to comply with the subpoena because the deadline for her testimony had expired. But a majority of the court signaled that it would have agreed with Deasons argument that the Uniform Act does not apply and, as such, that she cannot be compelled to testify in Georgia.

The Court of Criminal Appealss decision could have serious implications for Fulton County prosecutors ability to compel other Texas residents to appear before the special purpose grand jury in Georgia. Following the Court of Appeals decision, two witnesses who reside in TexasSidney Powell and Phil Waldronreportedly failed to appear for their scheduled appearances in Georgia. (Its unclear if Powell and Waldron have yet received a summons from a Texas judge to appear in Georgia, as required to compel their attendance under the Uniform Act. A search of public court records in Waldrons and Powells respective counties of residence returned no results for filings or court orders related to the Fulton County investigation.)

So, is there any merit to the idea that the special purpose grand jurys investigation is a civil investigation?

In short, no. Let me explain.

Lets start at the root of the confusion: the Georgia Court of Appeals decision in Kenerly. Recall that in Kenerly the Court of Appeals read an earlier decision, Bartel, to stand for the proposition that special purpose grand juries conduct only civil investigations.

Kenerlys reading of Bartel is specious, at best. For starters, the Bartel court noted that the record was unclear as to whether the grand jury at issue had been empaneled as a special purpose grand jury under O.C.G.A. 15-12-100 or as a regular grand jury under O.C.G.A. 15-12-71, which authorizes certain civil investigations of county authorities. Given the ambiguity in the record, its perplexing that Kenerly read Bartel to say anything definitive about the investigatory nature of special purpose grand juries.

Whats more, the idea that special purpose grand juries are purely civil bodies simply doesnt comport with the language of the statute. Recall that O.C.G.A. 15-12-100(a) authorizes the empanelment of a special purpose grand jury to investigate any alleged violation of the laws of this state or any other matter subject to investigation by grand juries as provided by law. The language clearly envisages that special purpose grand juries, like regular grand juries, could be used for criminal or civil investigations (or, presumably, both). While the Fulton County empaneling order clearly envisages an investigation of alleged criminal activities, previous special purpose grand juries have been empaneled to investigate civil infractions.

This explains why the Bartel court referred to the grand jury in that case as a civil grand jurythere, the grand jury was specifically empaneled to conduct a civil investigation into the operations of the local hospital authority. And it explains why a post-Kenerly case before the Supreme Court of Georgia, State v. Lampl, impliedly upheld the authority of special purpose grand juries to conduct criminal investigations.

Finally, that the Fulton County special purpose grand jury cannot issue an indictment does not render it a civil investigation. As Judge McBurney observed in his order denying Kemps motion to quash a subpoena: Police officers, too, lack authority to indict anyone, but their investigations are plainly criminal.

If a special purpose grand jury cant issue indictments, what does it mean to be a target of the investigation?

Thus far, nearly 20 individuals have reportedly received target letters from the district attorney's office. The recipients of the letters include all 16 of Georgias fake electors, including David Shafer, the chairman of the Georgia Republican Party; Giuliani, the former mayor of New York City; and Deason, the Dallas-based lawyer and podcast host.

In federal grand jury practice, receipt of a target letter indicates that prosecutors have substantial evidence linking an individual to a crime. Typically, it signifies that an indictment against that individual is imminent. While there is no explicit constitutional requirement to inform a target of his or her status prior to subpoenaing testimony before a grand jury, notifying a target of his or her designation can help prosecutors avoid the appearance that the target witnesss testimony violated his or her right against compelled self-incrimination. Moreover, receipt of a target letter can also prompt recipients to flipthat is, to cut a deal with prosecutors before they can be indicted in exchange for information on others involved in the conspiracy.

By sending target letters, Willis appears to have taken a page out of the Department of Justices book (or, rather, its Justice Manual): Criminal defense practitioners in Georgia tell me that target letters are seldom, if ever, utilized in the states grand jury practice. Still, no matter the method of notification, designating an individual as a target of an investigation signals that he or she is a putative defendant.

Though a special purpose grand jury cannot issue indictments, theres no reason to think that receipt of a target letter is any less significant in that context. It means Willis believes there is evidence that the targets committed a crimeand that those targets could eventually be indicted by a regular grand jury after the special purpose grand jurys work is complete. Indeed, last month, Willis appeared to reaffirm her confidence in that belief, telling the Washington Post that some individuals could face prison sentences.

When will the special purpose grand jury release its final report?

If the special purpose grand jury releases a public report, it will be published between December 2022 and May 2023.

In the past, special purpose grand juries have been empaneled for lengthy periods. A 2012 special purpose grand jury empaneled in DeKalb County provides one metric. There, grand jurors investigated for more than a year before issuing a final report. Similarly, a 2009 special purpose grand jury empaneled in Gwinnett County investigated for approximately 11 months.

In Fulton County, the investigation is unlikely to drag on for more than a year. Judge Brashers orderapproving the empanelment of the special purpose grand jury stipulated that the investigation is not to exceed 12 months. And telltale signs indicate that Willis could be nearing an investigative endgame. In recent weeks, Willis has appeared to be closing in on those in Trumps inner orbit: She has sought to subpoena several of his closest allies, including Meadows and Flynn. Meanwhile, CNNs reporting indicates that indictments could begin to roll out as early as December.

Still, dont expect a public report before the midterm elections. At a hearing in July, the special purpose grand jurys supervising judge, McBurney, warned prosecutors against the idea of an October surprise ahead of Nov. 8. Now, with early voting in Georgia set to commence on Oct. 17, Willis has said that the investigation will go quiet until after Election Day.

Mark Meadows never showed up in Georgia on the day of his scheduled testimony. Why hasnt he been held in contempt or arrested on a material witness warrant?

Because he is not (yet) legally required to testify.

Meadows is an out-of-state witness; he claims to reside in South Carolina. (He has something of a track record when it comes to claiming residency in a place where he doesnt actually reside.)

As I explained previously, prosecutors who seek to compel the testimony of an out-of-state witness must follow the procedure set out in the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings. To compel the testimony of an out-of-state witness under the Uniform Act, a local judge in the witnesss home state must issue a summons directing him or her to appear.

Securing that summons is a multistep process. Ordinarily, the Uniform Act requires the local judge to hold a hearing and find that the witness is material and necessary to the grand jurys investigation, and that a summons to appear out-of-state will not cause undue hardship.

But on the day Meadows was set to testify in Georgia, a hearing date in South Carolina had not yet been scheduled, and no summons had been issued by a South Carolina judge. As such, Meadows was not legally obligated to appear in Georgia on the day of his scheduled testimony.

Thats not to say that Meadows wont be compelled to testify, eventually. Later this month, a South Carolina judge will hold a hearing on the matter and decide whether Meadows should be ordered to appear.

Do the jurors vote to adopt the report and recommendations? And, if so, how many votes are needed?

The jurors do vote on the report. But its unclear how many votes are needed to adopt the report and the recommendations contained therein.

To get a grip on why theres some ambiguity, you need to understand the two types of presentments issued by regular grand juries in Georgia.

First, a grand jury can issue a type of charging instrument called a special presentment. At common law, special presentments signified when a grand jury brought criminal charges on its own initiative, rather than at the request of a prosecutor. Today, regular grand juries are still able to issue charges for crimes based on jurors personal knowledge. ButGeorgia lawno longer distinguishes between special presentments and indictments; functionally, they are the same.

By contrast, a general presentment is a report issued by the grand jury, usually at the end of its term, which summarizes the grand jurys activities for the term. Typically, it also includes the grand jurys findings and recommendations related to civil investigations authorized under O.C.G.A. 15-12-71. (Heres one example.)

With those two distinctions set out, its clear that the final report issued by a special purpose grand jury is a general presentment, not a special presentment. Now, lets get back to our initial question: How many jurors need to agree to adopt the final report and recommendations?

On the one hand, O.C.G.A. 1-3-1(d)(5) sets out the general rule of thumb, providing that [a] joint authority given to any number of persons or officers may be executed by a majority of them, unless it is otherwise declared. On the other hand, O.C.G.A. 15-12-61(a) says this: The votes of at least 12 grand jurors shall be necessary to find a bill of indictmentor to make a presentment (emphasis added).

Read more here:
Everything You Ever Wanted to Know About Georgia Special Purpose Grand Juries But Were Afraid to Ask - Lawfare

FARGO The defense attorney for a Fargo man found guilty of killing a 14-year-old girl is asking a judge to throw out his client's murder conviction, claiming it's a case of double jeopardy.

Defense attorney Eric Baumann filed a motion on Tuesday, Oct. 18, seeking to vacate the murder conviction, or alternatively the aggravated assault conviction, against 23-year-old Arthur Prince Kollie.

Last month, a Cass County jury found Kollie guilty on the two charges, as well as robbery, for an early June 4, 2021, attack on Jupiter Paulsen in Fargos Party City parking lot.

Prosecutor Ryan Younggren said he plans to recommend Kollie serve the maximum punishment for Jupiter's death, which would be life in prison without parole.

Prosecutors successfully argued that Kollie intended or knowingly caused Jupiters death when he attacked her for nearly 30 minutes. He stabbed the girl 25 times, kicked the teen and strangled her before a sanitation worker happened upon the scene, according to a criminal complaint. Kollie then fled as the city worker told him to wait for police to arrive, prosecutors said.

Several days after the attack, Jupiter died from her injuries on June 13, 2021, while hospitalized.

During the trial, overseen by Judge John Irby, Baumann argued that Kollie suffered from a mental illness exacerbated by meth he ingested the day before the attack. Kollie told police he didnt remember the assault.

Thats because Kollie suffered a psychotic break when he attacked Jupiter, Baumann claimed. A counselor told jurors she gave Kollie a provisional diagnosis of unspecified psychosis" days before the attack, noting he should get therapy and further psychiatric evaluation.

Court rules prevented prosecutors from presenting to jurors the testimony of a State Hospital psychologist who determined Kollie likely exaggerated or lied about his mental illness.

Jurors didnt buy the defenses argument after prosecutors argued Kollie ditched evidence of the crime and tried to cover up his actions.

That included taking a shower shortly after the assault, throwing his bloodstained clothes and Jupiters belongings in the trash, and changing clothes in a Walmart, prosecutors said.

After an eight-day trial, jurors deliberated for about two hours before finding him guilty on all counts.

In his latest motion, Baumann argued Kollie should not be found guilty on two charges for the same conduct. The Fifth Amendment of the U.S. Constitution prohibits a person from being convicted twice on the same offense, also known as double jeopardy.

Photo provided by family

A person cannot commit murder without also committing aggravated assault, Baumann wrote in arguing that one of the charges should be dismissed.

It's unclear when Judge Irby will rule on Baumann's motion. If the murder conviction is vacated, Kollie would face up to 15 years in prison.

Younggren said he was aware the motion would be filed. His team plans to discuss how to respond to the request, he said.

He also said he doesn't foresee the motion causing a delay in sentencing.

Kollie remains in custody at the Cass County Jail as he awaits sentencing, which is set for Friday, Oct. 28.

More here:
Citing double jeopardy, Fargo man who killed 14-year-old Jupiter Paulsen wants murder conviction dropped - INFORUM

New episodes of the docuseries The Vow, Part Two are airing every Monday at 9 p.m. ET on HBO and HBO Max, and already, audiences want to know more about the gripping true story.

Since Part One of The Vow aired in 2020, a lot has unfolded in connection with the story, including the conviction of NXIVM founder Kieth Raniere on charges that included racketeering, human trafficking, sex offenses, sexual exploitation of a child and fraud.

Part Two will follow Raniere's trial and will continue to look at his former inner circle, people who defected from the group and current supporters.

Nicki Clyne remains one of Raniere's devoted supporters and she appears throughout The Vow, Part Two. Newsweek has everything you need to know about Clyne going forward.

Nicky Clyne is a Canadian actress from Vancouver, British Columbia Canada.

She is best known for her role as Cally Henderson in the SyFy series Battlestar Galactica.

Her other acting credits include Totally Awesome, The Twilight Zone, and The Tiki Bar TV.

Clyne is an outspoken NXIVM member and supporter of Raniere.

At first, NXIVM was seen to be a multi-level marketing company, however, in the late 2000s and 2010s, a darker side to NXIVM began to surface in the media, with Raniere and Salzman's company facing allegations it was a cult with unethical practices and a history of sexual abuse.

In 2015, Raniere founded the secret organization known as DOS, Dominus Obsequious Sororium," which loosely translates to "Master Over the Slave Women." It was promoted as a "women's empowerment society,"

Raniere was the head of DOS, known as "grandmaster," and established a pyramid system, where slaves were controlled by their "masters." Women would also have to give "collateral" to their leaders every month, which included things such as sexually explicit photos or videos and personal information. They were also groomed to have sex with Raniere and were forced to follow near-starvation diets.

Some women who were members of DOS were branded with Raniere's initials.

Clyne is believed to have held a high position with DOS and was known as a "first-line slave."

In March 2018, Keith Raniere and his close NXIVM followers Allison Mack, Nancy Salzman, and Lauren Salzman, Kathy Russell, and Claire Bronfman faced charges of identity theft, extortion, forced labor, sex trafficking, money laundering, wire fraud and obstruction of justice.

During the investigation into Raniere, NXIVM, Mack, Clare Brofman, Kathy Russell, and Nancy and Lauren Salzman, Clyne was subpoenaed to testify before the grand jury. However, she invoked her Fifth Amendment rights against self-incrimination and was ultimately not indicted.

Clyne has given statements to a federal court and the press that she has been a sexual partner of Raniere's for over a decade. Mack, Clyne's former wife, was also a sexual partner of Raniere's.

In June 2021, Mack was sentenced to three years in prison and ordered to pay a $20,000 fine and complete 1,000 hours of community service after pleading guilty to racketeering conspiracy charges. She also admitted to state law extortion and forced labor.

Speaking in The Vow, Part Two, Clyne shared she was "in a physical relationship with Keith for many years" adding: "I kept it a secret. A lot of people in the community didn't know who Keith's partners were or if he had any. I felt very clear on what I was signing up for."

She also stated the secret group DOS has been "misunderstood."

Clyne said: "DOS [has] been misunderstood because I helped create it."

"Sex was not the focus of anything," Clyne added. "Like, people are so obsessed with sex. It was also a walking group. It was also a go-for-coffee group. We were people who had relationships that were incredibly important and meaningful to us that we planned to have for the rest of our lives."

Today, Clyne continues to support Keith Raniere. She also continues to defend NXIVM, alongside a small group of other NXIVM members.

Clyne and other supporters created the activist group, We Are As You and launched their website, WeAreTheForgottenOnes.org. However, the website has not been used since November 2020.

In 2020, Clyne and members of We Are As You danced outside of the Metropolitan Detention Center, Brooklyn, where Raniere was detained. They alleged it was to help lift the spirits of inmates who could not have visitors due to the COVID-19 pandemic.

Raniere is now serving the rest of his sentence at United States Penitentiary, Tuscon.

Clyne appears in Part Two of HBO Max's The Vow, voicing her support for Raniere and NXIVM, and ahead of the documentary's premiere on Monday, October 17 she tweeted:

"Today's documentaries are no different than professional wrestling. Most people *know* they're not real, but they choose to believe because it's more entertaining."

She also shared her views on Season One of The Vow on her blog, revealing if she had seen Season One of the show, she would have not agreed to appear in Season Two.

Speaking in The Vow, Part Two Clyne confidently states: "I feel proud of my decisions and I stand by them. And I know how hard that must be for people to understand considering the lens through which this situation is being portrayed."

In January 2020, Clyne, Mack, and NXIVM associates were named as defendants in a civil lawsuit filed in federal court by 80 former NXIVM members.

The lawsuit claimed NXIVM was a pyramid scheme with instances of exploitation of its recruits, illegal human experiments, and making it "physically and psychologically difficult" to leave.

According to The Frank Report, Clyne is representing herself and motioned to dismiss the complaint in January 2022, arguing she was named for "show" and "window dressing."

She added: "I find it curious that the main difference between me and the plaintiffs is that I have chosen not to disavow my experience in NXIVM and, instead, I express gratitude for everything I learned and gained through the curriculum."

Newsweek has reached out to Clyne's representatives for comment.

The Vow, Part Two airs Mondays at 9 p.m. ET on HBO and HBO Max.

Excerpt from:
Nicki Clyne: What Happened to NXIVM Member and Where Is She Now? - Newsweek