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Saturday, January 5, 2013

What To Do When You Meet An Investigator

I receive calls all the time about what a person should do when he/she must meet with an investigator about an allegation of sexual harassment, verbal abuse, or something that is not specified.

Many Union reps tell this person before starting the interview with the "investigator" (as an investigative reporter myself, I cant call the SCI, OSI, or OEO agents "investigators") not to say anything at all.

DONT FOLLOW THIS SUGGESTION.

You will be admitting guilt for whatever the accusation is and the "investigators" will substantiate the allegation.

In 99% of the cases "investigated" by the agents of SCI, OSI and OEO, the truth does not matter, and the allegation is substantiated anyway, because why would these agents try to dig for facts? That's not in their job description.

But you will not "win" your case by talking to these agents. What you need to do is deny everything, get the statements of the people who say you did do something, and leave. Ignore your Rep. if he/she says you should have said less/more. Their focus may not be in your best interest.

Betsy

Wikipedia on the 5th Amendment:


Self-incrimination

The Fifth Amendment protects witnesses from being forced to incriminate themselves. To "plead the Fifth" is to refuse to answer a question because the response could provide self-incriminating evidence of an illegal act punishable by fines, penalties or forfeiture.[34]
Historically, the legal protection against self-incrimination was directly related to the question of torture for extracting information and confessions.[35][36]
The legal shift away from widespread use of torture and forced confession dates to turmoil of the late 16th and early 17th century in England.[37] Anyone refusing to take the oath ex officio mero (confessions or swearing of innocence, usually before hearing any charges) was considered guilty.[37] Suspected Puritans were pressed to take the oath and then reveal names of other Puritans. Coercion and torture were commonly used to compel "cooperation." Puritans, who were at the time fleeing to the New World, began a practice of refusing to cooperate with interrogations. In the most famous case John Lilburne refused to take the oath in 1637. His case and his call for "freeborn rights" were rallying points for reforms against forced oaths, forced self-incrimination, and other kinds of coercion. Oliver Cromwell's revolution overturned the practice and incorporated protections, in response to a popular group of English citizens known as the Levellers. The Levellers presented The Humble Petition of Many Thousands to Parliament in 1647 with 13 demands, third of which was the right against self-incrimination in criminal cases. These protections were brought to America by Puritans, and were later incorporated into the United States Constitution through the Bill of Rights.
Protection against self-incrimination is implicit in the Miranda rights statement, which protects the "right to remain silent." This amendment is also similar to Section 13 of the Canadian Charter of Rights and Freedoms. In other Commonwealth of Nations countries like Australia and New Zealand, the right to silence of the accused both during questioning and at trial is regarded as an important right inherited from common law, and is protected in the New Zealand Bill of Rights Act and in Australia through various federal and state acts and codes governing the criminal justice system.
The Supreme Court has held that "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances."[38]

Legal proceeding

The Fifth Amendment privilege against compulsory self-incrimination applies when an individual is called to testify in a legal proceeding. The Supreme Court ruled that the right against self-incrimination applies whether the witness is in a federal court or, under the incorporation doctrine of the Fourteenth Amendment, in a state court,[39] and whether the proceeding itself is criminal or civil.[40]
The right was asserted at grand jury or congressional hearings in the 1950s, when witnesses testifying before the House Committee on Un-American Activities or the Senate Internal Security Subcommittee claimed the right in response to questions concerning their alleged membership in the Communist Party. Under the Red Scare hysteria at the time of McCarthyism, witnesses who refused to answer the questions were accused as "fifth amendment communists". They lost jobs or positions in unions and other political organizations, and suffered other repercussions after "taking the fifth."
Senator Joseph McCarthy (R-Wisc.) asked, "Are you now, or have you ever been a member of the Communist party," while he was chairman of the Senate Government Operations Committee Permanent Subcommittee on Investigations. Admitting to a previous communist party membership was not sufficient. Witnesses were also required to "name names," to implicate others they knew to be communists or who had been communists in the past. Academy Award winning director Elia Kazan testified before the House Committee on Un-American Activities that he had belonged to the Communist Party briefly in his youth. He also "named names," which incurred enmity of many in Hollywood. Other entertainers such as Zero Mostel found themselves on a Hollywood blacklist after taking the fifth, and were unable to find work for a while in the show business.
The amendment has also been used by defendants and witnesses in criminal cases involving the Mafia.
The right against self-incrimination does not apply when an individual testifies before a self-regulatory organization (SRO). SROs, such as the National Association of Securities Dealers (NASD), are generally not considered as state actors subject to the restraints of the fifth amendment. Department of Enforcement, United States v. Solomon, 509 F. 2d 863 (2d Cir. 1975); D. L. Cromwell Invs., Inc. v. NASD Regulation, Inc., 132 F. Supp. 2d 248, 251-53 (S.D.N.Y. 2001), aff'd, 279 F.3d 155, 162 (2d Cir. 2002), cert. denied, 537 U.S. 1028 (2002); Marchiano v. NASD, 134 F. Supp. 2d 90, 95 (D.D.C. 2001). SROs also lack subpoena powers, so they rely heavily on requiring testimony from individuals while wielding the threat of a bar from the industry (permanent, if decided by the NASD) in the case of noncompliance.

Custodial interrogation

The Fifth Amendment limits the use of evidence obtained illegally by law enforcement officers. Originally, at common law, even a confession obtained by torture was admissible. In the eighteenth century, common law in England provided that coerced confessions were inadmissible. The common law rule was incorporated into American law by the courts. However, the use of brutal torture to extract confessions was routine in certain jurisdictions until at least 1991,[41] though the Supreme Court has repeatedly overruled convictions based on such confessions, in cases like Brown v. Mississippi, 297 U.S. 278 (1936).
Law enforcement responded by switching to more subtle techniques, but the courts held that such techniques, even if they do not involve physical torture, may render a confession involuntary and inadmissible. In Chambers v. Florida (1940) the Court held a confession obtained after five days of prolonged questioning, during which time the defendant was held incommunicado, to be coerced. In Ashcraft v. Tennessee (1944), the suspect had been interrogated continuously for thirty-six hours under electric lights. In Haynes v. Washington (1963) the Court held that an "unfair and inherently coercive context" including a prolonged interrogation rendered a confession inadmissible.
Miranda v. Arizona (1966) was a landmark case involving confessions. Ernesto Miranda had signed a statement confessing the crime, but the Supreme Court held that the confession was inadmissible because the defendant had not been warned of his rights.
The Court held, "the prosecution may not use statements [...] stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Custodial interrogation is initiated by law enforcement after a person has been taken into custody or otherwise deprived of his freedom of movement.
As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Before any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." The warning to which Chief Justice Earl Warren referred is now called the Miranda warning, and it is customarily delivered by the police to an individual before questioning.
Miranda has been clarified by several further Supreme Court rulings. For the warning to be necessary, the questioning must be conducted under "custodial" circumstances. A person detained in jail or under arrest is, of course, deemed to be in police custody. Alternatively, a person who is under the reasonable belief that he may not freely leave from the restraint of law enforcement is also deemed to be in "custody." That determination of "reasonableness" is based on a totality of the objective circumstances. A mere presence at a police station may not be sufficient, but nor is it required. Traffic stops are not deemed custodial. The Court has ruled that age can be an objective factor. In Yarborough v. Alvarado (2004), the Court held that "a state-court decision that failed to mention a 17-year-old’s age as part of the Miranda custody analysis was not objectively unreasonable".[42] In her concurring opinion Justice O'Connor wrote that a suspect's age may indeed "be relevant to the 'custody' inquiry";[43] the Court did not find it relevant in the specific case of Alvarado. The Court affirmed that age could be a relevant and objective factor in J.D.B. v. North Carolina where they ruled that "so long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test"[42]
The questioning does not have to be explicit to trigger Miranda rights. For example, two police officers engaging in a conversation designed to elicit an incriminating statement from a suspect would constitute questioning. A person may choose to waive his Miranda rights, but the prosecution has the burden of showing that such a waiver was actually made.
A confession not preceded by a Miranda warning where one was necessary cannot be admitted as evidence against the confessing party in a judicial proceeding. The Supreme Court, however, has held that if a defendant voluntarily testifies at the trial that he did not commit the crime, his confession may be introduced to challenge his credibility, to "impeach" the witness, even if it had been obtained without the warning.
In Hiibel v. Sixth Judicial District Court of Nevada, the Supreme Court ruled 5–4 on June 21, 2004 that the Fourth, Fifth, and Fourteenth Amendments do not give people the right to refuse to give their name when questioned by police.
In June 2010, the Supreme Court ruled in Berghuis v. Thompkins that criminal suspects must now unambiguously invoke their right to remain silent. Unless and until the suspect actually states that she is relying on that right, her subsequent voluntary statements can be used in court and police can continue to interact with (or question) her. The mere act of remaining silent is, on its own, insufficient to imply the suspect has invoked her rights. Furthermore, a voluntary reply even after lengthy silence can be construed as implying a waiver.

Refusal to testify in a criminal case

The Supreme Court ruled that the government cannot punish a criminal defendant for exercising his right to silence, by allowing the prosecutor to ask the jury to draw an inference of guilt from the defendant's refusal to testify in his own defense. Griffin v. California, 380 U.S. 609 (1965). In Griffin, the Court overturned as unconstitutional under the federal constitution a provision of the California state constitution that explicitly granted such power to prosecutors.

Refusal to testify in a civil case

While defendants are entitled to assert that right, there are consequences to the assertion of the Fifth Amendment in a civil action.
The Supreme Court has held that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). “[A]s Mr. Justice Brandeis declared, speaking for a unanimous court in the Tod case, ‘Silence is often evidence of the most persuasive character.’” Id. at 319 (quoting United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153-154 (1923)). “‘Failure to contest an assertion...is considered evidence of acquiescence...if it would have been natural under the circumstances to object to the assertion in question.’” Id. (quoting United States v. Hale, 422 U.S. 171, 176 (1975)).
In Baxter, the state was entitled to an adverse inference against Palmigiano because of the evidence against him and his assertion of the Fifth Amendment privilege.
Some civil cases are considered "criminal cases" for the purposes of the Fifth Amendment. In Boyd v. United States, the US Supreme Court stated that "A proceeding to forfeit a person's goods for an offence against the laws, though civil in form, and whether in rem or in personam, is a "criminal case" within the meaning of that part of the Fifth Amendment which declares that no person "shall be compelled, in any criminal case, to be a witness against himself."[44]

Federal income tax

In some cases, individuals may be legally required to file reports that call for information that may be used against them in criminal cases. In United States v. Sullivan, 274 U.S. 259 (1927), the United States Supreme Court ruled that a taxpayer could not invoke the Fifth Amendment's protections as the basis for refusing to file a required federal income tax return. The Court stated: "If the form of return provided called for answers that the defendant was privileged from making[,] he could have raised the objection in the return, but could not on that account refuse to make any return at all. We are not called on to decide what, if anything, he might have withheld."[45]
In Garner v. United States, 424 U.S. 648 (1976) the defendant was convicted of crimes involving a conspiracy to "fix” sporting contests and to transmit illegal bets. During the trial the prosecutor introduced, as evidence, the taxpayer's federal income tax returns for various years. In one return the taxpayer had showed his occupation to be “professional gambler.” In various returns the taxpayer had reported income from “gambling” or “wagering.” The prosecution used this to help contradict the taxpayer's argument that his involvement was innocent. The taxpayer tried unsuccessfully to keep the prosecutor from introducing the tax returns as evidence, arguing that since the taxpayer was legally required to report the illegal income on the returns, he was being compelled to be a witness against himself. The Supreme Court agreed that he was legally required to report the illegal income on the returns, but ruled that the privilege against self-incrimination still did not apply. The Court stated that "if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the Government has not 'compelled' him to incriminate himself."[46]
Sullivan and Garner are viewed as standing, in tandem, for the proposition that on a required federal income tax return a taxpayer would probably have to report the amount of the illegal income, but might validly claim the privilege by labeling the item "Fifth Amendment" (instead of "illegal gambling income," "illegal drug sales," etc.)[47] The United States Court of Appeals for the Eleventh Circuit has stated: "Although the source of income might be privileged, the amount must be reported."[48] The U.S. Court of Appeals for the Fifth Circuit has stated: ".....the amount of a taxpayer's income is not privileged even though the source of income may be, and Fifth Amendment rights can be exercised in compliance with the tax laws "by simply listing his alleged ill-gotten gains in the space provided for `miscellaneous' income on his tax form."[49] In another case, the Court of Appeals for the Fifth Circuit stated: "While the source of some of [the defendant] Johnson's income may have been privileged, assuming that the jury believed his uncorroborated testimony that he had illegal dealings in gold in 1970 and 1971, the amount of his income was not privileged and he was required to pay taxes on it."[50] In 1979, the U.S. Court of Appeals for the Tenth Circuit stated: "A careful reading of Sullivan and Garner, therefore, is that the self-incrimination privilege can be employed to protect the taxpayer from revealing the information as to an illegal source of income, but does not protect him from disclosing the amount of his income."[51]

Grants of immunity

If the government gives an individual immunity, then that individual may be compelled to testify. Immunity may be "transactional immunity" or "use immunity"; in the former, the witness is immune from prosecution for offenses related to the testimony; in the latter, the witness may be prosecuted, but his testimony may not be used against him. In Kastigar v. United States, 406 U.S. 441 (1972), the Supreme Court held that the government need only grant use immunity to compel testimony. The use immunity, however, must extend not only to the testimony made by the witness, but also to all evidence derived therefrom. This scenario most commonly arises in cases related to organized crime.

Record keeping

A statutorily required record-keeping system may go too far such that it implicates a record-keeper's right against self-incrimination. A three part test laid out by Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965) is used to determine this: 1. the law targets a highly selective group inherently suspect of criminal activities; 2. the activities sought to be regulated are already permeated with criminal statutes as opposed to essentially being non-criminal and largely regulatory; and 3. the disclosure compelled creates a likelihood of prosecution and is used against the record-keeper. In this case, the Supreme Court struck down an order by the Subversive Activities Control Board requiring members of the Communist Party to register with the government and upheld an assertion of the privilege against self-incrimination, on the grounds that statute under which the order had been issued was "directed at a highly selective group inherently suspect of criminal activities."
In Leary v. United States, 395 U.S. 6 (1969) the court struck down the Marijuana Tax Act because its record keeping statute required self-incrimination.
In Haynes v. United States, 390 U.S. 85 (1968) the Supreme Court ruled that, because convicted felons are prohibited from owning firearms, requiring felons to register any firearms they owned constituted a form of self-incrimination and was therefore unconstitutional.

Computer passwords

Courts have struggled with whether forced disclosure of computer passwords is a violation of the Fifth Amendment. In January 2012 a federal judge in Denver ruled that a bank-fraud suspect was required to give an unencrypted copy of a laptop hard drive to prosecutors.[52][53] However, in February 2012 the Eleventh Circuit ruled otherwise - finding that requiring a defendant to produce an encrypted drive's password would violate the Constitution, becoming the first federal circuit court to rule on the issue.[54][55]

Other

Corporations may also be compelled to maintain and turn over records; the Supreme Court has held that the Fifth Amendment protections against self-incrimination extend only to "natural persons."[56] The Court has also held that a corporation's custodian of records can be forced to produce corporate documents even if the act of production would incriminate him personally.[57] The only limitation on this rule is that the jury cannot be told that the custodian personally produced those documents in any subsequent prosecution of him or her, but the jury is still allowed to draw adverse inferences from the content of the documents combined with the position of the custodian in the corporation.
As a condition of employment, workers may be required to answer their employer's narrowly defined questions regarding conduct on the job. If an employee invokes the Garrity rule (sometimes called the Garrity Warning or Garrity Rights) before answering the questions, then the answers cannot be used in criminal prosecution of the employee.[58] This principle was developed in Garrity v. New Jersey, 385 U.S. 493 (1967). The rule is most commonly applied to public employees such as police officers.
In In re Boucher (2009), the US District Court of Vermont ruled that the Fifth Amendment might protect a defendant from having to reveal an encryption password, or even the existence of one, if the production of that password could be deemed a self-incriminating "act" under the Fifth Amendment. In Boucher, production of the unencrypted drive was deemed not to be a self-incriminating act, as the government already had sufficient evidence to tie the encrypted data to the defendant.[59]
In Boyd v. United States 116 US 616 (1886) the US Supreme Court stated that "It is equivalent to a compulsory production of papers to make the nonproduction of them a confession of the allegations which it is pretended they will prove".
On June 1, 2010, the Supreme Court ruled in Berghuis v. Thompkins that a criminal suspect must specifically invoke the right against self-incrimination in order for constitutional protections to apply.[60] The case centered around the interrogation of murder suspect Van Chester Thompkins, who remained virtually silent for hours, before giving a few brief responses to police questions. Most significantly, Thompkins answered "yes" when asked, "Do you pray to God to forgive you for shooting that boy down?" The statement was introduced at trial and Thompkins was convicted. In a 5-4 ruling, the Court held that criminal suspects who do not clearly state their intention to remain silent are presumed to have waived their 5th Amendment rights. Ironically, suspects must literally open their mouths and speak in order for their silence to be legally protected. The new rule will defer to police in cases where the suspect fails to unambiguously assert their right to remain silent.

Due process

Takings clause

Eminent domain

The Supreme Court has held that the federal government and each state has the power of eminent domain—the power to take private property for "public use". The Takings Clause, the last clause of the Fifth Amendment, limits the power of eminent domain by requiring that "just compensation" be paid if private property is taken for public use. The just compensation provision of the Fifth Amendment did not originally apply directly to the states, but since Chicago, B. & Q. Railroad Co. v. Chicago (1897), federal courts have held that the Fourteenth Amendment extended the effects of that provision to the states. The federal courts, however, have shown much deference to the determinations of Congress, and even more so to the determinations of the state legislatures, of what constitutes "public use". The property need not actually be used by the public; rather, it must be used or disposed of in such a manner as to benefit the public welfare or public interest. One exception that restrains the federal government is that the property must be used in exercise of a government's enumerated powers.
The owner of the property that is taken by the government must be justly compensated. When determining the amount that must be paid, the government does not need to take into account any speculative schemes that the owner claims the property was intended for use in. Normally, the fair market value of the property determines "just compensation". If the property is taken before the payment is made, interest accrues (though the courts have refrained from using the term "interest").
The federal courts have not restrained state and local governments from seizing privately owned land for private commercial development on behalf of private developers. This was upheld on June 23, 2005, when the Supreme Court issued its opinion in Kelo v. City of New London. This 5–4 decision remains controversial. The majority opinion, by Justice Stevens, found that it was appropriate to defer to the city's decision that the development plan had a public purpose, saying that "the city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue." Justice Kennedy's concurring opinion observed that in this particular case the development plan was not "of primary benefit to . . . the developer" and that if that was the case the plan might have been impermissible. In the dissent, Justice Sandra Day O'Connor argued that this decision would allow the rich to benefit at the expense of the poor, asserting that "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms." She argued that the decision eliminates "any distinction between private and public use of property—and thereby effectively delete[s] the words 'for public use' from the Takings Clause of the Fifth Amendment". A number of states, in response to Kelo, have passed laws and/or state constitutional amendments which make it more difficult for state governments to seize private land. Takings that are not "for public use" are not directly covered by the doctrine,[61] however such a taking might violate due process rights under the Fourteenth amendment, or other applicable law.
The exercise of the police power of the state resulting in a taking of private property was long held to be an exception to the requirement of government paying just compensation. However the growing trend under the various state constitution's taking clauses is to compensate innocent third parties whose property was destroyed or "taken" as a result of police action.[62]

"Just compensation"

The last two words of the amendment promise "just compensation" for takings by the government. In United States v. 50 Acres of Land (1984), the Supreme Court wrote that "The Court has repeatedly held that just compensation normally is to be measured by "the market value of the property at the time of the taking contemporaneously paid in money." Olson v. United States, 292 U.S. 246 (1934) ... Deviation from this measure of just compensation has been required only "when market value has been too difficult to find, or when its application would result in manifest injustice to owner or public." United States v. Commodities Trading Corp., 339 U.S. 121, 123 (1950).

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