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onecaliberal

(32,489 posts)
Thu Dec 5, 2019, 10:07 PM Dec 2019

Innocent people don't refuse to testify on their own behalf.

They don’t refuse to allow their staff to testify. They don’t hide their tax return or documents.
They don’t hide phone transcripts on a super secret server.
They don’t shake down foreign governments to help them cheat another American election. They don’t lie 200 times a day.

35 replies = new reply since forum marked as read
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Innocent people don't refuse to testify on their own behalf. (Original Post) onecaliberal Dec 2019 OP
That's not always true. StarfishSaver Dec 2019 #1
Oh shit Laura PourMeADrink Dec 2019 #10
Absolutely. Sometimes there isn't irrefutable evidence. Texin Dec 2019 #11
All six claims in OP are not always true? greyl Dec 2019 #17
Ad worthy. Nt jaysunb Dec 2019 #2
Lots of innocent people do not testify, particularly if their lawyer thinks the prosecution ... marble falls Dec 2019 #3
They don't refuse to testify AND supply documents that would clear their name. onecaliberal Dec 2019 #4
It's clear what you meant with the context you gave. kcr Dec 2019 #20
A general rule in a defense: do not offer argument against points the prosecution failed to make ... marble falls Dec 2019 #22
I am NOT a lawyer, never claimed to be. Was NOT making a legal argument. onecaliberal Dec 2019 #23
I'm not meaning to ride you. I apologize. I think you are a reasonable person reasonably worked ... marble falls Dec 2019 #24
I don't agree Raine Dec 2019 #5
In addition to everything else. onecaliberal Dec 2019 #6
Yeah, no. Innocent people refuse to testify all the time. n/t X_Digger Dec 2019 #7
Another lawyer chiming in: yes, innocent people do refuse to testify. There can be good reasons. Shrike47 Dec 2019 #8
Do innocent people refuse to cough up everything making it impossible onecaliberal Dec 2019 #9
One more lawyer here - Ms. Toad Dec 2019 #12
I'm pretty sure most know what I mean. This isn't court. onecaliberal Dec 2019 #15
Most of the responses are similar to mine, Ms. Toad Dec 2019 #19
"nor shall be compelled in any criminal case to be a witness against himself" dpibel Dec 2019 #30
I'm discussing the general assertion that the OP made that silence is an indicaton of guilt. Ms. Toad Dec 2019 #34
Let us all be precise dpibel Dec 2019 #35
you want to make a solid argument stopdiggin Dec 2019 #13
i clearly didn't articulate my thoughts very well. onecaliberal Dec 2019 #14
Can we just say that innocent people don't: Stonepounder Dec 2019 #16
YES! thank you. onecaliberal Dec 2019 #18
In an ideal world where everyone deals honestly and openly. But then there'd be no crime and courts. marble falls Dec 2019 #25
Innocent people don't testify on their own behalf Codeine Dec 2019 #21
Defendants in civil cases do dpibel Dec 2019 #29
False.....as stated above, innocent ppl don't testify EVERYday. AncientGeezer Dec 2019 #26
I get what you were saying Bettie Dec 2019 #27
Thank you. onecaliberal Dec 2019 #32
Question for the legal experts on this thread dpibel Dec 2019 #28
The poster made a blanket statement Codeine Dec 2019 #31
Blankets to blankets dpibel Dec 2019 #33
 

StarfishSaver

(18,486 posts)
1. That's not always true.
Thu Dec 5, 2019, 10:11 PM
Dec 2019

There are good reasons an innocent person may not testify.

But there are also many reasons guilty people don't testify.

Trump falls into the latter category.

Texin

(2,585 posts)
11. Absolutely. Sometimes there isn't irrefutable evidence.
Fri Dec 6, 2019, 12:05 AM
Dec 2019

The prosecutorial side is always required to prove their case. Shore up their *evidence*. Sometimes their proof is barely circumstantial and speaking or testifying in those circumstances might be more of a risk than remaining silent and allowing the defense team to poke holes in the shaky case brought up against the defendant.

marble falls

(56,359 posts)
3. Lots of innocent people do not testify, particularly if their lawyer thinks the prosecution ...
Thu Dec 5, 2019, 10:19 PM
Dec 2019

didn't have a case to begin with.

kcr

(15,300 posts)
20. It's clear what you meant with the context you gave.
Fri Dec 6, 2019, 10:33 AM
Dec 2019

His refusal to show up at the hearings look guilty as hell. Internet lawyers are the worst.

marble falls

(56,359 posts)
22. A general rule in a defense: do not offer argument against points the prosecution failed to make ...
Fri Dec 6, 2019, 11:25 AM
Dec 2019

the fifth amendment is not there to protect the guilty, it's there to protect the innocent. Your presumption of innocence does not disappear when you use your right to remain silent. Innocent as hell, the first advise from your attorney's mouth every single time you get arrested is say NOTHING.

Wouldn't the best place to establish innocence be in the police or prosecutor's office? NO, and its not sometime in a court room either. You don't prove your innocence, they have to prove you're guilty. Reasonable doubt is an effective defense and all it requires is casting doubt on the prosecution's case. It verrrrry seldom hangs on defendant's testimony.

onecaliberal

(32,489 posts)
23. I am NOT a lawyer, never claimed to be. Was NOT making a legal argument.
Fri Dec 6, 2019, 02:27 PM
Dec 2019

I am a regular person venting. I am not a lawyer, making a legal argument in a court of law.

marble falls

(56,359 posts)
24. I'm not meaning to ride you. I apologize. I think you are a reasonable person reasonably worked ...
Fri Dec 6, 2019, 02:31 PM
Dec 2019

up over an extremely unreasonable reported crime.

Bless you.

Raine

(30,540 posts)
5. I don't agree
Thu Dec 5, 2019, 10:30 PM
Dec 2019

IMO testifying or not testifying shows neither guilt or innocence, guilty people may testify because they're good at lying and believe they can get away with it.

onecaliberal

(32,489 posts)
6. In addition to everything else.
Thu Dec 5, 2019, 10:45 PM
Dec 2019

Innocent people don’t hide everything about the case. There would be no way to clear their name.

onecaliberal

(32,489 posts)
9. Do innocent people refuse to cough up everything making it impossible
Thu Dec 5, 2019, 11:22 PM
Dec 2019

Last edited Fri Dec 6, 2019, 12:08 AM - Edit history (1)

To clear their name. Refuse witness and documents? Yeah didn’t think so.

Ms. Toad

(33,915 posts)
12. One more lawyer here -
Fri Dec 6, 2019, 12:09 AM
Dec 2019

Lots of innocent people go to jail. Some of them because they insisted on testifying on their own behalf, at times over their lawyer's objections because far too many people feel as you do: I'm innocent - I have nothing to hide. Even if true, that reality does not always serve an innocent defendant well.

I concur that he is not acting like an innocent person (and that he isn't). But you're painting with too broad a brush here.

Ms. Toad

(33,915 posts)
19. Most of the responses are similar to mine,
Fri Dec 6, 2019, 10:06 AM
Dec 2019

And a disproportionate number from lawyers, who frequently have to confront the misperception that remaining silent is a sign of guilt (and who don't like to see it perpetuated, even in service of a good cause).

dpibel

(2,803 posts)
30. "nor shall be compelled in any criminal case to be a witness against himself"
Fri Dec 6, 2019, 03:51 PM
Dec 2019

Are you arguing that impeachment is a criminal case?

Because if it's not, Fifth Amendment jurisprudence doesn't apply, does it?

Maybe the problem here is that the OP uses the word "innocent," which automatically triggers lawyers' criminal law responses, and off we go.

Lay people are, I believe, prone to talk about civil matters using the word "innocent." Lawyers know that you're not guilty or innocent of a tort. That distinction matters little to the nonlawyer.

I'd suggest it does a disservice to the impeachment discourse (and I do not mean in any way to imply that you are being disingenuous here--this truly is a general statement directed at the broader conversation, where these matters get bruited about) to discuss such things as presumption of innocence and protection against self-incrimination in a proceeding which is not criminal.

Ms. Toad

(33,915 posts)
34. I'm discussing the general assertion that the OP made that silence is an indicaton of guilt.
Fri Dec 6, 2019, 07:44 PM
Dec 2019

It is embodied most clearly in criminal law, but the principle remains the same - there are many valid reasons, other than guilt, to remain silent in both legal and non-legal settings.

Take, for example, the many accusations hurled against Barack Obama - to which his response was largely silence. Now apply the title of the OP to Obama - is Obama's silence an indication that he was born in Kenya? That he was a member of the Black Panthers? That he faked Osama bin Laden's death? That he funded his campaigns with drug money?

I am not suggesting any parallels between the well-documented, evidence-based accusations against Trump - and the right wing wet-dream-fueled trash hurled at Obama. But if silence is an axiomatic indication of guilt, then Obama must have been "guilty" of a whole lot becuase he largely chose to remain silent. Rather his silence, at least in part, was to avoid giving credence to ridiculous charges, a reason having nothing to do with his "guilt" or "innocence."

Presumption of innocence is a different issue than the one issue I addressed: Is silence an indication of guilt

dpibel

(2,803 posts)
35. Let us all be precise
Fri Dec 6, 2019, 09:33 PM
Dec 2019

In point of fact, the OP made no "general assertion ... that silence is an indication of guilt." The subject line that has raised all the ire referred to testimony. Apropos your argument regarding non-litigation silence: If there is no proceeding, there can be no testimony or refusal to testify.

Note that your response in post #12 is couched entirely in terms of testimony in court. Although your post #19 broadens to "remaining silent as a sign of guilt," it's hard to separate that from your original post, which dealt entirely with criminal procedure, especially when you refer to lawyers having to confront the misperception. Other attorney-commenters in this thread also cast this in terms of protecting the right not to self-incriminate.

Hence, the appearance that you are applying criminal law analysis to the issue at hand.

Your discussion of President Obama is, I respectfully suggest, off point.

President Obama was never involved in a legal proceeding involving his birthplace or any of the other allegations that you list. In such situations, the best course frequently is, indeed, "I will not dignify that ridiculous claim with a response." No one has an obligation to respond to facially ridiculous claims. That said, I will remind you that, on the issue of birthplace, President Obama did ultimately produce his "long form" birth certificate. Frankly, if he had been asked about any of these allegations as part of a proceeding subject to compulsory process, I'm not at all sure dignified silence would have been the right course. But, unlike the case of Donald Trump, we'll never know, since President Obama failed to do anything during his term in office that merited any form of legal proceeding, civil or criminal.

But there is a third category.

In civil proceedings, you do not, in fact, have the option of keeping dignified silence in the face of calumny. You do not have the option of saying, "I will not dignify this with a response." You are free to do that in a standard lawsuit, of course. So long as you are prepared to have a default judgment entered against you. And you do not have the option of saying, once you've filed an answer, "I'd really rather not discuss it." You will discuss it, and you will produce any and all apposite documents, or you will suffer sanctions, up to and including judgment against you.

Of course you can, to your heart's content, take the Fifth during your deposition, and not a person in the world can stop you. Same with interrogatories. But once you do that, the plaintiff gets to go before the court and say, "I'm entitled to the inference that answering these questions would have harmed the defendant's case as follows..."

As I've said in another post in this thread, we're in somewhat uncharted territory as to whether the inferences available in a standard civil suit are available in an impeachment. Adam Schiff thinks they are, or at least that's what he's said during the hearings.

But one thing we can say for sure: Donald Trump has no Fifth Amendment right to decline to answer questions.

And that is the way this discussion has been cast by the various lawyers in this thread. And that is misleading, I believe, to lay readers.



stopdiggin

(11,095 posts)
13. you want to make a solid argument
Fri Dec 6, 2019, 12:17 AM
Dec 2019

don't start out with a headline that is demonstrably false. you blew it.

onecaliberal

(32,489 posts)
14. i clearly didn't articulate my thoughts very well.
Fri Dec 6, 2019, 12:35 AM
Dec 2019

Innocent people don’t hide every single shred of evidence, witnesses and documents. Innocent people are willing to turn over evidence to support their innocence. Anyone unwilling to do such a thing would not really be credible.

Stonepounder

(4,033 posts)
16. Can we just say that innocent people don't:
Fri Dec 6, 2019, 12:36 AM
Dec 2019

Refuse to comply with subpoenas for evidence.
Refuse to allow others in their employ respond to subpoenas for testimony.
Collaborate with potential jurors on how they will try to get the defendant off.

dpibel

(2,803 posts)
28. Question for the legal experts on this thread
Fri Dec 6, 2019, 03:03 PM
Dec 2019

Why are you applying the standard for a criminal case?

I'm pretty sure that there's no credible argument that impeachment is a criminal proceeding. There's jeopardy neither of loss of liberty nor even of fine. The impeached and convicted party loses his office and, typically, the future right to hold office.

The proscription against drawing an inference from silence applies exclusively to criminal proceedings.

Or do yinz disagree with the Supreme Court:

"Our conclusion is consistent with the prevailing rule 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: the Amendment "does not preclude the inference where the privilege is claimed by a party to a civil cause." 8 J. Wigmore, Evidence 439 (McNaughton rev.1961)."

Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) [emphasis added].

I suppose you can argue that impeachment is neither a civil nor a criminal proceeding, in which case there's really not much precedent one way or the other as whether an inference may be drawn from silence.

But that assuredly does not mean that the criminal standard must apply, as appears to be the presumption of various posters on this thread.

 

Codeine

(25,586 posts)
31. The poster made a blanket statement
Fri Dec 6, 2019, 04:34 PM
Dec 2019

and was corrected. Had they couched their statement in more limited terms that may have resulted in a different set of reactions.

dpibel

(2,803 posts)
33. Blankets to blankets
Fri Dec 6, 2019, 06:19 PM
Dec 2019

The poster's subject line was technically incorrect, and I'm not using "technically" loosely or pejoratively: As I pointed out in another post, the concept of "innocence" is not at issue in a civil case. But that is a distinction that is important to lawyers and much less so to lay people.

But the balance of the post makes clear that the poster is referring to the impeachment process. Which is not a criminal proceeding.

Those who decided to lecture the poster on the power and necessity of the Fifth are making a blanket statement of their own, as they are invoking the right against self-incrimination in response to a post that discusses what clearly is not a criminal proceeding.

I do not believe this is actually illuminating or helpful. Reading this thread, a layperson might well be left with the impression that multiple legal experts, one and all solid members of Democratic Underground, are of the opinion that it is impermissible to draw any inference from Donald Trump's silence or from his refusal to participate in any form of discovery.

That is at odds with, for instance, the opinion of Rep. Schiff, who said out loud in hearings that the committee would, indeed, feel free to draw inferences from testimonial silence. It is also at odds with established law as to civil proceedings.

Now I do realize we should all be concerned that subject lines on Democratic Underground are punctiliously correct in all aspects because subject lines on DU are pretty much what the general public looks to for guidance and may be persuasive, if not binding, precedent in courts of all jurisdictions. So there is that.

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