Category: Fifth Amendment

  • Quote of the Day

    Police officer to me: “I do have some questions for your client, but I’m not goofy enough to think you’re going to let him answer them.”

  • Boucher Revisited

    If I read The Volokh Conspiracy, I would’ve seen and (again) blogged about this back in February: U.S. District Judge William K. Sessions III in Burlington handed down an opinion sort-of-reversing Magistrate Judge Jerome J. Niedermeier’s order quashing a grand jury subpoena for: all documents, whether in electronic or paper form, reflecting any passwords used […]

  • Million-Dollar Legal Advice

    I’ve been saying it on the internet for 10 years in my Million-Dolar Legal Advice: don’t talk to the police.

  • More on Boucher

    Scott Greenfield writes to “deconstruct” (whatever that means) the Boucher confusion on password and privilege. Scott and Orin Kerr and Gideon all presumed that Mr. Boucher had input the password at the border when agents asked to see what was on the computer. But the Boucher opinion doesn’t actually say that Mr. Boucher input his […]

  • You Can Always Say No

    Gideon brings us news of a federal case in Vermont in which the judge has refused to force the accused to reveal the password that he used to PGP-encrypt the kiddie porn on his computer, even though the accused had already used the password to show agents what was on the computer. This is, of […]

  • More on the Fifth

    In response to this post about prosecutors advising witnesses who wish to take the Fifth, an anonymous Harris County prosecutor wrote: Before you are too hard on the D.A.s for telling a witness that they can’t plead the 5th on the stand, you should realize how often that comes up for us. Too many witnesses […]

  • The Fifth

    Twice recently I’ve had people — potential witnesses in criminal cases — tell me, “the prosecutor said I couldn’t take the Fifth because I’m not testifying to anything incriminating.” One of them, an alleged complaining witness, even told me, “the prosecutor said I didn’t need a lawyer because he’s my lawyer.” Hogwash. First, the prosecutor […]

  • Failure to Testify

    From McClung’s Texas Pattern Jury Charges: You are instructed that our law provides that the failure of the defendant to testify shall not be taken as a circumstance against him, and during your deliberations you must not allude to, comment on, or discuss the failure of the defendant to testify in this cause, nor will […]