The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

Do They Still Teach Presumption Of Innocence In Law Schools, @DMataconis?

Posted on | May 27, 2013 | 16 Comments

by Smitty

Ol’ Doug:

More importantly, though, I think it’s a mistake to say that the protections of the 5th Amendment, or to broaden the argument any of the protections granted to actual and potential criminal defendants under the 4th, 6th, and 7th Amendments as well, were primarily designed to protect the innocent.

I realize that I’m unfit to question your JD-ness, but didn’t Presumption of Innocence kind of inform Law as we (at least once) knew it?

On a superficial level, that simply isn’t supported by the text of the Amendments themselves, which apply to everyone in all situations.

So, the lack of enumeration of every contextual assertion informing the Bill of Rights supports pretending that the first 10 Amendments lack any? I forget where in Amar’s book, but he mentions the sequence of the Amendments, itself, as significant. They are all addenda to specific articles in the Constitution proper, and could have been physically interwoven with the document, just as they are logically. In summary, the Bill of Rights is a gripe list about what happens when power is concentrated excessively. Not dissimilar from our current situation.

Indeed, the 5th Amendment’s right against self-incrimination doesn’t require that there actually be a pending criminal case or investigation, or that the testimony in question take place in a court proceeding connected with criminal charges. As long as their is a possibility that what someone says in a public forum, be it a criminal investigation or a deposition during the course of a civil trial, could potentially used to bring charges against them and prosecute them for a crime then the person being questioned has the right to invoke their rights under the Amendment. It’s not a question of being “guilty” or “innocent,” it’s that the Amendment exists to protect individuals from the state compelling them to testify in any situation, including a Congressional Committee hearing.

OK, so “the government can’t beat it out of you” has evolved into “you don’t have to play”. Right.

I guess that’s the point of a jury of the peers, then: to listen to all of the back-and-forth and render a conclusion. Pleading the 5th on a seemingly trivial issue is going to come across as: “Guilty”.

One can be an IRS apologist to the extent that they have a task that is impossible to accomplish defect-free at the outset, and then point out that there has never been a reasonable reform mechanism.

I understand Lois has pled the Fifth. I even believe she believes she’s innocent, as much as #OccupyResoluteDesk believes he’s Christian. Once accepts these assertions at face value.

The danger to the Fifth Amendment and its protections is a lack of fundamental reform. Lois, herself, is a footnote, and resisting the urge to personalize all this, tempting though it be, is paramount. Alinskyism is false.


16 Responses to “Do They Still Teach Presumption Of Innocence In Law Schools, @DMataconis?”

  1. dmataconis
    May 27th, 2013 @ 9:14 pm

    @smitty_one_each Given your co-bloggers coverage of the Kaitlyn Hunt story I didn’t realize that The Other McCain still believed in that

  2. dmataconis
    May 27th, 2013 @ 9:15 pm

    @smitty_one_each Also, your post is a prime example of what happens when people who don’t understand the law write about it.

  3. Dana
    May 27th, 2013 @ 9:30 pm

    Under the law, neither the judge nor the jury may infer from a defendant taking the Fifth that the defendant is guilty of a crime; whether individual jurors actually do infer such is beyond the control of any judge, and the jury is the final arbiter of the facts of a case.

    But we, as common spectators, may infer any damned thing we like. I have inferred that the lovely Mrs Lerner is trying to protect someone, and that someone may be herself, or may include others beside herself. Not being on the jury which may eventually sit in judgement of her, I am perfectly free to infer what I will.

  4. Evi L. Bloggerlady
    May 27th, 2013 @ 9:36 pm

    Ms. Lerner, as Dana already noted, presumption of innocence means the burden is on the State to prove the charges and is for the judge and jury to hold the State to proving guilt beyond a reasonable doubt.

    It does not mean the public can’t infer its own conclusions. And let’s face some facts: the sexual union of these individuals is not at issue (that is given and admitted). What matters is were the elements of a felony committed and will the jury ultimately hold Ms. Hunt Smith accountable. Hey, they may not. But I can still think what she did, given the circumstances, is wrong.

  5. Wombat_socho
    May 27th, 2013 @ 10:36 pm

    (with no apologies to Garry Trudeau)

  6. Kevin Trainor Jr.
    May 27th, 2013 @ 10:57 pm

    Kevin Trainor Jr. liked this on Facebook.

  7. MrMichael
    May 27th, 2013 @ 11:39 pm

    Not a Judge. Not a Jury. There is no trial… this is Congress performing their Constitutional Duty to oversee the actions of Federal employees. She can refuse to explain her actions or elaborate on her knowledge about what happened on the job, but she gets no 5th Amendment protection for that.

    IF, and I really emphasize IF… she is charged with a crime, or is questioned by Law Enforcement, THEN she is protected by the 5th Amendment, and the Judge and Jury cannot use her lack of testimony as an indication of Guilt.

    This is an employment issue… not a trial.

    (…and Smitty… it’s “pleaded”, not “pled”.)

  8. MrMichael
    May 27th, 2013 @ 11:40 pm

    Lois Lerner isn’t the cute Lesbian. No, no… not by a long shot. Wrong story, ELB.

  9. Adjoran
    May 28th, 2013 @ 12:00 am

    Much like a stopped analog clock, Mataconis is correct on occasion. I don’t care enough to read his linked piece, but it is clear that none of the cited Amendments are designed to “protect the innocent” – or the guilty – so much as to form a firm barrier and restraint on the government.

    A good illustration is tax compliance. Every court has held that signing your tax returns constitutes a waiver of the right against self-incrimination, yet if you submit an unsigned form you can be prosecuted for failure to file. So citizens are in effect compelled to give evidence which can potentially be used against them in a criminal trial.

  10. K-Bob
    May 28th, 2013 @ 3:23 am

    Let’s all just sign as “Charles Johnson”

  11. K-Bob
    May 28th, 2013 @ 3:23 am

    Skirts or Kilts?

  12. Bob Belvedere
    May 28th, 2013 @ 8:02 am

    No apologies needed for that useless POS [not even worthy as fertilizer].

  13. Evi L. Bloggerlady
    May 28th, 2013 @ 8:33 am

    I understand but it applies to the 18 year old Lesbian too.

  14. richard mcenroe
    May 28th, 2013 @ 9:36 am

    Correct as ned.

  15. William_Teach
    May 28th, 2013 @ 11:02 am

    What I find interesting at Outside the Beltline, especially with Doug’s posts, is how comments from lefties get the highest “thumbs ups”. OTB used to be a good conservative blog, but degenerated into a hive of Democrat Lite that would make even John McCain uneasy. Meghan McCain would be right at home, though.

  16. SDN
    May 28th, 2013 @ 1:14 pm

    The jury can (and will) infer any damned thing it pleases. As it should.