Houston Defense Attorney Mark Bennett posts two great articles on real-world law: one aimed at his clients, and one aimed at prosecutors.
…If, based on something you heard at a seminar put on by Winston Shrout or his ilk you create a fictitious commercial instrument and deposit it in a bank, you’re likely to wind up getting arrested by real (not straw) agents with real badges, hauled before a real court with real power to send you to real prison (maybe you can share a cell with Roger Elvick, the white supremacist who dreamt up all of this Redemption nonsense) where real guards can kill the real you if you try to escape.
The government doesn’t get to decide whether the witness has a good faith reason to refuse to talk; if it did, there’d be no point in having a Fifth Amendment right against self-incrimination.But aside from that, there is no such test, in the real world (which is where I practice) for taking the Fifth. As I have said here before, this is the way it works:
- Witness is sworn in.
- Witness is asked a question.
- Witness refuses to answer on grounds that the answer might tend to incriminate him.
- Witness is asked another question.
- Witness again refuses to answer.
- Prosecutor gets tired of this game.
At this point, the prosecutor appearing before the grand jury is not allowed to strap the witness down and waterboard him until he answers the question. He has two options. First, he can let it go and let the witness go on about his business.
Second, he can go to a judge and ask the judge to order the witness to answer the questions. If the judge orders the witness to answer the questions, the witness has to either answer or be held in contempt.
But guess what: the judge’s order for the witness to answer the questions is a grant of use immunity.
Grand Juries are at once extremely powerful, and are, for the most part, wholly owned and operated by the Prosecution. (It was not always thus; GJ’s used to be fairly independent, and my understanding is that they still can, if they wish, start and pursue their own investigations, or refuse to pursue an investigation requested by the prosecution.)
The check to this is for witnesses (suspects) to understand their rights and Grand Jury procedure. Mr. Bennett has done all of us a great service.
Tags: grand juries, Mark Bennett, redemption theory, Winston Shrout