If someone under oath ia asked a question, the truthful answer to which
will be a confession to a crime, but one for which the statute of
limitations, criminally and civilly, has long expired, can he still
refuse to answer because of the 5th Amendment?

I need to know by 9AM tomorrow.

(Just kidding.)

--
I think you can tell, but just to be sure:
I am not a lawyer.

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micky <misc07@fmguy.com> wrote in news:70dtmh5srgtrd82r4rul2nfqr2akcpf5aj@4ax.com:

If someone under oath ia asked a question, the truthful answer to
which will be a confession to a crime, but one for which the
statute of limitations, criminally and civilly, has long expired,
can he still refuse to answer because of the 5th Amendment?

Depends. Why are they asking him the question?

It can't put him in jeopardy if the statute of limitations has run.
But has it? Is there some other way it can put him in jeopardy?

--
Stu
http://DownToEarthLawyer.com

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On Friday, November 11, 2022 at 10:50:16 PM UTC-6, micky wrote:

If someone under oath is asked a question, the truthful answer to which
will be a confession to a crime, but one for which the statute of limitations, criminally and civilly, has long expired, can he still
refuse to answer because of the 5th Amendment?

I was watching "The Good Fight" last month. This TV lawyer exchange
is related to Micky's question. It got my attention:

Attorney Diane Lockhart is speaking to her husband
Kurt McVeigh. McVeigh has been subpoenaed to testify
before a grand jury about his involvement in the January
6, 2021 riot. McVeigh does not want to give the names
of any of his associates who may have been involved.
McVeigh fiercely believes in his Constitutional rights,
particularly the 2nd Amendment but also the Fifth's
(the right not to incriminate himself). McVeigh is not a
fan of government.

Attorney-wife:
Kurt, listen to me. You can be jailed for contempt.

Kurt:
I'm not naming names. I'll just take the Fifth.

Attorney-wife:
But you need a good-faith reason to invoke the Fifth Amendment.
If you don't have one... And God knows, I hope that you don't...
You can still be held in contempt.

Kurt:
Who decides if I have a good-faith reason?

Attorney-wife:
A judge.

Kurt, you're a witness in a grand jury proceeding, not
a gunslinger at the O.K. Corral. Toughness is not what
counts here.

====

Later, McVeigh is in front of the Grand Jury. An Assistant
U. S. Attorney (prosecutor) is questioning McVeigh.

Prosecutor:
Thank you, Mr. McVeigh, for responding to our summons.

Kurt McVeigh:
You're welcome.

Prosecutor:
McVeigh. That's... That's an unfortunate name. Any relation?

Kurt McVeigh:
I've been told, by my lawyer, to respond to all your questions,
"I refuse to answer on the grounds that it may tend to incriminate me."

Prosecutor:
Really? Asking if you're related to the Oklahoma bomber?
That might incriminate you?

Kurt McVeigh:
I've been told, by my lawyer, to respond to all your questions,
"I refuse to answer on the grounds that it...

Prosecutor:
Okay.

Kurt McVeigh:
... may tend to incriminate me."

Prosecutor:
Let's turn to January 6 of this year. All we want to know are the
names of the gunmen you trained. Do you know those names?

Kurt McVeigh:
I've been told, by my lawyer, to respond to all your questions,
"I refuse to answer on the ground that it may tend to incriminate me."

Prosecutor:
Mr. McVeigh. You have to have a good-faith reason to invoke the
Fifth Amendment. You can't just use it to avoid answering questions.
Because I can hold you in contempt for refusing to answer. Is that a question? Yes. I've been told by my lawyer to respond to all your questions...

Kurt McVeigh:
( sighs ) "I refuse to answer on the grounds that it may tend to
incriminate me."


See https://tvshowtranscripts.ourboard.org/viewtopic.php?f=836&t=44978

I presume the part about having to have a "good faith reason" for taking the Fifth
is buried in the case law.

I also presume that someone like Kurt McVeigh could rationalize
what a "good faith reason" is. Could a court force him to explain his reasoning? Or would not such an explanation also potentially
incriminate him?

To return to Micky's question: If there's any risk of being charged
with a crime, it seems to me one could lawfully take the Fifth.

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I imagine the answer will require a very careful reading of the exact
wording of the amendment.

Mind you, I've always thought that about the second, but appear to be
alone in that. On both sides of the pond

--- SoupGate-Win32 v1.05
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On 11/11/2022 8:50 PM, micky wrote:

If someone under oath ia asked a question, the truthful answer to which
will be a confession to a crime, but one for which the statute of limitations, criminally and civilly, has long expired, can he still
refuse to answer because of the 5th Amendment?

As others have pointed out, you need a "good faith reason" to think your testimony might incriminate you.

BUT: keep in mind that -- as a non-lawyer -- you have no idea what might incriminate you. If it were me, I would take the fifth. If the lawyer
who is asking the question thinks your "taking the fifth" is not for a
good reason, he can ask the judge to probe the matter.


I'm not a criminal defense lawyer, not a lawyer at all, but I assume
there's some procedure for this. I just don't know what it is. Maybe you
talk to the judge in chambers (and in confidence, just as with your own lawyer)?


--
I do so have a memory. It's backed up on DVD... somewhere...

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"Barry Gold" wrote in message news:tl0kh8$23uss$1@dont-email.me...

On 11/11/2022 8:50 PM, micky wrote:

If someone under oath ia asked a question, the truthful answer to which
will be a confession to a crime, but one for which the statute of
limitations, criminally and civilly, has long expired, can he still
refuse to answer because of the 5th Amendment?

As others have pointed out, you need a "good faith reason" to think your >testimony might incriminate you.

BUT: keep in mind that -- as a non-lawyer -- you have no idea what might >incriminate you. If it were me, I would take the fifth. If the lawyer who
is asking the question thinks your "taking the fifth" is not for a good >reason, he can ask the judge to probe the matter.

I'm not a criminal defense lawyer, not a lawyer at all, but I assume
there's some procedure for this. I just don't know what it is. Maybe you
talk to the judge in chambers (and in confidence, just as with your own >lawyer)?

If we're talking about a witness in a trial, keep in mind that the witness
has already been interviewed by his lawyer before the trial and probably had
to participate in depositions. The issue of taking the Fifth would probably come up during these preparations and I'm sure there would be consultation
with the other lawyer and judge. I think it is very rare that a witness
will just spontaneously take the Fifth during testimony without anyone
knowing it's coming.

--

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On 11/16/2022 7:21 AM, Rick wrote:

"Barry Gold"  wrote in message news:tl0kh8$23uss$1@dont-email.me...

On 11/11/2022 8:50 PM, micky wrote:

If someone under oath ia asked a question, the truthful answer to which
will be a confession to a crime, but one for which the statute of
limitations, criminally and civilly, has long expired, can he still
refuse to answer because of the 5th Amendment?

As others have pointed out, you need a "good faith reason" to think
your testimony might incriminate you.

BUT: keep in mind that -- as a non-lawyer -- you have no idea what
might incriminate you. If it were me, I would take the fifth. If the
lawyer who is asking the question thinks your "taking the fifth" is
not for a good reason, he can ask the judge to probe the matter.


I'm not a criminal defense lawyer, not a lawyer at all, but I assume
there's some procedure for this. I just don't know what it is. Maybe
you talk to the judge in chambers (and in confidence, just as with
your own lawyer)?

If we're talking about a witness in a trial, keep in mind that the
witness has already been interviewed by his lawyer before the trial and probably had to participate in depositions.  The issue of taking the
Fifth would probably come up during these preparations and I'm sure
there would be consultation with the other lawyer and judge.  I think it
is very rare that a witness will just spontaneously take the Fifth
during testimony without anyone knowing it's coming.

AFAIK witnesses are not usually deposed. A party (plaintiff or
defendant) is required to answer interrogatories (written questions) and
to show up and be deposed, but witnesses AFAIK only have to respond to questions in court.

And witnesses usually don't talk to a lawyer before testifying. If the
question comes as a surprise, I think the only option is to "take the
fifth" and let the lawyers and the judge argue about it. If things got
to the point of being threatened with a contempt citation, I'd certainly
insist on talking to my own lawyer.

At that point the judge and the lawyers for both sides would have to
decide if they want the answer enough to wait for it (which might delay
the trial if there aren't other witnesses following me).

I was deposed once, back in the 1960s. The opposing lawyer asked me a
question which could have incriminated me. I 'took the fifth', and 'my'
lawyer (actually a lawyer for my insurance company) didn't support me. I
think because it was clear that they were going to pay out the maximum
on my policy.

If I had it to do over, I would have stood up and told the opposing
lawyer to either go on to the next question or I'd end the session and
they could reschedule after I'd consulted a lawyer who would actually
look out for MY interests.

(I ended up doing that, one of my wife's relatives with an office in
Beverly Hills. He usually represented plaintiffs, but helped negotiate a settlement so I didn't have to pay anything except his fee, which was
had a reduction for "courtesy" because of being a relative.)

--
I do so have a memory. It's backed up on DVD... somewhere...

--- SoupGate-Win32 v1.05
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"Barry Gold" wrote in message news:tl3cvd$2dprl$1@dont-email.me...

On 11/16/2022 7:21 AM, Rick wrote:

"Barry Gold" wrote in message news:tl0kh8$23uss$1@dont-email.me...

On 11/11/2022 8:50 PM, micky wrote:

If someone under oath ia asked a question, the truthful answer to which >>>> will be a confession to a crime, but one for which the statute of
limitations, criminally and civilly, has long expired, can he still
refuse to answer because of the 5th Amendment?

As others have pointed out, you need a "good faith reason" to think your >>> testimony might incriminate you.

BUT: keep in mind that -- as a non-lawyer -- you have no idea what might >>> incriminate you. If it were me, I would take the fifth. If the lawyer
who is asking the question thinks your "taking the fifth" is not for a
good reason, he can ask the judge to probe the matter.


I'm not a criminal defense lawyer, not a lawyer at all, but I assume
there's some procedure for this. I just don't know what it is. Maybe you >>> talk to the judge in chambers (and in confidence, just as with your own
lawyer)?

If we're talking about a witness in a trial, keep in mind that the
witness has already been interviewed by his lawyer before the trial and
probably had to participate in depositions. The issue of taking the
Fifth would probably come up during these preparations and I'm sure there
would be consultation with the other lawyer and judge. I think it is
very rare that a witness will just spontaneously take the Fifth during
testimony without anyone knowing it's coming.

AFAIK witnesses are not usually deposed. A party (plaintiff or defendant)
is required to answer interrogatories (written questions) and to show up
and be deposed, but witnesses AFAIK only have to respond to questions in >court.

And witnesses usually don't talk to a lawyer before testifying. If the >question comes as a surprise, I think the only option is to "take the
fifth" and let the lawyers and the judge argue about it. If things got to
the point of being threatened with a contempt citation, I'd certainly
insist on talking to my own lawyer.

I disagree that witnesses don't usually talk to the lawyer before
testifying. I think any lawyer worth their salt is going to want to know
what a witness will say before putting them on the stand. Sure, there will
be occasional cases where a witness may say something surprising or
unexpected, especially during cross, but surprise declarations of taking the Fifth are rare.
--

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"Rick" <rick@nospam.com> wrote:

"Barry Gold" wrote

Rick wrote:

"Barry Gold" wrote

micky wrote:

If someone under oath ia asked a question, the truthful answer
to which will be a confession to a crime, but one for which
the statute of limitations, criminally and civilly, has long
expired, can he still refuse to answer because of the 5th
Amendment?

As others have pointed out, you need a "good faith reason" to
think your testimony might incriminate you.

BUT: keep in mind that -- as a non-lawyer -- you have no idea
what might incriminate you. If it were me, I would take the
fifth. If the lawyer who is asking the question thinks your
"taking the fifth" is not for a good reason, he can ask the
judge to probe the matter.

I'm not a criminal defense lawyer, not a lawyer at all, but I
assume there's some procedure for this. I just don't know what
it is. Maybe you talk to the judge in chambers (and in
confidence, just as with your own lawyer)?

If we're talking about a witness in a trial, keep in mind that
the witness has already been interviewed by his lawyer before
the trial and probably had to participate in depositions. The
issue of taking the Fifth would probably come up during these
preparations and I'm sure there would be consultation with the
other lawyer and judge. I think it is very rare that a witness
will just spontaneously take the Fifth during testimony without
anyone knowing it's coming.

AFAIK witnesses are not usually deposed. A party (plaintiff or
defendant) is required to answer interrogatories (written
questions) and to show up and be deposed, but witnesses AFAIK only
have to respond to questions in court.

And witnesses usually don't talk to a lawyer before testifying. If
the question comes as a surprise, I think the only option is to
"take the fifth" and let the lawyers and the judge argue about it.
If things got to the point of being threatened with a contempt
citation, I'd certainly insist on talking to my own lawyer.

I disagree that witnesses don't usually talk to the lawyer before
testifying. I think any lawyer worth their salt is going to want
to know what a witness will say before putting them on the stand.
Sure, there will be occasional cases where a witness may say
something surprising or unexpected, especially during cross, but
surprise declarations of taking the Fifth are rare.

Exactly. Which is why witnesses are almost always deposed before a
trial - both so that the lawyer knows in advance what the witness is
going to say, and also to lock the witness in so that if he changes
his story, what he said during the deposition can be brought in to
impeach his trial testimony.


--
Stu
http://DownToEarthLawyer.com

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"Stuart O. Bronstein" <spamtrap@lexregia.com> wrote:

} micky <misc07@fmguy.com> wrote in
} news:70dtmh5srgtrd82r4rul2nfqr2akcpf5aj@4ax.com:
}
} > If someone under oath ia asked a question, the truthful answer to
} > which will be a confession to a crime, but one for which the
} > statute of limitations, criminally and civilly, has long expired,
} > can he still refuse to answer because of the 5th Amendment?
}
} Depends. Why are they asking him the question?
}
} It can't put him in jeopardy if the statute of limitations has run.
} But has it? Is there some other way it can put him in jeopardy?

Of course, those are the right questions and, alas, the OP's time
constraint probably means that he won't do the proper/safe thing: which is
to talk with his lawyer
/Bernie\
--
Bernie Cosell Fantasy Farm Fibers
bernie@fantasyfarm.com Pearisburg, VA
--> Too many people, too few sheep <--

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