Joe Biden recently said that no amendment to the Constitution
is absolute. I was under the impression that the self-incrimination
protection in the Fifth Amendment is absolute. Who's right here,
me or Joe? Thanks.

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According to Charles Reynolds <c.p.reynolds.iii@gmail.com>:

Joe Biden recently said that no amendment to the Constitution
is absolute. I was under the impression that the self-incrimination >protection in the Fifth Amendment is absolute. Who's right here,
me or Joe? Thanks.

The self-incrimination rule applies only in criminal cases, not civil.
It applies only to testimony so they can require handwriting samples
or copies of your documents, even if those would tend to incriminate you.

Once again, the Annotated Constitution is an excellent resource:

https://constitution.congress.gov/browse/essay/amdt5-3-1-2/ALDE_00000865/

--
Regards,
John Levine, johnl@taugh.com, Primary Perpetrator of "The Internet for Dummies",
Please consider the environment before reading this e-mail. https://jl.ly

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In misc.legal.moderated, Charles Reynolds <c.p.reynolds.iii@gmail.com> wrote:

Joe Biden recently said that no amendment to the Constitution
is absolute. I was under the impression that the self-incrimination protection in the Fifth Amendment is absolute. Who's right here,
me or Joe? Thanks.

What is meant by absolute? What was the exact statement? The
self-incrimination protection in the Fifth Amendment is famously
absent if someone has been been pardoned. The logic apparently
being that because there is no criminal risk to self-incrimination
after the pardon, it can be compelled even if there is a reputational
risk. That sounds "not absolute" to me.

Elijah
------
is not on a first name basis with PotUS

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Joe Biden recently said that no amendment to the Constitution

is absolute. I was under the impression that the self-incrimination >>protection in the Fifth Amendment is absolute. Who's right here,
me or Joe? Thanks.

I didn't hear him say that so I don't know the context. But maybe he meant that no amendment to the Constitution is absolute because any amendment can
be reversed by a subsequent amendment. In the case of the fifth amendment,
it is possible (albeit very unlikely) that a subsequent amendment to the Constitution could be passed saying something like "The Fifth amendment to
the Constitution of the United states is hereby repealed."

So in that sense, he is correct that no amendment to the Constitution is absolute.
--

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On 4/9/2021 8:18 PM, Stuart O. Bronstein wrote:

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

Joe Biden recently said that no amendment to the Constitution

is absolute. I was under the impression that the
self-incrimination protection in the Fifth Amendment is absolute.
Who's right here, me or Joe? Thanks.

I didn't hear him say that so I don't know the context. But
maybe he meant that no amendment to the Constitution is absolute
because any amendment can be reversed by a subsequent amendment.
In the case of the fifth amendment, it is possible (albeit very
unlikely) that a subsequent amendment to the Constitution could be
passed saying something like "The Fifth amendment to the
Constitution of the United states is hereby repealed."

So in that sense, he is correct that no amendment to the
Constitution is absolute.

That's correct. But when people normally say that it means that
there are health and safety, or other reasonable and necessary,
exceptions to any right given under the Constitution. With the 5th Amendment, for example, it only applies, as someone earlier mentioned
(well, the Supreme Court said that it only applies) to oral
statements. A person can be compelled to provide documentary
evidence against himself.

This isn't my area of expertise, but there may be other exceptions as
well. For example for the Fourth Amendment, when "exigent
circumstances" arise (e.g. it appears that a serious crime is in
progress) the requirement of a search warrant is waived.

I would think the 16th amendment is pretty absolute (Income Tax).

I suspect Joe really meant rights granted by an amendment is not absolute

We can all come up with examples of the 1,2,4,5, and 6 where the a right
is not absolute.

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

Joe Biden recently said that no amendment to the Constitution

is absolute. I was under the impression that the
self-incrimination protection in the Fifth Amendment is absolute.
Who's right here, me or Joe? Thanks.

I didn't hear him say that so I don't know the context. But
maybe he meant that no amendment to the Constitution is absolute
because any amendment can be reversed by a subsequent amendment.
In the case of the fifth amendment, it is possible (albeit very
unlikely) that a subsequent amendment to the Constitution could be
passed saying something like "The Fifth amendment to the
Constitution of the United states is hereby repealed."

So in that sense, he is correct that no amendment to the
Constitution is absolute.

That's correct. But when people normally say that it means that
there are health and safety, or other reasonable and necessary,
exceptions to any right given under the Constitution. With the 5th
Amendment, for example, it only applies, as someone earlier mentioned
(well, the Supreme Court said that it only applies) to oral
statements. A person can be compelled to provide documentary
evidence against himself.

This isn't my area of expertise, but there may be other exceptions as
well. For example for the Fourth Amendment, when "exigent
circumstances" arise (e.g. it appears that a serious crime is in
progress) the requirement of a search warrant is waived.


--
Stu
http://DownToEarthLawyer.com

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On 4/9/2021 11:18 PM, Stuart O. Bronstein wrote:

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

Joe Biden recently said that no amendment to the Constitution

is absolute. I was under the impression that the
self-incrimination protection in the Fifth Amendment is absolute.
Who's right here, me or Joe? Thanks.

I didn't hear him say that so I don't know the context. But
maybe he meant that no amendment to the Constitution is absolute
because any amendment can be reversed by a subsequent amendment.
In the case of the fifth amendment, it is possible (albeit very
unlikely) that a subsequent amendment to the Constitution could be
passed saying something like "The Fifth amendment to the
Constitution of the United states is hereby repealed."

So in that sense, he is correct that no amendment to the
Constitution is absolute.

That's correct. But when people normally say that it means that
there are health and safety, or other reasonable and necessary,
exceptions to any right given under the Constitution. With the 5th Amendment, for example, it only applies, as someone earlier mentioned
(well, the Supreme Court said that it only applies) to oral
statements. A person can be compelled to provide documentary
evidence against himself.

I know that if someone had already written (for example) a memo or
signed a document, etc, that can be subpoenaed and used. But what about
forcing you to write out your signature new? Let's say they had
something that was supposedly your handwriting. Can they require you to
write out a specific sentence there at the police station so they can
compare it or such? (And there was actually a time when I had that
happen to me. I was stopped for a traffic issue and then taken in about
a worthless check charge. Same first name and last name and they asked
me to write out the amount that the check was for and even the
hand-writing was close. But then they got hold of the landlord for the
address on the check and he was describing a "white male, around 20,
light colored hair, slim build" but then saved me with "...and stands
around 5-foot-3" and I'm right at 6 foot.)

This isn't my area of expertise, but there may be other exceptions as
well. For example for the Fourth Amendment, when "exigent
circumstances" arise (e.g. it appears that a serious crime is in
progress) the requirement of a search warrant is waived.

And the 4th does use the word "unreasonable" so they have decided that,
in most cases, a search warrant is needed before it's "reasonable" but
that in some cases, it's reasonable without it. So I don't really see
that as an exception as much as it is a more-detailed interpretation.
Now not being able to shout "theater" at a bonfire (or something like
that) *would* be more accurately noted as being an exception to the first.

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Thanks for the replies. I was already aware that it only
applies to criminal cases, but y'all don't know me and
were right to assume I didn't know that.

IANAL, but here's my understanding of it. Let me know if
I'm correct. The 5th Am. right against self-incrimination
applies when four things are true. First, the matter is
a criminal one, not a civil one. Second, the evidence is
testimonial. Fingerprints, DNA samples, handwriting
exemplars do not count because they are not assertions
of fact. Third, the evidence is compelled, against the
person's wishes. A criminal defendant can certainly take
the stand if he wishes to (and if he's an idiot). Finally,
the possibility of self-incrimination exists. A witness
can be compelled to answer a question by granting him
immunity, whether he desires it or not, because that
removes the possibility of self-incrimination.

Do I have it right?

Now, I was under the impression that within those bounds,
the self-incrimination protection is absolute. A criminal
defendant cannot be forced to take the stand, and any
person is never required to answer a police officer's
questions. Are there exceptions?

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On 4/25/2021 8:02 AM, Charles Reynolds wrote:

Thanks for the replies. I was already aware that it only
applies to criminal cases, but y'all don't know me and
were right to assume I didn't know that.

IANAL, but here's my understanding of it. Let me know if
I'm correct. The 5th Am. right against self-incrimination
applies when four things are true. First, the matter is
a criminal one, not a civil one. Second, the evidence is
testimonial. Fingerprints, DNA samples, handwriting
exemplars do not count because they are not assertions
of fact. Third, the evidence is compelled, against the
person's wishes. A criminal defendant can certainly take
the stand if he wishes to (and if he's an idiot). Finally,
the possibility of self-incrimination exists. A witness
can be compelled to answer a question by granting him
immunity, whether he desires it or not, because that
removes the possibility of self-incrimination.

Do I have it right?

Now, I was under the impression that within those bounds,
the self-incrimination protection is absolute. A criminal
defendant cannot be forced to take the stand, and any
person is never required to answer a police officer's
questions. Are there exceptions?

If a police officer who has "reasonable suspicion" that you are involved
in criminal activity stops you, he can demand that you identify
yourself. That is, you must tell him your name. And that's all.

Also, you can invoke your right against self-incrimination in a civil
case, but "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." https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution#Refusal_to_testify_in_a_civil_case

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

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On Sun, 25 Apr 2021 11:53:32 -0700, Barry Gold wrote:

On 4/25/2021 8:02 AM, Charles Reynolds wrote:

[quoted text muted]

If a police officer who has "reasonable suspicion" that you are involved
in criminal activity stops you, he can demand that you identify
yourself.
That is, you must tell him your name. And that's all.

What happens if the officer in question chooses not to believe the answer
you give ?

"Identify yourself" sounds like a weasel phrase that could be construed
to mandate DNA and fingerprint evidence be provided ...

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On 4/26/2021 7:28 AM, Jethro_uk wrote:

On Sun, 25 Apr 2021 11:53:32 -0700, Barry Gold wrote:

On 4/25/2021 8:02 AM, Charles Reynolds wrote:

[quoted text muted]

If a police officer who has "reasonable suspicion" that you are involved
in criminal activity stops you, he can demand that you identify
yourself.
That is, you must tell him your name. And that's all.

What happens if the officer in question chooses not to believe the answer
you give ?

"Identify yourself" sounds like a weasel phrase that could be construed
to mandate DNA and fingerprint evidence be provided ...

DNA and fingerprint evidence can only be demanded with a showing of
probable cause.(*) If the cop chooses not to believe the answer, he
needs at least "reasonable suspicion" to go further. That is, he must be
able to articulate a reason why he didn't believe the person,not just a
"hunch" or "intuition".

If he proceeds without that, all the evidence resulting from that
illegal detention and/or search will be barred as "fruit of the
poisonous tree."

(*) Although it appears that it is legal for cops to surreptitiously
follow somebody around until they discard a cup they've been drinking
from or something like that, then retrieve it from the trash (if in a
public place). Or offer somebody a glass of water while questioning
them, then getting the prints and DNA off the used glass.


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

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I thought [likely incorrectly] that if a defendant chooses to provide
evidence, then that effectively waives the 5th amendment. Is that not so?

/Bernie\
--
Bernie Cosell Fantasy Farm Fibers
bernie@fantasyfarm.com Pearisburg, VA
--> Too many people, too few sheep <--

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Bernie Cosell <bernie@fantasyfarm.com> wrote:

I thought [likely incorrectly] that if a defendant chooses to
provide evidence, then that effectively waives the 5th amendment.
Is that not so?

Not exactly. As I recall (I don't practice criminal law) there are two
kinds of waiver. If the defendant introduces evidence that involves
otherwise privileged material, then he waives the privilege with
respect to that particular material.

If the defendant testifies in court, then he waives his 5th Amendment privilege.

--
Stu
http://DownToEarthLawyer.com

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