Legal Question in Criminal Law in New York

Re: contempt of court

I'm going to take this in 2 parts - - -

Short Answer:

Can he go to jail for not testifying? Absolutely.

Can he invoke his 5th Amendment right? Only if testifying would get him into legal trouble.

Longer Explanation:

Here is a harsh fact of life in the Criminal Justice system.

No matter how much blood you have shed, the crime was not committed against YOU. It was committed against THE STATE. Crimes are violations of state, (and local or federal) law. Laws made by our folks in Albany.

This means that this case is the government�s case, not yours. Just like those police officers, you are merely a witness to the incident, albeit an up-close, personal and badly wounded one. They can do with it what they wish. You want your piece of flesh on your terms? You�ve got to sue.

When a crime is committed, the A.D.A. who is sworn to uphold the law will go after those who broke it. She is allowed to subpoena all sorts of evidence, like records, physical items and even the testimony of people. If her witness is reluctant to come forward � yes, she can give him the choice of testifying or going to jail. The government is going to do what it has to do to make sure that people don�t think that it is OK to stab and stun gun other people. They also want to take the power out of witness intimidation. After all, if a person is scared to testify � and who in their right mind wouldn�t be - that can�t be allowed to paralyze the case. Otherwise no one would ever show up to court and no cases would ever be prosecuted.

And the fact that there was no statement taken doesn�t make any difference. Res Limpsa Loquitur. The leg speaks for itself. So sure, the A.D.A. can go to trial with the medical records and the police testimony �that�s what they do when someone doesn�t survive an assault. But if the best witness is alive and kickin�� These guys have to prove their case Beyond a Reasonable Doubt. That�s a tough standard. So the witness will be made to appear. Trust me. I�ve done it. I wasn�t happy to do it. But I did. Can the A.D.A. charge him each and every time he refuses to talk? Technically, yes. But this person would have to have a lot of time on her hands or vitriol in her veins to follow through on that one.

NEXT>>>

Re: contempt of court (continued)

Now on to the 5th Amendment to the Constitution of the United States of America:

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in actual service in time of

War or public danger; nor shall any person be subject for the same offence to

be twice put in jeopardy of life or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property be taken for public use,

without just compensation.

The key part here is near the end. �� nor shall be compelled in any criminal case to be a witness against himself.��

Your son is not being asked to be a witness against himself. He is asked to be a witness against the person who stabbed and stunned him. So the 5th Amendment thing ain�t gonna fly � unless�. something else happened during or before a crime.

Let�s do a hypothetical. Let�s say a bank robber leaves a bank with his newly acquired loot and gets mugged in an alley a block away. Well, talking about the mugging would require the bank robber to discuss his earlier activities and admit that the money stolen from him was taken in a bank robbery. Yes, that would tend to incriminate him and he could be getting himself in to hot water. He would be testifying against himself. THEN he may invoke the 5th Amendment. The judge will then scour the hallways trying to find a court-appointed attorney willing to represent the witness and advise him while on the witness stand. And yes, his lawyer might have him repeatedly say, �I take the 5th�.

On the other hand, the A.D.A. might be interested enough in the case against the defendant that she�ll work out a deal to give the witness some level immunity during the trial. It�s sort of a limited get-out �of jail free card. The DA will have to promise to pretend that he basically never heard all of the bad things the witness said about himself during the trial. Nothing the witness says in that court of law will be used against him. Now there�s a twist for you.

So bottom line:

If your son hasn�t given you the entire story about why he was stunned and stabbed, there might be a good reason why he doesn�t want to testify. If that is the case, he really needs to bring a toothbrush or bring a lawyer. The civil jail at Riker�s Island gets a little chilly cold this time of year.

END