NetNews Usenet Archive 1992 #26/NN_1992_26.iso/spool/sci/crypt/4532

Text File | 1992-11-09 | 4.3 KB | 85 lines

Newsgroups: sci.crypt
Path: sparky!uunet!walter!qualcom.qualcomm.com!servo.qualcomm.com!karn
From: [e-mail] (Phil Karn)
Subject: Re: Finally!  We're getting somewhere.
Message-ID: <[e-mail]>
Sender: [e-mail]
Nntp-Posting-Host: servo.qualcomm.com
Organization: Qualcomm, Inc
References: <[e-mail]> <[e-mail]>
Date: Thu, 5 Nov 1992 19:13:34 GMT
Lines: 72

In article <[e-mail]> [e-mail] (Paul Qualtrough) writes:
>What?!?!  Has the land of truth, justice and cotton fields done away with
>the standard swearing-in phrase of "...the truth, the _whole_ truth, and
>nothing but the truth" which, if agreed to, implies that you must testify
>"against yourself" if some part of the truth is incriminating?

Under the American system, a defendant need not take the stand at all,
so he never has to take the oath. But if he does, then he has to take
the oath and answer all questions, including those that relate to his
guilt.

Here are some relevant entries from Black's Law Dictionary, Fifth Edition:
--Phil


"Privilege against self-incrimination. The privilege derived from the
Fifth Amendment, US Const., and similar provisions in the
constitutions of states.  It requires the government to prove a
criminal case against the defendant without the aid of the defendant
as a witness against himself, though it protects only communications,
not physical evidence such as handwriting and fingerprints. It is
invocable by any witness who is called to the witness stand against
his wishes whether the proceeding be a trial or a grand jury hearing
or a proceeding before an investigating body, but it is waived when
the witness voluntarily takes the witness stand. See also Immunity;
Link-in-Chain"

"Link-in-Chain. The 5th Amendment (US Const.) privilege against
self-incrimination protects a witness not only from the requirement of
answering questions which might call for directly incriminating
answers but also from answers which might tie or link the defendant to
criminal activity in the chain of evidence. Estes v. Potter, C.A.Tex.,
183 F.2d 865.  Immunity also protects one from such result. State v.
Buchanan, Fla.App., 207 So.2d 711, 717."

"Self-incrimination. Acts or declarations either as testimony at trial
or prior to trial by which one implicates himself in a crime. The
Fifth Amendment, US Const., as well as provisions in many state
constitutions and laws, prohibit the government from requiring a
person to be a witness against himself involuntarily or to furnish
evidence against himself. It is the burden of the government to accuse
and to carry the burden of proof of guilt. The defendant cannot be
compelled to aid the government in this regard. See also Compulsory
self-incrimination; Link-in-chain; Privilege against
self-incrimination."

"Compulsory self-incrimination. Any form of coercion, physical or
psychological, which renders a confession of crime or an admission
involuntary, is in violation of the 5th Amend., US Const., and due
process clause of 14th Amend.  Such practices contravene the very
basis of our criminal jurisprudence which is accusatorial not
inquisitional. Rogers v. Richmond, 365 US 534, 81 S.Ct 735, 5 L.Ed.2d
760."

"Immunity from prosecution. By state and federal statues, a witness
may be granted immunity from prosecution, for his or her testimony
(e.g., before grand jury). States either adopt the "use" or the
"transactional" immunity approach. The federal government replaced the
later with the former approach in 1970. The distinction between the
two is as follows: "Use immunity" prohibits witness' compelled
testimony and its fruits from being used in any manner in connection
with criminal prosecution of the witness; on the other hand,
"transactional immunity" affords immunity to the witness from
prosecution for offense to which his compelled testimony relates.

"Protection from prosecution must be commensurate with privilege
against self incrimination, but it need not be any greater and hence a
person is entitled only to protection from prosecution based on the
use and derivative use of his testimony; he is not constitutionally
entitled to protection from prosecution for everything arising from
the illegal transaction which his testimony concerns (transactional
immunity.) Kastigar v. US, 406 US 441, 92 S.Ct. 1653, 32 L.Ed.2d 212."