Marcus Aurelius
08-26-2013, 10:30 PM
http://www.washingtonpost.com/national/ny-federal-appeals-court-assertion-of-5th-amendment-right-to-counsel-cant-be-proof-of-guilt/2013/08/26/3bb4cec4-0e98-11e3-a2b3-5e107edf9897_story.html
Prosecutors cannot use a defendant’s request for a lawyer as evidence of guilt, a federal appeals court ruled Monday as it ordered a new trial for a man convicted of trying to sneak an alien into the United States.
I would have thought that was so blatantly obvious, that it would never come up. Alas, I was incorrect.
Okatan was asked by a border patrol agent if he was there to pick someone up and was warned that lying to a federal officer was a criminal act, according to the recounting of the episode by Circuit Judge Gerald E. Lynch. At that point, Okatan asked for a lawyer.
“In order for the privilege to be given full effect, individuals must not be forced to choose between making potentially incriminating statements and being penalized for refusing to make them,” the appeals court said.
The 2nd Circuit said a Supreme Court ruling this year made a distinction in Fifth Amendment rights to protect oneself against self-incrimination when it made clear that a defendant has greater protection when he asks for a lawyer rather than merely remaining silent.
“A request for a lawyer in response to law enforcement questioning suffices to put an officer on notice that the individual means to invoke the privilege,” the court said.
The 2nd Circuit noted that the Supreme Court has said a prosecutor may not comment on a defendant’s failure to testify at trial because such comment would be “a penalty imposed by courts for exercising a constitutional privilege.”
“The Fifth Amendment guaranteed Okatan a right to react to the question without incriminating himself, and he successfully invoked that right.”
The guy was sentenced last year to time served in prison and five months home detention. Now he gets a new trial, without the prosecution bringing up his asking for a lawyer and saying he was engaged in the “kind of conduct that someone who’s been caught."
How did this even get past the guys lawyers to begin with? I'd have asked for a mistrial right then and there. Dumb asses.
Prosecutors cannot use a defendant’s request for a lawyer as evidence of guilt, a federal appeals court ruled Monday as it ordered a new trial for a man convicted of trying to sneak an alien into the United States.
I would have thought that was so blatantly obvious, that it would never come up. Alas, I was incorrect.
Okatan was asked by a border patrol agent if he was there to pick someone up and was warned that lying to a federal officer was a criminal act, according to the recounting of the episode by Circuit Judge Gerald E. Lynch. At that point, Okatan asked for a lawyer.
“In order for the privilege to be given full effect, individuals must not be forced to choose between making potentially incriminating statements and being penalized for refusing to make them,” the appeals court said.
The 2nd Circuit said a Supreme Court ruling this year made a distinction in Fifth Amendment rights to protect oneself against self-incrimination when it made clear that a defendant has greater protection when he asks for a lawyer rather than merely remaining silent.
“A request for a lawyer in response to law enforcement questioning suffices to put an officer on notice that the individual means to invoke the privilege,” the court said.
The 2nd Circuit noted that the Supreme Court has said a prosecutor may not comment on a defendant’s failure to testify at trial because such comment would be “a penalty imposed by courts for exercising a constitutional privilege.”
“The Fifth Amendment guaranteed Okatan a right to react to the question without incriminating himself, and he successfully invoked that right.”
The guy was sentenced last year to time served in prison and five months home detention. Now he gets a new trial, without the prosecution bringing up his asking for a lawyer and saying he was engaged in the “kind of conduct that someone who’s been caught."
How did this even get past the guys lawyers to begin with? I'd have asked for a mistrial right then and there. Dumb asses.