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Thread: OT: 5th Amendment Incorporation?

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    Regular Member TFred's Avatar
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    HB 14 has been pre-filed for the upcoming General Assembly session in Virginia. Could prove to be a very interesting case.

    Basically in cases of domestic relations disputes (spousal support, custody, or visitation), this law will allow the courts to treat a refusal to answer questions about immoral conduct as "adverse information". Essentially this bill would penalize your domestic relations position for exercising your 5th Amendment protection from self-incrimination.

    Drifting back on topic a bit, I wonder if such a measure could also be applied to questions concerning "prohibited persons" and firearms?

    Does this law pass Constitutional muster?

    TFred

    Summary as introduced:

    Domestic relations; self-incrimination; adverse inference.

    Provides that in actions filed on or after July 1, 2010, for spousal support, custody, or visitation under Title 16.1 or for divorce or separate maintenance filed under Title 20, the court may draw an adverse inference against any party or witness who refuses to answer a question regarding conduct constituting adultery, sodomy, or buggery outside of marriage, or fornication on the ground that the testimony might be self-incriminating.

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    TFred wrote:
    HB 14 has been pre-filed for the upcoming General Assembly session in Virginia. Could prove to be a very interesting case.

    Basically in cases of domestic relations disputes (spousal support, custody, or visitation), this law will allow the courts to treat a refusal to answer questions about immoral conduct as "adverse information". Essentially this bill would penalize your domestic relations position for exercising your 5th Amendment protection from self-incrimination.

    Drifting back on topic a bit, I wonder if such a measure could also be applied to questions concerning "prohibited persons" and firearms?

    Does this law pass Constitutional muster?

    TFred

    Summary as introduced:

    Domestic relations; self-incrimination; adverse inference.

    Provides that in actions filed on or after July 1, 2010, for spousal support, custody, or visitation under Title 16.1 or for divorce or separate maintenance filed under Title 20, the court may draw an adverse inference against any party or witness who refuses to answer a question regarding conduct constituting adultery, sodomy, or buggery outside of marriage, or fornication on the ground that the testimony might be self-incriminating.
    What part of "nor shall be compelled in any criminal case to be a witness against himself" is so hard to understand?

    Now the domestic relations thing may not be a criminal case and therefore not incur the protections against self-incriminations.

    I don't believe the law would pass constitutional muster. It's trying to perform an end-around on constitutional protections. It's basically saying "You will tell us your sexual activities and decide you are a bad person or we'll assume you are bad a person".

    That law would basically be a damned-if-you-do, damned-if-you-don't proposition. I would resist such crap on principle.

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    State Researcher lockman's Avatar
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    The next question would be if you can be compelled to provide the "incrimminating" information for a civil proceding, would that information then be available for use in subsequent criminal proceeding?

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    Campaign Veteran skidmark's Avatar
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    lockman wrote:
    The next question would be if you can be compelled to provide the "incrimminating" information for a civil proceding, would that information then be available for use in subsequent criminal proceeding?
    Seeing as fornication
    § 18.2-344.

    Any person, not being married, who voluntarily shall have sexual intercourse with any other person, shall be guilty of fornication, punishable as a Class 4 misdemeanor.

    (Code 1950, §§ 18.1-188, 18.1-190; 1960, c. 358; 1975, cc. 14, 15.)
    is classified as a criminal act, and the proposed legislation will permit the courts to treat as "adverse information" any refusal to self-incriminate regarding a criminal act, there is no question that the proposed legislation abridges the Constitutional guarantee.

    The legislation is a cheap end-around for the sake of saving the expense of hiring a private investigator to get actual proof of infidelity as the grounds for divorce.

    And yes, I can easily see the "confession" of a criminal act in a civil case being used as the grounds for bringing a criminal charge - because it has been done so many times in the past.

    This is a "sleeper" bill that needs to be watched and opposed vigorously.

    stay safe.

    skidmark
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    Campaign Veteran marshaul's Avatar
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    Correct me if I'm wrong, but § 18.2-344 has been held unconstitutional.

    However, I suspect your point remains valid.

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    Campaign Veteran skidmark's Avatar
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    marshaul wrote:
    Correct me if I'm wrong, but § 18.2-344 has been held unconstitutional.

    However, I suspect your point remains valid.
    Can't find a cite for a case with that decision. I know it has not been prosecuted in a long time, with the "chatter" being that it would be found to be unconstitutional.

    Further, if it were ruled unconstitutional the GA would repeal it. They have a history of doing so. It's still active law.

    No matter what, this is an encroachment attempt that needs to be nipped in the bud.

    stay safe.

    skidmark
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
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    Regular Member TFred's Avatar
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    I guess not always...

    http://en.wikipedia.org/wiki/Martin_v._Ziherl

    TFred


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    Regular Member TFred's Avatar
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    I'd guess that alone (reference to an invalid law that is still on the books) gives this bill at hand a dim future.

    TFred


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    But, is the new bill about criminal matters? It sounds like a civil matter.

    I recall reading a case or article about immunity. The short story was that in situations where there was possible criminal repercussions, you could be compelled to testify if the government forced immunity on you. The idea being that the immunity removed the possibility of being prosecuted for whatever might be revealed, thus you have no valid reason to not testify.

    I'm guessing a wily court could figure out how, during a civil proceeding, saying something incriminatingcouldn't be usedlater for a criminal prosecution, thus either testify or have your silence held against you in the civil matter. It wouldn't take a few judges twenty minutes to invent some exception if they wanted to.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Campaign Veteran marshaul's Avatar
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    TFred wrote:
    I guess not always...

    http://en.wikipedia.org/wiki/Martin_v._Ziherl

    TFred
    Yup, that's the one.

    Sorry for forgetting the cite.

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    Regular Member simmonsjoe's Avatar
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    It is too close for comfort. I say it violates the 5th amendment the way its written.
    illegal ≠ immoral legal ≠ moral
    [SIZE=1]"I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. "Such an addiction is the last degradation of a free and moral agent." - Thomas Jefferson
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    I wonder if we are maybe worrying too soon.

    I imagine there are more than a couple politicians who will look at that bill and say, "Oh, $hit. I might be in that situation one day. Oh, hell no."


    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  13. #13
    Regular Member AB's Avatar
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    Citizen wrote:
    I wonder if we are maybe worrying too soon.

    I imagine there are more than a couple politicians who will look at that bill and say, "Oh, $hit. I might be in that situation one day. Oh, hell no."

    Don't count on it, unless you want to loose your rights. No violation to small, watch this:

    http://www.youtube.com/watch?v=swV_eOrAp9Y

    While it is a different situation, it certainlymakes the point.

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