Post by Vince524 on Jul 21, 2017 6:17:05 GMT -5
They can hold a hearing before the trial, but then they could and would face a lawsuit since he can't speak without fear of incrimination.
Has he been charged? I didn't think so. So there is no criminal case.
Are we talking about the Fifth Amendment, or Miranda rights?
If the cop hasn't yet been arrested or charged, there can't be a criminal case, hence no context for the Fifth Amendment or Miranda... right?
Sure, it might well be in his interest not to talk, but I'm not sure that he's specifically got the shelter of the Fifth Amendment. And if a police officer can flatly refuse to participate in an internal investigation, there's the spectre of a diabolical precedent. How can a public officer wielding lethal firepower and a badge NOT be compelled to participate in the investigation?
In general, you can assert your Fifth Amendment right against self-incrimination in any circumstance in which you are being questioned by a government official and when what you say can be used as evidence against you in a criminal matter. You can waive this right intentionally, by just answering the question, or unintentionally, by answering other questions that establish a basis on which you may be compelled to answer on the basis of rebuttal or further inquiry on the topic.
For example, if you are being questioned by your defense attorney, and he or she asks if you were present at the scene of the crime, you might answer "no" - that's a legitimate answer. Then, on cross-examination, the prosecution might start asking where you were, or using other evidence to prove that you were there - because you "opened the door" on where you were during direct examination, you can't subsequently plead the Fifth on the same matter at a later time.
The most recent interesting case was the statement read by the IRS head during the Congressional hearing into the irregular tax examination of right-wing political groups. There are some who believe that her statement was testimonial in nature, and believe that by reading the statement she waived her Fifth Amendment right to not answer questions on topics covered in her statement. Others believe that a statement read to Congress is not testimony, so she retained her rights.
For example, if you are being questioned by your defense attorney, and he or she asks if you were present at the scene of the crime, you might answer "no" - that's a legitimate answer. Then, on cross-examination, the prosecution might start asking where you were, or using other evidence to prove that you were there - because you "opened the door" on where you were during direct examination, you can't subsequently plead the Fifth on the same matter at a later time.
The most recent interesting case was the statement read by the IRS head during the Congressional hearing into the irregular tax examination of right-wing political groups. There are some who believe that her statement was testimonial in nature, and believe that by reading the statement she waived her Fifth Amendment right to not answer questions on topics covered in her statement. Others believe that a statement read to Congress is not testimony, so she retained her rights.
If the people are asking questions to determine if there's a criminal case, he can refuse to answer the questions. If someone were questioning you about what is potentially a crime, but they haven't placed you under arrest, of course you can plead the fifth.
This is nothing new. Most cops want to tell what happened, because most cops believe they did the right thing. Hell, most cops would probably beg to tell their side. But anything he says now can be used against him in the trial. This isn't a defense of this cop in this shooting, but yes in a general sense, of course he can refuse to talk while there is a possibility of a criminal charge.
