Writ of Possession without being served

[army judge]

Can a defendant claim 5th Amendment rights in a civil Duces Tucum?

One can attempt to assert a Fifth Amendment privilege against self-incrimination and refuse to produce subpoenaed documents where the act of producing said documents is incriminating in and of itself, absent regard for the contents of the documents.

Whether the attempt is successful will be decided by the presiding judge.

If the attempt is unsuccessful, the ruling would then have to be appealed.

This is not to be attempted "pro se", or under the auspices of an inexperienced counsel.

This subject can be researched using most any search engine.

Here are some results in that regard:

Can Your Client Claim the Fifth to Avoid a Document Subpoena? - Percipient

Fifth Amendment Privilege for Producing Corporate Documents on JSTOR

https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=3112&context=vlr

http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2694&context=flr

Your efforts should produce HUNDREDS of sources and material to study.

Again, don't attempt this UNLESS you are an experienced litigator.

Even LTG Flynn's attorneys have struggled with this subject:

https://constitutioncenter.org/blog/understanding-michael-flynns-fifth-amendment-case

 

[army judge]

Exemployer believes I have some of their files, which I don't but I am going to the Duces Tecum without an attorney so I am going to use my 5th Amendment so I don't say something stupid.

Asserting one's Fifth Amendment privilege MUST be done correctly if a person wishes to avoid incriminating herself/himself by testifying in open court.


This comment cuts right to the heart of the issue.

If, by answering those questions, you potentially admit to committing a crime then, yes, you should be able to exercise your right against self-incrimination but you'd better take those questions to an attorney and find out how to answer them properly.

It is next to impossible for a layperson to make such an assertion, followed up by the argument to support the assertion regarding the order to produce documents.


If you attempt this ploy, you'll bury yourself and end up doing the very thing you seek to avoid.

You shouldn't proceed in this folly unless you are represented by counsel.

You are heading to the graveyard to dig your grave without being allowed to commit harikari, but it's more base form of seppuku.

 

[Tax Counsel]

Can a defendant claim 5th Amendment rights in a civil Duces Tucum?

A subpoena duces tecum is generally a demand served on a third party to produce documents or other evidence that in the person's possession. I don't know where Jack got the idea it was a request to answer questions – I think Jack is confusing it with a request for interrogatories, and those are served on the opposing party, not a third party.

While it is possible to assert a valid 5th Amendment privilege a claim with respect to producing documents, that's not very common since those documents do not generally amount to testimony by you against yourself. This is a difficult area, as Army Judge indicated, because the law with regard to this is complex. It is not something that pro se parties are likely to handle successfully. Note that even if you do successfully assert the privilege, doing that will adversely affect your civil case because, unlike in criminal court, the judge or jury deciding the civil case are allowed to infer that had you given the answer or provided the document it would have been unfavorable to you. So while you can help avoid providing info that might later be used in a criminal case against you, doing that can hurt your position in the civil case. So you really ought to consult an attorney before you trying asserting the privilege. Otherwise you do risk making a mess of things.

 

[flyingron]

I'm having a hard time figuring out what the fifth amendment or duces tecum has to do with a writ of possession. A writ is not a subpoena. There's nothing to testify about. Again, the writ is the last step, an order that allows the sheriff to put you out.

 

[Tax Counsel]

I'm having a hard time figuring out what the fifth amendment or duces tecum has to do with a writ of possession. A writ is not a subpoena. There's nothing to testify about. Again, the writ is the last step, an order that allows the sheriff to put you out.

I think the subpoena may be in a different matter than the writ of possession. There were originally two threads, one with the writ question and one on the 5th amendment, and it appears a moderator merged them.

 

[Zigner]

Exemployer believes I have some of their files, which I don't but I am going to the Duces Tecum without an attorney so I am going to use my 5th Amendment so I don't say something stupid.

A "duces tecum" isn't something you "go to". You obviously don't understand what you are dealing with and need help. Speak to an attorney.

 

[Tax Counsel]

A "duces tecum" isn't something you "go to".

Actually, technically it is. The subpoena calls for the person to show up and bring the requested documents/items. However, in general the subpoena may be satisfied by simply arranging to provide the documents/items in some other manner, e.g. by mail unless the person is also being asked to appear at the same time to give a deposition or to testify at a hearing or trial. So while in practice the person who is just asked to provide documents is not going to have to personally show up to provide them at the date and time stated in the subpoena if the documents are provided by some other acceptable means on or before that date, the form of the subpoena does command an appearance. This is one of the things that can confuse a pro se party.

 

[Zigner]

Actually, technically it is. The subpoena ...

The decus tecum is the subpoena. The hearing (ordered by the decus tecum) is what they show up to.

 

[Highwayman]

I'm still laughing at his being "barely served".

 

[Tax Counsel]

The decus tecum is the subpoena. The hearing (ordered by the decus tecum) is what they show up to.

That's true, and I think you know that it was the hearing specified in the subpoena that the OP was referring to, even though he phrase it inartfully. But nice play on being very literal.

 

[Zigner]

That's true, and I think you know that it was the hearing specified in the subpoena that the OP was referring to, even though he phrase it artfully. But nice play on being very literal.

LOL - I was actually using my post it to illustrate a point about the need for representation.

 

[flyingron]

With regard to the fifth amendment. First, the fifth amendment self-incrimination protection only applies to CRIMINAL matters. You very much can be forced to testify counter to your interests in civil matters.

Second, being compelled to produce physical evidence other than testimony is not testimony and the fifth amendment prohibition won't protect you. If they get past the fourth amendment issues, you have to produce the items.

 

[Tax Counsel]

With regard to the fifth amendment. First, the fifth amendment self-incrimination protection only applies to CRIMINAL matters. You very much can be forced to testify counter to your interests in civil matters.

To the extent you are saying that the 5th amendment protection against self-incrimination cannot be invoked in a civil case, I disagree with you. A person certainly may do that. The 5th amendment does protect the witness in civil settings, too. The difference, as I noted earlier, is that the in the civil setting even if you properly invoke the 5th amendment and do not have to answer the question the result will be that the court may infer that has you answered that answer would be against your interests and take that into account in deciding the matter. A court may not do that in a criminal prosecution.

 

[flyingron]

The Fifth Amendment is clear:

or shall be compelled in any criminal case to be a witness against himself

While the witness may remain silent in civil matters, it's not a protection under the fifth amendment. The SCOTUS has held that this extends to statements that may result in criminal liability, but it has not held that the right exists just because you are exposed to civil liability for what you might say. Even then, it's not without limits. The threat that your statement may be used against you in a criminal prosecution must be "reasonable, real, and appreciable."

 

[Zigner]

The Fifth Amendment is clear:

or shall be compelled in any criminal case to be a witness against himself

While the witness may remain silent in civil matters, it's not a protection under the fifth amendment. The SCOTUS has held that this extends to statements that may result in criminal liability, but it has not held that the right exists just because you are exposed to civil liability for what you might say.

I suspect you're saying the same thing. One can invoke the 5th in civil matters when the answers may incriminate one in criminal matters, however, that doesn't protect one from the civil consequences of invoking it.

 

[Tax Counsel]

The SCOTUS has held that this extends to statements that may result in criminal liability, but it has not held that the right exists just because you are exposed to civil liability for what you might say.

Exactly what I was getting at: even if you are a witness in a civil case, if the answer to the question you are asked would expose you to criminal liability; for example, if the answer would result in admitting to a crime the witness may invoke the Fifth Amendment and the court cannot compel him/her to answer. As you note, the right must properly be invoked, which is to say that the answer could indeed result an admission that would be used against the witness in a criminal prosecution. You cannot invoke it just because you do not want to answer or because the answer would hurt you in the civil case. Moreover, as I said earlier, even when properly invoked the failure to answer allows the civil court to assume the answer would not have been favorable and use that in against the witnesses in assessing his/her testimony. As a result, it is tricky for most witnesses to handle this properly without the advice of an attorney.

 

[army judge]

I suspect you're saying the same thing. One can invoke the 5th in civil matters when the answers may incriminate one in criminal matters, however, that doesn't protect one from the civil consequences of invoking it.

Hanlon's Razor says, "Never attribute to malice that which is adequately explained by stupidity."

Protecting one's derrière can be difficult when one has exposure from opposing directions.

However, protecting one's freedom is more important than protecting one's assets, because without freedom, one's assets could soon be depleted.

Stuck between the "hard place" of a civil matter and a criminal matter, asserting one's Fifth Amendment right to avoid self incrimination should be the first and only consideration until the criminal matter has been adjudicated.

Freedom over "stuff" is the only play.

 

[Zigner]

Hanlon's Razor says, "Never attribute to malice that which is adequately explained by stupidity."

I've never heard that, but now that I have, I'm going to use it often!