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this post was submitted on 02 Nov 2023
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I don't think you can be convicted on an inference though, it needs to be proven, and that is my understanding of the 5th.
Like, yeah, maybe I'm guilty, but it's on you to prove it. It's kinda a bullshit system if you just say "are you guilty, no lying?"
Edit: wow, ok. It is inappropriate to apply an understanding of the fifth in criminal law to civil law. Message received.
There’s no conviction because this isn’t a criminal trial. This is a civil trial. Civil trials have a much lower standard.
Criminal trials are “beyond a reasonable doubt” which basically means “if a reasonable person could doubt the person’s guilt, then they aren’t guilty.” If there’s a way for a person to go “well, maybe they didn’t” then they’re supposed to be found innocent.
But civil trials are only “a preponderance of evidence” which is basically just 51%. If you can prove that the person probably wronged you, then you win the civil trial. Furthermore, you can’t use the fifth amendment as a defense, because the fifth amendment only protects against criminal charges.
Technically, you could plead the fifth if testifying required you to self-incriminate. But that means you’re unable to defend yourself in the civil trial because you’re trying to avoid admitting to a crime. And civil courts don’t look kindly upon that, because if defending yourself from an accusation requires an admission of guilt, then you’ll obviously lose the civil trial (which has a much lower standard for ruling against the defendant.) It’s basically someone going “that person wronged me!” And when the courts ask the other person to defend themselves, that person clams up and refuses to respond. In short, the defendant is refusing to defend themselves.
This is incorrect. The fifth only protects you from self-incrimination explicitly in criminal cases. The clause is "...nor shall be compelled in any criminal case to be a witness against himself,..."
In civil proceedings, it is actually stated that not answering questions can give rise to an adverse inference. I'm unsure how explicitly that is defined or if it might create a duty to draw the adverse inference. But it is certainly allowed.
There is a difference in the rules surrounding inference between civil and criminal trials, but the differences vary between jurisdictions.
this isn't a criminal trial, and the burden of proof is far lower than a criminal trial. in fact, you don't have to have absolute proof of anything, just that it's more likely something did happen.
yeah, he can't be compelled to testify to provide criminally incriminating evidence, sure. pleading the fifthy would be, basically, a non-answer in the context of the trial, and with the burden of proof being substantially lower, the plaintiff (the state of NY) have provided reasonable evidence of fraud... not contesting that with your own testimony means you're not challenging that narrative.
the trap seems to be, that in testifying here, it provides evidence for criminal charges that wouldn't have existed otherwise. you'll note that Jr. isn't contesting that fraud happened- simply that he didn't have anything to do with it. (when he obviously did. he signed the the documents asserting they were truthful and accurate,)
Noted.