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this post was submitted on 02 Nov 2023
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My understanding is they can't plead the 5th. Well they can but the judge can assume the worst if they do use it.
Apparently because it's civil not criminal it works different.
He might have still been better off pleading the 5th and losing the civil trial than he will be testifying, probably losing the civil trial anyway, and also opening himself to potential criminal liability.
Better to be thought a criminal than to open your mouth and remove all doubt
True, but lucky for us, he's a dumbshit.
"I'm Eric."
They lost the civil trial already by willful disregard of the courts requests and blatant misdirection. This whole show is just to determine how much they owe. While it might be pedantic, it is fairly critical to getting the story right as to what is happening.
It’s why the questioning is going the way it is going. They could go deeper on certain questions, but the facts are already mostly clear. It doesn’t stop them from focusing on who of this gang might have lied.
Yeah, guilt can be inferred when pleading the 5th in a civil trial because you are effectively refusing to refute anything said against you.
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.