In between Mark going on and on and on and (ahem) on about local politics and the evil (perceived or real) at his local prosecutor's office, he had a couple interesting posts up about how a witness can take the 5th: The Fifth and More on the Fifth. Rather than going directly into argument, I thought I'd set out the typical kind of case (usually in Domestic Court) where this comes up.
John Smith and Jane Jones live together in a trailer. They call each other "fiance" but there hasn't been any real talk about a wedding for the last 2 years they've been living together. They have a child in common who is 8 months old.
Saturday night rolls around and the deputies are dispatched to the trailer. They arrive and find John and Jane both inebriated. Separated, John says nothing, but Jane tells the officers that John grabbed her by the neck, slammed her into the wall and slapped her twice. She has a swelling eye, split lip and some redness around her neck. John gets hauled off and charged with Assault & Battery of a Family Member (living together qualifies).
6 weeks later comes the court date. Jane flags down the Assistant Prosecutor in the courtroom that day and they go out in the hall to start the dance. Jane's opening gambit: "I want to drop the case."1
Prosecutor, who has had at least one call a day from a lady who wants to drop a charge against husband/fiance/baby's daddy/brother/father/&cetera, isn't dissuaded quite so easily, "Why?"
"He didn't mean it. He was drunk and we were arguing. It would have never happened if I hadn't yelled at him. Anyway, he's in AA now and he's really sorry. He ain't hit me since. And if he goes to jail he'll lose his job and I need his check to feed the baby."
Prosecutor takes all this in and tells the lady to sit back down in the gallery. Then he goes to look at John's record and talk to the deputies. The record isn't too bad: 2 petit larcenies, 1 possession of marijuana, and 1 simple assault and battery from 3 years back (all misdemeanors - nothing domestic - longest time in jail is 10 days for the second larceny). He then turns and asks the deputies what the situation is.
Deputy: "They spend their time drunk and arguing with each other. We get called up there about once a month to separate them. This time there was physical evidence of an attack so (per policy) we arrested John."
Prosecutor: "Any trouble since? Think anything we do here can help the situation?"
Deputy: (shrugs) We haven't been called to the trailer since this incident. We've dealt with John and Jane for years; they aren't going to change. Still, a man oughtn't do that and not get punished." Deputy pulls out his digital camera and shows Prosecutor pictures of Jane with red marks the size of a hand on her neck and a swollen right eye and a split lower lip.
Prosecutor weighs everything and decides that realistically he should offer 5 weekends in jail or 10 days with work release. A suspended sentence of 6 months. Probation of 12 months. He forwards that offer to John's attorney and turns around to try a case the judge has called.
By the time Prosecutor finishes the case and turns around Jane is frantically waving at him. They go back out in the hall. Jane is beside herself: "I told you I want to drop the charges."
Prosecutor: "He has a prior assault and battery and he choked you and hit you twice. I'm offering him a better deal than he ought to get. And he won't lose his job."
Jane: "I won't testify. He didn't hit me."
Prosecutor: "Ma'am, we have pictures of the injuries he inflicted on you."
Jane: "I fell down."
Prosecutor: "Both sides of your face were injured."
Jane: "I hit the door with my eye and doorknob with my lip."
Prosecutor: "And the red marks on your neck?"
Jane: "I was wearing a necklace and it caught on the doorknob as I fell and almost choked me."
Prosecutor: "Ma'am, I don't believe a word of that. In ten minutes I'm going to call you to testify. It's perjury to lie under oath - you need to tell the truth."
Jane: "I don't wanna testify and John don't need to go to jail. You call me to the stand and I'll take the 5th."
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So now we are about where Mark's posts begin. Of course, people being as creative and diverse as they are, there are infinite variations on the theme laid out above. However, I think it's fairly representative of what happens.
Tomorrow I'll try to talk some about the theories and realities of the courtroom and Commonwealth v. John Smith.
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1 Implicit in this instruction is the belief that the prosecutor is her attorney. My experience has been pretty much the exact opposite of what Mark talks about. I spend a fair amount of time telling people, as delicately as possible, that I am not their attorney.