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Daniels' lawyer, Michael Avenatti, is responding to Trump attorney Michael Cohen's request Wednesday to plead his Fifth Amendment rights against self-incrimination in the Daniels lawsuit over her alleged affair with Trump because of the ongoing criminal investigation he faces in New York.

Cohen's request was an attempt to stop a lawsuit over a hush agreement he made with Daniels over the alleged 2006 encounter with Trump.

Cohen told the California court earlier this week that the FBI seized electronic devices and records related to his hush payment to Clifford in raids earlier this month.

In his response, Avenatti wrote that Cohen's lawyers "offer a skeletal declaration from Michael Cohen asserting an across-the-board, blanket refusal to answer any questions.

"But such blanket claims of Fifth Amendment privilege are expressly prohibited by law," he argued.

Avenatti also wrote that other witnesses could testify in the California case, and that would allow it to go forward without Cohen's testimony about certain topics. Avenatti says other potential witnesses include the bank that executed the payment to Daniels, Daniels' former attorney Keith Davidson, Cohen's wife and others.

Avenatti did not name the President as a potential witness in the lawsuit, though Trump is one of the parties being sued in addition to Cohen.

Avenatti also used Cohen's and Trump's own words to make the point that Cohen shouldn't be able to take the Fifth. Daniels' lawyer cited an interview Cohen gave to CNN in which he said his payments to Daniels, whose real name is Stephanie Clifford, were "perfectly legal." He also pointed to Trump's assertions Thursday morning that Cohen did "absolutely nothing wrong" related to the $130,000 payment to Clifford.

The judge in California, James Otero, indicated earlier this week he would look at whether "less drastic means or measures" than stopping the lawsuit from going forward are possible. The judge may also consider separating Daniels' complaint that Cohen defamed her from a complaint against Trump and a shell company Cohen used regarding the hush agreement.

Cohen was in court in Manhattan on Thursday. Cohen's lawyers and an independent attorney in New York are reviewing the documents to block any that might fall under attorney-client privilege from prosecutors. The criminal investigation involves the Daniels payment, which Cohen made weeks before the 2016 presidential election, and several other business matters.

Avenatti, speaking on CNN's "Anderson Cooper 360" Thursday evening, said he believes Trump's statements on Fox strengthen their case and raises discrepancies in the claims put forward on Trump and Cohen's side.

"I think the President is making it up as he goes along," Avenatti said. "I think Michael Cohen has made it up as he has gone along, and this is what happens."

CNN's Eli Watkins contributed to this report.

Originally posted here:
Stormy Daniels' lawyer pushes back on Cohen's 'blanket ...

The first ten amendments to the U.S. Constitution are commonly known as the Bill of Rights and were ratified on December 15, 1791. It is remarkable how many of these amendments are still resilient today throughout the United States. Their individual freedoms against government interference include: the freedom of speech and religion and the right to peaceably assemble (First Amendment); the right to keep and bear arms (Second Amendment); the protection against unreasonable searches and seizures (Fourth Amendment); double jeopardy and due process protections, the prohibition against compelled self-incrimination, and compensation for private property taken for public use (Fifth Amendment); the right to counsel, speedy and public trial, impartial jury, confronting witnesses, and compulsory process to obtain witnesses (Sixth Amendment); and the protections against excessive bail and fines and cruel and unusual punishments (Eighth Amendment). This post focuses on the Fifth Amendment self-incrimination provision in the courtroom and the granting of immunity to a witness to compel testimony.

The Fifth Amendment privilege protects a person against compelled self-incrimination. A similar privilege exists in section 23 of Article I of the North Carolina Constitution, which has not been interpreted more expansively than the Fifth Amendment. While the privilege protects a person against compelled testimony and similar communications, it does not against compelled nontestimonial acts such as submitting to fingerprints, photographs, and sobriety testing, speaking for identification, appearing in lineups, and giving blood samples. See e.g., Schmerber v. California, 384 U.S. 757, 764-65 (1966) (withdrawal and chemical analysis of blood did not implicate defendants testimonial capacities and thus did not violate Fifth Amendment). The privilege may be invoked in any proceeding, civil or criminal, including a criminal investigation. It protects against any compelled disclosures that a person reasonably believes could be used in a criminal prosecution or could lead to the discovery of other evidence that might be used in a prosecution. Kastigar v. United States, 406 U.S. 441, 444-45 (1972). When a witness invokes the privilege, the trial court must determine whether it may be reasonably inferred that the answer may be incriminating, and the invocation should be liberally construed.

A criminal defendant has the right under the Fifth Amendment privilege to decline to take the stand. If a defendant decides not to testify, the State or a judge may not call the defendant to the stand, and a codefendant may not call the defendant to the stand at their joint trial. However, a defendant who voluntarily takes the stand and testifies in his or her own behalf cannot invoke the privilege on cross-examination concerning matters made relevant by direct examination. When a defendant exercises his or her Fifth Amendment privilege by not testifying at trial, any reference by the State or the trial court about the defendants election not to testify violates the Fifth Amendment.

A witness who is not a criminal defendant has the right under the Fifth Amendment privilege to refuse to answer a question if: (1) the answer may tend to incriminate the witness; (2) the witness is not immune from prosecution; and (3) the witness has timely invoked the privilege in response to a question. However, a witness who testified on direct examination cannot invoke the privilege on cross-examination concerning matters made relevant by direct examination.

A judge has the discretion whether (1) to advise a witness of his or her right not to answer incriminating questions, and (2) to allow the State or the defendant to call a witness to invoke the privilege before the jury.

A witness who invokes the Fifth Amendment privilege against self-incrimination in any criminal or civil hearing or proceeding, including a grand jury, may be ordered to testify or produce other information when the witness has been granted immunity under Article 61 of Chapter 15A. Although an order granting immunity may be issued in any criminal or civil matter, only a district attorney is authorized to apply for an order, and the application must be made before a superior court judge. G.S. 15A-1052(a). Thus, almost all applications involve criminal proceedings.

If the State later prosecutes the immunized witness, it has the burden of proving at the later trial that its evidence was obtained completely independent of the compelled testimony or information provided by the immunized witness. Although the standard of the burden of proof has not been decided by North Carolina appellate courts, they likely would follow federal law and require proof by a preponderance of evidence. United States v. Slough, 641 F.3d 544, 550 (D.C. Cir. 2011).

This has been a brief overview. If you are interested in a more detailed discussion, you may access my recently-published section, Fifth Amendment Privilege and Grant of Immunity, in the North Carolina Superior Court Judges Benchbook, which is available here.

Original post:
Asserting the Fifth Amendment in Court and the Granting of ...

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The final phrases of the Fifth Amendment established the limitations on the principle of eminent domain. In the 20th century, the Fifth Amendment became most noted for its prohibition of forced self-incriminating testimony, and "I plead the Fifth" became a catchphrase for the amendment.

This application of the amendment is, however, uncontroversial and has not figured prominently in Supreme Court decisions. Much less clear is the meaning of the due process provision. A century ago, it was often argued that the Fifth Amendment prohibition against depriving an individual of liberty meant that the right to enter into contracts, which represents a liberty, is infringed when government regulations fix such things as minimum wages. This interpretation of due process has generally fallen out of favor.

Ratified in 1791

See Table of Amendments.

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What Does the Sixth Amendment Mean? To Whom Does it Apply?, Gideon v. Wainwright, Landmark Supreme Court CasesHe thought that amendment was one of the most important amendments. Others disagreed with him, arguing that because many state constitutions had their own Bills of Rights, it would not be necessary to protect citizens from abuse at the hands of ...http://www.landmarkcases.org/gideon/sixth.html

ARTICLE VState, 99 Nev. 149, at 150, 659 P.2d 878 (1983), State v. Eighth Judicial Dist. Court, 100 Nev. 90, at 104, 677 P.2d 1044 (1984), dissenting opinion, Kelch v. Director, Dept of Prisons, 10 F.3d 684, at 686 (9th Cir. 1993), Wicker v. State, 111 Nev. http://www.nevada-history.org/article_5.html

Originally posted here:
Amendment V - u-s-history.com

'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.'

The Fifth Amendment 'can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.' Kastigar v. U.S., 406 U.S. 441, 44-45 ('72). A reasonable belief that information concerning income or assets might be used to establish criminal failure to file a tax return can support a claim of Fifth Amendment privilege. See U.S. v. Rendahl, 746 F.2d 553, 55-56 (9th Cir.'84).

The only way the Fifth Amendment can be asserted as to testimony is on a question-by-question basis. Rendahl, 746 F.2d at 555, citing with approval U.S. v. Bell, 448 F.2d 40, 42 (9th Cir.'71) (Fifth Amendment challenge premature on appeal from enforcement order; appellant must present himself for questioning after enforcement and as to each question elect to raise or not to raise the defense).

The appropriate device for compelling answers to incriminating questions is a government grant of use immunity. See Sharp, 920 F.2d at 1172.

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"Fifth Amendment" Defined & Explained

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From the Constitution

Here is the text of the Fifth Amendment from the Constitution:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

The Grand Jury

The first part of the amendment talks about a grand jury. The grand jury is a jury that decides if a trial should be held. They look at all the evidence and then decide if a person should be charged with a crime. If they decide there is enough evidence, then they will issue an indictment and a regular trial will be held. The grand jury is only used in cases where the punishment for the crime is severe such as life in prison or the death sentence.

Double Jeopardy

The next section protects the person from being tried for the same crime more than once. This is called double jeopardy.

Perhaps the most famous part of the Fifth Amendment is the right to not testify against yourself during a trial. This is often called "taking the fifth." The government must present witnesses and evidence to prove the crime and cannot force someone to testify against themselves.

You've probably heard the police on TV say something like "you have the right to remain silent, anything you say or do may be used against you in a court of law" when they arrest someone. This statement is called the Miranda Warning. Police are required to tell people this before they question them as part of the Fifth Amendment. It reminds citizens that they don't have to testify against themselves.

The amendment also states that a person has a right to "due process of law." Due process means that any citizen charged with a crime will be given a fair trial that follows a defined procedure through the judicial system.

The last section says that the government can't take a person's private property without paying them a fair price for it. This is called eminent domain. The government can take your property for public use, but they have to pay you a fair price for it.

Read more from the original source:
US Government for Kids: Fifth Amendment - Ducksters