A lot of people here with their TV law degrees are giving you gibberish answers that pleading the 5th doesn't imply anything. They are wrong.
The fifth amendment is only available to avoid testimony that could potentially implicate oneself in a crime. Proper exercise of 5th amendment rights cannot be used against a person in a criminal prosecution.
This isn't a criminal case (yet). It's a very high-stakes civil case. Pleading the fifth may result in an adverse inference jury instruction, or an adverse inference determination by a judge in a nonjury trial. In other words, it makes you look very bad, and the finder of fact is free to assume the worst.
Not applicable here yet, but in rare cases prosecutors will also get around the 5th is by offering immunity, in which case you may be ordered to testify, and your testimony cannot then be used as evidence against you in a criminal trial; refusal to testify under immunity can result in punishment for civil or criminal contempt. You cannot invoke the 5th to protect yourself from civil liability, or to avoid implicating another person in a crime.
There's all sorts of things that "pleading the fifth" doesn't protect you from. For instance, public employees are often required by law to cooperate with all public investigations, including criminal investigations. Pleading the fifth as a public employee in an public investigation can result in mandatory termination, even if there is no evidence of wrongdoing.
How does this event of pleading the fifth compare with Bill Gates' interrogation under the monopoly investigation in 1998? I've heard Gates' insistent way of misunderstanding every single question was something that would piss of judges rather than hide your defense (so much that the judge published a best of during the trial): Do pleading the fifth and playing dumb both harm your defense in the same way?
No, it's completely different. Sandbagging a deposition and playing stupid games with discovery is almost standard practice. Judges hate it, opposing counsel complains bitterly, but in a pretrial civil case, out of sight of a jury, just about everyone does that on both sides.
Pleading the 5th is rather extraordinary in a civil business dispute and is not a normal tactic when you have a strong defense. It immediately raises a stink of crime for everyone concerned, and can certainly spook shareholders/investors.
". Pleading the fifth may result in an adverse inference jury instruction, or an adverse inference determination by a judge in a nonjury trial. "
Yes, but they lose nothing as a strategy by having him do it unless the inference the judge threatens is so negative, and then, as they said, "his view on whether to claim the fifth may change as the case progresses".
....
Now, certainly, most companies are ethical enough not to try such a strategy, but ...
They lose nothing if the disclosure is, in fact, highly damaging. Which is the obvious point. What we have here is 10 fools going in "But the Constitution" and "Innocent until proven guilty" and "It means nothing."
No, it means a hell of a lot, in this context.
Like, when you get pulled over and the cop asks you, "Do you know why I pulled you over?", you could say "On the advice of my attorney I invoke my 5th amendment right to remain silent because the answer to that question may incriminate myself. I'm not answering any questions without my lawyer."
This is almost always the wrong way to start off a traffic stop, no matter how many times people post the "NEVER SAY ANYTHING TO COPS" video.
"No, it means a hell of a lot, in this context."
Sure, to this i'd agree.
I just think, unlike some others here who think this is uber and levandowski fighting, that more likely, in lawsuits of this size, it's a collaborative strategy.
Your answer would be much stronger if you dropped your tone by a magnitude and edited out the insults. Your first paragraph is particularly difficult to read.
Dunno, to me it's stronger because it emphasizes that the other answers are naive.
I've been in positions where other people in a thread happen to answer a question I have expertise in, but they don't know what they are talking about. It happens so often on forums like HN/Reddit that I appreciate it when someone can call them out for "authoritative guessing".
I am not a lawyer, but basically it means he is innocent until proven otherwise and he has the right to not testify in a way that might incriminate himself and he is exercising it.
There is the sort of popular view that if you do this, it must mean you are guilty and by testifying you would actually be proven so. The problem with that is that you might actually be innocent but not be able to give evidence in a way that does not make you look guilty.
Any lawyers here willing to elaborate on how to better view this from a social point of view?
Not a lawyer. Levandowski is trying to avoid turning over (some) documents in the discovery process of the civil lawsuit Waymo is filing against Uber. They are doing this by claiming it could incriminate him and open him up to the possibility of criminal charges.
Will this actually work? Maybe. The fifth amendment is more complex than it might at first seem. One thing that's for sure is that if he is found to be withholding any documents that are relevant to the civil suit, but couldn't realistically incriminate him, this could backfire spectacularly. Hence the statement from his lawyers:
> One of Mr. Levandowski’s lawyers said the Uber executive’s position on invoking the Fifth Amendment may change as they examine the case.
Saying anything here can only hurt him, regardless of whether he is innocent. Waymo's lawyers can use his evasion against Uber in the ongoing civil cases, but the government can't use it against him if the government later decides to bring a criminal suit. He's basically throwing Uber under the self-driving bus to save his own skin.
It's not a question of innocent or guilt. You're talking criminal terminology. In the case at bar it's a question of liable or not. If you're sued for a bazillion dollars and you didn't do anything wrong, then saying something that would help your case could save you a bazillion dollars.
On the other hand, if you did do everything you are accused of, then you're probably right, it can only hurt you.
As I said above, it's a question of whether he is innocent or guilty of the crimes he will be accused of in the potential criminal case that will follow. Remember, pleading the fifth can only be done to avoid self-incrimination, not to avoid testifying about your employer.
You said "regardless of whether he is innocent." There is no criminal case or publicly announced investigation. So pleading the 5th every time you are asked a question in litigation is always the winning strategy, in case you end up being prosecuted?
What about obstetricians and neurosurgeons and such other high net worth people practicing in litigious environments, who are liable to be sued a few times through the course of their career? Even if the doctor committed borderline malpractice, answering every question in a document demand or deposition with "I plead the fifth" is a good way to lose everything on a case that could have been dismissed early on without trial. When pretty much zero doctors are prosecuted for injuring or even killing their patients in a professional context.
There's pretty much no way to build a multi-billion dollar enterprise without attracting at least a few lawsuits along the way. This is obviously not an ordinary case.
Read the very next sentence to see how the word "innocent" is used in context. If it's not clear that I'm talking about criminal charges from that post or from the fact that we're discussing the fifth amendment (which can only be invoked if the testimony can lead to criminal liability for the person testifying) or from the fact that he is not a defendant in the current case, I hope it's clear now.
Lewandowski won't be financially ruined if Uber loses this civil case, and he won't even be very financially inconvenienced. On the other hand, there is huge potential downside if he gets charged personally with a crime.
This is one of the few posts that actually answers the question.
Invoking the fifth makes it more likely that he (and Uber) will lose the present civil case, which would be very bad for Uber and pretty bad for him. But it could protect him from future criminal prosecution. So I guess he thinks it's pretty likely that he would be found guilty.
It does in the civil context, but not in the criminal context, which seems precisely right.
In the criminal context, the government is trying to punish you with jail.
Actual deprivation of liberty.
In such cases, we require they make be able to make their case without you saying you did it.
In the civil context, you can avoid saying you did it if it would cause you to possibly be convicted of a crime, but unlike the above, there is no possibility of deprivation of liberty. As such, if you do try to avoid saying you did it, people are allowed to use it to make their case that you did it.
My impression of invoking the fifth amendment has always been "If I say something I might go to jail, so I'm going to exercise my right to say nothing."
Personally, I view it as more or less an admission of guilt, but I'm sure there are a host of legal reasons to do this (besides actually being guilty) that I am unaware of.
That's an unfortunate but accurate description of the average person's understanding of the 5th amendment. The reality is more complex: it's pretty easy for any statement, even one which is 100% accurate and made from a position of actual innocence, to contribute to a guilty verdict.
Yet civil trials happen all the time with hours upon hours of witness testimony without anybody invoking the 5th amendment for fear of being prosecuted.
Without watching the video, don't talk to the cops is an entirely different ballgame.
Having been arrested myself for driving a red car with 2 males inside where the crime happened miles away.
They really, really aren't your friends, repeatedly say yes for a lawyer. Your first arrest will disabuse you of any relic of your childhood "cops are your friends" bullshit.
Any parent who hasn't told you by the age of 17 that cops are not your friends anymore is wildly negligent of their basic duty as a parent. While you live in that wonderful pre-adult age, they are your first call.
This is of course, complete nonsense. There are a huge number of reasons that an factually accurate statement made by a factually innocent person could harm their case.
It's funny. I regularly watch crime documentaries and am a big supporter of my rights (I am a US citizen) and detest that people are assumed to be guilty and that is largely how our legal system works. I like to believe I am decent at filtering out useful knowledge from the media.
But my first thought when I saw this headline was "oh fuck - that's bad"
Emotions are so good at getting in the way of critical thinking. And nowadays I think most people admit that they read headlines first, then comments, and then maybe (but probably not) the story. I wonder how horribly skewed my worldview is because of how I digest information.
actually it is exceedingly rare for a criminal defendant to ever take the stand and offer testimony...in fact, most legal professionals would say a defendant taking the stand is more often a Hail Mary and such a move indicates guilt.
And this is not a criminal trial. It is exceedingly rare for a head of a division and the former CEO of an acquired company to plead the 5th in response to litigation demands. Therefore, it looks damning and is damning to Uber's case, which is why their lawyers are in full damage-control mode. Having bought Otto, Uber has assumed its liabilities, including liability for Levandowski's past actions as founder of Otto.
In any case (criminal or civil) the gut reaction/bias the public or a layman may feel when one opts for the 5th (silence = culpability/liability) is ignored in favor of the law (5th != guilt) applied by both judges and informed juries.
Take a real-life case:
-OJ criminal case for murder, doesn't take the stand (found not guilty)
-OJ civil case for wrongful death, takes the stand gives inconsistent statements/impeached - not regarding anything to do with the case itself but his prior record (found liable)
Yes, the standards are different in civil and criminal but the legal strategy is the same...the defendant doesn't have to do anything, the burden is on the other party to prove their case, and opening yourself up to cross when there are criminal allegations (whether in a actual criminal case or civil case) would be a questionable legal decision. All this is compounded in this Uber case where allegations of (potentially) criminal acts are being made in the civil case because potentially a criminal case may follow, but it does beg the question if this theft of intellectual property is so obvious why hasn't law enforcement brought the charges yet (they in fact may, but see how silence doesn't really indicate anything). FYI, yes in a acquisition Uber likely assumed all liabilities, but that would also generally exclude liabilities as a result of criminal acts.
> FYI, yes in a acquisition Uber likely assumed all liabilities, but that would also generally exclude liabilities as a result of criminal acts.
That's not true at all where the act is done in an official capacity and inures to the benefit of the acquired firm. The entire case is basically that Otto was built upon the founder's stolen tech. If Uber purchased and received infringing and stolen property then they are very much on the hook for all applicable damages, including punitive damages for Otto's egregiously bad acts.
>That's not true at all where the act is done in an official capacity and inures to the benefit of the acquired firm.
If you are suggesting Uber instructed the Otto founder to steal the tech and set up his own shop to be acquired...then, yes Uber would be liable, and while that may be the theme of the case, if there were any real evidence theft of IP was done as an official act of Uber this would already be settled.
An employer is generally liable for the acts of its employees done in their official capacity (respondiate superior) the employer will not be liable for criminal acts of its employees. That is unless you can find smoking gun evidence the employer instructed the employee to commit the act, otherwise legally criminal acts are outside the scope of official employment and employers are not liable...the same is true of an acquisition, whereas Otto would have expressly stated they own all IP and have authority to sell the same, which would be a breach and potentially void/invalidate the entire acquisition. Either way, If Uber is infringing IP they can be enjoined, but unless it can be shown Uber instructed the Otto founders to steal the IP or knew it was stolen I think they would be indemnified, assuming that's what occurred.
Say you get asked about your wherabouts, but you were cheating on your spouse at the time. Admitting that in court is a big problem for you, but doesn't really show you are guilty of anything but being a shitty husband/wife.
Perhaps my use of 'falsely' is confusing, but what I mean is if what you are refusing to say is not actually a crime, and it is discovered, you could be charged with a crime (i.e. perjury, giving false statements under oath).
It doesn't matter that adultery isn't a crime: you're being questioned by the police, and any answer has the possibility of including details which might seem incriminating for whatever they're actually investigating, regardless of your innocence.
It seems like you're approaching the 5th amendment as a direct point/counterpoint arrangement: the police accuse you of robbing a bank, you know you didn't because you were cheating on your spouse, you can't take the 5th because cheating on your spouse isn't a crime, so you must answer "I couldn't have robbed the bank because I was cheating on my spouse at another location".
But the amendment is much broader than that. Since you don't know what other information the police are attempting to validate or even what crimes they're aware of, you have no way to know if "I was at $hotel with $other_person at $time" may incriminate you in this case or some other case.
You are right that the police can't force you to talk and that a judge can't if you are on trial.
However a judge could force you to testify in someone else's case. You can't broadly plead the 5th in that case unless the testimony is incriminating. Let's say you saw a murder happen at a hotel you were at while cheating with your wife. A judge is allowed to force you to answer the question.
Yes.Infact, if you conceal the information about the crime and the crime happens to be felony, you will be charged for "misprision of felony."
The federal definition of misprision requires that, “(1) the principal committed and completed the felony alleged; (2) the defendant had knowledge of the fact; (3) the defendant failed to notify the authorities; and (4) the defendant took affirmative steps to conceal the crime of the principal.” See United States v. Baumgartner (6th Cir. Sept. 24, 2014)
You're completely wrong, lawyers and interrogators will twist your words against you to make themselves more successful regardless of guilt. The YouTube video posted above is a good example of the how, but there are many more beyond that.
In a high-stakes (or even potentially high-stakes) legal situation, it is entirely rational to invoke your 5th amendment right, provided that it even remotely plausibly applies. You don't need to actually be guilty of anything to invoke the right and I don't draw a conclusion that you are likely guilty by your exercise.
[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.
Which is interesting because you don't invoke the fifth in a civil case unless "the answer might tend to subject to criminal responsibility him who gives it"
Doesn't imply guilt, but it shows that Uber recognizes the alleged conduct could be criminal versus just a tort.
I too am confused by the article's wording in explaining that he invoked the fifth "to avoid incrimination in turning over documents relevant to the case" - is it perhaps to make a technical distinction of "here, these are my documents" vs. "oops, I don't know what these documents in my bedroom are or how they got here"?
"Uber’s lawyers claim that the company doesn’t have the documents Levandowski allegedly stole from Waymo and therefore won’t be handing them over tomorrow as part of a scheduled document production."
So more like "I don't have those documents, and I can't say more."
The article seems to suggest that uber is complying with discovery by saying they have 0 documents and his lawyers are saying that revealing any documents he had would be testimony against himself.
