Monday, February 4, 2008

Response to Dershowitz on Clemens

Professor Alan Dershowitz, writing at Huffington Post, has an entry titled, "Why Roger Clemens, Even If Innocent, Should Take the 5th."

Although I am a bit more neutral when it comes to baseball- although admittedly a Yankee fan - I concur with Dershowitz's assessment.  Speaking - even if innocent - can be harmful to your freedom. But the problem is more complicated.  It's a problem faced by anyone who is a celebrity or politician --  Silence is not golden.

If you speak you run the risk of having anything you say used against you - even if innocent. If you don't speak people make assumptions of guilt. And if a politician or celebrity this can tarnish your career.

Why is it that truthful testimony can be used against an individual? 

  • For one the individual may not remember the exact words used in the prior statement and when subject to a sharp cross-examination, the person may come across as confused - or not telling the truth in a later trial.
  • Second, there is always the missing statement that is used against the individual.  The person answers the questions asked and fails to include every little detail - after all they might be a bit nervous in testifying.  Hitting a ball in front of a good number of fans and non-fans is not quite the same as answering questions from those in Congress. So what if something is omitted?  What will the cross-examination look like if it is pointed out that this statement was not included in the legislative testimony?
  • Finally, people view evidence from many different angles.  The same event may be told differently by several different people. Will this be viewed as a lie if it is ever presented at a later trial?

But there's a more important question here.  Is it fair to place celebrities and politicians in this catch -22? Is the testimony really needed for the hearing? How would the politician feel if the tables were turned and they were being asked questions because one person had implicated them? And don't tell me this is an invitation, I read co-blogger Peter Hennings entry here.

Some of us continue to harp on prosecutorial discretion and the many possible abuses that can arise from allowing prosecutors unbridled discretion. But maybe this is a place to discuss legislative discretion, and think about when Congress should take a step back and consider whether the testimony is really needed here and now.

(esp)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2008/02/response-to-der.html

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