self-incrimination and bar application questions

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lsat_fear
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self-incrimination and bar application questions

Postby lsat_fear » Wed Apr 13, 2011 9:34 pm

Don't get me wrong, I disclose everything, but some of the directions on the bar application make me do a double take and ask, "how on earth is this not a violation of the fifth amendment?"
You are required to answer this question completely, irrespective of any statute, administrative rule, court order or legal or administrative proceeding expunging the information required herein from any record or purporting to authorize any person to deny the existence of such matters, and IRRESPECTIVE OF ANY ADVICE FROM ANY SOURCE (INCLUDING LEGAL COUNSEL) THAT SUCH INFORMATION NEED NOT BE DISCLOSED.

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Eugenie Danglars
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Re: self-incrimination and bar application questions

Postby Eugenie Danglars » Wed Apr 13, 2011 9:38 pm

No one's compelling you to answer the questions. If you don't want to answer, don't apply to the bar.

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kalvano
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Re: self-incrimination and bar application questions

Postby kalvano » Wed Apr 13, 2011 9:46 pm

lsat_fear wrote:Don't get me wrong, I disclose everything, but some of the directions on the bar application make me do a double take and ask, "how on earth is this not a violation of the fifth amendment?"
You are required to answer this question completely, irrespective of any statute, administrative rule, court order or legal or administrative proceeding expunging the information required herein from any record or purporting to authorize any person to deny the existence of such matters, and IRRESPECTIVE OF ANY ADVICE FROM ANY SOURCE (INCLUDING LEGAL COUNSEL) THAT SUCH INFORMATION NEED NOT BE DISCLOSED.



Are you in law school yet?

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D-ROCCA
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Re: self-incrimination and bar application questions

Postby D-ROCCA » Wed Apr 13, 2011 9:52 pm

lsat_fear wrote:Don't get me wrong, I disclose everything, but some of the directions on the bar application make me do a double take and ask, "how on earth is this not a violation of the fifth amendment?"
You are required to answer this question completely, irrespective of any statute, administrative rule, court order or legal or administrative proceeding expunging the information required herein from any record or purporting to authorize any person to deny the existence of such matters, and IRRESPECTIVE OF ANY ADVICE FROM ANY SOURCE (INCLUDING LEGAL COUNSEL) THAT SUCH INFORMATION NEED NOT BE DISCLOSED.



idk, maybe ask the lawyers who wrote it. seems unlikely that you know the 5th amendment better than they do.

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kalvano
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Re: self-incrimination and bar application questions

Postby kalvano » Wed Apr 13, 2011 11:28 pm

Have you even looked at the Fifth Amendment?

"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 Fifth Amendment protects criminal defendants from having to testify if they may incriminate themselves through the testimony. A witness may "plead the Fifth" and not answer if the witness believes answering the question may be self-incriminatory.

In the landmark Miranda v. Arizona ruling, the United States Supreme Court extended the Fifth Amendment protections to encompass any situation outside of the courtroom that involves the curtailment of personal freedom. 384 U.S. 436 (1966). Therefore, any time that law enforcement takes a suspect into custody, law enforcement must make the suspect aware of all rights. Known as Miranda rights, these rights include the right to remain silent, the right to have an attorney present during questioning, and the right to have a government-appointed attorney if the suspect cannot afford one.

If law enforcement fails to honor these safeguards, courts will often suppress any statements by the suspect as violative of the Fifth Amendment's protection against self-incrimination, provided that the suspect has not actually waived the rights. An actual waiver occurs when a suspect has made the waiver knowingly, intelligently, and voluntarily. To determine if a knowing, intelligent and voluntary waiver has occurred, a court will examine the totality of the circumstances, which considers all pertinent circumstances and events. If a suspect makes a spontaneous statement while in custody prior to being made aware of the Miranda rights, law enforcement can use the statement against the suspect, provided that police interrogation did not prompt the statement.

After Congress passed the Crime Control and Safe Streets Act, some felt that the statute by implication overruled the requirements of Miranda. Some scholars also felt that Congress constitutionally exercised its power in passing this law because they felt that Miranda represented a matter of judicial policy rather than an actual manifestation of Fifth Amendment protections. In Dickerson v. United States the U.S. Supreme Court rejected this arguments and held that the Warren Court had directly derived Miranda from the Fifth Amendment.

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leobowski
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Re: self-incrimination and bar application questions

Postby leobowski » Thu Apr 14, 2011 11:51 am

kalvano wrote:Have you even looked at the Fifth Amendment?



It actually applies in many non-criminal settings as well. Other constitutional rights available to criminal defendants only kick in when the criminal process has formally begun through an indictment/information, but the fifth amendment is different. Witnesses can plead the 5th in civil cases and admin. adjudications if the information could be used for a subsequent prosecution.

I think this poster got it right:

Eugenie Danglars wrote:No one's compelling you to answer the questions. If you don't want to answer, don't apply to the bar.




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