Constitutional Law, Courts, Criminal law, Lawyering, Testimony

Speak No Evil

Submitted by Mark Esposito, Guest Blogger

Here’s a great legal war-story from U.S. District Court Judge Alan Johnson (via lawhaha.com) that needs no commentary:

“A very-veteran criminal defendant was about to be tried in federal court in Wyoming on bank fraud charges. The allegation was that, while in the county lockup on an unrelated stolen-vehicle charge, he had used the jail phone to call a local bank and, posing as a prominent wealthy individual, persuaded the bank to deliver a cashier’s check for $10,000 to the jail for the ostensible purpose of bonding out the man’s “nephew” (the nephew’s name, of course, being the defendant’s own).

The government planned to use the jail’s tapes of the phone calls as evidence, and faced the problem of proving that the voice on the tapes was in fact the voice of the defendant. At the final pretrial conference the Assistant United States Attorney, frustrated that the defendant would not stipulate that the voice was his own, announced that he intended to conduct a live, in-court demonstration to let the jury decide the voice identity by comparing the taped voice to the sound of the defendant’s voice reading some preselected text in the courtroom.

The court and counsel began discussing what text the defendant should read to the jury, and rejected various proposals. Finally, the defendant himself brought the discussion to a conclusion by proposing, ‘How about I read the Fifth Amendment?'”

Source: lawhaha.com

~Mark Esposito, Guest Blogger

7 thoughts on “Speak No Evil”

  1. Asking the man to speak to compare his voice is not a violation of the 5th amendment is it? I know that often times the rights get stretched to encompass all sorts of activities but surely this would be no different than someone accused of a crime where the witness saw a distinguishing mark, tattoo, scar, birthmark or something similar. Would the accused be able to hide the area of the mark so they can’t verify he shares the trait?

    We can force an accused to give the police their hard drives – although there was a legal argument made that the court couldn’t force the accused to divulge their password. Is that the same as okay we have a warrant but we can’t force you to unlock the door?

    What is exactly covered by the 5th amendment?

    On a different note, if someone can convince a bank to send a certified funds check in the amount of $10,000 with no more proof than a phone call then that person deserves the $10,000. The person at the bank is an idiot and deserves to lose the money. Okay, I am not being 100% serious here, but there is a bit of truth to that statement. You have to be really really really ignorant to give $10,000 to someone on the phone with no documentation. The bank is negligent for hiring such imbeciles.

  4. Sounds like a wonderful strategy….But I have had an asshole Judge instruct the Jury that they may take that inference as an admission of guilt….

  6. eniobob:

    I woke my wife with the laugh from that one. Given the holiday it was bad form. Now to the kitchen for breakfast in bed to make amends.

  7. “, ‘How about I read the Fifth Amendment?’”

    I think the smile on my face will carry me through the day,the man has “onions”.

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