Chapter 11 - SOL and legal other implications

[fred8033]

I'm following another trial recently.   One of the key witnesses took a 5th amendment protection against testifying.  I started reading about scope of 5th amendment.  Whether prosecutor could eliminate the protection if he guarantees against protection, etc.  My reading interesting tied to BSA's SOL situation.  ... a very weak tie, but still ...

BSA's current situation could only occur after states started retroactively extending statue of limitations and that retroactive SOL change was found legal.  ....  Relating to 5th amendment, 5th amendment applies generally as long as the person has not already been punished for the action and the SOL has not expired.  ... BUT if it can be reasonably demonstrated that SOLs can retroactively be changed, the person can argue that SOLs are not an absolute anymore and that they need to protect themselves against criminal prosecution and civil liability.  

BSA's chapter 11 case will have interesting legal ramifications for the future.

[T2Eagle]

A couple of points for clarification.  Although SOLs can be extended, for criminal offenses they can't be made retroactive.  So if a state today removes the SOL for criminal prosecution of child abuse that doesn't mean that every abuser in history can now be retroactively prosecuted, it only means that crimes that are today within the SOL will have that SOL extended going forward.  

Things are, as we see, very different for civil cases, SOLs can be retroactively extended, hence the problems facing BSA and others today.

Where invoking the fifth amendment comes in is that if in a criminal prosecution the state wants to compel testimony from someone who has invoked their right not to self incriminate, and use that compelled testimony against another criminal defendant, than the prosecutor has to extend immunity for any associated crimes to the person whose testimony is being compelled.

Regarding civil cases, a person can invoke the Fifth Amendment and refuse to testify, but that isn't treated the same way in a civil trial as it is in a criminal trial.  In a civil trial the jury or judge can then make adverse inferences about the the plaintiff based on that refusal.  

[fred8033]

On 4/1/2021 at 5:14 PM, T2Eagle said:

A couple of points for clarification.  Although SOLs can be extended, for criminal offenses they can't be made retroactive.  ...

Yep.  I read that too, but punishment takes many forms and thru many ways, civil and criminal.  

That is specifically BSA's situation.  The individuals criminally responsible can't be prosecuted.  BSA can't be criminally prosecuted, but BSA is effectively facing a death sentence for criminal acts by a 3rd party by the extension of a civil SOL.  

It's just interesting.  5th amendment protection limitations (example:  expiring when SOL expires) might not be limitations anymore as SOLs (yes civil) are not absolute and can be made retroactive.

 

On 4/1/2021 at 5:14 PM, T2Eagle said:

... than the prosecutor has to extend immunity for any associated crimes to the person whose testimony is being compelled.

We've also seen that immunity agreements are not necessarily binding. 

• Imperfect immunity agreement.  Cosby case.  Prosecutors clearly intended and negotiated an immunity agreement inexchange for a deposition.  The next prosecutor argued it was beyond the prosecutor's power to establish.  Instead of saying the deposition had to be thrown out, the judge kept the deposition, but threw out the immunity.
• Immunity is not absolute and testimony can come back to haunt the person testifying.  Depending on the twists and turns, you can still be charged with other aspects if evidence can put you under other charges.
• Immunity does not cross between federal and state jurisdictions.  

 

Edited April 3, 2021 by fred8033