Can defendants arraigned in federal court sometimes be &quot;out on bail&quot; secretly with no way for the public to know about or verify the bail? In this answer to my Politics SE question *Is former president Trump &quot;out on bail&quot; as Chris Christie asserts? If so, were campaign funds used? which ends: Bail is a particular type of bond in which the defendant submits an upfront payment that will be held until he returns to court, but there's no indication Trump was asked to post bail. there is a discussion about what &quot;but there's no indication&quot; means, including: Isn't posting bail generally a matter of public knowledge? We often hear about person X was released wrt case Y for Z amount of money. Which would bolster this answer. and Generally yes, it's disclosed to the public. I just don't know if it's legally required to be disclosed, or whether the judge has discretion. Law is weird... Chuckles that Politics SE would think Law is weird aside, this has piqued my curiosity. Christie is a former US attorney with extensive experience in arraignments for corruption and similar crimes, and would be keenly aware of the difference between bond and bail. Further, the &quot;out on bail&quot; statement was made on national television amidst a discussion on truth and honesty in politics. And yet I can't tell if the &quot;out on bail&quot; assertion is true, false, or currently unknowable with any certainty. Question: Can defendants arraigned in federal court sometimes be &quot;out on bail&quot; secretly with no way for the public to know about or verify the bail?
Here is one of the three Trump appearance bonds. As you can see, it is a personal recognizance bond, and not a dollar amount bond. He promises to appear, as required, and there is no money involved. There is a direct indication that he was not required to &quot;post bail&quot;, which is a stronger statement that &quot;no indication that he was&quot;.
Is this normal? Pretty much. Witnesses lie in court all the time (in my experience, defendants, law enforcement officers and medical doctors are the most likely to lie). Dealing with a witness who lies in court under oath effectively is one of the most challenging tasks lawyers face. It is an inherently challenging hurdle to proving or defending a case. The facts as presented in court often differ in some material way from reality. It is a pretty tough thing to accurately measure, but my gut estimate would be that this happens in a least 30%-40% of cases that produce contested trials, although not infrequently, a judge or jury will not find the false testimony to be credible. On the other hand, it isn't at all uncommon (probably at least 10% of the time) for a judge or jury to believe the liars to be telling the truth, and to find the people who are telling the truth to be less credible. There is absolute immunity from civil liability for lying in court testimony, although it could, in theory, give rise to contempt of court sanctions from the judge in some circumstances, or to a prosecution for perjury. But, perjury prosecutions are, in practice, very rare, and a good share of them arise from false statements made in documents under oath, rather than from courtroom testimony. There is probably less than 1 perjury prosecution per 1000 provable lies made under oath in courtroom testimony on material issues that end up influencing the outcome in a case. I totally sympathize with how frustrating this situation is having been there in cases that I am litigating many, many times. But, in short, life isn't fair.
The question is ill framed, but I'll try to reframe it and answer it. New Jersey v. Andrews is a decision of the New Jersey Supreme Court (its highest appellate court), which held that you do not have a 5th Amendment right to refuse to disclose a password that if disclosed might reveal incriminating password protected information. Andrews attempted to appeal this to the U.S. Supreme Court with the support of the American Civil Liberties Union and the Electronic Freedom Foundation. But, the U.S. Supreme Court denied Andrews' petition for certiorari (i.e. refused to take up the case, leaving it in force in New Jersey) on May 17, 2021. As explained in an amicus brief to the U.S. Supreme Court in support of granting Andrews' Petition for Certiorari: In an opinion dated, August 10, 2020, the New Jersey Supreme Court, based on Fisher v. United States, 425 U.S. 391 (1976), extended the “foregone conclusion” doctrine to cellphones and held that the Fifth Amendment to the United States Constitution does not protect an individual from being compelled to recall and truthfully disclose a password to his cellphone under circumstances where that disclosure may lead to the discovery of incriminating evidence. State v. Andrews, 234 A.3d 1254, 1274-75 (N.J. 2020). The basic issue is that the 5th Amendment does not protect documents written by a potential criminal defendant from disclosure (and such a person can be forced to turn over those records or provide, for example, a physical key to a file cabinet to allow them to be obtained by authorities), but the 5th Amendment does protect a potential criminal defendant from having to testify in a way that would be self-incriminating. It isn't clear on which side of this divide a forced disclosure of a password lies. The same amicus brief notes a law review article which stated that: the Fifth Amendment law of compelled access to encrypted data as a “fundamental question bedeviling courts and scholars” and “that has split and confused the courts” citing Laurent Sacharoff, &quot;Unlocking the Fifth Amendment: Passwords and Encrypted Devices&quot;, 87 Fordham L. Rev. 203, 203, 207 (2018). Neither the federal courts below the U.S. Supreme Court, nor the courts of another state can overturn a ruling of the New Jersey Supreme Court, and all state courts in the state of New Jersey are required to follow the precedents of the New Jersey Supreme Court including New Jersey v. Andrews. There is an unresolved split of authority on this legal issue at the national level. Three courts one step below the U.S. Supreme Court (including the New Jersey Supreme Court) have resolved it as New Jersey did, four courts one step below the U.S. Supreme Court have taken the opposite position, and at least one state (Florida) has an internal split of authority over the issue. Forty-five states (including Florida which is split at the intermediate appellate court level), the District of Columbia's local courts, and eleven intermediate federal appellate courts, however, have not yet definitively ruled on this emerging 5th Amendment interpretation issue. Massachusetts reached the same conclusion as New Jersey did in Andrews. Commonwealth v. Gelfatt, 11 N.E.3d 605, 615 (Mass. 2014). So did the U.S. Court of Appeals for the 3rd Circuit. United States v. Apple MacPro Comput., 851 F.3d 238, 248 (3d Cir. 2017). Indiana has held that the 5th Amendment privilege prohibits the government from demanding that someone disclose a password that if disclosed might reveal incriminating information. Seo v. State, 148 N.E.3d 952, 958 (Ind. 2020). So did Pennsylvania. Commonwealth v. Davis, 220 A.3d 534, 550 (Pa. 2019). Utah's Supreme Court held that the 5th Amendment prohibits forced disclosures of passwords in October of 2021. The U.S. Court of Appeals for the 11th Circuit also took this position. In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335, 1341 (11th Cir. 2012). The Florida Supreme Court had not addressed the issue (as of early 2021) and there was a split of authority over this issue in Florida's intermediate appellate courts at that time. Compare Pollard v. State, 287 So. 3d 649, 651 (Fla. App. 2019) and G.A.Q.L. v. State, 257 So. 3d 1058, 1062-63 (Fla. App. 2018) with State v. Stahl, 206 So. 3d 124, 136 (Fla. App. 2016). What often happens when there is a split of authority between a small number of state supreme courts and intermediate federal appellate courts, like the one present here, but not all that many states and intermediate federal appellate courts (often called &quot;circuits) have chimed in, is that the U.S. Supreme Court declines to resolve the split until more jurisdictions have considered the issue. Instead, the U.S. Supreme Court allows the law regarding that issue to &quot;develop&quot; and guide it in some future case in which the issue will be resolved. If the lower appellate courts tend to clearly favor one resolution or the other, the U.S. Supreme Court will often take a case to ratify the clear majority view (although sometimes it contradicts that majority position instead). And, if the split remains fairly even after a large number of jurisdictions of taken a position, the U.S. Supreme Court may then step in an resolve the issue one way or the other. But, there are many splits of authority on legal issues in U.S. federal law including constitutional law (probably hundreds) that have remained unresolved for a very long period of time, sometimes for decades, including some which are quite well developed. Also, since this issue involves the interpretation of the U.S. Constitution in a very direct way, there is really nothing that Congress can do to resolve the split.
Does a bail-jumper have any recourse from being apprehended with the help of illegally obtained information? No. The bail-jumper has no recourse from being apprehended with the help of illegally obtained information for reasons discussed at greater length below in response to another question posed which is somewhat broader. Say that a person is a bail-jumper, that is, someone who fails to appear in court after being let out on bail. If they are apprehended by a bail bondsman with the help of illegally obtained information, do they have any sort of recourse? The person apprehended has very little recourse. The relevant case law has held that an apprehension of a bail-jumper by a private sector bail bondsman or a private sector bounty hunter hired by a private sector bail bondsman, is not "state action" and hence not subject to the constitutional protections that apply to illegal conduct by law enforcement officers acting under color of state law. This is true even though bail bondsman attempting the apprehend a bail-jumper is given profoundly broad statutory authority to take actions that would otherwise be illegal for a private person to engage in when doing so, and even though the bail bondsman is, in substance, enforcing a direction of a court which is a governmental agency. Certainly, nothing equivalent to the exclusionary rule or Miranda or a lawsuit against the bail bondsman under Section 1983 for a violation of the bail-jumpers civil rights would be available. (Also, the exclusionary rule that applies to exclude evidence obtained illegally in violation of the 4th and/or 6th Amendments doesn't operate to prevent a criminal defendant detained by law enforcement from being detained on an outstanding warrant, even if the arrest is based upon illegally obtained information, although if law enforcement did it, the bail-jumper could bring a 1983 actions against the offending law enforcement officers subject to qualified immunity.) The bail-jumper would probably have a right to sue the company that disclosed the information illegally for breach of a privacy tort if this was done in a timely fashion. But, attorneys' fees can't be recovered in a case like that, the statute of limitations is typically short, and damages that could be awarded would normally not extend to any harm involving the criminal defendant's failure to be successful in bail-jumping. So, ordinarily the damages would be nominal at best. Likewise, there might be a claim against the bail bondsman for participation in a civil conspiracy with the company that provided the information to commit a privacy tort. But, this has all of the downsides associated with suing the company providing the information, and also, would pose an additional problem: it is quite likely that a suit against the bail bondsman by the bail-jumper for acts occurring while the bail-jumper is jumping bail is either contractually waived by the bail-jumper in a bail bond agreement with the bail bondsman that courts would uphold despite the fact that it arguably involves an intentional tort by the bail bondsman, or would be barred by a bail bondsman's immunity from liability created under an applicable state statute or the common law of that state created by judicial decisions. Furthermore, in some states, a suit like this by a bail-jumper against the bail bondsman and also against the company providing the information, would be barred under the equitable doctrine of "unclean hands" that bars someone who has engaged in illegal or improper conduct in connection with the claim for which relief is sought from utilizing the courts in connection with that set of facts. Realistically, probably the best legal strategy for criminal defendants who have obtained private bail bonds would be to bring a class action against the companies that provide the information and the bail bondsmen who have used it, ideally brought on behalf of criminal defendants who are not bail-jumpers as well as those who are bail-jumpers, seeking injunctive relief only to prohibit continuation of this practice prospectively, subject to contempt of court sanctions from the issuing court if the company or bail bondsman defendants did so.
Defamation of public figures is governed by the "actual malice" standard: the person making the statement must either have known that it was false at the time they said it, or must have been acting with reckless disregard for the truth (meaning they had serious doubts that the statement was true at the time they said it). The First Amendment bars a public figure from winning a libel suit unless they demonstrate that the defendant fell in one of those categories, because any lesser requirement would discourage people from speaking on topics of public concern for fear that they might say something wrong and be sued for it. The standard was first applied for public officials in New York Times v. Sullivan, and later cases have extended it to public figures in general. If someone genuinely thinks Obama was born in Kenya, it is not libel for them to say that. Even though you could argue that any reasonable person should know that's wrong, it's not enough -- the defendant had to have known it was wrong or seriously doubted it. Even if your sole basis for claiming he was a gay prostitute is that you heard a rumor from a friend, if you actually believed them, you can say he was. You aren't required to check Clinton's book to verify a quote before repeating it; if you read it on a website and had no reason to think they were lying, you can say that the quote was in there. It is extremely difficult for a public figure in the United States to win a defamation lawsuit. This is the system working as designed; a public figure who wants to correct lies being told about them can put out the correct information (which is easier for them than for most people), which is preferable to government action (and libel judgments are government action, because they involve a government officer ordering you to pay someone else money and/or do and/or not do something).
Will he break any laws by saying that (assuming the actual truth cannot be found out)? The statement made outside the courtroom is not itself perjury, since it is not made under oath. But that doesn't mean that there wouldn't be legal consequences. It would be powerful evidence in a perjury prosecution (surely enough for a conviction even standing alone long after the trial is over but within the statute of limitations for perjury in the jurisdiction from the date of the sworn statement, if any), and would be a waiver of 5th Amendment rights against self-incrimination, generally, in the perjury case. It might also be strong evidence (enough to convict standing alone) in a timely obstruction of justice prosecution. This statute of limitations could also run from the date of the sworn statement, or from the date of a false unsworn statement that caused a conviction to be reopened. If the statement made in court was favorable to the prosecution, it might bring these charges after the conviction in the underlying case is final. But, the out of court statement would probably be grounds for the party benefitting from the original statement to seek a mistrial or to have a judgment set aside if the verdict or judgment is consistent with the sworn statement. If the out of court statement was made before the trial was over, the witness could be recalled and the out of court statement could be used to impeach the in court statement. It might constitute a probation or parole violation. If the witness were testifying pursuant to a cooperation agreement, the out of court statement would probably breach the deal and deny the witness the benefit of the cooperation deal. The out of court statement might constitute contempt of court if made while the proceeding in which the statement was made was still pending. Depending on the nature of the statement, the out of court statement might constitute defamation for which some one whose reputation was tarnished might sue for money damages. (There is immunity from civil liability for in court statements.) It would violate the ethical rules of many professions. For example, an attorney would probably be disbarred for doing that. Arguably, in this situation, the statute of limitations could run from the later unsworn statement date rather than the date of the sworn statement. If the witness is a state or federal government employee, this could lead to impeachment proceedings, in the state legislature, or Congress, respectively. The aftermath of the Lewinsky Scandal (link below) involving Bill Clinton touches on many of these possibilities: Further investigation led to charges of perjury and to the impeachment of President Clinton in 1998 by the U.S. House of Representatives. He was subsequently acquitted on all impeachment charges of perjury and obstruction of justice in a 21-day Senate trial. Clinton was held in civil contempt of court by Judge Susan Webber Wright for giving misleading testimony in the Paula Jones case regarding Lewinsky and was also fined $90,000 by Wright. His license to practice law was suspended in Arkansas for five years; shortly thereafter, he was disbarred from presenting cases in front of the United States Supreme Court. Easier and Harder Cases The easier cases are those where it is undeniably clear from other evidence that the witness lied under oath, and the out of court statement merely puts the cherry on top of an already solid perjury case. The hard cases aren't the cases where "the actual truth cannot be found out". Instead, the hard cases are the cases where there is strong evidence that the statement made in court, under oath was true. For example, suppose Ted Cruz is asked in court: "Were you the Zodiac killer?" (A crime ridiculously attributed to him despite the fact that it is something that happened when he was a small child who live many hundreds of miles away.) And he says, "No" in court, but then leaves the courtroom and says in a press conference on the court house steps: "I am the Zodiac killer, I lied about that under oath in court today." Similarly, suppose that a DNA test on a certain blue dress shows a perfect match to President Bill Clinton and Bill Clinton says under oath in court, that the substance tested came from him on a certain day, in a certain place, when a certain person was wearing it, in a certain way (also confirmed by a witness and surveillance video). Then, he leaves the courtroom and says in a press conference on the court house steps: "Someone else was the source of that genetic material. I never met that person, and I was in Kenya on the day alleged and I've never set foot in the White House. I lied about all of this under oath in court today." In these cases, there is no plausible way to make an obstruction of justice or perjury charge stick, or to upset a verdict or judgment consistent with the truthful sworn statement. Contempt of court is still possible, as would professional ethics violations, but other consequences would be less obvious, because the act would come across more as absurd instead of something that genuinely confounds the truth. The legal consequences associated with the conduct in the original post are mostly aimed at sanctioning genuinely fraudulent conduct. Our legal system is more confused about how to respond to lies so blatant that they only amount to feeble and ineffectual gaslighting that no reasonable person familiar with the circumstances would believe (but that might incite crazy conspiracy theory thinking supporters). The harder case would lie in the uncanny valley between a bad joke and a pathetically weak attempt to mislead people, even though the law is clear about how to deal with clear sarcasm and convincing attempts to lie that can't be clearly proven or disproven with other evidence.
No The term "sword and shield" is allegorical rather than legal and may be called up in any number of contexts. Such as ... Waiver of privilege In the particular instance, Anthem was claiming that the reports were privileged and hence protected from discovery, presumably because they were prepared in contemplation of litigation - this litigation, one supposes. However, privilege is lost or waived if the privileged information is disclosed, as it was by relying on the conclusion of the report in its defense. As such, the entire suite of reports is no longer protected. Basically, if you want to keep privilege you have to keep what is privileged secret. Note, the could have lost privilege if they had disclosed the findings of the report in any way such as by press release or by simply leaving the document in a public place. In this context, the judge is stating that they cannot use the "shield" of privilege to protect a report that they have used as a "sword" to make a attack their opponent.
No, a defendant may not remain silent on cross-examination. Witnesses who voluntarily testify in their own defense are subject to cross-examination on that testimony. In Fitzpatrick v. United States, 178 U.S. 304, (1900), a murder defendant testified that he was at two bars and then his cabin the night of the crime. The trial court held that having waived his Fifth Amendment right to remain silent, the defendant was subject to cross examination about what he was wearing that night, his connections to a co-defendant, the co-defendant's clothes, and who else was at the cabin with him. The Supreme Court affirmed the conviction, holding that if a defendant voluntary makes a statement about the crime at trial, the prosecution may cross-examine him with as much latitude as it would have with any other witness: The witness having sworn to an alibi, it was perfectly competent for the government to cross-examine him as to every fact which had a bearing upon his whereabouts upon the night of the murder, and as to what he did and the persons with whom he associated that night. Indeed, we know of no reason why an accused person, who takes the stand as a witness, should not be subject to cross-examination as other witnesses are. Fitzpatrick v. United States, 178 U.S. 304, 315 (1900).