Time: Tue Apr 01 18:38:27 1997
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Date: Tue, 01 Apr 1997 17:37:59 -0800
To: cpetras@stratos.net (Charles Petras)
From: Paul Andrew Mitchell [address in tool bar]
Subject: FYI: What fifth amendment right?
Status: U
"The threat to the federal tax system ...."!!!
What have I been saying for 7 years now??
Thanks, Charles.
/s/ Paul Mitchell
http://www.supremelaw.com
copy: Supreme Law School
At 03:50 PM 3/31/97 -0500, you wrote:
>I ran across an interesting "Note" in a law review the other day, it was
>titled
>
> Constitutional Law--Fifth Amendment--``If and When You Go To Court''
> Language used by Police Officers is an Adequate Rendering of *Miranda*
> Warnings--_Duckworth v. Eagan_, 109 S.Ct. 2875 (1989).
> 20 Seton Hall L. Rev. 525-546 (1990)
>
>This note opened with the following maxim:
>
> "Nemo Tenetur seipsum accusare /1
>
>"/1 - _Brown v. Walker_, 161 US 591, 596-97 (1896). No one is bound to
>accuse himself. Black's Law Dictionary 937 (5th ed. 1979)
>
>Further on in Note 7 reference is made to the "custom revenue laws" thus,
>
>"/7 - See e.g., _Boyd v. United States_, 116 U.S. 616 (1886). In *Boyd*,
>custom revenue laws were enacted that forced a defendant to produce certain
>documents and materials or have allegations against him taken as true. Id.
>at 620. The Court determined that seizing a man's private papers to be
>used as evidence of his guilt is equivalent to requiring self-incrimination
>and therefore prohibited by the fifth amendment. Id. at 633. The court
>noted that the fourth and fifth amendments shared an ``intimate relation''
>because unreasonable searches and seizures are usually made to compel a man
>to incriminate himself. Id.
> "Analyzing the *Boyd* holding, the Court in _Bram v. United States_, 168
>U.S. 532 (1897), noted:
> "[T]he provision of the Fifth Amendment securing one accused
> against being compelled to testify against himself, and those
> of the Fourth Amendment protecting against unreasonable searches
> and seizures...demonstrate that both of these Amendments contemplated
> perpetuating, in their full efficacy, by means of a constitutional
> provision, principals of humanity and civil liberty, which had been
> secured in the mother country only after years of struggle, so as to
> implant them in our institutions in the fullness of their integrity,
> free from the possibilities of future legislative change.
>"*Bram*, 168 U.S. at 544 (citing *Boyd*, 116 U.S. at 616).
>
>Now, contrast that with what was said in the below cited law review article
>that deals with making a fifth amendment claim:
>
> THE TAX PROTEST CASES: A POLICY APPROACH TO
> INDIVIDUAL CONSTITUTIONAL RIGHTS
> 19 Calif. Western L. Rev. 351-372 (1983)
>
> "... The tax protester in _United States v. Carlson_ [617 F.2d 518 (9th
>Cir.), cert. denied, 449 U.S. 1010 (1980)] met the substantive standard
>[_U.S. v. Sullivan_, 274 U.S. 259 (1927)] but was denied his fifth
>amendment privilege wholly on policy grounds. The protestor in _United
>States v. Lee_ [102 S.Ct. 1051 (1982)] had a much more meritorious claim
>yet the threat to the federal tax system of a decision favoring first
>amendment rights required the application of Carlson-type policy
>considerations.
>
>at page 372.
>
>So the bottom line is that if money is involved (as in they saying that you
>owe them) you have no fifth amendment "privilege" because that isn't govt
>policy!
>
> ###
>
>
>* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
>
> ``Although we give lip service to the notion of freedom, we know that
> government is no longer the servant of the people but, at last, become
> the people's master. We have stood by like timid sheep while the wolf
> killed -- first the weak, then the strays, then those on the outer
> edges of the flock, until at last the entire flock belonged to the
> wolf.'' -- Gerry Spence, From Freedom to Slavery
>
>* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
>
>
>
========================================================================
Paul Andrew, Mitchell, B.A., M.S. : Counselor at Law, federal witness
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