Can A Judge Compel Someone To Break The Law?

[peanutbutter]

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury... nor shall be compelled in any criminal case to be a witness against himself"

 

Sounds to me like a Grand Jury would have to indict him as having committed a crime in order to hold him to answer, but then he would not have to be a witness against himself in that indictment. I see this as the LEO in question would have to be convicted of his crime first (without his own testimony) in order to be forced to be a witness in the case.

 

Again .. you are looking at a crime that is past tense.

 

This crime would take place on the stand. The officer would be disclosing confidential information about a registered medical marijuana patient and/or caregiver.

 

That is a crime.

 

Can the officer refuse to commit a crime?

[+RevThad]

A court could compel the officer to testify (thus breaking the confidentiality portion of the law), with a grant of immunity.

 

On the other hand an officer could refuse to testify and risk being held in contempt by the court.

 

This is a very strange position. I do not see an officer attempting the latter example, and until prosecutions and penalties are being handed out for violating that section of the MMMAct, I don't see it changing. These are the same folks that are violating the other portions of the law "under color of law".

[peanutbutter]

A court could compel the officer to testify (thus breaking the confidentiality portion of the law), with a grant of immunity.

 

On the other hand an officer could refuse to testify and risk being held in contempt by the court.

 

This is a very strange position. I do not see an officer attempting the latter example, and until prosecutions and penalties are being handed out for violating that section of the MMMAct, I don't see it changing. These are the same folks that are violating the other portions of the law "under color of law".

 

So then, an officer could follow the order of the judge and in doing so commit a crime they could go to jail for.

 

The judge would probably not be arrested .. probably.

 

"If you tell me to do something wrong, and I obey, do you go to he!! in my place?"

[+RevThad]

So then, an officer could follow the order of the judge and in doing so commit a crime they could go to jail for.

 

The judge would probably not be arrested .. probably.

 

"If you tell me to do something wrong, and I obey, do you go to he!! in my place?"

My brother you are preaching to the choir on this one. I think this one falls sort of along the same lines as a journalist protecting their source... the court can attempt to compel the person to give up this protected information, and even hold them in contempt (i.e. jail cell). I guess the one difference here is that an officer has no other interest in protecting that information other than a law they probably don't agree with in the first place...

[nkprthrd]

Again .. you are looking at a crime that is past tense.

 

This crime would take place on the stand. The officer would be disclosing confidential information about a registered medical marijuana patient and/or caregiver.

 

That is a crime.

 

Can the officer refuse to commit a crime?

 

Just because a crime is committed, does not mean one will be charged. Just like someone drunkenly speeding past a police officer. Just because the crime was committed and it was witnessed by another LEO, does not mean charges will be put forth. What I am saying is that, yes, the officer can refuse to commit the crime under the fifth amendment because his statement (even though the statement would be the crime) could be used against him in order to convict him of the crime.

 

I do, however, think that a savvy lawyer may be able to get the whole case dropped should a LEO commit such a crime on the stand. I think the the defense should heavily object to allowing the officer to testify on these grounds.

[+Silverblue]

Pb I am very glad you're pushing this point, it's brought out a very interesting discussion. It seems in theory the result will go one way, but in practice, it'll go another. I think my example here might explain better, I hope: When someone commits a crime, say, murder, he/she goes to jail, if someone compels that person to do it, that person who did the compelling might not go to jail. It's interesting the comparisons you use to make your point, about going to hell.

 

Here's how I see it: I believe if I told someone to shoot somebody the both of us should go to jail. One, because that person didn't have to carry out my wishes, but did, and two, I gave that person the idea to do it. Someone might try proving if the murderer would or wouldn't have gotten the idea if someone hadn't suggested it. If there's a witness, the proof is obvious. So, if in a court, a judge says, "you will reveal these names," that judge is breaking a law, with lots of witnesses, so therefore, both the judge and the cop should go to jail if the cop reveals those names. If the law says those names are confidential, that's the beginning and end of it. If the judge compels the cop to reveal the names and the cop says no, the judge may still be guilty, I don't know how that would work, but in such a position of power, it still seems to me that judge is abusing their position/authority. This might be a gray area too. I used to wonder about things like that, asking myself, "what if someone tells somebody to do something wrong, I wonder what would happen in each case." I'm sure I've heard people say, "they didn't have to listen," but I also wondered about the person who gave them the idea in the first place. I call it, "personal responsibility." I know I'd feel horrible if I made a bad suggestion that someone followed through on. True, they didn't have to do it, but in good conscience I'd feel like hell about it.

 

I hope I'm making sense.

 

Sb

[jmorrison71]

Since an officer is coached by the prosecutor prior to any testimony, I would think the officer is already prepared to provide the information in court. In other words the prosecutor already knows what information is available and it is known between the officer and prosecutor what is going to be said in open court. The officer may be able to refuse to give out the information but that's probably a mute point since LEO and PA's work together.

 

My question would be if a person is granted immunity by a county prosecutor, at the state level, does it still give you immunity at the Federal court level? For example if the patients that were asked to testify in Lapeer County for the Dryden dispensery case were given immunity by the county prosecutor would that immunity extend to Federal charges if those were brought against the individual? If the answer is no then I would think the person should be allowed to use the 5th amendment in order to make sure they were not incriminating themselves from any potential future federal charges.

[jtgeme]

Again .. you are looking at a crime that is past tense.

 

This crime would take place on the stand. The officer would be disclosing confidential information about a registered medical marijuana patient and/or caregiver.

 

That is a crime.

 

Can the officer refuse to commit a crime?

 

My first question is how did the police get the information?

 

Based on my understanding of the law, the police have very limited access to MM information even through LEIN (Law Enforcement Information Network).

 

I think that if you get pulled over, and they run your DL # through LEIN, it does not display that you have a MM Card. BUT, if you get pulled over, and give your MM Card in addition to your DL, they enter in your MM card number and get information regarding your card, expiration date, validity, name, address, DOB etc. Not sure if this is true, just my understanding of how the system works. So, in theory the police will not have detailed information regarding medical records, doctor names, etc. So the officer could not testify to this information.

 

Ignoring the Redden opinion for the moment...assume that the officer does have this information, and the prosecutor asks a question about it. Defense counsel should object. First, I think the information is protected by physician-patient confidentiality - even outside the MM Law. A police officer should not be able to testify to medical information disclosed between a patient and his doctor. Can the judge compel such an event? I'm sure he could, but I think its a plain error. Next, the only people on the state level with access to the details is the Mich Department of Community Health (MDCH). They can tie the person, to the condition, to the doctor, and they are restrained by the MM Law dealing with confidentiality. Again, can the judge compel a MDCH employee to answer such a question, sure, but I think the end result is the same - error on appeal.

 

There is a physician-patient confidence, and that privilege belongs to the patient. The Redden opinion, to some extent, seems to strike right at that. If you have a card, then you need to produce the doctor, and once you produce the doctor, you waive the privilege. Personally, I don't think that's right, but I think that's what the court said.

 

I don't think a judge goes looking to break the law, or enjoys being reversed or reprimanded on appeal. To have to deal with the same issue, in front of the same people, but now, has his tail between his legs could be embarrassing and if it happens enough, I think the public starts to notice. Judges like to get re-elected too.

 

Understand that I am NOT a lawyer, and nothing I said should be viewed as legal advice. If you have a legal question, you should consult a licensed attorney in your area that can give you advice that addresses your issue directly.

[peanutbutter]

I think that if you get pulled over, and they run your DL # through LEIN, it does not display that you have a MM Card. BUT, if you get pulled over, and give your MM Card in addition to your DL, they enter in your MM card number and get information regarding your card, expiration date, validity, name, address, DOB etc. Not sure if this is true, just my understanding of how the system works. So, in theory the police will not have detailed information regarding medical records, doctor names, etc. So the officer could not testify to this information.

 

Except for the caregiver information on the back of the card.

 

Is that information being entered into a police database?

 

Ignoring the Redden opinion for the moment...assume that the officer does have this information, and the prosecutor asks a question about it. Defense counsel should object. First, I think the information is protected by physician-patient confidentiality - even outside the MM Law. A police officer should not be able to testify to medical information disclosed between a patient and his doctor. Can the judge compel such an event? I'm sure he could, but I think its a plain error. Next, the only people on the state level with access to the details is the Mich Department of Community Health (MDCH). They can tie the person, to the condition, to the doctor, and they are restrained by the MM Law dealing with confidentiality. Again, can the judge compel a MDCH employee to answer such a question, sure, but I think the end result is the same - error on appeal.

 

The application and all supporting information is confidential. Including the identity of the caregiver and the doctor.

 

Patients retain copies of their application. This is confidential information. All of the information on the application is confidential.

 

It doesn't matter if they dug through the MDCH trash to get information. Even in the dumpster, it is still confidential information.

 

If the application was found on the side of the street, it is still confidential information.

 

And even if it is found in a dispensary .. it is still confidential information.

 

These are state licensing documents. Very little medical record about them. One single box is checked to show qualifying condition. All of the rest of the information is about the identity of the patient, caregiver and doctor.

 

This isn't about HIPPA. It's about the Michigan Medical Marihuana Act. And criminal violations of that act.

 

An individual can not wave confidentiality of state licensing records. The state has the control.

[jtgeme]

Except for the caregiver information on the back of the card.

 

Is that information being entered into a police database?

 

I have no idea and any answer I give would be complete speculation.

 

And in the spirit of speculation: the conspiracy theorist in me says "probably" and I can't find a part of me to rebut that.

 

Honestly though, I doubt it. It would have to be something that all police agencies would be a part of (state, county, and city) and they have that already. Its the LEIN system, which has the information if the officer has the card number...I know its circular - so the answer is yes I guess.

 

Confused? Certainly not my intention.

 

But you do raise an interesting point - why is it important to identify the caregiver right on the back of the card? If its in the system, why does it need to be there for everybody to know? If its not in the system, why does it matter who it is? Need to ponder that one for a bit.

[Mr. Wilson]

RECORDS CONFIDENTIALITY AND PRIVACY RIGHTS

 

That's what we are talking about.

 

Have you read this document: http://www.ddc-law.com/news_events/articlesofinterest/pdfs/Medical%20Records%20and%20HIPAA%20in%20Michigan%20.pdf

 

You need to read the part about EXCEPTIONS

 

All a court needs to totally blow off hundreds of pages of law...is an EXCEPTION...then it becomes an "acceptable need to view confidential information" and they can look at anything they want about you with little or no restriction and like magic..poof! it becomes legal.

 

What it boils down to is, YOU HAVE NO RIGHT TO PRIVACY IF THEY CAN FIND AN EXCEPTION