Can #BrettKimberlin Measure Up to Midgett?

It is possible that The Dread Pro-Se Kimberlin may be allowed to offer some testimony during the Kimberlin v. Walker, et al. trial.

TDPK has refused to answer the interrogatories that Aaron Walker, Stacy McCain, and I have sent him as a part of discovery in the Kimberlin v. Walker, et al. nuisance lawsuit. One of the reasons he initially cited was his Fifth Amendment privilege against self incrimination.

In Midgett v. State, 223 Md. 282 (1960), the Maryland Court of Appeals ruled that there are limits to that privilege.

The bases for the rule are (i) that the witness has the right to determine whether or not to invoke the privilege, not that the rule is for the exclusion of unreliable evidence, and (ii) that the court must be in a position to determine whether the claim of privilege is in good faith or lacks any reasonable basis.

Id., 289. Thus, in order to invoke the privilege during the trial, TDPK will have to convince the judge that he will risk incriminating himself if he truthfully answers questions such as “How old was your wife when you married her?” or “If you have ever denied being sent back to prison for a parole violation in any court since January 1, 2010, explain the material circumstances for why you issued such a denial while under oath.”


19 thoughts on “Can #BrettKimberlin Measure Up to Midgett?

  1. Not to clue the idiot in (and I may be utterly off base because most of my practice has been criminal and not civil) but if be takes the stand, there is something that could be done to make his day very long and unpleasant.

    • This strikes me as Judge Johnson having done the defense a favor. Telling the jury he’s not allowed to testify because he’s a convicted perjurer is one thing. Having him go all indignant and stompy feet in response to very simple yes/no questions for the jury’s edification may be more useful. Catching and proving him to be lying to the jury in real time? That’s gold.

  2. Up until now, everyone has been on defense with all of Brett’s frivolous lawsuits.

    Well, Brett, the tables are going to be turned. You better hope you’re better at defense than you are at offense.

  3. In a criminal matter, the defendant has a right to remain silent. The prosecution may not make any reference to a Defendant’s choice to remain silent. In a civil matter, there is no right to remain silent. The Fifth Amendment still applies, but must be invoked and only where appropriate. A party’s failure to respond to a question may be considered by the Jury.for any reasonable purpose, e.g. guilt. It is utterly amazing that the Judge has allowed a person to sue for defamation and yet remains silent in the face of questions regarding the subject of the suit, the Judge ought to just throw the suit out or else prevent the party from presenting any evidence on the subject not responded to in discovery.

  4. I’m not entirely convinced that this is appropriate exercise of the 5th amendment privilege. The fact of his wife’s age is not privileged information, and his knowledge of her age is (probably) not relevant to whether he committed the offense.

    Similarly, the fact that he lied under oath is not privileged information. The reasons for his lying under oath are not relevant to conviction (although they be used as a defense). So he has no right to refuse to answer THAT question either.

    These facts can be shown by extrinsic evidence, and if they are relevant to the defendants’ case, they should do so. Preferably BEFORE TDPK takes the stand, so they can ask him about the facts and he can “take the fifth” in front of the jury.

  5. I can’t see how the 5th applies at all — he’s the plaintiff. Pleading the 5th will only serve to let him avoid permitting himself, and we’ve never seen that concern him.

  6. If you invoke the privilege during discovery don’t you automatically allow the other side to use it against you with the jury? Great strategy there in saying you were defamed because they called you a criminal/terrorist, and then you invoke the fifth.

  7. Pingback: Brett Kimberlin vs. the Universe (Trial begins today). | Batshit Crazy News

  8. The proper remedy against a plaintiff who refuses to answer questions or submit to cross examination–whether by invoking privilege or merely being an idiot–is striking the testimony. Of course, given that the plaintiff in a civil tort suit bears the burdens of production and proof, there would be no evidence to support the claim, entitling the defendants to a directed verdict and judgment thereon. This is especially true in defamation cases

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