Is it legal to call a witness in this type of hearing without notifying the defense in advance? They clearly can't claim they just learned about Pentangeli.

I'm not a lawyer, but I know this much: if it were a trial, it would be a problem, because you would need to give Tom a certain amount of time to prepare a cross-examination. But in the Senate hearings Tom has a much more limited role, so the committee can, I think, pull whatever they want out their hat. Others with more direct knowledge of these matters will be able speak more authoritatively, however.

In a regular trial, both sides (prosecution and defense) generally have an obligation to inform the other of any evidence (including witnesses) they plan to present at a trial, and to allow the other side to examine the witnesses or evidence before the trial starts. That process is called "discovery." It's not unusual for one side or the other to spring a "surprise" or "last minute" witness at a trial, but they have to justify the lack of notification to the judge. If they can't justify it, the judge can either refuse to let the witness testify, or declare a mistrial.

No such rules apply to a Senate hearing, because it isn't a trial. Besides, the Senate committee did notify Tom in (somewhat) advance, because, as we saw, Tom's "you've opened yourself up to five counts of perjury" speech occurred several days before Frankie took the stand.

It is interesting if not curious that FFC presented the Senate hearing almost as a trial. As has been noted, it is not. Under oath, one cannot lie to a Congressional committee, true. However, any perjury before the Committee would have to be the ajudicated in a federal court. Without a RICO statute at the time, it is unlikely that there would have been any basis in a federal court for prosecution of Mike. But, if Pentangeli was going to testify against Mike, it would not have been at a Congressional hearing; it would have been in a federal criminal court. Since Pentangeli's testimony would have been uncorroborated, there would not have been any basis for Mike's prosecution.

One of the beauty parts of the perjury trap is that a corroborating witness is not required to obtain a conviction. All it takes is one witness against the defendant, and supportive circumstantial evidence.
If Michael were to be tried for the murder of the Five Families heads, a prosecutor would have to find at least one corroborating witness to even bring the case to trial. But a US Attorney could put Michael on trial for perjury simply because he denied under oath being responsible for the massacre, and Frankie's sworn testimony contradicted him. "Circumstantial evidence" could be as simple as convincing the jury that he benefited from the demise of the other Dons. In effect, it'd one man's word against another, and it'd up to a jury to determine who's telling the truth. Even if they refused to believe Frankie and acquitted Michael, he'd still have had his "legitimate" cover torn to ribbons. Thus the Senate committee couldn't lose: If Michael had been tried and convicted of perjury, he could go away for five years on each count without prosecutors having to try him for any of the crimes he lied about. If he were acquitted, he'd have still been dragged through a long, arduous and supremely ugly trial that would have exposed a mass of allegations against him. The Nevada Gaming Commission then would be under pressure to yank his licenses, at minimum.

Well, the acquisition of circumstantial evidence that would convince a jury in either a perjury prosecution or murder prosecution can be quite a hurdle. Keep in mind that these are pre-RICO days. Showing any benefit would be a very significant challenge. I doubt that they could get an indictment let alone a conviction. The charges against Frankie were manifold and severe. His credibility when it came to implicating Michael would have been impugned.

By being brought before a Senate committee his cover would have been blown and I doubt that the Nevada and NY press would have been mute before or after the Senate hearing. So, he would have been exposed in a any case. Also, I don't think Michael had any license associated with gaming. In fact, I don't know why he would have.

With Michael's sworn testimony on record at the Senate, and with Frankie's sworn testimony also on record, it'd be easy for a US Attorney to bring in a perjury indictment. Supportive circumstantial evidence may have been less convincing. But the issue is: once the case is brought to trial, conviction or acquittal rests with convincing a jury, not on case law. The real benefit is to bring the case to trial. Even if the jury acquitted Michael, he'd be seriously damaged.


I inferred that he did have licenses in his name or in the name of a corporation connected with him. Geary said, You [emphasis added] own or control three hotels...the licenses were grandfathered in so there was no problem."

I thinkwe shold take all the posts on this subject and turn them into a book. There's enough of them.

Just as Michael's fate at the comnclusion of trial testimony would be in the hands of a jury, a grand jury indictment would be in the hands of the Grand Jury members. Again, Frankie's impugned integrity would significantly reduce the chances that Michael would even be indicted for perjury let alone tried for it.

Also, Senator Geary probably said "control" after he said "own" as a way of correcting himself. I can't see Michael having his name on any document that would link him to any casino except, as he admitted to the Senators, a few casino shares.

Correct on all counts.

As an aside, even if this were a jury trial, Frankie could be called as a witness against Michael without notifying the defense because he would be a rebuttal witness, whose testimony is merely offered to impeach the veracity of the Defendant's (or any witness' for that matter) testimony. Because the testimony is not part of the Prosecution's case-in-chief, there is no obligation to reveal this witness to the defense.

It's one of the many reasons why a criminal defendant should consider not taking the stand.

Yes! It also shows how the Senate hearing highlights the Fifth Amendment as a two-edged sword:
Criminal defendents are not required to be sworn in and take the stand against their will. Most juries don't hold it against them that they didn't testify on their own behalf--they've seen all the lawyer movies and TV shows, and they know how a prosecutor can rip a witness to shreds. Criminal defendents are almost never hurt by refusing to take the stand.
But a witness before a Congressional hearing can't refuse to be sworn in--he must take the stand. His Fifth Amendment privilege extends only to being able to refuse to answer specific questions "on the grounds that my answer might tend to incriminate me." In Michael Corleone's case, a Senator asked him if he was "responsible for the murders of the heads of the Five Families in 1950 [sic]." Suppose he replied, "I refuse to answer that quesition on the grounds that my answer might tend to incriminate me"? He couldn't be prosecuted for perjury or for the actual crime--but everyone on the planet would know that the reason that his answer "might tend to incriminate me" was because he was responsible for those murders.

Real-life Dons have a nominal "legitimate" job whose purpose is not to make them appear to be solid citizens, but simply to provide them with a source of reportable income so they can avoid being prosecuted for tax evasion. If they're called before a Congressional committee, their lawyers will advise, "Look, our purpose here is to keep you from being jailed, not to convince your fellow citizens that you're an honest businessman. Just plead the Fifth after every question." If the Don were to say, "But if I did that, everyone will know I'm a gangster," the lawyer would reply, "They already know you're a gangster--better to be a known gangster at liberty than a known gangster in jail."
Of course, Michael was pretending to be a genuinely "legitimate businessman," so pleading the Fifth would have destroyed his credibility.

It took me some time to realize this when I was a young criminal defense lawyer. I kept telling myself that a jury wants to hear a defendant say that he didn't do it. More times than not, a defendant's testimony hurts more than it helps. I learned that juries do not, in fact, hold a defendant's decision not to testify against him. It benefits the most innocent person in the world usually not to testify.

Your comments about taking the fifth reminded me of one of my favorite scenes from A Man for all Seasons . When Thomas More was brought to Court for refusing to take an Oath recognizing Henry VIII as head of the Church, he countered that a maxim of law in England was that silence meant consent, and that the court should therefore judge his silence with respect to the Oath accordingly.

Cromwell sneered, "Is that how you want the whole world to consider your silence?"

More replied, "The world can judge me however it wants according to its wits. This court must judge me according to law."

Memorable line...and great, great movie. Paul Scofield was brilliant, but he's brilliant in every movie he's in.

[quote= If they're called before a Congressional committee, their lawyers will advise, "Look, our purpose here is to keep you from being jailed, not to convince your fellow citizens that you're an honest businessman. Just plead the Fifth after every question." If the Don were to say, "But if I did that, everyone will know I'm a gangster," the lawyer would reply, "They already know you're a gangster--better to be a known gangster at liberty than a known gangster in jail."
Of course, Michael was pretending to be a genuinely "legitimate businessman," so pleading the Fifth would have destroyed his credibility. [/quote]

Correct and I would simply add here that one of the ways to use effectively serial Fifth Amendment refusals to answer is that once someone starts talking too much he or she can waive his or her fifth amendment rights. So really, once someone has taken the fifth on a couple of innocuous questions, it is clear that he or she will take the fifth on all the questions. In politically charged hearings, when a witness is made to take the fifth 55 times, or whatever, it is the result of grndstanding by the congress people, and nothing more.

Interrstingly there is s division of authority on letting juries know whether someone took the fifth or not. In California (and you may recall this from the Simpson trial) the fact that someone took the Fifth cannot come into evidence because the courts there have ruled the jury will infer criminal conduct by someone who has merely excercised a constitutional right. In FLorida, however if someone takes the fifth in a civil case, the jury does her it and the lawyer can argue "If they took the fifth, why do you think they did so?" This disparity has never been resolved by the Federal Courts, but it is probably ripe for review someplace.

Wow, that's shocking. I can't imagine that this can survive any kind of Constitutional scrutiny. The Constitution, as interpreted by a long line of precedent, has established that no negative inference may be drawn from a defendant's decision not to take the stand in a criminal trial. It is the prosecution's responsibility to prove its case.

If a prosecutor asked a criminal jury to speculate as to why a defendant took the Fifth in another case, I would expect a mistrial to be declared immediately, and the prosecutor be sanctioned.

Thanks for bringing this up, dt. I imagine that we'll see it addressed in the Circuit Courts.

Wait a minute. Florida civil procedure allows a fifth amendment exercise in a civil case? I've never heard of that.

There is also a generic instance where the Fifth Amendment privilege doesn't apply--if you're offered "immunity to testify." This is a time-honored technique to use "little fish" to trap "big fish."
Let's say I'm a bank robber and I hired you to drive the getaway car. You drove me to the bank, I went in, and in the process, I killed someone. You drove us away. The cops grabbed both of us. Technically, you can be charged with murder, same as me, because you were an "accessory." But the cops need you to testify against me. So the prosecutor offers you "immunity to testify": If you agree to waive your Fifth Amendment privilege and answer every question truthfully (including admitting that you drove the getaway car and knew it was gonna be a bank robbery) you won't be prosecuted for that crime. If you refuse, the judge in the case can send you to jail for contempt of court.
How is this possible? Because the Fifth Amendment protects you against "self incrimination." But since the prosecutor said you wouldn't face any charges if you admitted what you did, you are, technically, not incriminating yourself.
This is how Paul Castellano cemented his rise in the Mafia. He was arrested with all those other Mafia guys at the famous Apalachin, NY, conference in '57. The cops jailed him with all the others. They offered him immunity to testify against the others. He refused, and spent over a year in jail for contempt of court. (The charges against all eventually were thrown out; otherwise Castellano could have spent lots more time in jail.)

Tomasso: please clarify your source about Florida constitution or procedure allowing one to take the fifth in a civil case. I've never heard of such.