A Right to Ask Questions About Definitions?

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Title 18 United States Code (USC) Section 6001 (“Definitions”) begins with the phase “As used in this chapter”.  That phrase tells us that the four definitions found at 18 USC 6001 are only certain to apply in this chapter (Chapter 601; “Witness Immunity”) but might not apply in any other Chapters in the USC.

The USC has 50 Titles.  If we assume that each of the other 49 Titles also has 601 “Chapters,” then there may be over 30,000 “chapters” in the entire USC.  In theory, then, there could be 30,000 unique definitions (one or each Chapter in the USC) for each of the four terms defined at 18 USC 6001.

Of course, it’s virtually impossible that any word or phrase used by Congress could have 30,000 separate definitions.  Nevertheless, many word or phrases used by Congress do have multiple definitions.   More, these multiple definitions are often contrived by Congress to have meanings that, for ordinary Americans, are not only unknown and unimagined but are virtually incomprehensible.

This multiplicity of definitions goes to the heart of the following inquiry as to our right to ask to know the definitions of each of the words used in laws, instruments or testimony that are relied upon in our court cases and legal relations.

18 USC 6001 (“Definitions”) continues:

(1) “agency of the United States” means any executive department as defined in section 101 of title 5, United States Code, . . . .;

(2) “other information” includes any book, paper, document, record, recording, or other material;

(3) “proceeding before an agency of the United States” means any proceeding before such an agency with respect to which it is authorized to issue subpoenas and to take testimony or receive other information from witnesses under oath; and

 

Thus, while a witness is “under oath” he is apparently entitled to introduce “other information” into evidence that is not “testimony”.  But, “other information” has been previously defined (in item (2)) to include “any book, paper, document, record, recording, or other material.”

I strongly suspect that this “other material” can include a purported “affidavit” that is based on mere “information and belief” rather than direct personal knowledge.   For example, I might draft an affidavit “on information and belief” that I believe that John Doe killed Becky Doe.  What’s the basis for my “information and belief”?  Well, I heard two guys talking in a bar and I’m pretty sure that’s what they said.  Thus, my “information and belief” would not be based on direct personal knowledge (having seen John kill Becky) but rather on mere hearsay.

Normally, hearsay is inadmissible in court.  However, under the guise of 18 USC 6001 (2) & (3) it appears possible that hearsay might be admissible if it were presented in the guise of an alleged “affidavit” based on mere “information and belief”.

(4) “court of the United States” means any of the following courts: the Supreme Court of the United States, a United States court of appeals, a United States district court established under chapter 5, title 28, United States Code, . . . .

18 U.S.C. § 6002 “Immunity generally” declares,

Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to -

(1) a court or grand jury of the United States,

(2) an agency of the United States, or

(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House, and the person presiding over the proceeding communicates to the witness an order issued under this title, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

 

Twice, we see that the primary basis for granting immunity to compel a witness to testify is the witness’s preliminary claim of the privilege against self-incrimination.   I.e., I might be granted immunity from criminal prosecution and then forced to answer a question IF I first refused to answer that question “on the basis of [my] privilege against self-incrimination.”

But, in a world where most “criminal” proceedings are actually “penal” (civil with attached criminal penalties) in nature, immunity from criminal liability may not be much of a reward for being forced to testify.  I.e., although I might be granted immunity from criminal prosecution, my testimony might still expose me to significant civil (possibly “penal”) liabilities.

Insofar as witness immunity (and compulsion to testify) seems based primarily on the witness’s claim of privilege against self-incrimination, what happens if I refused to answer based on some other privilege?  Unless there are other laws that also grant immunity based on a claim of other privileges, it appears that I could not be compelled to answer.

What other privileges might exist as grounds for the right to refuse to testify . . . ?

•  For example, do I have a right to understand (comprehend) the meaning of the questions presented to me?  Surely, I must be entitled to the “privilege” of understanding (comprehending) whatever question I am asked to answer—especially if my answer could expose me to criminal or civil liability or help to enforce my rights.

So, what if I refused to answer a question because I didn’t understand the meaning of the question?

The whole idea of refusing to answer a question based on my “privilege against self-incrimination” presumes that I understand (comprehend):  1) the concept of “self-incrimination”; and 2) the incriminatory elements of whatever question I’m asked to answer.  Thus, before I can even decide whether I should refuse to answer a question as “self-incriminatory,” I must first fully understand how that question might incriminate me.

Normally, a defendant hires an attorney.  The attorney is presumed to understand the  meaning of a question and tells the defendant whether he should answer that question.  The defendant may not actually “understand” the question, but he relies on his attorney to “understand” the question and on his attorney’s advice as to whether he should answer.

Thus, it’s not only possible but probably commonplace for litigants to answer questions that they don’t really understand—and be held liable for their answers.

•  But what happens if a litigant doesn’t have an attorney to “understand” the questions for him?   Could the litigant ask the court or opposing party to explain the questions?  Would the court or adverse party be obligated to explain the meaning of the questions?  Could the court or adverse party be obligated to provide definitions for the words used to formulate their questions?

I suspect that the answers to these questions is Yes.

If so, a number of intriguing possibilities come to mind.

•  As an extreme example, suppose a question were posed to me (“Alfred Adask”) about “ALFRED N ADASK”. Could I legitimately refuse to answer the question as potentially self-incriminatory if I (“Alfred”) am not the subject “ALFRED”?

I.e., can I answer questions about “ALFRED” without incurring some liability for myself (“Alfred”)?

•  More, I suspect that questions and answers—especially those under oath and implicating issued of “self-incrimination,” may be somewhat like a contract or agreement (in fact, the question might even be construed to be something like a notice) wherein there was deemed to be a “meeting of the minds”.   (How can anyone be expected to answer a question and be held liable for his answer if the person answering  didn’t first “understand” the meaning of the question presented by the “questioner”?  Doesn’t an answer to any question presuppose a kind of “meeting of the minds” wherein the person asking and the person answering are both deemed to have understood/agreed to the meaning of the question?

If so, then if it could be argued that:

1) By answering a question, the person answering would be deemed to have implicitly agreed to the meaning intended by the person asking; but,

2)  It would not be unusual (especially when answering “legal” questions) for the person answering to mistakenly assume the question had a significantly different meaning from that intended by the person asking; then,

3) It wouldn’t be unusual for a person to mistakenly answer questions which had a meaning he did not apprehend.

If so, it would be reasonable and even essential for every person answering questions to fully understand the meaning of each of the words used by the person asking to comprise the questions.

More, given that virtually every definition of almost every word in a decently-sized, fairly complete dictionary have multiple definitions, we might have to go through each definition of each word used to see which definition was intended by the questioner.

•  Once we reach the point of discovering the “intent” of the person asking questions, we might not be too far from accumulating evidence of fraud or deception.

For example, suppose:

1)  The person asking the questions was a lawyer or judge trained in the law and fluent in “legalese” (a term recognized and defined in recent editions of Black’s Law Dictionary);

2)  The person asking the question knowingly and intentionally used a word (say, “understand”—as in “Do you understand the charges against you?”) as a “term of art” (also defined in Black’s Law Dictionary) that has a meaning in the context of “law” (perhaps, meaning “agree”) that the questioner knew was entirely different from the word’s common definition (“intellectually comprehend”) that the person answering would ordinarily suppose; and,

3)  It could be shown that the person asking the question intentionally used the “term of art” (with a meaning unknown to the person answering) for the purpose of exploiting the ignorance of the person answering and thereby using the person’s ignorance to cause him to make admissions that were against his interests or even absolutely (but unwittingly) false; then

4)  It might be proved that the person asking the questions had intentionally used his words to deceive and/or defraud the person answering; and

5)  The court system that routinely employs, recognizes, relies on, and approves of such verbal deception would, itself, be guilty of conspiring to exploit the answerer’s (public’s) ignorance.

Given the extensive use of “terms of art” by lawyers’ and judges, it seems probable that there must be an underlying presumption that allows the “system” to escape liability for exploiting the public’s ignorance.  In this regard, I’m reminded of the fact that notices (see, http://adask.wordpress.com/category/notice/) need not be complete, but need only be sufficient to put the recipient “on inquiry”.  I.e., the recipient has the right to ask questions to fill in whatever “blanks” exist in the notice received.  If the recipient does not ask those questions, it is presumed that he has “understood” and agreed to all the terms of then (even including the unstated terms) as intended by the sender.

Does every question likewise create a right of inquiry whereby the answerer is entitled to exercise his “due diligence” to discover what the exact meaning of the question (and each of its words) is intended by the questioner?

I believe the answer must be Yes since, under this hypothesis, the “right” of inquiry also includes a “duty” of inquiry.  If you have the right to ask questions, but fail to exercise that right, the personal liability for failing to ask those questions falls on you—not the lawyers or judges who asked the questions using words with definitions most people would not expect or understand.   Under the pretext of the public’s right—and duty—to ask questions, the judges and lawyers could freely deceive the public without incurring personal liability.

•  If so, the most effective and prudent response to any question might be to ask your own questions about the questioner’s intended definitions of each of the words employed.  Of course, this might be a lengthy and tedious process.  In fact, I wouldn’t be surprised if it might take a full half hour to ascertain the exact meanings of all the words used in a question comprised of just a few words.

For example, suppose a judge asked “Do you understand the charges against you?”

Suppose you looked up the meaning of “understand” in Black’s Law Dictionary and discovered that “understand” might sometimes mean “agree” and therefore asked the judge if he’d used the word “understand” to mean “comprehend” or “agree”.

Suppose the judge confessed that he used the world “understand” to mean “agree”.

Well, if you now opened your Black’s to find the definition of the word “agree,” you might discover that “agree” has four possible meanings.  If so, you might want to ask the judge Which of the four meanings of “agree” did he intend when he used the word “understand”?

If the judge answers “definition number three,” there might a word or two in that definition that you didn’t understand, so you might want to look up those words and ask the judge to declare which definitions he intended.

As you can see, once the definitions of words becomes an issue, it might take a very long time to discover the precise meaning of a phrase like “Do you understand the charges against you?”  In fact, the process of discerning (and agreeing to) the precise meanings of words might be so drawn out that the courts might be reluctant prosecute cases against defendants who insisted on the privilege of precisely comprehending the meaning of the questions posed to them.

•  It’s even possible that issues of definition might even be grounds for interlocutory appeals to demand a higher court to rule on the meaning of just one critical word.  Heck, if the meaning of a second critical word were also at issue, there might be grounds for a second interlocutory appeal, etc..

Of course, these interlocutory appeals can take some time.  The appellate courts are busy and once a defendant demands an interlocutory appeal, it could take several days, even weeks before an appellate court would have time to answer his question.  The actual proceeding at the trial court might have to suspended and continued until an appellate court could rule on the definition of a particular word.   It’s conceivable that interlocutory appeals for just five or six words might cause a single, seemingly simple case to drag on for six months or more.

Of course, the judge might be furious.  The jury, if any, might also be a bit miffed.  (The judge might even threaten to label someone who was intent on understanding the definitions of all relevant term as a “vexatious defendant” and threaten to never allow him to appear in court again as a defendant.)

Nevertheless, despite the potential for lengthening a trial significantly, prudence and due diligence might still require a defendant or witness to fully investigate discover and agree to the precise meaning of the questions posed before they could answer those questions.

•  It occurs to me that the Oath taken by witnesses should be another ground for a witness to respond to questions with his own questions about the precise meanings of the words used and the question posed.

After all, as a witness I’m sworn to “tell the truth, the whole truth, and nothing but the truth”—a very high and exacting standard.  I’m even threatened with “pains and penalties of perjury” if I violate my oath.  So, how can I possibly (or safely) satisfy my oath if I don’t exactly comprehend the meanings of the questions presented to me?  How can I be sure that I’m telling the “whole truth” and “nothing but the truth,” in response to questions if I don’t exactly understand the meanings of those questions?

And, again, how can I determine if a question is or is not self-incriminating unless I fully understand the meaning (and therefore, legal implications) of each question presented to me?

•  If there’s a challenge by the judge or lawyers to my determination to fully comprehend the exact, intended meaning of each question (and incorporated words), I can find some justification (here on Texas, at least) at Texas Penal Code 1.04(d) which defines the “territorial jurisdiction” of “this state” as follows:

“This state includes the land and the water and the airspace above the land and water over which this state has power to define offenses.”

Thus, the jurisdictional limits of “this state” are determined by definitions.   That’s not my hypothesis or personal opinion.  That’s a fact declared in the Texas Penal Code.  Clearly, if the jurisdiction of “this state” is a function of its “definitions,” then my right to inquire about definitions of words used by my adversary must be significant.  Given 1.04(d), who could argue that I have no right to discover relevant definitions?

More, given that Texas Penal Code 1.04 declares that the “territorial jurisdiction” of “this state” is a matter of definitions, then it follows that definitions can be a jurisdictional issue.  Jurisdiction is the crucial issue of every case.  If a court has no jurisdiction, it cannot lawfully proceed or issue any orders or judgments.  It’s my understanding that jurisdictional issues can be raised at any time—before, during, or even after a trial.  This suggests that questions about definitions of words used to charge a defendant, or questions posed by an adversary might be raised as a jurisdictional issue at any time that jurisdictional questions might be raised.

•  So far as I know, it’s a fundamental principle of law that every contract is subject to the law of the “situs” (place) wherein that contract is executed.  As a result, identical contracts might be executed in Texas, Mexico and Canada and still have three significantly different sets of meanings, rights, obligations and consequences according to the governing law of the situs where the contracts were signed.  Given the relationship seen in Texas Penal Code 1.04(d) of “definitions” to “territorial jurisdiction,” it appears possible that every definition may have a “situs” (place, or venue).

If so, it may be the one of the questions in response to questions posed by a lawyer or judge may be to inquire about the situs or venue of the original question and of each of the words used to phrase that question.

For example,

Q:  “Do you understand the charges against you?”

A:  “What is the situs/venue of your question?”  “What is the situs/venue of the word ‘understand’?”  “Are you using the word ‘understand’ as evidence of the territorial jurisdiction of ‘this state’?”  (As a bonus question, you might ask the judge “What is your blood pressure . . . ?”)

•  This hypothetical tactic of asking questions about the meanings and definitions of words sounds kinda funny, but it couldn’t actually work, could it?  I mean, if this strategy could work why don’t we see defense lawyers using it every day?

A:  Because a licensed attorney who dared to try it, would probably be quickly disbarred.

But it’s a fact that the “law of the law” is the definitions of words comprising the law.  In the same sense that Bill Clinton once answered a question with “it all depends on what the meaning of ‘is’ is,” the meaning and effect of any “law” ultimately depends on the definitions and meanings of the words used and intended to express that “law”.  If you can change the meaning or definition of one or more words in a particular “law,” you can change that “law” without a formal process of legislation.

•  Again, the “law of the law” is the definitions of the words that comprise the law.

As evidence that definitions provide the “law of the law,” note that the Supreme Court spends much of its time trying to discern whatever meaning was intended by the legislature when they used a particular word or phrase in a particular law.  If the legislature intended a critical word to mean one thing, a defendant may be found guilty; if the legislature intended a different meaning for that word, that defendant may be found innocent.  Words matter.  Big time.

When doubt arises about the meaning of a particular word or phrase used in the law, the Supreme Court will expend considerable resources exploring congressional records, documents, and meeting notes that impacted on the passage of the particular law to discover “What th’ hell did those damn congressmen mean (intend) when they passed this damn law?”

Insofar as the Supreme Court can expend considerable resources trying to figure out what meanings and definitions were intended by Congress when they wrote a particular law, we can see that the meanings of words are not fixed.  There is no single dictionary that’s available to even the Supreme Court to discover what the sole meaning of every word must be.  Instead, it’s not only true that some words have multiple definitions, it’s true that the Congress routinely creates its own new definitions for words.

Read any Title in the United States Code.  You’ll find multiple sections entitled “definitions”.  Some of these sets of definitions apply only to a particular Title, some to a particular Chapter, others to a particular Section.  I’ve never done it, but I have no doubt that you can probably find two or three conflicting definitions of the same word in the same Title.  One definition applies only to one Chapter, another definition of the same word is different but applies only to one Section in a different Chapter, etc.

If Congress can legally create new and multiple definitions for words and phrases, why can’t we?  More, why should we presume that a particular word or phrase used in a legal document or legal question has the same meaning as used by our parents or schoolteachers when we were kids?

We the People tend to presume that each word has only one “common” definition.  We’re absolutely wrong.  Virtually all words have multiple definitions.  Sometimes, some words have absolutely unique definitions that are only recently created by Congress and are virtually unknown and even unimagined by the majority of people.

All of these truths about the variability and multiplicity of definitions suggest that an intelligent, reasonable inquiry into the meanings of each word used to pose a question should be a credible practice.

Insofar as the Supreme Court can expend considerable resources looking for the definition of a particular word, it’s not so hard to believe that a similar process might take place at the trial court level.

•  Declaratory judgments.  I just now stumbled onto the Florida law on Declaratory Judgments at:  http://leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0086/0086.html.  Parts of this law include:

“86.011 Jurisdiction of trial court.—The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The court’s declaration may be either affirmative or negative in form and effect and such declaration has the force and effect of a final judgment. The court may render declaratory judgments on the existence, or nonexistence:

“(1) Of any immunity, power, privilege, or right; or

“(2) Of any fact upon which the existence or nonexistence of such immunity, power, privilege, or right does or may depend, whether such immunity, power, privilege, or right now exists or will arise in the future. Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent, or supplemental relief in the same action.”

“Any fact” upon which the existence of any immunity, right or privilege etc. may depend would seem to include the definitions of words used to affect that “immunity, power, privilege or right”.

For example, is it a “fact” that the word “understand” as used in the question “Do you understand the charges against you?” means “agree to”?

If so, a litigant would seem to be entitled to ask for a declaratory judgment on the definition of the word “understand”.

“86.021 Power to construe.—Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.”

 

How could a litigant not “be in doubt about his or her rights under a deed, will, contract or other article,” etc., if that litigant did not understand the meaning of all of the words used in the relevant document?  Insofar as declaratory judgments can be used to alleviate such doubts, it seems likely that declaratory judgments can be demanded to determine the definitions of critical words or phrases.

The “power to construe” would seem to include the power to define any word used in any of the documents or even testimony that are relied on by a judge or jury to make a decision.  This power of “construction” would seemingly not only allow parties to ask questions about definitions, it would seemingly allow a judge to independently and silently reach his own “construction” (definition) of words and phrases used in his court—unless one of the parties exercises his right to ask questions about the meanings of particular words.

This speculation is consistent with my earlier speculation that the judicial system must have some sort of mechanism in place that allows the courts to use certain words as “terms of art” or have meanings different from what the parties might normally expect—without imposing any liability upon the judges or lawyers for deceiving the person answering the questions.  So long as a party questioned has a right to ask questions about the meanings of words used to formulate the question, that party (not the judge and attorneys) also has the implicit duty of asking questions to discover the definitions intended by the judge or attorney.  If the parties having the right—and duty—of asking questions about definitions fail to do so, the liability for that failure falls squarely on the parties—not the lawyers and judges.

A parties’ power to ask questions about the definitions and meanings of words is not merely a right, it’s also an implicit duty.   I.e., if you don’t ask questions about the meanings of words in the questions presented to you, you may be waiving any right to subsequently object to the court’s ultimate “construction” of the case and verdict.

Assuming that the court’s “power to construe” includes the power to define words, by failing to ask questions about such definitions, you may open the door to be intimately “construed” by the judge.

•  It appears to me that the Florida law on Declaratory Judgments opens a door for parties to ask questions about the meaning/definition of any (and perhaps every) word used in any official or written document that is relied on by the court or plaintiff to affect his powers, privileges, rights, duties, etc.

If so, it probably follows that the law concerning declaratory judgments in other states and even at the federal level will enforce the same right.

There may be some law other than “declaratory judgments” that affects a litigant’s right to ask questions about definitions—but, for now, I don’t know what that law might be.  Declaratory Judgments appears to me to embody the right to ask questions about definitions (and the personal liability for litigants who fail to ask those questions).

•  In jury trials, the judge will provide instructions to the jury that include the law relied on by the litigants.  I have no experience with the jury instruction process, but as I understand it, each litigant can offer proposed instructions for the jury.  The judge then picks and chooses between the parties’ proposed instructions to determine which instructions the jury finally receives.

If it’s true that the “law of the law” is the definitions of the words that comprise the law, then it might be argued that the jury instructions should include the definitions of words.  This argument might not work if neither litigant sought to expressly define the words used during the court proceedings.  But if either litigant exercised his right during the trial to receive a declaratory judgment on the definitions of various words, the court’s declarations (definitions) might be required as part of the jury instructions.

•  If a plaintiff won’t supply the relevant definitions of words relied upon, then a defendant might want to be prepared with a set of his own definitions to use as the meanings for the words he’s using in his answers.

•  Finally, the implications of the hypothesis that we have a right to ask questions about the definitions of words may, at times, seem almost hilarious.  If that hypothesis were correct (and logic, at least, suggests that it must be), then the entire judicial system could be brought to a halt.

It might take a court several hours to issue a declaratory judgment as to the definitions of each of the seven words in the question “Do you understand the charges against you?”  If the word “Do” was defined by the court, the court’s definition would be composed of other words.  In theory, a litigant could be entitled to ask for the definitions of each of the words used to define “Do”.  The next set of definitions would also be comprised of words which might require another round of definitions and declaratory judgments.

The courts would not stand for this process.  The judges might label incessant demands for more and more definitions as “dilatory” and attempts to “obstruct justice” or some such.

Therefore, if you’re inclined to attempt to use a “demand for definitions” strategy, you should not ask for the meanings of every single word employed in the paperwork, questions or testimony of the court or your adversary.  I’d bet that in any significant case, there might 100 words that deserved to be precisely defined, but that less than ten words or phrases were so critical that their definitions could decide a case.

For example, if I read “STATE OF TEXAS” on a case’s caption, does that mean the de jure government of The State of Texas—a member-State of the perpetual Union styled “The United States of America”?

If I read “ALFRED N ADASK,” does that term signify “Alfred Adask”—a man made in God’s image and endowed by his Creator with certain unalienable Rights?

How ‘bout “DALLAS COUNTY”—does that term signify “The County of Dallas” that was created in the 1800s as a political subdivision of “The State of Texas”?

Does the Zip Code “75044” signify a location within a territory or a location within a State of the Union?

If you can discover a half dozen critical terms and compel the court or your adversary to exactly define those terms, I’ll bet you can make most court cases disappear—especially if you can pose those questions during the pre-trial process and long before a trial actually begins.

So, assuming the right to ask questions about the definitions of words actually exists, use that process but don’t be fool enough to abuse it.  Use the process “judicially”.  Prudently.  Reasonably.

Be prepared to explain exactly why you are asking each question; why each question is relevant and important to your case or defense; and why you cannot agree to proceed until your questions have been definitively answered.

Written at arm’s length within The County of Dallas, within The State of Texas—a member-State of the perpetual Union styled “The United States of America”—by Alfred Adask—a man made in his Father YHWH Elohiym’s image and endowed by his creator with certain unalienable Rights.

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