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Seeking Fifth Amendment Defenders

Soulskill posted about a year ago | from the if-you-have-nothing-to-hide dept.

Encryption 768

Bennett Haselton writes with his take on a case going back and forth in U.S. courts right now about whether a defendant can be ordered to decrypt his own hard drives when they may incriminate him. "A Wisconsin defendant in a criminal child-pornography case recently invoked his Fifth Amendment right to avoid giving the FBI the password to decrypt his hard drive. At the risk of alienating fellow civil-libertarians, I admit I've never seen the particular value of the Fifth Amendment right against self-incrimination. So I pose this logical puzzle: come up with a specific, precisely defined scenario, where the Fifth Amendment makes a positive difference." Read on for the rest of Bennett's thoughts.

Wisconsin computer scientist Jeffrey Feldman was arrested on child pornography charges and ordered to give his hard drive decryption password to the FBI. He refused, claiming a Fifth Amendment right to refuse to hand over his password. A magistrate agreed with Feldman, then later changed his mind, but then on June 4th a judge blocked the order demanding that Feldman decrypt the hard drive.

So I will give up some civil libertarian cred and admit that, compared to, say, the free speech guarantees in the First Amendment, I've never seen what's so great about the Fifth Amendment "right against self-incrimination" -- not just as it applies to computer passwords, but in general. (Hereinafter I'm just going to refer to the Fifth Amendment right to remain silent as the "Fifth Amendment", even though there are other rights encapsulated in the Fifth Amendment, such as the right against double jeopardy.) I'm not debating the legal technicalities of the judges' decisions, since they take the "right against self-incrimination" as a given; I'm questioning the value of that "right" in itself.

Before you read any further, this is a pseudo-contest in which I'm soliciting answers in the form of a specific, precisely defined scenario in which you think that the Fifth Amendment makes a positive difference (i.e. that the outcome in a world with the Fifth Amendment, is better than the outcome in a world without the Fifth Amendment, even if you hold all other assumptions constant). If you disagree with everything I say, then the way to show that is to post a scenario that follows all the rules of the contest.

Now, obviously, I am not saying that the police ought to be able to beat information out of you. (The right not to be tortured by the police exists separately from the right to remain silent -- more on that later.) But the "right against self-incrimination" says two things that never made sense to me. The first is that you can refuse to answer a point-blank question asking whether you committed a crime, even if the question elicits no other information that ought to remain private. The second is that if you refuse to answer, a court cannot even consider that as a factor in determining the likelihood of guilt. The first seems dubious as a moral principle; the second actually departs from reality, for no good reason that I can see.

Take first the "right" to refuse to answer. Now, I agree that if the government asks you, say, "What books are you reading these days?", the correct answer is "None of your damn business." Nobody else has the right to know what's on your reading list. However, if a murder is committed, pretty much everyone agrees that it is the state's legitimate business (that is, everyone's business) whether you committed the murder or not. What's the philosophical argument that you shouldn't have to answer "Yes" or "No" if the police ask if you committed the murder?

Compare that to the collateral damage caused by, for example, a search warrant. If you accept that the police have a "right" to know whether your house contains a bloody knife used in a recent murder, then a search could turn up the knife, but there's always the risk that a search of an innocent person's house would penalize them by exposing their private information and belongings. By contrast, the direct question "Did you do it?" is like a "search" that targets only the evidence that is relevant to the case, and nothing else. A physical analogy might be the police scanning a neighborhood with a Geiger counter that detects only illegal weapons-grade plutonium; I'd be kind of OK with that. (Actually, being asked a question is even less invasive, since you don't have the option of refusing the search or the Geiger counter, but you have the option of refusing to answer a question and facing the consequences.)

Now, you shouldn't have to answer questions that are none of anyone else's business; if your alibi for the night of the murder is that you were at a somewhere you're embarrassed to mention, you should be allowed to say, "I didn't commit the murder, but I would prefer not to tell you where I was." But Fifth Amendment absolutists would say that you don't even have to answer the question of whether you committed the murder at all. That, to me, seems absurd. Isn't society entitled to know whether you committed the murder or not?

Perhaps people's discomfort with this reasoning stems from a feeling that the government has no right to interfere with your life at all, unless you've been convicted of a crime. But, rightly or wrongly, the police are empowered to make arrests, search people's houses with a warrant, chase after people feeling the scene of a crime, and take other actions even against people who haven't been convicted of anything. Law enforcement wouldn't be able to function at all without most of these powers, and while those powers can be and have been grossly abused, the solution is to limit those powers, not abolish them entirely. (That might be an argument for giving people the right to remain silent when questioned or arrested by the police, but still empowering judges to issue warrants requiring a defendant to answer a question, even if the answer could be "self-incriminating".) Compared to the possibility of getting arrested or having your house searched, the possibility of simply being required to have the exchange -- "You were walking away from the apartment after the murder, did you do it?" "No" -- seems like a pretty minor inconvenience. (Yes, if the police keep badgering and harassing me with the same questions, or if courts refuse to believe me and try to railroad me anyway, then that's a problem, but it's a separate problem -- we'll get to that in a second.)

Moving on to the second implication, which is that courts cannot weigh your silence in determining the likelihood of your guilt. This goes against the common sense that you would use in your everyday life. If you had two roommates, you knew one of them stole your laptop, you asked both where they were at the time, and one of them immediately told you where they were (giving a story that their friends could corroborate), and other refused even to answer "Yes" or "No" to the question of whether they stole it, what would you think? I'm not saying that a person's silence should ever be considered proof of guilt, but the likelihood of guilt is a probability question, which can be assessed using multiple factors, each of which individually might not be enough to prove guilt by itself. Is the second roommate's silence relevant to your estimation of their guilt? Of course it is. If you would use that factor in your own reasoning, why shouldn't a court? (And in fact, your silence can be considered relevant in a civil lawsuit, just not in a criminal case.)

Now, there are times when the government's evidentiary standards should deviate from common sense. For example, if you find evidence of an affair by snooping in your spouse's email, you may feel guilty about snooping, but you're certainly not going to forget what you found, just because the "evidence" was obtained improperly. The state, on the other hand, is mandated to "forget" any evidence that's obtained in violation of a defendant's rights (for example, if the police break in and search a residence without a warrant) -- that evidence cannot be used in a trial. However, in that case the bar on improperly obtained evidence serves a clear purpose -- it removes any incentive for the police to obtain evidence by breaking and entering. There's no obvious similar reason why a person's refusal to answer a question shouldn't be considered relevant to the likelihood of their guilt.

For these two reasons, I can't think of a precisely defined scenario in which the Fifth Amendment makes a positive difference, i.e. the outcome in the case where the Fifth Amendment does exist, is better than the outcome in a hypothetical world where the Fifth Amendment does not exist, if you hold all other assumptions constant.

My own high school civics teacher gave the example of an overzealous prosecutor determined to convict an innocent defendant of murder, as an example of the importance of the Fifth Amendment. I asked why, even without Fifth Amendment rights, the defendant couldn't just say that they were innocent. "Aha!" said the teacher, mimicking the evil tone of a corrupt prosecutor, "We know you're lying, now we'll convict you of murder and for lying to the court!"

This was the first of many "scenarios" that I've heard supposedly illustrating the benefits of the Fifth Amendment, that didn't hold up under scrutiny. For the government to convict you of lying about not committing the murder, they would also have to convict you of the murder, and if they can convict you of murder, then you're already screwed anyway, regardless of whether they also convict you of lying about being innocent. Now, obviously we should stop corrupt prosecutors from being able to railroad people, but that's a separate problem. The right to remain silent doesn't do you much good if the government is going to forge enough "evidence" (or ignore the lack of evidence) to convict you of murder anyway.

So what I'm looking for (email me below, and also post in comments) is a precisely defined scenario that meets all of the following criteria:

  1. The outcome in the world where we do have the Fifth Amendment, is clearly different from the outcome in a hypothetical world where the Fifth Amendment does not exist, even while holding all other assumptions constant. (So the "corrupt overzealous prosecutor" scenario fails that test, because if you assume the government can convict an innocent person of murder without regard for facts or evidence, they can do that even if you refuse to testify.)

  2. The outcome in the "Fifth Amendment" world is better than the outcome in the "no Fifth Amendment" world. We can be very permissive about what is considered "better", but there are some limits -- one person, for example, gave me an example of a guilty person who used the Fifth Amendment to avoid giving testimony that might contradict evidence that is discovered later. I pointed out that giving a guilty person a chance to avoid tripping himself up was hardly a good thing, to which he replied, "Oh... right."

  3. The "benefit" can't be something that benefits all suspects equally, whether they're innocent, guilty of violating a just law, or guilty of violating an unjust law. Several people have brought up to me the example of the McCarthy hearings, when those being questioned cited the Fifth Amendment as the basis for refusing to answer red-hunt questions.

    Now, most people today remember the McCarthy hearings as an example of grotesque government overreach, and anything that hampers enforcement of an unjust law would be viewed positively in that light. The problem with this defense of the Fifth Amendment is that if it hampers all law enforcement efforts equally, then you might as well just roll a dice every time a suspect is arrested, and let them go if it comes up a 6. Clearly, this is a "limit on government power", which would benefit suspects who are innocent, as well as benefiting people who are guilty of violating an unjust law (however you define that). But since it would "help" all other criminal defendants, too, most people would consider it a silly idea. A defense of the Fifth Amendment along those lines would have to show how it disproportionately benefits people who are innocent, or who have violated an unjust law. (Your argument could depend on what you consider an "unjust law", but you would have to at least make the argument.)

  4. The "benefit" can't be something that exists separately from the Fifth Amendment right against self-incrimination. I've had it suggested to me that without the Fifth Amendment, the police would just beat people into confessing. But of course the right not to be beaten by the police is separate from the right to remain silent.

    The easiest way to see this is to consider cases where the Fifth Amendment right to silence does not apply. For example, if the government grants you immunity, then your answers cannot incriminate you, but since nothing you say will incriminate you, the government can then force you to answer the question or go to jail for contempt of court. (There is actually no literal "right to remain silent"; it's a "right against self-incrimination". So take away the possibility of self-incrimination, and you have to talk.) This is a controversial exception, but it's useful for this discussion because it demonstrates that certain rights exist separately from the right against self-incrimination. Obviously, even if the government grants you immunity so that you have to answer questions or go to jail, they still can't torture you for information.

    Similarly, someone suggested that without the Fifth Amendment, the police could just keep on questioning you as a means of detaining you without making an arrest. But, separately from the Fifth Amendment right to silence, there are limits (albeit fuzzy ones) on how long the police can detain you if they don't arrest you. (And then once you're arrested, limits on how long they can hold you without charging you.) As Flex Your Rights (with multiple lawyers on their board) says, "If you choose to challenge a detention, your lawyer will have to argue that police kept you longer than necessary under the circumstances." That's an important curb on police power, and that could be apply if the police keep asking you repetitive or irrelevant questions just as a means of holding you without arresting you.

    So again, even if the government grants you immunity so that you have to answer, they still can't keep asking you the same questions as a means of detaining you indefinitely. That means that right exists separately from the right against self-incrimination.

  5. If the argument has major implications for the competency of the courts generally, then address those implications. This is not really a "pass/fail" criterion, because implications can be open-ended.

    I'm thinking in particular of the following argument: Without the Fifth Amendment, the police might adopt a strategy of arresting a suspect and asking him questions in such a way to make him flustered and contradict himself, even if he's innocent. That testimony might then be used to convict him.

    Now, this scenario passes criterion #1 above (with the Fifth Amendment, suspects can clam up and avoid this trap). It also obviously passes criterion #2 - innocent suspects remaining free is better than innocent suspects going to jail. I do think it might fail criterion #3 -- if innocent suspects become flustered and contradict themselves, that should happen at least as often for guilty suspects, too, who are after all lying.

    But there's actually a bigger problem here. It's well known that innocent people can become flustered and contradict themselves under prolonged grilling. If the police, judges, and juries, are so incompetent at evaluating evidence that they would convict you because you contradicted yourself while being questioned about a murder, then that is the real problem -- that the state simply cannot evaluate evidence competently. By giving people a Fifth Amendment right to remain silent under questioning, you've just applied a band-aid by exempting one type of evidence from being used to railroad an innocent person. You haven't solved the competency problem as it applies to circumstantial evidence, unreliable eyewitness testimony, the Prosecutor's fallacy, compromised physical evidence, untrustworthy witnesses, and a host of other potential sources of error.

    So yes, this is a logically consistent defense of the Fifth Amendment -- but realize that it implies we're living under a criminal justice system that can't find its ass with both hands, and perhaps that's the larger problem that should be addressed.

So. I'm interested in whether there is a precisely defined scenario that passes all of the criteria above. You can email me at Bennett at peacefire dot org and put "Fifth Amendment" in the subject line, and also post your suggestion in the comments.

Since I might not be by my computer when the story runs, I'm deputizing our readers to call out FAIL codes for certain responses that are missing obvious points. If the poster is being a dick, then be a dick when calling FAIL codes on them; if the person is participating constructively in the discussion and at least trying to solve the posed problem, then still use the FAIL codes if they apply, but try not to be a dick. Your arsenal:

  • FAIL0 -- not specifying a scenario. This does not apply to informative comments; someone might have something useful to say even if it's not an answer to the challenge posed by the article. However if someone starts spouting off trashing the whole article and thinking that they have negated its conclusion, then unless they actually specify a scenario, call them out with a FAIL0. "If you ever bothered to read your American history, you would understand that the Fifth Amendment was adopted as an important bulwark agai--" FAIL0. "Bennett never went to law school so he clearly isn't qual--" FAIL0. "This article has so many errors that I scarcely know where to--" FAIL0. You need to pose a scenario or you haven't answered the question.

    Also, anything with "Go and read... [some third-party source]" without specifying a scenario is a FAIL0. It doesn't take more than a few sentences to summarize a scenario.

  • FAIL1 -- not explaining how the scenario gives different outcomes depending on whether we have a Fifth Amendment or not. (I keep hearing the example of the police beating a suspect to extract a confession; like I said, the right against torture whether you have the Fifth Amendment right to silence or not.)

    Or suppose you assume the police would lie and say, "We never laid a hand on him, but he signed the confession anyway." Well, even in a world with the Fifth Amendment, clearly if the police are going to beat you into submission and lie about it, they can still just beat you into submission and say, "He voluntarily waived his Fifth Amendment rights without us touching him, and confessed." For that matter, if the police are willing to lie, they can lie about your confession even if you don't confess at all. In either case, it's not clear that the Fifth Amendment would affect the outcome if you hold all other assumptions constant about whether the police are willing to lie, how much the suspect can hold out under coercion, etc.

  • FAIL2 -- not explaining why the outcome in the Fifth Amendment case is better. (So no, "It gives a guilty person time to come up with an alibi.")

  • FAIL3 -- the alleged "benefits" of the Fifth Amendment apply equally to the innocent and guilty, or disproportionately favor the guilty. Yes, it's harder for the state to get a conviction if you're allowed to remain silent and no inferences can be made from that, and yes, that will benefit some innocent people who refuse to speak to the government as a matter of deeply held principle, but it's going to benefit guilty people at least as often who just don't want to be caught in a lie. As I said, if you want to benefit all criminal defendants equally, you could just roll a dice and acquit whenever it comes up a 6. In terms of helping the innocent vs. helping the guilty, the right to silence scores even worse than that, since it disproportionately benefits the guilty (who might make a mistake while coming up with an alibi).

  • FAIL4 -- confusing a different "right" that is separate from the Fifth Amendment right against self-incrimination. An easy test is that if you still have certain rights even when your right against self-incrimination does not apply because you've been granted immunity, then those rights must exist separately. (e.g. the right not to be tortured, and the right not to be held indefinitely without a trial.)

In addition, feel free to call out SUPERFAIL for any comments along the lines of:

  • "This article has so many false premises that I scarcely know where to begin. I would have cited at least one example to support my point, but I was masturbating to the sound of my own superbly polished writing skills and I just came all over the keyboard."
  • "Dammit Bennett! I am a [Supreme Court justice / federal prosecutor / law professor / frequent TiVo'er of Law And Order: Mattress Tag Removal] and you are writing about things you know nothing about! There is a reason we don't do things the way you're suggesting! In fact there's a very good reason we don't do things that way, and I'm going to tell you what it is: It's because that's not the way we do things."
  • "I read as far as the second syllable of the fourth word and then stopped reading. The problem must be with the article, because the problem couldn't possibly be with my oh hey look a cloud."

So perhaps someone will email me a scenario illustrating the benefits of the Fifth Amendment that I haven't considered here. At least, I hope so. It would be disturbing to think that we've built a whole legal edifice in the United States (and many other countries) on a "right" that has no rational basis.

Unfortunately, even if such a rational defense of the Fifth Amendment does exist, I still believe that many of the defenses of the Fifth Amendment that people have been giving me, are flawed, for the reasons listed above. (If people ever thought about it for one minute, wouldn't they realize that the right not to be tortured by the police is logically distinct from the right to refuse to answer a question about whether you committed a crime?) If large numbers of people believe the Fifth Amendment is sacred without ever thinking about whether it makes sense, that's a broader problem. What other cherished beliefs that we hold, that we don't think carefully about?

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And yet (2)

sunking2 (521698) | about a year ago | (#43937449)

There would be no problem swabbing and taking blood and other things to get his DNA if it were a physical crime.

Re:And yet (0)

Anonymous Coward | about a year ago | (#43937495)

TLDR

Re:And yet (1)

Jhon (241832) | about a year ago | (#43937853)

That's really not the same thing. I cannot be forced to talk or give any information which might incriminate me. Finger prints and blood samples are for comparative analysis of a crime scene vs. a hard drive which there is no evidence is part of a crime, but a suspicion that evidence of one MAY reside.

A court can order the HD turned over under a warrant -- but under the 5th, I cannot be compelled to tell you whats on it or how to read it.

At least, that's the logic I see behind it.

The right to remain silent (3, Funny)

fustakrakich (1673220) | about a year ago | (#43937457)

Oh! How I wish some people would use that right... If you get my drift...

Re:The right to remain silent (0)

Anonymous Coward | about a year ago | (#43937655)

Not sure if parent is saying TLDR in a clever manner or if he just thinks that most people are stupid.

Not worth answering (-1, Flamebait)

Anonymous Coward | about a year ago | (#43937461)

If you have no right against self-incrimination, you have no right against unlawful search and seizure.

Your right to demand a warrant for the cops to come in and search your house is very much tied to your right to not have to answer their questions.

And all your boldface FAIL FAIL FAIL stuff, just goes to show what a smug, ivory tower fuckwhit you are.

Re:Not worth answering (4, Insightful)

Anonymous Coward | about a year ago | (#43937649)

And all your boldface FAIL FAIL FAIL stuff, just goes to show what a smug, ivory tower fuckwhit you are.

SUPERWIN

Re:Not worth answering (0)

Anonymous Coward | about a year ago | (#43937659)

No, the police could be required to get a warrant to ask questions (that you had to answer). That's essentially what a subpoena is, anyway.

The OPs specificity is necessary if he's going to have a constructive conversation here.

Re:Not worth answering (2)

P-niiice (1703362) | about a year ago | (#43937685)

FAIL43 - failure to fall for this horrible post.

Re:Not worth answering (5, Insightful)

Anonymous Coward | about a year ago | (#43937695)

And all your boldface FAIL FAIL FAIL stuff, just goes to show what a smug, ivory tower fuckwhit you are.

Pretty much, yeah. TL;DR. The fifth amendment protects innocent people from incriminating themselves. No "precisely defined" scenario needed, just the video link already posted here [slashdot.org] .

Incidentally, "precisely defined" scenarios like "what if the bomb is about to go off and you have the suspected culprit in custody" are the kinds of ridiculous bullshit used to defend torture.

Re:Not worth answering (1)

ReallyEvilCanine (991886) | about a year ago | (#43937757)

You never have mod points when there's something deserving +5s.

<sigh>

what's torture? (4, Informative)

therealkevinkretz (1585825) | about a year ago | (#43937469)

Look at the cases where (often not-so-smart) defendants have been locked in an interrogation room for hours, being questioned over and over again - and often, intentionally or not, being fed information about the crime - until they're ready to admit, to paraphrase Nice Guy Eddie, that they started the Chicago Fire? I can think of a couple of death row cases like that right off the top of my head.

Re:what's torture? (1)

i kan reed (749298) | about a year ago | (#43937609)

That's why we have a 6th amendment. If you're being interrogated, demand a lawyer present. Not everyone knows that they should, but that's why we have Miranda warnings.

Re:what's torture? (5, Insightful)

berashith (222128) | about a year ago | (#43937789)

without the 5th amendment to eventually lean upon, there would be no need for rights to a lawyer, or Miranda warnings. The fifth ammendment is the reason that you dont have to immediately speak to the police. Without it, any delay in accurately responding to any question would be a crime.

Re:what's torture? (1)

therealkevinkretz (1585825) | about a year ago | (#43937827)

Because it's within the province of the Sixth Amendment does not mean it isn't also within that of the Fifth - and the "right to remain silent" that it recognizes.

Not anymore (1)

Safety Cap (253500) | about a year ago | (#43937893)

The Freedom-hating Scumbags on the SCOTUS continue to chip away at Miranda [nytimes.com] .

Give 'em enough time, they'll do away with it entirely.

Re:what's torture? (5, Informative)

Maxo-Texas (864189) | about a year ago | (#43937647)

Go to Youtube...

Watch "Don't talk to the police".

Observe the policeman saying when he interrogates someone, he is having a good time- getting paid overtime rates to stay in the room with you. And he also says how your own innocent statements can be used to convict you.

And this isn't even torture. It's just pressure for hours on end.
It takes effort to talk and think. Taking the 5th is the least effort and most likely to prevent you from breaking.

That... and watching "Don't talk to the police" before you are arrested.

What am I in law school here? (1)

Anonymous Coward | about a year ago | (#43937473)

Do your own homework.

Your words can always be twisted (5, Informative)

immaterial (1520413) | about a year ago | (#43937477)

This classic YouTube video explains exactly how an innocent person can hang themselves with their own words: http://www.youtube.com/watch?v=6wXkI4t7nuc [youtube.com]

Re:Your words can always be twisted (-1)

Anonymous Coward | about a year ago | (#43937625)

FAIL0

Please explain what the video shows if you want it taken seriously.

Possibly FAIL4 -- the right to a lawyer is not the right to remain silent. It may well be that the hypothetical person should have phrased things differently. That's what a lawyer does. The question here is if the person has the right to remain silent even after a lawyer has had advised on how to say it.

Re:Your words can always be twisted (1, Insightful)

spire3661 (1038968) | about a year ago | (#43937825)

Please take your fail conditions somewhere else. Just because the submitter proposed it doesnt mean we have to follow his form.

Not all laws are just or constitutional (4, Insightful)

Anonymous Coward | about a year ago | (#43937483)

You make the assumption that 5th amendment protects people from self-incriminating against just and constitutional laws, and as such it doesn't make a positive difference. The 5th amendment exists to protect people from self-incriminating against the unjust and unconstitutional laws which the ratifiers knew would probably be written.

Doesn't he also have (1)

emohawk (757731) | about a year ago | (#43937487)

The right to remain silent?

Re:Doesn't he also have (5, Informative)

gmclapp (2834681) | about a year ago | (#43937517)

That is a Miranda right. It does not protect you in a court of law where you can be held in contempt if you refuse to answer a question. That is *if* you didn't have a right not to testify against yourself.

Re:Doesn't he also have (1)

Anonymous Coward | about a year ago | (#43937859)

No, the right to remain silent IS the 5th amendment. You have the right refuse to answer questions that could incriminate you and you will not suffer consequences for exercising that right. The only time you could be held in contempt for refusing to answer a question during a trial, is if the information the court is trying to get from you would in no way possibly link you to potential illegality.

Re:Doesn't he also have (0)

Anonymous Coward | about a year ago | (#43937687)

The "right to remain silent" is derived from the Fifth Amendment. Without the 5th you have no right to silence.

Which society do you want? (5, Insightful)

Anonymous Coward | about a year ago | (#43937489)

Do you want a society where the police focus on gathering evidence to convict an individual.
Or should the police and judges place more emphasis on compelling people to testify in their own conviction?

Political freedom (0)

Anonymous Coward | about a year ago | (#43937491)

Unfortunate case subject. But what defence in a political witch hunt or as a journalist with NSA secrets. Seems a likely good right. Better with than without.

We actively tortured people, in the last decade (4, Insightful)

i kan reed (749298) | about a year ago | (#43937501)

If torture was constitutional, we'd do it to obtain confessions. No question in my mind. Now, whether a password counts as a confession is an academic argument of some value, but the fifth amendment itself is incredibly important.

Re:We actively tortured people, in the last decade (0)

Anonymous Coward | about a year ago | (#43937755)

It's interesting how you use "we" -- as if you would be the one doing the torturing, or even the one supporting it.

Clearly, "we" are not on the same team at all; why, then, do you insist on using the term "we" when you really mean "them"?

Re:We actively tortured people, in the last decade (0)

Anonymous Coward | about a year ago | (#43937759)

This.
If you didn't have the 5th Amendment what would stop the government from keeping you in an interrogation room till you admitted to the crime.

Re:We actively tortured people, in the last decade (2)

suutar (1860506) | about a year ago | (#43937767)

This. Submitter asserts that you still can't be tortured, but how long would that last when the court is allowed to insist that you answer and can choose to disbelieve a denial of guilt? (And which amendment is "no torture for confessions" if not the self-incrimination clause of the fifth? If it's under court supervision, 'due process' is assumed...)

TL;DR (0)

Anonymous Coward | about a year ago | (#43937505)

FAILn

love letters & confessionals. (1)

gl4ss (559668) | about a year ago | (#43937507)

they can be fun to write. everyone has some secrets, most anyone anyways. and it's not just their secrets but secrets of others that they feel like they're obliged to keep and not gossip with everyone.

people wouldn't write them if there was no expectation of privacy and the world would be a worse place for it.

fact is, if you judge the things from the perspective that a criminal might benefit from it while a law abiding citizen has nothing to worry.. well, fuck, you might just as well throw every fucking amendment and right out of the window. the don't exist for that purpose - they exist EXACTLY for the fact that you could if you wanted to plot revolution IN PRIVACY.

Re:love letters & confessionals. (1)

gl4ss (559668) | about a year ago | (#43937635)

fail of sorts I suppose. 5th is not about privacy? but about protection from not being punished for not confessing? I thought the plea deal system already punished you for not confessing so isn't the whole thing useless already if they have enough proof for conviction?

TL;DR (0)

Anonymous Coward | about a year ago | (#43937511)

^^^

What supreme court says... (5, Informative)

abhisri (960175) | about a year ago | (#43937515)

"a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances."

Re:What supreme court says... (1)

Anonymous Coward | about a year ago | (#43937671)

Indeed, and given what we've seen from Justice Department prosecutors over the years (and recently), this is a very important point!

Prosecutors are all too often "in it to win", not in it to find truth and justice. When pay and promotions depend upon your success record, winning becomes everything.

And the Prize is? (1)

Saethan (2725367) | about a year ago | (#43937521)

There better be a prize for this, or I just wasted a number of minutes of my life reading the challenge.

Go argue against these guys. [lmgtfy.com]

Re:And the Prize is? (1)

berashith (222128) | about a year ago | (#43937829)

Whenever you see that Bennett name, be ready for something long and drawn out, and most likely full of himself. I skip ahead once it becomes obvious that there is no point beyond masturbating his own ego in public.

You're sort of right (0)

Anonymous Coward | about a year ago | (#43937529)

If you let them take this right away today they'll take others away tomorrow. Power corrupts and the US Government is VERY powerful.

Wanted: Proof of evolution (4, Insightful)

MetalliQaZ (539913) | about a year ago | (#43937531)

These kinds of things always strike me as a little annoying, because the person asking usually has already made up their mind, and will structure the rules to ensure there is no possible way to answer their question. Much like the old (and foolish) "no proof of evolution" argument, you just can't win even if you should, so why play?

I have a right to never be compelled to testify against myself. I would like to keep that right, thank you very much. I don't care if the cops have to work harder to find external proof of a crime. In fact, I like it that way.

Innocent until Proven Guilty (5, Insightful)

Anonymous Coward | about a year ago | (#43937547)

The author forgets the one important fundamental of the US's justice system:

In a court of law, the accused is innocent until proven guilty.

It is the state's job to prove guilt, not for the defendant to prove innocence. The fifth amendment is in place to ensure that the defendant does not prove his own guilt.

Pressure (even torture) to confess (1)

bradley13 (1118935) | about a year ago | (#43937561)

One of the best arguments I have heard for the fifth amendment is "pressure" to confess. I put "pressure" in quotes, because we have surely all heard the stories about rubber hoses being applied in back rooms. If you cannot appeal to the fifth amendment, then you have no easy way to refuse to make a confession.

This applies especially if you are innocent, since without a confession the police and prosecutor may be unable to prove their case.

I don't know, or particularly care, if this argument meets all of Bennett's conditions. His conditions are pretty damned pedantic - he can do his own damned homework.

p.s. I grant that the government has found a way to get around the fifth amendment: piling on the charges, and then intimidating people into plea bargains. Still, you do have a right to demand a trial, and a right to refuse to say anything they can use against you.

The Value of the 5th (0)

Anonymous Coward | about a year ago | (#43937565)

It is to act as a check against coercion. If you didn't know it already, if justice is 'a good thing' then coercion by law enforcement is 'a bad thing'.

Fellow civil-libertarians? (1)

tapspace (2368622) | about a year ago | (#43937573)

I admit I've never seen the particular value of the Fifth Amendment right against self-incrimination.

At the risk of alienating fellow civil-libertarians

riiiight

Without it.. (0)

Anonymous Coward | about a year ago | (#43937575)

A prosecutor can just keep screaming "TELL ME THE TRUTH" until you say whatever he needs you to say to get him another checkmark on his conviction list, whether you're innocent or not.

Do you think they'll just believe you when you say "I didn't do it"?

tl;dr (1)

Anonymous Coward | about a year ago | (#43937577)

short answer: innocent until proven guilty requires the burden of proof to lie on the plaintiffs side of the argument. if you can be compelled to tell the truth under oath, you cannot preserve the burden of proof without breaking the oath, and facing perjury charges. either the concept of the innocent until proven guilty, burden of proof, or the oath must be thrown out if the fifth doesn't exist to allow them all to work together.

LMGTFY (5, Informative)

Anonymous Coward | about a year ago | (#43937585)

The right against self incrimination came about for a reason. Google is a spectacular resource to help you find that reason.

http://en.wikipedia.org/wiki/Right_to_silence_in_England_and_Wales#History

This is why (0)

Anonymous Coward | about a year ago | (#43937589)

http://www.youtube.com/watch?feature=player_embedded&v=6wXkI4t7nuc

in the real world... (1)

abhisri (960175) | about a year ago | (#43937597)

if you asked ANY criminal, "did you commit this crime", do you honestly think they will say "yes"?

Ummm... Read Up On History (1)

Anonymous Coward | about a year ago | (#43937599)

I guess OP hasn't read much on history or learned the lessons of reality. Our government is a government of limited powers. The 5th amendment is where the prosecutorial burden originates. Without the 5th amendment, police could subject you to interrogation just shy of torture without running afoul of the 8th amendment and get you to confess to a crime you didn't commit (happens a lot!). Or how about having a lawyer present to represent you?

If you don't believe in limited government power, get rid of the 5th amendment. If you do believe in it, the 5th amendment has served our country for 200+ years. No need to change it or limit it.

-Experienced Criminal Defense Lawyer

Pretty obvious (5, Insightful)

Maxo-Texas (864189) | about a year ago | (#43937601)

If your own words can be used to convict you, then the police and government gain a huge incentive to torture you into confessing.

In fact, this is probably a principle reason why the founding fathers put this protection into place. Torture by the authorities was common in the 1600's.

Re:Pretty obvious (4, Insightful)

snl2587 (1177409) | about a year ago | (#43937661)

This is the short (and correct) answer to the ridiculously long-winded submission. Beyond simple torture, the Fifth Amendment (via supremacy) also prevents states from passing laws which make it a crime to fail to confess to a crime.

FAIL! (5, Insightful)

TheCarp (96830) | about a year ago | (#43937605)

> Yes, it's harder for the state to get a conviction if you're allowed to remain silent and no inferences
> can be made from that, and yes, that will benefit some innocent people who refuse to speak to the
> government as a matter of deeply held principle, but it's going to benefit guilty people at least as
> often who just don't want to be caught in a lie

FAIL!

Perhaps you are not familiar with the idea that it is better to let many guilty men go free than to convict an innocent man. The guilty not being caught is really not that big a deal, if they are that bad they will offend again and you will get another shot....or they wont and, it wont matter anyway.

However, convicting an innocent man destroys that mans life without question, there is no "it wont matter anyway", because it takes away his liberty and destroys the credibility of the entire system. Allowing a guilty man to go free because you didn't have the evidence increases the credibility of the system because it shows that the system plays by its own rules.

It also leaves the field open for the law to be wrong. Nearly every advancement of civil rights came from people breaking laws. To make the law too powerful is to stifle progress and endangers us all as governments change over time, we have no garauntee of our freedom in the future, the best we have are a set of hurdles and hoops that they must jump over and through, and part of what tells us it is working is how well they respect jumping those hoops and hurdles.

This issue is about a lot more than the very narrow, and secondary issue, of convicting the guilty. The Failure is in assuming that is the only goal.

Re:FAIL! (0)

Anonymous Coward | about a year ago | (#43937883)

Thought exercise from elsewhere that I thought was interesting: given the statement "it is better to let X guilty men go free than condemn a single innocent man", what is the largest number you are willing to plug into X? A hundred? A thousand? A million? Ten million? Every single one? What margin of error are you willing to accept for the sake of a functioning legal system?

Dear Bennett Haselton: (5, Insightful)

CanHasDIY (1672858) | about a year ago | (#43937631)

Because FUCK YOU, that's why.

FYI, no, we're not going to help you write your stupid fucking book about how we don't need civil liberties (what, you didn't think we'd be able to read between the lines? This is Slashdot, not Yahoo! News, fucktard).

Go fuck yourself, troll.

Re:Dear Bennett Haselton: (1)

Anonymous Coward | about a year ago | (#43937891)

Don't think I have ever +1ed a response with "Because FUCK YOU, that's why." as the top line before. I guess there is first time for everything.

Torture? (1)

Anonymous Coward | about a year ago | (#43937633)

You somehow argue that torture efforts are not exactly what the Fifth Amendment was meant to stop. I completely disagree with you there. There are nations where people are tortured to get a confession... outlawing "torture" isn't much of a solution because the police don't have to put a hand on you to make your life hell. (Ask any African American that lived through police profiling) The Fifth Amendment forces the justice system to be evidence based instead of confession based.
The Fifth Amendment also protects an innocent person from being accused of unrelated crimes. If you were forced to reveal the contents of your hard drive because you were being wrongly accused of a crime, an unjust investigator may use such power to find you don't have a valid license for some software, or you have unlicensed music, etc. The Fifth Amendment is of utmost importance to the falsely accused as well as the accused. The Fifth Amendment is one more barrier to big brother.

intead of wasting time on your request (1)

iggymanz (596061) | about a year ago | (#43937645)

People too ignorant of history to understand why we have a Fifth Amendment aren't worth our time.

Instead, let's take this space to discuss the kind of encryption system we need to protect our privacy from our police state government's unconstitutional witch-hunts and dragnet operations.

We need a system that will encrypt an amount of useful data and an equivalent amount of useless but coherent text. The system when given one password will provide our information; when presented with the "emergency-under-duress-of-jackbooted-thug" password will present the alternative but plausible set of data.

Re:intead of wasting time on your request (0)

Anonymous Coward | about a year ago | (#43937751)

Truecrypt already does that. Thanks nothing, that's a dollar.

Re:intead of wasting time on your request (0)

iggymanz (596061) | about a year ago | (#43937867)

no it does not. A user at best can have a mass of data that looks to be random, that "plausible deniability" argument won't work in US system if government insists that it is a truecrypt volume and you are deliberately withholding password. Truecrypt can't present an alternative view of the same data.

You are now enlightened, that'll be two dollars.

It's torture, stupid. (0)

Anonymous Coward | about a year ago | (#43937679)

Is he seriously this stupid? The 5th is the first line of defence against torture. If you have a right to not be forced to self-incriminate, there's no point in waterboarding you to get a (highly unreliable) 'confession'.

I rate this article (2)

Sparticus789 (2625955) | about a year ago | (#43937691)

In accordance with your own stupid "failure codes", your entire article receives a SUPERFAIL!

Prosecution of others (0)

Anonymous Coward | about a year ago | (#43937699)

I think the primary purpose of the right to not incriminate yourself deals with the prosecution of persons other than yourself where you might be a witness. In this scenario, let's say you are at a known drug dealers house buying cocaine for your daily habit. While there you witness a homicide. You give a statement to the police, and in the trial of the murderer you are called as a witness. The Defense attorney walks up and asks you "What were you doing at a known drug dealers house when you claim you saw the defendant?"

In a "No Fifth Amendment" world, you can either incriminate yourself, or you can lie under oath. The fifth amendment gives you a third option that allows you to give testimony in the much more serious murder trial without compromising yourself.

Don't Talk to the Police (1)

Anonymous Coward | about a year ago | (#43937703)

https://www.youtube.com/watch?v=6wXkI4t7nuc

You idiot. (0)

Anonymous Coward | about a year ago | (#43937707)

The fifth amendment exists so we don't tortune one-another, you infantile little fucktard. How did you manage to give this topic even the tiniest bit of thought without that fact crossing your mind? Kill yourself.

Trick questions, obviously (0)

Anonymous Coward | about a year ago | (#43937709)

"Did you stop shooting that man after you stole the potato chips?" Even if you never stole potato chips and never shot the man. Yes and No would both be self incriminating in to a jury of your peers. Any other answer would be dodging the question, refusing to answer, and implying your guilt.

Some thoughts (1)

DigitAl56K (805623) | about a year ago | (#43937711)

IANAL, but "Self incrimination" is forcing you to provide evidence against yourself in the absence of other sufficient evidence. Your liberty/property/wealth/life is therefore at risk at the hands of your government for an _alleged_, but not proven crime. Whether or not you believe that you can "compel" someone to co-operate legally doesn't actually mean that you can compel them to co-operate practically. Sure, you could throw them in jail for contempt etc. etc., but there must come a point when you exhaust reasonable options against someone who has only been accused. The fifth amendment protects you against unlimited abuse. Otherwise I guess someone could accuse you of having something illegal on your hard drive, even if you didn't, and jail you until you produced something illegal to support the allegation.

Also, tlmf;dr.

I will play your game, Bennett (4, Insightful)

rk (6314) | about a year ago | (#43937717)

When you play my game. We're going to flip a fair coin 10 time, and if it's heads, you pay me 50 dollars, and if it's tails, you pay me 100 dollars. If you refuse to play, you have lost.

Contempt of Court (5, Interesting)

Anonymous Coward | about a year ago | (#43937725)

Without the right to refuse to incriminate oneself, a court can hold a defendant in contempt of court for cases in which the defendant's own self-incriminating testimony is the deciding piece of evidence. Because contempt of court is a "the defendant holds the key to his own cell" ruling, the judge can therefore incarcerate someone who he feels to be guilty, without the necessary evidence to do so. In this case, the defendant now has three choices: spend an indefinite amount of time in jail for contempt of court, spend a definite amount of time in jail for the crime he's accused of, or perjure himself to the court (risking extra jail time in addition to the time for the original crime). In this way, the right to refuse to testify against oneself is essential to the success of due process. This is illustrated by the fact that, in this very case, the judge ordered the man to decrypt his hard drives (which is a fairly uncontroversial example of "testifying" against oneself as a defendant's password is private knowledge that must be produced by the defendant) or be held in contempt of court.

Volume of text does not constitute proof (1)

DeathGrippe (2906227) | about a year ago | (#43937729)

Interesting, and disturbing, that many people seem to believe that if they write voluminously about something, the case is proven.

I've always found that truth can usually be stated succinctly, while lies require plenty of smokescreen.

SUPERFAIL (0)

Anonymous Coward | about a year ago | (#43937737)

I read as far as the second syllable of the fourth word and then stopped reading. The problem must be with the article, because the problem couldn't possibly be with my oh hey look a cloud.

Are you kidding me? (4, Insightful)

Hatta (162192) | about a year ago | (#43937743)

If it weren't for the 5th, Congress could pass a law making it illegal to refuse to confess to a crime, even if you didn't commit it.

The Fifth Amendment, The Whole Fifth Amendment... (5, Insightful)

Anonymous Coward | about a year ago | (#43937749)

Are you a troll on the front page? Along guaranteeing the right to refrain from testifying against yourself, the 5th Amendment requires that a grand jury is required to indict someone for a major crime except in cases involving the military during war, prohibits double jeopardy, requires due process for the state to take life, liberty, and property, and requires the government to to provide fair compensation for public domain. A not inconsequential list of rights that American's hold dear, and yet you repeatedly refer to the right to refrain from being your own hostile witness as the Fifth Amendment.

As to the value of the right to refrain from testifying against yourself, it becomes much more obvious in contemplating a world where that right does not exist. Without that right you could be jailed for contempt of court for not testifying against yourself, if you were wrongly convicted then you could also be prosecuted for perjury and penalties added for claiming that you didn't do what you didn't do, and in a world where prosecutors have the whip handle and they do, then it would be just one more tool they could use to coerce people into accepting unfair deals.

Given my existing posts about this (1)

Murdoch5 (1563847) | about a year ago | (#43937753)

Once one volume had been opened and the files discovered he could not long self incriminate himself because he was guilty. I know the broken system considers someone innocent until proven guilty in a court of law but to be fair if your not going to come at least 1/2 way and help prove yourself innocent then you shouldn't have that right. In this case the files had been seen, the file were illegal and hence he at that point should be found guilty unless he can prove himself innocent!

Here is a scenario (0)

Anonymous Coward | about a year ago | (#43937765)

Without 5th Amendment protection against self incrimination, a defendant asked in court if he committed a crime would be forced to answer. He would likely lie to avoid conviction. That lie is another crime, one that would not have happened with existing protection against self incrimination.

No need for hypothetical world (0)

Anonymous Coward | about a year ago | (#43937769)

What about history? Consider http://en.wikipedia.org/wiki/Right_to_silence

Ahh... the good ol' days of such exquisite inquisitions...

Interesting question, but ... (4, Insightful)

c0d3g33k (102699) | about a year ago | (#43937773)

... also smells like "write my thesis for me".

In particular, note the conspicuous absence of any historical examples explaining why the fifth amendment came about in the first place. There are plenty - the reasons for the fifth amendment date back to the Magna Carta. There are plenty of historical examples, but none are mentioned. I accuse the researcher of terminal laziness. The reason for the lack of modern examples should be obvious: The Fifth Amendment was doing it's job.

Another fail.... What is truth? (4, Insightful)

TheCarp (96830) | about a year ago | (#43937777)

I got this example from a law professor, I forget where.

Lets say Alice takes a trip to visit her mother. She drives up alone, forgetting her cell phone at home, and has a full tank so she never stops for gas. The next day, she drives home, also leaving no record.

During the night, Bob is murdered. The police question Alice, she tells the truth. However, they also question Carol, who doesn't know Alice well, but knows her, and was in the area of Bobs murder. She claims she saw Alice there that night. She is mistaken of course, but its an honest mistake.

Now Alice comes to be charged and in court, the police report that Alice was seen in the area, they have witnesses, but, when questioned she claimed to be out of town, but had no proof of this... now her statement, even thought true, is in fact, being used against her.

In fact, this brings up a huge fail. "Anything you say can and will be used against you". Anything you say in court in your own defense is either a logical argument or its hearsay. "She said that" "I was here"...all hearsay. Can't help you, its not evidence. However, anything that can be yoused against you, is basically a confession, and can.

So in reality, even an innocent person is in a very precarious position if they speak, even if they speak the truth. This is why lawyers tell you to remain silent, not lie, not tell the truth, not try to explain... just invoke that right to remain silent then do it.

Kant and Machiavelli would be proud (0)

Anonymous Coward | about a year ago | (#43937779)

Bennet makes the idiotic a priori assumption that everybody accused of a crime is in fact guilty of it. Not all accusations and allegations are correctly leveled, therefore it is the burden of the state to prove guilt, not the burden of the individual to prove innocence. This is one of the biggest differences between liberty and tyranny.

DUH

Wow... (0)

Anonymous Coward | about a year ago | (#43937783)

I like how you automatically stifled all critics but calling any argument not helpful to you a fail. How very religious of you.

Now go watch STtNG episode "The Drumhead". I'll expect you're Geek Membership card at the door.
And for added flavor Mr. Mccarthy? Is that you?!

Dear Bennett (5, Insightful)

SirGarlon (845873) | about a year ago | (#43937785)

Dear Bennett, Putting a bunch of arbitrary conditions that make it difficult and time-consuming to argue against you does not make you right. To construe a lack of satisfactory response to your random ultimatum as vindication of your positions would be even more arrogant than the ultimatum itself. Thanks, Sir Garlon

P.S. (2)

SirGarlon (845873) | about a year ago | (#43937843)

P.S. Slashdot is not your personal blog, so please quit pontificating here.

Because if they don't have evidence (1)

G00F (241765) | about a year ago | (#43937793)

If they don't have evidence when they arrested you, why did they arrest you?

It becomes just another way of fishing. And another way for the gov to rule the people.

WHAT IF THEY DON'T ACTUALLY KNOW? (0)

Anonymous Coward | about a year ago | (#43937799)

The problem is: what if the government is trying to compel someone to reveal something that they may not actually have knowledge of. For example, I have actually forgotten or lost passwords, permanently. What then?

Example (4, Insightful)

Anonymous Coward | about a year ago | (#43937809)

Here's an example where the 5th amendment makes a positive difference.

Prosecutor: Your honor, we don't have any evidence, but we're pretty sure he killed that man because he's all shifty looking.
Judge: Tell us why you killed that man.
Defendant:
Judge: Let the record show the defendant has refused to answer the question. This court is holding him in contempt. I order him confined in prison until such time as he consents to answer the question. Bailiff, take him away.

Were you born under a rock? (1)

Safety Cap (253500) | about a year ago | (#43937813)

The reason for the Fifth is known by everyone with the barest minimum of Google Skills and self-awareness.

Go watch Dont Talk to Police [youtu.be] and try to pay attention for at least the first five minutes. You can do it.

This question is its own answer. (1)

argStyopa (232550) | about a year ago | (#43937817)

The fact that you ask why it's important that citizens have the right NOT to answer questions demanded by "authority" just shows how completely fucked-up our society is, and what cheerfully-programmed little robots we're making.

Wonderful.

Imagine this: (1)

Anonymous Coward | about a year ago | (#43937849)

You are accused of some minor offence like vandalism, or jaywalking. Now you are on the stand.

Every time I ask you if you did it, and you say "no" I will tack on a perjury charge. This will continue until you say "yes", even if the trial lasts 6 months.

If you just say "yes" the first time around, you'll get out of here with a fine and a record. If you deny it, it's the bighouse for you.

Oh, by the way, you aren't a rich white asshole with some rock star lawyer - you're poor, and can't afford bail, and are stuck with the public defender. You are in a nice cozy american jail all the while this is going on.

Your move, hotshot.

Narrowly Defined (1)

Anonymous Coward | about a year ago | (#43937861)

You are looking at this like it is always related to the same crime. The case that spurred this, he might have no child porn on those machines, but instead have all his tax info showing that he has evaded taxes for the last 15 years. Without pleading the 5th, he would have voluntarily handed over this data, which could than be used against him in a different court. By pleading the 5th, he helps ensure that even if they eventually get a warrant and look at his drives anything else they find on there can not be directly used by the courts for a different crime. (It is not this simple, there is all kinds of law around this, but it is the basic idea).

The entire design of the amendment is to help people protect themselves from the government not knowing what you did, but knowing that you did something. So they get you to turn over all your data to absolve yourself from crime X only to hand the government all they need to prosecute you for crime Y.

respect for the personhood of the accused (0)

Anonymous Coward | about a year ago | (#43937871)

The accused is a person. If he is treated as such, it cannot be demanded of him to participate in his society's prosecution of himself. As a law, it has psychological value in that it is an attempt to build into the fabric of the justice system respect for the person to resist the system. The autonomy of the American soul is what is being expressed.

Perjury (1)

Anonymous Coward | about a year ago | (#43937885)

Without the "right to remain" silent, every trial would involve the defendant being forced to take the stand and answer, under oath, "Did you commit this crime?".
Assuming the defendant is guilty, he has two options:
1. Tell the truth and be convicted
2. Lie and open himself up to perjury charges
Now if you are being tried for a misdemeanor and are found guilty, you can add felony perjury charges to your sentence. While it would be nice for justice to punish the guilty, allowing the government to essentially force you to commit perjury isn't really a great idea. And while I'm sure the government wouldn't pursue the perjury charges in most cases, it's a very slippery slope to give the prosecution that much power/discretion.

Sounds rigged (3, Insightful)

kallisti (20737) | about a year ago | (#43937887)

The question is set up with a large number of criteria about what is and is not acceptable as an answer. It sounds a lot like one of those "prove me wrong" contests where a million dollars if offered, but the requirements are so strict (such as proving a negative or evading circular reasoning) that no one can answer. After which the questioner claims victory. By setting it up as a "prove me wrong", it makes a contest instead of a discussion.

For example, there's the dismissal of the overzealous prosecutor, " if they can convict you of murder, then you're already screwed anyway, regardless of whether they also convict you of lying about being innocent". This focuses on the innocent, but guilty people do still have rights. There's also times when an innocent person is found guilty anyway. In this case, every single trial can ask if you did it. This forces to person to say YES or risk getting charged with TWO crimes, guilty or not. Possibly resulting in another trial with all the cost that involves.

It's kind of like if I were to rob you, then come back an rob you again. Would you argue that the second one didn't matter? Being convicted twice is worse than once, it could happen in every single trial with a guilty verdict. That makes it a worse outcome that we currently have.

positive? (1)

jythie (914043) | about a year ago | (#43937897)

Since when does libertarianism worry about what is good for society or other people? The 'positive' outcome of not being able to be forced to self incriminate is the increased chance for a lighter sentence or being found innocent.

Very simple answer. (5, Insightful)

dgatwood (11270) | about a year ago | (#43937899)

Two points.

First, the most commonly cited scenario is one in which you are guilty of a different crime. For example, if you are accused of murder and asked what you were doing on the night of May 5th, and the answer is "having sex with my under-age girlfriend who is a year younger than I am, in a state where doing so is illegal," the 5th amendment protects you from incriminating yourself on an unrelated charge that the government knows nothing about, and which could cause collateral damage to another person who has nothing whatsoever to do with the original charge. It is potentially a solid alibi, but one that has negative ramifications.

Now the author of this paper might argue that this "disproportionately favors the guilty", but that makes the naïve assumption that all crimes are equal and that all crimes should be prosecuted. It is arguably not in the public's best interest to prosecute every possible crime, because under such circumstances, our current body of law leads to a world in which everyone is in prison. Therefore, there is no legitimate public need for you to be required to confess to a crime that the government does not know about. As a general rule, if no one has reported the crime, chances are good that no one was actually harmed by it, which means that prosecuting the offending person would be a waste of taxpayer resources that would detract from the ability to prosecute serious crime.

Thus, it should be clear that the 5th amendment serves a useful purpose. It protects against noise in the legal system.

Second, a refutation. The fifth amendment is one of several rights that collude to protect against a number of scenarios, such as coerced confessions. No, eliminating it would not, by itself, allow coerced confessions, but it would remove one defense against them. The whole point of our constitution is to provide a set of strong protections that work together to make it absolutely clear that certain actions by the government are not allowed. They're like support posts that hold up the roof of your house. When you walk around the house, you might look at a single post and say, "This support post isn't really necessary." And for each individual post, you might be right, but when you take too many of them out at the same time, the whole house comes tumbling down on top of you.

That is why we must treat any erosion of our rights as unacceptable under any and all circumstances—not because removal of any single right will allow an abuse, but because each right interacts with the others to form a coherent structure, without which our entire system of rights comes crashing down like a house of cards.

Are you a lawyer? (0)

Anonymous Coward | about a year ago | (#43937901)

I am not a lawyer. If I am questioned by law enforcement because I am somehow involved/potentially involved with a crime how am I to know the statements I make won't come back and turn into an indictment of me?

"Oh, so you WERE in the same car the day the gas station was robbed, that means you are an accessory to the crime!"

You plead the Fifth not to make a better alibi, but so your legal counsel can advise you of the implications to answering the investigator's questions. Any tiny inconsistency in your statements can make your credibility disappear in court, so why do something that isn't required? It has already been brought up by many that there are so many laws on the books that anyone could be charged with a crime if the government looks hard enough. Why make their job easier?

This seems appropriate (0)

Anonymous Coward | about a year ago | (#43937907)

"If a nation expects to be ignorant and free ... it expects what never was and never will be"
Thomas Jefferson

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