Questioning the Fifth Amendment

Our frequent visitor Bennett Haselton emailed me recently with a question about the Fifth Amendment, and I invited him to expand his question into a guest post. Here it is:

Questioning the Fifth Amendment

A Guest Post

by

Bennett Haselton


I have a question that has only provoked a lot of confused righteous indignation in other forums, and I wonder if TBQ readers might have more thoughtful responses, if we phrase it as a logic puzzle.

My question: I don’t see why it’s good policy to give criminal defendants a Fifth Amendment right to silence in their own trial, as opposed to giving them the same rights and obligations as third-party witnesses (who can be subpoenaed and required to answer questions).

Now obviously I’m not saying that the state should be able to torture someone until they confess to something. When I say give defendants the “same rights and obligations as third-party witnesses”, I mean:

  • You cannot (obviously) be tortured into answering a question.
  • You cannot (obviously) be required to give a *specific* answer to question (i.e. you cannot be ordered to say that you, or someone else, is guilty), only to *answer* the question.
  • You cannot be forced by the police to answer questions in an interrogation room, where your answers might be misremembered or misrepresented later. (Only a court can issue a lawful subpoena that requires a person to answer a question, on the record.)
  • If the court thinks you lied, you cannot be punished for “lying” unless the court can prove that you lied under oath, under the same standard of proof that they would have to meet for any other criminal act.
  • You cannot be required to answer an irrelevant question.
  • You cannot be forced to answer the same question over and over, as an unofficial means of detaining you.
  • You CAN be required to answer a question if subpoenaed by a court, if the court deems that the question is relevant to the solving of the crime, where the sanction for refusing to answer is being charged with contempt of court (not torture).

For example, if there’s incontrovertible proof you were in the room when a fatal shooting occurred, and you’re on trial as the shooter, and you plead not guilty, why can’t the prosecutor just ask you, “Fine, if it wasn’t you, then what did you see happen?”

In fact, let’s restrict the discussion to murder trials, just because I don’t want to get distracted by the issue of “unjust laws” — for example, if someone is arrested for drug use because of the pot smell in their room, then there’s a tendency to be sympathetic to their right to refuse to answer questions, just because the drug law they’re charged under seems unfair to begin with. (The victims of the HUAC witch-hunts who pled the Fifth Amendment, would be another sympathetic example.)

But a good legal principle — such as “Innocent until proven guilty” — should hold up under scrutiny even when the crime itself is evil. In the hypothetical shooting case, it’s clear to me that the accused shooter should be considered innocent until proven guilty; it’s not clear why they shouldn’t be required to answer questions about what they saw.

However, every time I’ve asked this question, people have reacted as if I was suggesting that the state should be allowed to torture people into confessing. Obviously that’s not what I’m asking. I just don’t see a principled reason why defendants can’t be required to answer a question that is relevant, subject to the rules laid out in paragraph 3.

The exception is that I think if you value your privacy more than you value exonerating yourself, it should be your right to say, “I wasn’t at the house on the night of the murder, but I’d prefer not to tell you where I was.” In that case your refusal to answer isn’t hurting anyone but yourself. And then, if you’re unlucky and you get convicted anyway, you could change your mind and say, “Fine, I was at a gay strip club, here’s the list of witnesses who can place me there,” and your conviction can be overturned.

But otherwise, why can’t we require defendants to answer questions? More exactly, can anyone come up with a *precisely defined scenario* where the outcome is different depending on whether (1) defendants have a Fifth Amendment right to silence or (2) defendants can be required to answer questions subject to the rules in paragraph 3 — while *holding all other assumptions constant*? (Those are the two alternatives, so comparisons to Star Chambers, the Inquisition, etc. are irrelevant.)

For example, some people have said to me, “If you’re innocent of the murder and you say so, the court can convict you of the murder *and* of lying about it!” But if the court is corrupt or incompetent enough to falsely convict you in the first place, they can do that without your testimony, so this scenario fails that test because the outcome is the same either way.

Or, some people have argued that without the Fifth Amendment, the state could target an enemy — call her “Alice” — by arresting her on some trumped-up charge, and questioning her until they thought they found a contradiction in her testimony, then charging her with perjury. My answer is that even with the Fifth Amendment, there’s nothing currently stopping the state from arresting one of Alice’s friends, “Bob” (this would probably actually be easier, since if they’re casting a net that includes all of Alice’s friends, they can probably find someone who’s legitimately guilty of something). And then they could subpoena Alice (as a third-party witness) to ask her questions about Bob’s alleged illegal activities, and try to convict Alice if they find a contradiction. So again, if you hold all other assumptions constant about what the state is willing to do, it’s not clear how the Fifth Amendment helps.

When people get really righteously indignant in response to my question, they’re usually thinking of scenarios like this, without analyzing the situation to check if the outcome is the same whether (1) defendants have a Fifth Amendment right to silence or (2) defendants can be required to answer questions subject to the rules in paragraph 3. Historically, these abuses of power have been reduced, not by ralling around the Fifth Amendment, but by fighting the government corrruption and incompetence that leads to false accusations and convictions in the first place.

On the other hand, the Fifth does impede prosecutors from asking what I would consider legitimate questions, like asking the accused shooter, “OK, if you didn’t do it but you were in the room, what did you see?”

Besides submitting scenarios that I did not think passed the test, here are some arguments I’ve also heard, and reasons why I don’t think they answer the question:

“It’s the state’s responsibility to prove you’re guilty; you don’t have to prove you’re innocent.” That’s true, but it ignores the question I’m asking, which is why the state should have the right to do some things in pursuit of proving you’re guilty (searching your house with a warrant, subpoenaing third-party witnesses) but still can’t subpoena *you* to answer questions.

“Asking the defendant questions is like a ‘search of the mind’, which is far more invasive than a search of your possessions.” First, this ducks the question of why we allow that “search of the mind” for third-party witnesses who haven’t done anything wrong. But I actually think the premise itself is faulty. If you had to choose between having one of two rights that cannot be abridged until you’re actually convicted, and you can choose (1) the right not to answer questions, or (2) the right not to have your house and possessions searched, I would always pick (2). Wouldn’t you? To me, a house search seems far more invasive since (a) it will turn up a lot of irrelevant but private things and (b) you can’t stop the police from finding anything. By contrast, when you’re asked questions in court, they have to be targeted and relevant (your lawyer can object to the irrelevant ones), and you always have the option to refuse to answer and take the consequences, or even just lie and hope you don’t get caught.

“There are usually more witnesses than defendants; so we don’t subpoena the defendant, but if we couldn’t subpoena witnesses, the state could never prove anything.” This may be true, but it’s like saying that if we had to choose between subpoenaing Eskimos and subpoenaing non-Eskimos, we’d pick non-Eskimos because there are more of them. But the premise is wrong; we don’t *have* to choose. So this isn’t a valid reason why we can subpoena witnesses but not the defendant.

Now, I’m not saying I am against the defendant’s right to remain silent, I’m just tentatively saying that I haven’t heard of a scenario that demonstrates how that right makes a positive difference. And I’ve asked a lot of people.

Remember, the answer I’m looking for should be in the form of a trial scenario (for a serious crime like murder, to avoid bogged down by the issue of “unjust laws”), where the outcome in a world with the Fifth Amendment, is better than the outcome in a world where defendants can be required to answer questions subject to the rules in paragraph 3.

Can anybody think of one?

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87 Responses to “Questioning the Fifth Amendment”


  1. 1 1 suckmydictum

    A woman is shot and killed in her home by an intruder. Her husband comes into their house a little whie later and finds her. He calls the police. They don’t believe him when he says that he wasn’t involved in her death; this is because he won’t supply an alibi.

    He goes to trial (the police learn their marriage was unhappy, but there’s only circumstantial evidence inculpating him). The reason the man won’t give an alibi is because he was out buying a gun to kill his wife; fortunately for him, the intruder beat him to it. He won’t tell the police where he was because he thinks it would be prejudicial and with this knowledge they could charge him with something else.

    The fifth amendment would lead to the man being acquitted since there’s only circumstantial evidence linking him to the crime and he has the right to not answer questions about his whereabouts on that night by the fifth amendment statute.

    If he were dragged in to answer questions by your rules, and answered them truthfully under oath, the police would double down knowing that he had intent and be unwilling to pursue the real killer. The man might be convicted of a thought crime, which I think is worse than him being exonerated of murder.

  2. 2 2 Alan Gunn

    Your proposed exception is so narrow, and has so many requirements, that it’s hard to imagine any actual government enacting it. Take just one example: you’d prohibit the government from charging you with the crime of lying, so long as you didn’t lie under oath. In the world we live in, the government does send people to jail for lying to law enforcement, even though not under oath. They don’t do it often: usually when they’ve nabbed somebody they can’t get on a more-serious charge or who seems for some other reason an attractive target (Martha Stewart, for instance). I’m having some trouble picturing a politician proposing a law to allow lying to the cops, even in narrow circumstances.

    In short, too many moving parts. I have advised people, even people I know are perfectly innocent, not to talk to law enforcement, ever, if they can avoid it. The government is not your friend, and it can’t be trusted to do the right thing.

  3. 3 3 James

    @suck:

    You give a compelling example of a scenario where the right to plead the fifth leads to the desired outcome. But for any policy, there is some scenario where that policy seems best. It doesn’t prove that the policy in question is a good one to apply consistently which is what the post was addressing.

    I’m not saying I have a good answer at the moment, just that the approach of imagining scenarios where policy A works better than policy B is not the right approach to demonstrating that policy A is the better policy for a government to adopt and implement in all cases.

    At first glance, my answer to the initial post is that no one, not the defendant and not the witnesses and no one else should be compelled to answer any question. The burden of proof lies with the accuser and compelling others to answer questions shifts that burden and creates too many incentives for prosecutors to abuse their power in order to get a conviction.

  4. 4 4 Harold

    The origins seem to be from the era of extracting false confessions -the Levellers’ petition to parliament in 1647 included a right against self incrimination. The puritans were often victims of extracted confessions, so they brought these protections to the USA.

    According to Wiki, the Supreme Court has held that “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.” I don’t know precisely what ambiguous circumstance they had in mind that silence would be a better protection than elucidation. I suspect there would be no such circumstance if the jury were rational, but if they may be swayed disproportionately by certain evidence, then such circumstances may well exists.

    Whilst tortured confessions are not currently common in then USA, we do known that false confessions occurr. People have confessed who have later been exonerated by DNA evidence. It is not uncommon for people to believe that innocent people would not confess, yet this does not seem to be the case. It may be that removal of these protections would result in more false convictions.

    With all these legal choices we are trying to find the least bad system. We may be able to reduce the irrationality of jurors (by trained pannels), but at the cost of increased corruption.

  5. 5 5 Harold

    #1 and #3. The proper outcome for the scenario is that the police convict the husand for conspiracy to murder (of which he is guilty) and continue to catch the murderer.

    It is not clear if the fifth would lead to his aquittal – he may be wrongly convicted of murder. It is equally unclear whether the police would actually pursue the real killer if the man were honest under questioning.

    What is very probably is that the man would not tell the truth under oath, but lie and say he was out for walk alone, so there were no witnesses (or something similar). This would leave the police in a very similar position to him remaining silent, since they would still have to prove his guilt, his evidence being neither helpful nor harmful to their case.

    However, he may get caught out in a lie to protect his other crime, and the jury would reasonably interpret that as evidence of his guilt of the crime he is accused of.

    I conclude that removing the fifth would lead to in increase in false convictions.

    If we take a similar scenario, but the man actually does kill his wife. He has no alibi, so makes uo the story about the walk, as before. The situation is the same except he actually is guilty. He may get caught out in a lie, so he will be more likely to be convicted. I conclude that removing the fifth would lead to an increase in correct convictions.

    This is not very helpful, because we do not know which it would increase more.

  6. 6 6 Thomas Purzycki

    You’ve done a good job of comparing fifth amendment rights to the ability of the state to subpoena third parties. It makes perfect sense to me that if it’s acceptable for state to subpoena third parties, it should also be acceptable to subpoena the accused. I hold the position that the state should NOT be able to subpoena the accused OR third parties though. To convince me, you’ll need to provide good reasons why the state should have this particular coercive power in the first place.

    I also think you brush off the unjust laws issues too easily. It seems that perhaps by accident, the fifth amendment provides some protection against unjust laws. Whereas just laws criminalize causing various harms to the public, at least one class of unjust laws creates victimless “crimes”. Without any victims to testify and without the ability to force the accused to testify, you hamper the state’s means to enforce such laws.

  7. 7 7 suckmydictum

    @ James

    The example is narrow and convoluted; that’s because BH’s case is strong. A counterexample is necessarily somewhat pathological.

    @ Harold.

    We’re not really interested in the “correct” outcome. We’re more interested in the circumstances by which the 5th amendment leads to a better outcome than subpoenaed defendants, not the most correct one.

  8. 8 8 Jonathan Campbell

    How is refusing to answer any different, practically, from saying “I’d prefer not to tell you where I was”?

  9. 9 9 JohnnyO

    Alan Gunn touches upon the primary need for the fifth amendment; there is no reason to believe either prosecutors or police or judges will ever act in the impartial manner you set forth. My brother is a defense lawyer, often assigned counsel for those unable to afford their own lawyer. And he will tell you that nearly all of his clients are guilty of some sort of criminal behavior. But many of them are way overcharged by authorities. And that is not just a negotiating tactic – the mindset of police and prosecutors is that if they are going to accuse someone, they are going to assume that person is guilty of the worst possible charge possible, even if that actual charge is implausible. To give a specific example, he once was assigned to defend a woman who had spent the night shooting heroin with her boyfriend. In the morning her two young children got up, went into the bathroom and ending up killing themselves by turning on the scalding hot water (they were unable to open the door themselves). So it is obvious that this woman was a terrible parent. She is also obviously guilty of criminal negligent manslaughter (or homicide or whatever the term should be). But if you looked at the evidence (and I did because it was my brother’s case) there was no evidence that she ever hurt her children or wished any harm on them. There was ample evidence that she loved her children, in fact, but that she was not a good parent. The prosecutors, though, charged her with first degree murder, claiming that she and her boyfriend intentionally locked the children in the bathroom after turning on the water. I emphasize that they had no evidence of this and frankly under any objective “beyond a reasonable doubt” standard they could never get a conviction. My brother was fairly confident that they would not get a conviction but he emphasized that he would NEVER put his client on the stand. She was a complete emotional wreck after the event (and not too smart to begin with) and if any prosecutor got half a chance at her on a stand they would have her essentially convicting herself. And the fact is you cannot just erase that from a jury’s mind with a cross-examination. I think it is a fact that there is a significant subset of the population that can basically be talked into saying anything. Sometimes it is intelligence, sometimes it is personality (overly subservient to authority or simply very suggestible). That subset needs protection against authorities whose natural, and understandable, goal is finding them guilty of the worst possible crime they can be convicted for, not necessarily the crime they actually are guilty of.

  10. 10 10 Ryan

    My understanding of the Fifth is different than the OP. My understanding is that the right to refuse to answer extends to witnesses, as well, if there is a possibility of incrimination (not conviction — just the possibility that something you say could lead to prosecution).

    Here’s a brief description: http://www.courtroomstrategy.com/2010/04/on-taking-the-fifth/

    The relevant case is Ohio v. Reiner, I think.

    http://www.law.cornell.edu/supct/html/00-1028.ZPC.html

    From the end:

    “The defense’s theory of the case was that Batt [the witness], not respondent, was responsible for Alex’s death and his brother’s uncharged injuries. In this setting, it was reasonable for Batt to fear that answers to possible questions might tend to incriminate her. Batt therefore had a valid Fifth Amendment privilege against self-incrimination…. Because the Supreme Court of Ohio mistakenly held that the witness’ assertion of innocence deprived her of her Fifth Amendment privilege against self-incrimination, the petition for a writ of certiorari is granted, the court’s judgment is reversed, and this case is remanded for further proceedings not inconsistent with this opinion.”

  11. 11 11 Keshav Srinivasan

    If the right to silence is so sacrosanct, why is it that it gets waived the moment you decide to testify on your own behalf? Why can’t you testify on your own behalf without having to be cross-examined?

    By the way, what is the rationale for the rule that the jury isn’t allowed to use the fact that you didn’t want to take a stand into account when judging your guilt or innocence? Surely the fact that you didn’t take the stand isn’t dispositive about your gut, only circumstantial, but juries consider circumstantial evidence all the time; they just have to weight it differently than more direct evidence.

    Personally, I don’t see why George Zimmerman, for instance, shouldn’t have had to answer questions about inconsistencies in his story. Or at least allow the prosecution to ask the question, and allow Zimmerman to refuse to answer each specific question.

  12. 12 12 Olivier Chassé St-Laurent

    While this is not directly related to the positive/negative outcome of such a right, it seems to me to be a necessity, because of the obligation to answer (one of the rules).

    Say the accused is asked whether he is guilty or not. Clearly, if one is innocent, one has every incentive to answer truthfully.

    On the other hand, if one is guilty, one faces a dilemma: (1) self-incrimination, which leads to punishment, (2) perjury, also leading (at least in theory) to punishment. Now, my definitions might be a little fuzzy, but case (1) seems to be similar to a forced confession, while case (2) seems close to entrapment.

  13. 13 13 Jacob

    I think analyzing the fifth amendment on its own is a mistake. To me, the fifth amendment is a part of the negotiation that ameliorates the harm done by the ability to subpoena witnesses (compel testimony) in the first place–it’s an assurance that a witness cannot be called to testify in a manner that could then turn around and lead to their own prosecution (potentially on a different violation).

    So the state says: we want to compel testimony from citizens–making them essentially agents of the state–so that prosecutors have a reasonable chance to convict criminals where they have enough evidence to do so.

    And the citizens say: we fear being compelled to testify because it is possible that doing so will incriminate ourselves and give the state a way to use our own testimonies against us.

    And the state says: okay, we’ll give you the right against self-incrimination so that we can compel you to give evidence against others but you can remain silent if you have reason to believe that testifying might incriminate yourself in some way.

    And the citizens grumble a bit but eventually acquiesce because they like the idea of convicting criminals as long as they can be assured that they can’t be compelled to incriminate themselves.

    In other words, the fifth amendment is a way to justify the power of subpoenas to a populace that otherwise might not accept them in the first place.

    And just for fun, theory two:

    The state, being a wily and pernicious bunch, might realize that giving criminals a right against self-incrimination also encourages criminals to work together (because all those involved in a crime can claim immunity to compelled testimony). The state knows, however, that criminals are often a treacherous bunch so the state figures that they can offer immunity to one of a conspiracy and gain convictions they wouldn’t have been able to obtain had the criminal chosen to act alone. So the state has an interest in encouraging criminals to work together because it increases the opportunity to find leverage in an eventual trial. Prisoners Dilemma is, after all, not a dilemma for the state…

  14. 14 14 Scott H.

    Q: Have you ever committed any crimes?
    A: Yes, I have.

  15. 15 15 Daniel

    @ Scott H.,

    Could the answer to that be an objection for irrelevance? Not really sure because I’m not a lawyer, but “Have you ever committed any crime?” seems like an irrelevant question as it relates to the crime at hand.

  16. 16 16 Dan

    Here are 10 reasons:
    http://www.youtube.com/watch?v=Vi434yXk_qo

    They also mention Ohio vs Reiner. You could argue that the same reasoning should apply to witnesses. However, they are not the target of the police / prosecution. The rationale therefore, seems to be economic. We have the incentives of the police as well as the asymmetric payoffs of convicting an innocent person of a crime they did not commit.

  17. 17 17 Bennett Haselton

    @suck – by my reasoning, the outcome of your scenario would be the same under the Fifth Amendment or under my rules.

    Remember, I said that there should be an exception where you can say, “I wasn’t at the house at the time of the murder, but I would prefer not to tell you where I was,” because in that case your refusal to answer a question doesn’t hurt anyone but yourself.

    Whether the husband gives that answer, or whether the husband has the Fifth Amendment right to refuse to answer, in either case he might be wrongly convicted — but if he is, he can change his mind and say, “Fine, I was at the gun store, here’s the receipt,” and at that point they have to free him.

  18. 18 18 Bennett Haselton

    @Alan Gunn — my exception, which you say is “so narrow, and has so many requirements, that it’s hard to imagine any actual government enacting it” — *does* actually describe the rules we use for questioning third-party witnesses. So it’s not as if it’s impractically complicated.

    Most of my stipulations are common-sense things that you can’t do — no torture, no forcing a witness/defendant to give a particular answer, etc. — so the rules are not exactly burdensome.

    My proposal wouldn’t change the rules for talking to *law enforcement*. Both witnesses and defendants can refuse to talk to law enforcement (although if they do and they lie, they can be sanctioned for it). I’m just asking why we don’t allow courts to subpoena a defendant to testify the same way we do for witnesses.

  19. 19 19 Bennett Haselton

    @Harold – I’m aware of the Innocence Project studies about false confessions, however I assume many of those were either (a) plea deals, or (b) “confessions” made by the mentally infirm, to the police under interrogation. So those are not affected by the Fifth Amendment right not to take the stand.

    Remember, I’m only talking about subpoenaing defendants to take the stand in court (not, obviously, letting cops beat people up in an interrogation room until they “confess”).

    I knew about the judge’s quote about “ambiguous circumstances” too, but I think he was guilty of the same thing as many Fifth Amendment defenders — being articulate without coming up with a precise scenario illustrating his point. Since he didn’t specify a scenario, can we think of one?

  20. 20 20 Bennett Haselton

    @Jonathan Campbell — you’re right, in response to that particular question, my rule is essentially the same as the Fifth.

    My question is why we can’t subpoena the defendant in cases where they would know something about what happened, as in the case of the accused shooter who we at least know for sure was in the room — why can’t we ask them, “Well, if it wasn’t you, then what did you see happen?”

  21. 21 21 Bennett Haselton

    @Dan – I know about the “Don’t Talk To Cops” video, but I’m only proposing that defendants be subpoenaed in court, not subject to mandatory interrogation by the police.

    Thus most of the points that the professor makes in his video — “What you say to the cops will not be admissible in your defense”; “They might mis-remember or lie about what you say” — do not apply to subpoenaing the defendant to testify in court.

  22. 22 22 Bennett Haselton

    @Thomas Purzycki – I think you’re right that there may be a valid argument for the Fifth Amendment in the case of “unjust laws” — if a congenitally honest person violates an unjust law, for example, they know that if they’re put on the stand and asked if they smoked a joint, they’ll have to answer “Yes”. The Fifth Amendment means they can remain silent and will walk free if the state can’t prove their case by other means.

    However people argue that the Fifth Amendment is a sacred and important right even in the case of trials for violating just laws (e.g. murder trials), and that’s what I’ve never heard a valid explanation for.

  23. 23 23 Bennett Haselton

    @Ryan — you’re right, the courts’ current interpretation of the Fifth Amendment says that (1) defendants can refuse to take the stand entirely, and (2) witnesses can refuse to answer questions if they believe their answers may incriminate themselves.

    I think both rules are somewhat illogical but I decided to focus just on the first one for the sake of simplicity.

    In both cases my response would be the same: If the witness/defendant is innocent, then declaring their innocence and telling the truth might not guarantee that they’ll get off, but it’s certainly no worse than saying nothing, is it? And they can still refuse to answer questions not relevant to the crime. If the reason a witness happened to be on 5th and Main at 3 a.m. was to buy drugs, and that’s when they witnessed a shooting, when the defense asked them, “So what were you doing on the corner at 3 a.m.?”, their lawyer can say, “Not relevant.”

  24. 24 24 Ken B

    @Keshav 10:

    If the jury can consider this then the right is nugatory. The rationale is similar to any exclusionary ruling, such as for illegal searches. If evidence turned up by an unconstitutional search can convict you then your supposed protection against that search is meaningless.

    Once again I think we are faced with a common misconception. Trials are not just about truth; they are about *evidence*.

  25. 25 25 Will A

    @ Bennett Haselton #14:

    Remember, I said that there should be an exception where you can say, “I wasn’t at the house at the time of the murder, but I would prefer not to tell you where I was,” because in that case your refusal to answer a question doesn’t hurt anyone but yourself.

    I’m trying to understand the differences you see between your sentence that a person could say vs. “I prefer not to tell you where I was” vs. “I’m not going to tell you where I was” vs. “I’m not going to answer your question”

    For sure I would agree that a person should be required to answer a question from the police as long as there is a caveat that they don’t have to answer a question they don’t want to answer.

  26. 26 26 Thomas Purzycki

    It isn’t necessarily easy to tell if a law is just, and just laws might not be just all of the time. Even killing someone can be a victimless crime in certain circumstances. You can be charged with murder by assisting with a terminally ill person’s suicide for example. If we can’t trust the state to make sure that all laws are just, why should we trust it to determine which laws are just enough to throw out the fifth amendment?

  27. 27 27 Will A

    @ Bennett Haselton #16:

    I think I’m starting to understand what you are asking and I think a better analogy than a witness in a trial would be a witness testifying in front on congress.

    A witness in trial is usually not being accused of wrong doing.

    However many witnesses who are called in front of congress are usually presumed to be guilty (by at least one person).

    So I think a valid question is if did Michael Corleone has to be subject to accusatory questions in front of Congress, why doesn’t he have to be subject to accusatory questions in court.

  28. 28 28 Scott H.

    @ Daniel 11

    I’m not a lawyer either. To me, the question is relevant to the extent it might establish my (bad) character. Are criminals more likely to commit crimes? It seems to me that the concept of a “gateway drug” could be easily be duplicated with the concept of certain “gateway crimes”.

    Anyway, if I answer truthfully (and I had committed crimes), I don’t see why the prosecution couldn’t follow up with additional charges at a later date. If I assume that I can be dishonest at will, then it seems like I can protect my interests a bit better here. Otherwise, I like the 5th.

  29. 29 29 Alex

    Bennett Haselton #14: *he can change his mind and say, “Fine, I was at the gun store, here’s the receipt,” and at that point they have to free him*

    But they’ll find a way not to free him, as they already do in contravention of existing rules.

    Which illustrates the argument in favor of the 5th amendment: it minimizes incentives for abuse. The question is not which rules will work when followed, but which rules will fail the most safely. Your rules *will* be broken. Compulsive testimony for third-party witnesses is not (comparably) abused because there is no (comparable) incentive.

  30. 30 30 Bennett Haselton

    @Will A #14 – The difference is that I’m suggesting that if a question is relevant to solving the crime and not just exonerating you, the court ought to be able to require you to answer the question.

    For example, in the case of our hypothetical shooter defendant who was definitely in the room at the time but pleads not guilty to the shooting, why can’t the prosecutor ask him, “Fine, if it wasn’t you, then what did you see when you were in the room?”

    What’s the argument against the court requiring the defendant to answer that question, the same way they could require it of any other witness?

  31. 31 31 Henri Hein

    I don’t have a specific scenario in mind to address your challenge. Like Gunn, it seems pretty narrowly defined to me. I think your premise is wrong, though. The likely outcome of dismissing the right to remain silent is not that the DA will start asking “OK, so what really happened?” The justice system is composed of multiple players:
    1. It is the police’s job to apprehend the accused and gather evidence.
    2. It is the DA’s job to present a convincing case against the accused.
    3. It is the defense attorney’s job to make the accused appear innocent, or guilty of less than the DA advances, regardless of actual guilt.
    4. It is the judge’s job to evaluate the cases, as presented, in light of the law and precedents.

    Notice how it is not a single actor’s job to ascertain the truth. Certainly not the DA. The purpose of the process is to have these players act against each other in a way that most of the time concludes in a just outcome.

    If you want to change the method so that someone will have an incentive to discover what actually happened, rather than push for a result they are tasked with, you have to change something more fundamental than the right to remain silent.

  32. 32 32 Bennett Haselton

    @Thomas Purzycki #23 – that’s a good point, or you might as well say, if we could identify the unjust laws for the purpose of allowing Fifth Amendment protection only in trials under those laws, why not just throw those laws out? :)

    A couple of points:
    (1) I might object that even if the 5th helps some people who violated unjust laws, if it also helps all criminal defendants equally, that’s not an argument that it’s good policy. Otherwise you might as well just roll a dice and free the defendant if it comes up a 6. That certainly “benefits people who violate unjust laws”, but few people would think it’s a good idea.
    (2) In response to #1, however, I might argue as follows: A congenitally honest person might violate a law that they believe to be unjust. Without the 5th, they could be called to the stand, and their own honesty would compel them to admit guilt. With the 5th, they can’t be called, and there might not be enough evidence to convict them.
    So the 5th Amendment functions sort of like a license for unflinchingly honest people to violate some laws — and those laws are disproportionately likely to be unjust.
    This isn’t perfect, because it lets the unflinchingly honest defendant violate laws that *they* believe to be unjust, where their opinion may different from society’s. (Many people who shoot abortion doctors, for example, might find themselves unable to lie about it if sworn in on the witness stand, so they have a better chance of getting off if they can invoke the 5th.)
    (3) Regardless of points #1 and #2, though, I keep hearing it argued that the 5th is an important and sacred protection even in cases where everybody agrees the crime itself is heinous (e.g. robbing and killing someone in their house, not as part of an assisted suicide). And that’s what I don’t get — i.e., I’ve never heard of a properly defined scenario involving a heinous crime, where the 5th leads to a better outcome if you hold all other assumptions constant.

  33. 33 33 Bennett Haselton

    @Alex #26 – but that was one of the scenarios that I called out in the original post — if the state is corrupt and wants to jail Alice, couldn’t they just arrest one of Alice’s friends, call Alice as a witness, and try to trip her up?

    When you wrote “Compulsive testimony for third-party witnesses is not (comparably) abused because there is no (comparable) incentive”, I think you are assuming that the person who is arrested was the only person that the state had an “incentive” for putting away. But that need not be the case, if a corrupt prosecutor knows the rules and they decide in advance that they want to nail Alice so they’ll go after Alice’s friend Bob.

  34. 34 34 Alan Gunn

    Re: #15. Third-party witnesses are as much entitled to refuse to answer as defendants are. The fact that the witness has not been charged with a crime doesn’t mean that answering the question could not incriminate him. And, in fact, any answer under oath is potentially incriminating because the witness could be charged with perjury. (I realize that perjury prosecutions are rare, but so are prosecutions for lying to law enforcement, which didn’t save Martha Stewart.

  35. 35 35 Will A

    @ Bennett Haselton #27:

    What’s the argument against the court requiring the defendant to answer that question, the same way they could require it of any other witness?

    As Alan Gunn #31 mentions above, I believe that witnesses can choose not to incriminate themselves.

    The only difference I see is that a witness can be force to say in court that they won’t answer a question, a defendant is not forced to say this.

    When you think about it, the ability for a witness to take the 5th puts the defense at an interesting disadvantage. The prosecution can grant immunity in exchange for damaging testimony against an accused.

    An accused can’t grant immunity in exchange for damaging testimony against the prosecution.

  36. 36 36 Alex

    Bennett Haselton #30 wrote: “you are assuming that the person who is arrested was the only person that the state had an “incentive” for putting away.”

    True. I wasn’t tracking your idea of a state conspiracy by way of a feint prosecution, because I found it a bit exotic.

    I was thinking of the much more banal incentive of the state to do whatever is necessary to put away the person who was arrested. The state’s goal in prosecution, I suspect, is almost always not to convict a particular (pre-designated) person, but to vindicate an arrest.

  37. 37 37 Bennett Haselton

    @Henri Hein #28 – right, I wasn’t assuming the DA would conversationally ask “OK, so what happened?” as if they would really believe what the defendant was telling them. The idea would be to look for impossibilities in the defendant’s story. (Or if there’s convincing evidence that the defendant is telling the truth, technically it is the DA’s job to drop the case and focus on the real perp.)

    But if you’re making an argument about “roles”, I think you could make the argument in the form of a scenario. After all, we define each of the actor’s “roles” the way we do, because we believe that if we defined their “roles” in some other way, there would be a scenario in which those different roles would lead to a worse outcome. So given all the roles as stated, could it lead to a worse outcome if the DA were able to subpoena the defendant as a witness?

  38. 38 38 Bennett Haselton

    @Alan Gunn #31 and @Will A #32 — I realize witnesses can refuse to answer questions that they think will incriminate themselves (see my answer #20) but I was avoiding that in my original post for the sake of simplicity. But that rule just begs the same question — why do we allow that?

    If you’re worried about your answer incriminating you for a different crime — for example, if the DA asked you what you were doing in the city at night and the truth is you were there to buy drugs — under my proposed rule, you could still say, “Irrelevant. I was there when I saw the robbery.”

    On the other hand, going back to the trial of the accused shooter, suppose you were a witness who was also in the room, and suppose that it was you, not the defendant, who was the real shooter. Our current interpretation of the 5th lets you refuse to answer all questions on the grounds that “your answers might incriminate you”. How is that a good thing? If the witness happens to be obsessively honest and confesses to the shooting, that’s a good thing, and if they (more likely) lie about what happened but one of their lies happens to be discovered, that’s a good thing too, isn’t it?

    In other words, phrase the answer in the form of a scenario again. We have two possible rules to choose from: (1) witnesses can refuse to answer questions if they believe their answers might “incriminate themselves”, or (2) witnesses can refuse to answer questions only if the question is not relevant to the crime the defendant is being tried for. What is a precisely defined scenario in which rule #1 leads to a better outcome than rule #2, if you hold all other assumptions constant?

  39. 39 39 Ryan

    @ Bennett Haselton #35

    I think the Ohio v Reiner case is exactly this scenario. The babysitter/witness would incriminate herself as the killer in the defendant’s case by saying anything even if she is innocent, because circumstantially, the evidence looks bad and she would be more likely to go to trial if she herself confirms the facts of the defendant’s theory. Even if the outcome of her trial is correct (not guilty assuming she is actually innocent), the trial itself is costly. This is what pleading the fifth gains — protecting the innocent from costly prosecution. The tradeoff is that you are less likely to be able to convict the witness if she is actually the killer or the defendant if he is actually the killer. Depending on how you value prosecuting the innocent (potentially the defendant, the witness, or both!) versus letting the guilty go free, (1) can definitely be a better outcome than (2).

  40. 40 40 Ryan

    I meant #38

  41. 41 41 Bennett Haselton

    Ryan — can you give me a better idea of the scenario that you have in mind? It doesn’t even have to be the real scenario that occurred. You can choose the details exactly as you want them to best illustrate your point.

    It seems to me that if you hold assumptions constant regarding the jury’s mindset, the prosecutor’s beliefs about what happened, etc. — then it’s hard to see how the outcome could be worse for the babysitter if she takes the stand to confirm her own alibi, than if she says nothing.

    For example, suppose the prosecution alleges the babysitter could have done it because the evidence shows she was in the house. If she’s put on the stand and not allowed to take the 5th, she would have to truthfully say that she was in the house. On the other hand, if she pleads the 5th and refuses to answer, then the prosecutor will most likely continue to assume she was in fact in the house. From that point on, the DA’s course of action would be the same (depending on whether he thinks that’s enough to base a prosecution on).

    Whatever scenario you specify, can you show that the outcome is different depending on whether (1) witnesses can refuse to answer questions if they believe their answers might “incriminate themselves”; or (2) witnesses can refuse to answer questions only if the question is not relevant to the crime the defendant is being tried for?

  42. 42 42 Keshav Srinivasan

    @Ken B I see the exclusionary rule as having a different justification. Its goal is not to protect you from the incriminating evidence found in an already performed illegal search, although it does have that effect. (And in fact I think most people would consider that effect to be an unfortunate downside of the rule.) Rather, its goal is to serve as a deterrent, so that law enforcement has no incentive to conduct illegal searches in the first place. It’s similar to how a lot of people support the death penalty not because they’re fond of executing people who committed heinous crimes, but because they want to deter those crimes from being committed.

    By the way, does anyone have any thoughts about my point in my last comment about why we force defendants to undergo cross-examination if they choose to testify?

  43. 43 43 Keshav Srinivasan

    @Ken B About your main point, that allowing the jury to consider your refusal to testify would make the supposed “right” meaningless., well, don’t juries consider all sorts of exercises of rights? For instance, they might consider the fact that you’re known to have shouted at the victim in the past as circumstantial evidence concerning the likelihood that you killed them, even though the First Amendment says that you have freedom of speech, so you would have been presumably well within your rights to yell at the victim.

  44. 44 44 Roger

    Bennett, you are not just objecting to the 5A privilege, you are proposing to replace it with two new privileges: the right to selectively refuse to answer questions, and the right to introduce new testimony on appeal. See para. 8 above. Both of these are so alien to American justice that I do not see how they would work. Since you are the one proposing, the burden is on you to explain. You seem to want to encourage the defendant who has an honest face and can take the stand to look the jurors in the eyes, deny he did, and then refuse to answer any other questions. How is that promoting justice? Some jurors foolishly think that they can look at a man’s face and decide whether he is telling the truth. They cannot. Your proposal is good for the convincing liar, and nobody else.

  45. 45 45 Bennett Haselton

    @Roger – are you saying defendants don’t currently have the right to introduce new testimony on appeal?

    Specifically, let’s say I take the Fifth in my trial because I don’t want to use my alibi that I was at a gay strip club (although that alibi would exonerate me), and I don’t think I’ll get convicted anyway. But my lawyer’s an idiot and I get convicted after all.

    Are you telling me I can’t stand up at that point and say, “All right, I was at the gay strip club, here’s the list of people who can place me there. I didn’t want to tell you before, because I didn’t think you’d convict me, but clearly you guys are idiots, so here’s your proof that I’m innocent.”

    What possible legitimate reason could the justice system have for denying someone the opportunity to do that, and get their conviction overturned?

  46. 46 46 Harold

    “why can’t the prosecutor ask him, “Fine, if it wasn’t you, then what did you see when you were in the room?””
    In fact, does the accused actually have a right not to answer that question? They are protected from giving evidence that might convict themselves. If their evidence would actually exonerate themselves, then they are not protected. There is a practical difficulty because one may plead the fifth falsely.

    BH – I think the Judge’s comments about “ambiguous circumstance” is quite revealing. I believe there are no circumstances, or only the most contrived and unlikely ones, where it would be better to remain silent *if* the rest of the system worked as it should. As Roger said, “some jurors foolishly think that they can look at a man’s face and decide whether he is telling the truth.” I can believe a situation where a person would come accross as unlikeable or dishonest to the jury based on factors not at all pertinent to the case. A judge can hardly come straight out and say “we need to protect people because the system we have does not work very well”, so he has to obfuscate with words like “ambiguous circumstances”

    I am not defending the fifth in its exact form – it is a fudge, and it possibly isn’t the best one. However, we do need something like it. If we could force every defendent to the stand it would be far too easy to convict vulnerable people just by putting them up and tying them in verbal knots.

  47. 47 47 Will A


    If you’re worried about your answer incriminating you for a different crime — for example, if the DA asked you what you were doing in the city at night and the truth is you were there to buy drugs — under my proposed rule, you could still say, “Irrelevant. I was there when I saw the robbery.”

    So under your proposed rule, witnesses will now be able to determine what is relevant.

    It seems to me you are asking what is the difference between (1) witnesses can refuse to answer questions if they believe their answers might “incriminate themselves”; and (2) witnesses can refuse to answer questions only if the the witness thinks the question is not relevant to the crime the defendant is being tried for.

  48. 48 48 Roger

    @Bennett – That’s right, a defendant cannot introduce new testimony on appeal.

    The theory is that the judge decides the law, jury decides the facts, and the appeals court decides whether it was a fair trial. The appeals court has no power to decide any gactual questions, and cannot look at any new evidence of any kind. That is how jury trials have worked for maybe 400 years.

    You are advocating abolishing the jury trial as we know it. That is not impossible, as most countries do not have a right to a jury trial. But you ought to explain how radical your proposal is.

  49. 49 49 Alan Wexelblat

    Posters have hit on several of the main points: we cannot assume that the government is an impartial seeker of truth; we can assume that freewheeling permission to question people would likely lead to fishing expeditions; and most importantly because compelled testimony impermissably shifts the burden from the accuser (state) being required to prove guilt to the accused (individual) having to prove innocence.

    I think it is important not to separate the clauses of the 5th from each other. The 5th sets out a number of important limits on what the government may take, including limits on double jeopardy and eminent domain. This embodies a unified idea that we (citizens) must be able to limit what a government that is empowered to use force may be allowed to use that force to take. Sometimes that taking is concrete (property); sometimes that taking is liberty (double jeopardy) and sometimes that taking is informational.

    The prohibition is hardly universally understood and has flexed quite a bit in the past century. Unfortunately in my view the recent moves to restrict peoples’ 5th Amendment rights (particularly in Salinas) have tended in the wrong direction. Sensible lawyers (see earlier comments) will tell people not to talk to police under any circumstance.

    And that leads to my final point: a strong 5th Amendment is a net benefit. In general I think law enforcement will tell you that they are more effective at their jobs when they have a good supply of information. Strong Constitutional protections against self-incrimination encourage people to give information to law enforcement. There is good evidence that community policing initiatives and such, which encourage open lines of communication, result in net reductions in crime and damage. We accept the negative scenarios you outline, in which a guilty person is permitted to sit mute if they choose, because we recognize that overall the benefits outweigh the costs.

  50. 50 50 bigjeff5

    @Roger

    That’s obviously not true, since there are a number of famous cases where convictions are overturned after new evidence is introduced on appeal.

    I’m not a lawyer or anything remotely like one, so my understanding is based on a very brief reading of the subject, but it sounds like the rules that govern the appeals process is based on the assumption that no new evidence is admissible, but that assumption is never explicitly stated.

    Therefore, you get a situation where judges are strongly discouraged from admitting new evidence, but not actually prohibited from doing so. Thus many murder convictions have been overturned after new DNA evidence is found, etc.

    That does seem to mean (to me anyway) that it’s entirely possible that the innocent man in Bennett’s example will not consistently get the opportunity to say “Alright, I was out buying the gun when she was murdered” when he appeals the conviction.

  51. 51 51 Roger

    @bigjeff5: You have some misconceptions about the law. There some men who were convicted of murder and later brought a successful habeas corpus petition based on DNA evidence that was unavailable at trial. They do not get freed as a result of additional testimony from witnesses who testified at trial, and the appeals court does not look at new evidence.

    There are many people rotting in prison even tho the principal witnesses against them have since recanted. That alone does not free anyone.

  52. 52 52 Alan Gunn

    Re: #38

    In post 18, you say that all you are proposing is to make the rule for defendants the same as the rule for non-defendant witnesses, so your rule isn’t that big a change. Then, in post 38, you say that you want your new rule to apply to non-defendant witnesses as well as defendants, but you didn’t mention this for the sake of simplicity.

    Huh?

  53. 53 53 Keshav Srinivasan

    @Roger What if, instead of having the appeals court decide questions of fact, you have a process where the defendant can go to an appeals court and say “I’ve changed my mind about refusing to testify, so I want a retrial”, and then the appeals court can remand the case to the lower court, where the defendant can offer additional testimony?

  54. 54 54 Henri Hein

    @Bennett Haselton,

    I will give you an example from my own experience. I was driving about 80MPH on Highway 58 in Southern California. The speed limit is 65 MPH. Anyone having witnessed the LA crowd rushing to Las Vegas before weekends and holidays can tell you that 80 is not that fast. A car passed me, going considerably faster than me. I was surprised when, a few minutes later, a CPH officer pulled me over and cited me for going 92MPH.

    I contested the ticket, went all the way back to Mojave, and was able to get off. If I did not have a right to not testify, I most likely would not have bothered to even contest the ticket. Going all the way to Mojave to get off was worth it. Going all the way to Mojave to have the ticket reduced from 92 to 80 would not have been.

    You could argue that getting a ticket for going 80 would have been the just outcome. Maybe. But as I said, I most likely would have accepted the 92 ticket. 80 is also a speed at which a solid 25% of the heavy traffic was moving and not a speed at which CPH officers normally pull someone over at that time and place.

    If I had had to testify and went to Mojave, regardless of any other considerations, the commissioner could have forced me to testify and asked what speed I was going. I could not very well have argued the question isn’t relevant. Under your proposed rule, I don’t believe anyone would ever fight a misdemeanor ticket. Nobody drives perfect, and even if someone is innocent of the actual citation, the judge could always get the accused to reveal some related infraction.

    It may not sound like a big deal, but it is reasonable to assume similar dynamics would also play in more serious cases.

  55. 55 55 Roger

    @Keshav: Propose whatever you want, but please think it thru. Under current law, the defendant has to make a big decision on whether to testify. Under yours, the defendant would be likely to always refuse, because then he gets 2 trials, and 2 chances for an acquittal. The jury might be likely to convict the first time, on the theory that a trial with his testimony the 2nd time might be better. All the other witnesses would be forced to testify at both trials. Similar reasoning would argue for maybe a dozen trials, as prosecutors and defense lawyers keep changing their mings about trial strategy. I have a hard time seeing how such a system would be an improvement.

  56. 56 56 bigjeff5

    @Roger

    I just read an article from Minnesota Law Review that says its entirely possible to introduce new evidence for both state and federal cases. The article is here: http://www.minnesotalawreview.org/wp-content/uploads/2012/11/Dobbins_MLR.pdf

    But, as is clearly stated in that article, the process is not designed to allow appellants to introduce new evidence.

    There is nothing that actually prohibits an appellant from bringing new evidence, as the article points out several examples, however this seems to be considered unseemly and unprofessional and is often flatly ignored by the judges. New evidence that the judges will actually pay attention to typically comes in the form of third party amicus briefs and the like.

    Not something you want to hang your freedom on.

  57. 57 57 Keshav Srinivasan

    @Henri Hein Actually, as a legal matter I think you would be right to say that it’s irrelevant what speed you were driving at. By the way, what did you actually do in the Mojave court? Did you testify or just plead not guilty and remain silent? If , wouldn’t they have had the ability to cross-examine you, and thus ask you what speed you were driving at?

  58. 58 58 Keshav Srinivasan

    I meant “If you testified”.

  59. 59 59 Keshav Srinivasan

    @Roger What if you made the rule that the new jury was supposed to accept the previous jury’s finding that in the absence of any new exculpatory evidence, the existing evidence was sufficiently dispositive to establish a guilty verdict? And then you allowed the new jury to assess whether despite that, the new evidence presented was sufficiently strong to overturn that verdict?

  60. 60 60 Roger

    @bigjeff5: Thanks for the link, but it describes the exceptions that prove the rule. You will not find a criminal defendant presenting testimony of a new alibi on appeal, when he could have presented it in the trial court.

  61. 61 61 bigjeff5

    @Roger:

    “it describes the exceptions that prove the rule.”

    That doesn’t mean what I think you think it means – prove had a different meaning when the phrase was coined than is common usage today. Common usage of the phrase makes absolutely no sense whatsoever.

    Anyway, yes I think you’re right that you’d be hard pressed to find a case where presenting a new alibi on appeal would work out.

    I was just responding to your statement in #48 where you said the appeals court cannot look at any new evidence of any kind. That is untrue, though as a practical matter it seems it is nearly always the case that an appeals court will not look at any new evidence. As you said, it isn’t their place to evaluate new evidence, and it seems they tend to take offense to the idea.

  62. 62 62 Bennett Haselton

    @Harold #46:

    ““why can’t the prosecutor ask him, “Fine, if it wasn’t you, then what did you see when you were in the room?””
    In fact, does the accused actually have a right not to answer that question?”

    Yes, the accused can refuse to take the stand at all. By pleading not guilty, they’re already claiming they didn’t do it, but the DA can’t call them to the stand and say, “OK, what did you see happen?”

    “A judge can hardly come straight out and say “we need to protect people because the system we have does not work very well”, so he has to obfuscate with words like “ambiguous circumstances”.”

    I think that’s very likely true. However I’m still having trouble coming up with a scenario that would vindicate that claim. It’s not that the courts never make mistakes or that they aren’t ever just plain corrupt, but if you hold either of those assumptions constant, it’s hard to see a scenario where the 5th helps.

  63. 63 63 Bennett Haselton

    @Will A #47:

    “It seems to me you are asking what is the difference between (1) witnesses can refuse to answer questions if they believe their answers might “incriminate themselves”; and (2) witnesses can refuse to answer questions only if the the witness thinks the question is not relevant to the crime the defendant is being tried for.”

    Basically, although the judge has to accept the witness’s argument (or in practice, their lawyer’s argument) that the question is not relevant.

    While “judgment calls” like that are not perfect, we already have to make “judgment calls” to decide whether the witness can take the 5th or not because their answers might incriminate themselves.

    The journalist Josh Wolf was sent to jail because he refused to give evidence against some rioters that he saw vandalizing a police car. It was agreed by all parties that Wolf himself was not involved in the vandalism, so the court rejected his claim to a 5th Amendment right to silence because his answers could not have incriminated *himself*.

  64. 64 64 Bennett Haselton

    @Roger #48: Can you think of any good argument why the court *should not* free a person in the scenario I’ve described?

    Specifically: Innocent defendant has an alibi but keeps it to himself because it’s embarrassing, and he thinks he’ll be acquitted anyway. But he gets convicted, so he changes his mind and reveals his alibi, along with the witnesses and video footage proving he was elsewhere at the time of the murder.

    Why shouldn’t the court re-examine its conclusion in that case — other than “That’s just not the way we do things”?

  65. 65 65 Bennett Haselton

    @Alan #49:
    I would disagree that “compelled testimony impermissably shifts the burden from the accuser (state) being required to prove guilt to the accused (individual) having to prove innocence”. Even if you can subpoena the defendant, that’s no reason to alter the rule that you can’t convict without proof of guilt. The defendant wouldn’t have to *prove* the truth of what they’re saying, any more than any other witness has to.

    For example, even in our current system, once the defendant takes the stand they have waived their right to silence:
    http://criminal.findlaw.com/criminal-rights/fifth-amendment-right-against-self-incrimination.html
    but that doesn’t change the innocent-until-proven-guilty rule.

    Regarding communication with the police, I’m not suggesting changing anything related to talking to cops. (The reason people don’t have to talk to the cops, is actually unrelated to the Fifth Amendment; the reason is simply that if the cops haven’t arrested you, you’re always free to leave, and even after they’ve arrested you, they can’t *make* you do anything except comply with the arrest procedures.) I’m only suggesting that the court be allowed to subpoena a defendant to answer questions.

    Regarding the objection that the government is not an “impartial truth-seeker” — I know that :) , however I answered that objection in the article, saying basically that if the government is willing to falsely convict you anyway, they can do that whether you say you’re innocent or whether you remain silent.

    This is why I asked for answers in the form of a scenario. Can you give me a *precisely defined scenario* which has a better outcome under the Fifth Amendment than under the paragraph 3 rules, provided that you hold all other assumptions constant?

  66. 66 66 Bennett Haselton

    @Alan Gunn #52
    You’re right, I was oversimplifying when I said my only proposed rule change was to subpoena defendants “under the same rules as third-party witnesses”. Taken literally, that would not work in practice, since third-party witnesses can refuse to answer a question on the grounds that the answer might incriminate themselves, so the defendant could refuse to answer *every* question on the grounds that it would incriminate themselves (since they’re the ones on trial).

    So for consistency, the rule change I’d be proposing would be: (1) defendants can be subpoenaed under the same rules as witnessses, and (2) in both cases you cannot refuse to answer on the grounds that it might “incriminate yourself”; however, you can refuse to answer on the grounds that it’s not relevant to the crime being tried.

    And as always, if you think this is a terrible idea, the challenge is to come up with a scenario that would have a worse outcome under this rule change, if you hold all other assumptions constant about the competency of the courts, etc.

  67. 67 67 Bennett Haselton

    @Henri Hein #54,
    I follow your logic, but I think the analogy breaks down because in your case the infraction was so minor (speeding) relative to the cost of going back to contest it. In a real criminal trial, it’s almost always worth it to get the charges reduced — especially since there’s no “travel” incurred as you’re already sitting in court anyway — so you wouldn’t end up with a situation where someone accepts a more serious charge because they’re afraid of going to court and having to admit to a lesser charge.

    Suppose someone is accused of raping a fully aware woman (analogous to your driving 92), when the truth is that they actually had consensual sex with a conscious but blind-drunk girl (analogous to your driving 80 — still bad, but not as bad).

    If you assume the defendant is unflinchingly honest, then if they’re forced to testify, they would say that they had sex with a drunk girl, but did not forcibly rape her. That would be the just outcome if they’re convicted of that lesser charge.

    On the other hand, if the defendant is willing to lie anyway, they might claim that the girl was fully aware and gave consent. At that point, the outcome should be the same as if the defendant had remained silent — the DA only gets a conviction if they can make the defendant look guilty without a confession.

    So by my logic, this doesn’t seem to be a scenario where my rule change would lead to a worse outcome, if you hold all other assumptions constant.

  68. 68 68 Tony

    Criminal defendants, even when innocent of the alleged crime, are often extremely unlikable people. Requiring them to take the stand would make unlikable defendants significantly more likely to be wrongly convicted. For examples, think of cases in which unlikable defendants have refused to take the stand (e.g. George Zimmerman). There are perfectly good reasons that an unlikable defendant would like to avoid being unlikable in front of a jury. In this context, a limiting instruction of the form “you cannot hold the testimony of the defendant against the defendant” is unlikely to be sufficient.

  69. 69 69 Roger

    @Bennett #62: As I explained in #55, it is burdensome to everyone involved to offer the defendant multiple trials, just so he can try multiple defenses to the charges.

  70. 70 70 Harold

    #62 “it’s hard to see a scenario where the 5th helps” The scenario is that the jury is convinced of guilt by the fact that the accused “looks a bit shifty” – or maybe in none too bright, or is unpleasant or agressive.

  71. 71 71 Al V.

    Two qibbles:
    First, regarding the example where the defendant wishes to hide the fact that he was at a gay strip club, I believe the Supreme Court has ruled that actual innocence is not grounds to overturn a conviction; only technical issues are grounds for appeal. If someone is innocent of a crime for which he or she was convicted, the path to exoneration is via clemency or retrial.

    Second, people are effectively tortured into confession on a regular basis. Police have often been known to prevent suspects from sleeping until they confess to a crime. In addition, there has been a recent spate of cases in Texas where a suspect is threatened to gain a confession. For example, threatening to put a suspect’s children into the foster care system even though there are family members willing and able to care for them.

    Another example of the latter point was Andrew and Lea Fastow of Enron. Both were charged with crimes related to the Enron scandal. Federal prosecuters were able to get Mr. Fastow to plead to a charge of which he would not likely have been convicted, by reducing the charges against his wife, which allowed her to continue to care for their children.

  72. 72 72 Bennett Haselton

    @Harold #70 – minor quibble, but if the problem is that the defendant “looks shifty”, note that not taking the stand will not do them much good, since the jurors can still see them. (Now if the defendant “sounds shifty”, that’s different, and sitting silent might help.)

    (I actually argued elsewhere that I might support the right of, say, an African-American defendant not to be present in the courtroom, if they were worried about a racist jury being prejudiced against them. Someone blew up at me saying I was ignoring the right of the accused to “face their accuser”; I said that I wasn’t disputing the *right* to face your accuser, but there was no legal or moral *obligation* to face your accuser, and someone might waive that right if the thought it was outweighed by the benefits of having your race concealed from the jury.)

  73. 73 73 Bennett Haselton

    @Roger #69 – I understand your point although note technically this is not about giving courts the right to subpoena the defendant. This is about what would happen if we recognized an *exception* where defendants could refuse to exonerate themselves if they wanted to — in which case they would have the same Fifth Amendment rights that they do now, and you’d have the same problems with our existing system. Namely, if you let people re-open the trial by revealing information, then you give everyone a second bite at the apple, but if you don’t, you end up leaving people in jail in the situation I described, when they should clearly be entitled to go free if they have information that can prove they’re innocent.

    In any case I’m only arguing you should be able to re-open the trial if you have new relevant information. If you remained silent the first time through, and the second time through you simply plan on saying “I didn’t do it”, that shouldn’t be good enough to re-open the trial. This removes the incentive to “hold back” just to get a second bite at the apple.

    For that reason, I bet the scenario you describe would come up only rarely, since most of the time (1) defendants would want to get out of jail quickly, and wouldn’t want to spend the time sitting in jail between a first and second trial, and (2) usually a defendant’s alibi would not be something that embarrasses them.

    Besides, suppose someone does get a second trial where they add more information, and the new information not only introduces reasonable doubt but actually proves their innocence. Then the court is embarrassed by the fact that they convicted someone on what should have been insufficient evidence, and deterred from doing so in the future — which is a good thing, right?

  74. 74 74 Bennett Haselton

    @Al V. #71 I understand but these scenarios don’t illustrate a difference between the Fifth Amendment and my proposed rule change, for a couple of reasons:
    1) I’m not suggesting changing anything about the rules for suspects being held by the police (this is stated at the very top of the article); I’m only asking why courts couldn’t subpoena the defendant.
    2) In the scenario where the cops are willing to torture suspects unlawfully, the Fifth Amemdment doesn’t help because the cops are already outside the law at that point anyway, and they can always say, “Well the suspect waived his Fifth Amendment rights and confessed” without mentioning the coercive methods they used.
    3) The “plea deals” like the one you described, would not be affected by the rule change, since in those cases the defendants are advised by their lawyers to plead guilty in order to cut a deal — but those deals would be possible with or without the right to refuse a subpoena.

  75. 75 75 Advo

    Testimony can create suspicious-looking ambiguity.
    Example:
    There was a crime. You were nowhere near the place of the crime. The police however has a witness who believes he saw you somewhere close to the crime. (Witnesses are notoriously unreliable).
    Now if you go on record saying that you were nowhere close to the place of the crime, you’re contradicted by a witness statement. Doesn’t that look suspicious?
    It’s really important not to say ANYTHING to the police if there’s the merest possibility that you are a suspect.
    Perfectly innocent testimony can be used to hang you.

  76. 76 76 Roger

    @Bennett: You keep changing your story to more and more complicated rulss of justice. I suggest that you think about how your proposal differs from existing, post an explanation, and then try to tell us how your system might be better. So far, it appears that you have not considered any of the obvious ramifications.

  77. 77 77 Bennett Haselton

    @Roger the reason it looks as if I’m “changing my story” is that someone brought up a question that is completely orthogonal to my original one.

    My original question: Should the court be able to subpoena the defendant to answer questions in their trial? I argued Yes, with exceptions.

    The different question: IF a defendant refused to answer a question at trial — EITHER because they can remain completely silent under our existing system, OR because we adopted my proposed rule change but allowed exceptions, and the defendant exercised their right to refuse to answer a question under one of those exceptions — and then they were found guilty, and then suddenly they decided to answer the question after all, with facts that can be verified and make them look innocent, should that set them free on appeal?

    That’s an interesting question. At first I said, obviously yes, but then you pointed out that there are caveats, so that’s what makes it interesting. But it’s a different question from the original.

  78. 78 78 Ken B

    Well as noted, the premise is wrong, since witnesses can and do plead the fifth. So adjusting for that I see Harold’s question as this:
    Aside from its role as a bulwark against government power and its abuse, what’s the point of the fifth amendment?

    I don’t know. Apart from its role in preventing disease, what’s the point of vaccination?

    Let’s broaden it. What are rights like the right to trial by jury, protection from arbitrary searches, the presumption of innocence for? They are not for finding the truth; indeed they often hinder that. They aren’t for making investigations cheaper. They aren’t for minimizing crime. They are for being a bulwark against government power and its abuse.

    A while ago we had a raging debate here about “reasonable”. Many objected to the notion of “reasonable” applied to such things as doubt, or searches. I wonder how many now want to apply that standard — “reasonable” — to leading questions and forced answers.

  79. 79 79 Ken B

    OOPS. I meant Bennett, not Harold in 78. Apologies to both.

  80. 80 80 Bennett Haselton

    @Ken I clarified this in #66:

    For consistency, the rule change I’d be proposing would be: (1) defendants can be subpoenaed under the same rules as witnessses, and (2) in both cases you cannot refuse to answer on the grounds that it might “incriminate yourself”; however, you can refuse to answer on the grounds that it’s not relevant to the crime being tried.

    Calling the 5th a “bulwark against government power and its abuse” is too vague. The original question was whether you can think of a scenario that has a better outcome under our current interpretation of the 5th, than if you modified the rules as above, so that defendants could be subpoenaed.

  81. 81 81 Ken B

    @Bennett 80:
    Of course I can think of ways to get SOME better results. I even listed some: easier to get at the truth sometimes, cheaper investigations. But you are still saying “Yeah but apart from what it’s for, what’s it for?” I fully agree the 5th is a blunt instrument. So are most legal protections. (Law is ineherently a blunt instrument.) We can all think of circumstances where social welfare would be served by negating a right. But then how do you keep things from going wrong? Limits that you respect is how. Experience has shown, and showed the drafters of that amendment, that blunter simpler protections are needed. I’ll cite just the Star Chamber, as the framers didn’t know about Stalin’s show trials.

  82. 82 82 Dmitry A. Chernikov

    I disagree with JohnnyO that the Fifth Amendment intends to save the accused from themselves, because there is a “significant subset of the population that can basically be talked into saying anything.” I’d rather assume that the defendant is “rational,” in control, and seeks to exonerate himself.

    The defendant is the most unreliable witness possible. He is by nature biased in his own favor. He can be expected to lie under oath in order to save himself. Even his family members are likely to be more objective. The prosecutor will try to expose his web of lies. But I do not see how the jury benefits from this confusing game, especially given two obvious facts: (1) lying does not entail guilt; (2) lying may falsely accuse other people of this or other crimes.

    If it’s a bad idea to _force_ the defendant to take the stand for these reasons, then why do we _allow_ this? There is an intuitive argument to the effect that look, surely, a guy should be able to say a few words in his own defense when accused! But why shouldn’t the jury then discount his testimony, because well, he’ll say anything to get away with his crime?

    Now the witnesses are presumed objective, and it cannot be decided a priori whether an arbitrary witness will benefit more the people or the defendant. Moreover, both the prosecutor and the defense can call witnesses at pleasure. The defendant, however, is a _unique_ witness.

    Remember that if the defendant testifies on his own behalf, then he can be cross-examined. So, as far as the defense is concerned, in each particular case, there are benefits (the defendant presents a compelling case that he is innocent) and costs (the prosecutor will undermine that case and even extract a confession) to letting the defendant testify. The lawyer will allow this if he feels that the benefits outweigh the costs.

    If the defendant could be forced to testify, then it would be the _prosecutor_ instead who would calculate these benefits and costs, and his decision would be the exact opposite of that of the defense.

    The question then is, who shall be privileged in a trial, the state or the individual? The classical liberal tradition privileges the individual. A person is allowed to capitalize on his natural self-bias and testify only in those case when he believes (not necessarily correctly) that he can influence the jury in his favor. It’s a plank of libertarianism.

  83. 83 83 Dmitry A. Chernikov

    To put the matter in the simplest terms, shall the defendant — a special “shared” witness — be considered a witness for the defense or the prosecution?

    The cause of liberty inclines us to make him a witness for the defense.

  84. 84 84 Bennett Haselton

    @Ken 81:

    I’m not sure what you mean by “easier to get at the truth sometimes, cheaper investigations”.

    Are you mean it would be easier/cheaper under my rules, than with the Fifth Amendment? In that case, I think you misread my question in #80. I wasn’t asking for cases where my rules would lead to a better outcome, which would be a self-serving question :) I was asking whether you can think of scenarios where the 5th leads to a better outcome.

    If you mean “easier to get at the truth sometimes, cheaper investigations” would be advantages of the Fifth Amendment as opposed to my proposed rules, then I don’t see why.

    As I said about Star Chambers in the original post, I don’t think the comparison is relevant because they ignored all of the other rules I was proposing (no torture, no requiring defendants to give a *specific* answer to a question, etc.).

  85. 85 85 Dmitry A. Chernikov

    It may be objected that perhaps the defendant ought to be a witness for both: he will take the stand if _either_ the defense or the prosecutor (or both) want him to testify.

    http://dmitrychernikov.com/blog/?p=12749 replies.

  86. 86 86 Roger

    @Bennett: The questions are not othogonal. You are proposing to make new rules on when a defendant has to testify. Your rules are horrible, and not thought out. I suggest that you look at how the current system works, before you propose changes.

  87. 87 87 Bennett Haselton

    Roger – you still have not proposed an actual scenario that you believe would have a worse outcome under a ruleset that would allow the court to subpoena the defendant, than under our current ruleset that allows the defendant to refuse a subpoena.

    Your emphasis on “That’s just how we do things” is not a persuasive argument to me, because I think lots of stupid practices far outlast their usefulness because “That’s just how we do things.”

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