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:
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?