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Seeking Fifth Amendment Defenders
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:
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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.)
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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."
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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.)
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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.
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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:
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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.
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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.
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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.")
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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).
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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?
There would be no problem swabbing and taking blood and other things to get his DNA if it were a physical crime.
Oh! How I wish some people would use that right... If you get my drift...
“He’s not deformed, he’s just drunk!”
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.
Do your own homework.
This classic YouTube video explains exactly how an innocent person can hang themselves with their own words: http://www.youtube.com/watch?v=6wXkI4t7nuc
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.
The right to remain silent?
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?
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.
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.
FAILn
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.
world was created 5 seconds before this post as it is.
^^^
"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."
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.
If you let them take this right away today they'll take others away tomorrow. Power corrupts and the US Government is VERY powerful.
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.
"Here Lies Philip J. Fry, named for his uncle, to carry on his spirit"
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.
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.
Enjoy life! This is not a dress rehearsal.
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'.
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
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"?
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.
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
http://www.youtube.com/watch?feature=player_embedded&v=6wXkI4t7nuc
if you asked ANY criminal, "did you commit this crime", do you honestly think they will say "yes"?
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
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.
She was like chocolate when she drank... semi-sweet at first and then increasingly bitter.
> 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.
"I opened my eyes, and everything went dark again"
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.
An enigma, wrapped in a riddle, shrouded in bacon and cheese
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.
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.
And all your boldface FAIL FAIL FAIL stuff, just goes to show what a smug, ivory tower fuckwhit you are.
SUPERWIN
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.
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'.
FAIL43 - failure to fall for this horrible post.
In accordance with your own stupid "failure codes", your entire article receives a SUPERFAIL!
sudo make me a sandwich
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.
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.
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.
https://www.youtube.com/watch?v=6wXkI4t7nuc
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.
"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.
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.
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.
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.
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.
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.
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.
Give me Classic Slashdot or give me death!
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.
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!
<sigh>
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.
What about history? Consider http://en.wikipedia.org/wiki/Right_to_silence
Ahh... the good ol' days of such exquisite inquisitions...
... 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.
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.
"I opened my eyes, and everything went dark again"
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
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, 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
[Sir Garlon] is the marvellest knight that is now living, for he destroyeth many good knights, for he goeth invisible.
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.
The spirit of resistance to government is so valuable on certain occasions that I wish it to be always kept alive
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?
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.
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 and try to pay attention for at least the first five minutes. You can do it.
Yeah, right.
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.
-Styopa
http://www.usconstitution.net/miranda.html
You have the right to remain silent.
Why is this even an issue. He has the right to remain silent.
P.S. Slashdot is not your personal blog, so please quit pontificating here.
[Sir Garlon] is the marvellest knight that is now living, for he destroyeth many good knights, for he goeth invisible.
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.
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.
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.
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.
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.
The Freedom-hating Scumbags on the SCOTUS continue to chip away at Miranda.
Give 'em enough time, they'll do away with it entirely.
Yeah, right.
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.
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.
Check out my sci-fi/humor trilogy at PatriotsBooks.
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?
"If a nation expects to be ignorant and free ... it expects what never was and never will be"
Thomas Jefferson
Fucking commie bastard. Get out of the United States, go live somewhere else. Don't come back.
The example given is way too simplistic, and assumes only one question would be asked. The distinct possibility is that the defendant would/could be asked a laundry list of questions: Did you do, this, that, the other thing... etc. Given an extensive list of questions that the defendant would have to answer would open up wide the possibility of perjury charges, even under innocuous circumstances. This is why the prosecutor has to prove a case, and the foundation of innocent until proven guilty.
Also, too. TL;DR fail.
This is sometime in the future, in a country strikingly similar to the USA.
You are a young woman.
You are pregnant, due to a rape - maybe your scumbag boyfriend did it, maybe a stranger, maybe even a relative - does not matter.
You decide to terminate the pregnancy.
Since your state does not allow abortion (or puts so many ridiculous rules it's almost impossible to get one), you contact - through a secure email address - a clinic in another state and request an appointment, how much it is going to cost, what's the procedure, etc. and get answers from a doctor. All that information is stored on your laptop, either with full disk encryption (best solution), or in an encrypted file (not-so-good).
Finally, you manage to borrow/beg/steal enough money to go to the clinic, where a doctor performs the abortion. You go home and try very hard to forget about the whole thing.
One day, due to some mistake on your part -- let's say you talked to the wrong person -- state police knocks on your door, arrests you for terminating the pregnancy, seizes your laptop and discovers the incriminating evidence is encrypted.
Since they can charge you with terminating the pregnancy and/or not respecting the state rules on abortion and/or not communicating properly your intention to terminate the pregnancy, but ONLY if they have some solid evidence, they put pressure on you to give them your secret key.
What do you do? Plead the 5th. And then it becomes a case of "he said/she said"... And you get off scot-free, since there is no incriminating evidence, except for some testimony.
So, yeah, given the conservative and regressive nature of the abortion policies in many states, this may, unfortunately, become a possible scenario in the near future.
Now, change a few words in the above story - make abortion ''sexual experimentation that your local laws frown upon'' for instance - and you have another very plausible scenarion EVEN TODAY.
What you do with your own body should be nobodies business but your own.
The right to offend is far more important than the right not to be offended. (Rowan Atkinson)
The fifth is one of those things(like the 'fruit of the poisonous tree' evidence rules) which is almost certain to produce a steady stream of specific 'this case is a miscarriage of justice, how can they let him off on a technicality like that!!!!' instances, without a similar stream of obvious saves; because it exists largely to reform broader practice, and prevent situations from ever occurring, than it does as a rule of procedure in specific instances:
'Fruit of the poisonous tree' more or less always looks bad when it comes up in court(because its primary ability to to get true-but-improperly-collected evidence thrown out); but it certainly does a hell of a lot more than the vacation-planners in Internal Affairs to deter illegal evidence gathering methods.
The Fifth, similarly, pretty much never looks noble when it actually comes on stage; but it creates a strong institutional pressure toward needing to prove your case with evidence, rather than just squeezing a few confessions out of people and calling it a day.
Demanding a 'proof' that occurs within the scope of a single case is like the various tubthumping hicks who demand "Were's the experiment where a bacteria evolved into a man? Evilution refuted!"
look up the Thomas Drake case
and, for future reference, when you lecture people with your ten paragraph manifesto when you cant be bothered to do 20 minutes of research, its annoying.
The fifth amendment is nothing more but an explicitly stating what US constitution already say. If you wonder what i am talking about, read your history, and more precisely the history of your "constitution", which starts around 12th century, with the acceptance of "Magna Carta", and why these guys decided that it is so important to include all of these statures. As a side note, do you happen to know that at this time everybody has the "right" to bear arms, in their case bows, which now you would consider as a sniper-gun, and which is forbidden to have, no matter that the "right" is right, if you understand what i mean....
And another side note, it was explicitly stated in Magna Carta that the "police" DOES NOT have the right to stop you, without reason, in order to avoid the "harassment" from them......Amazing, ain't so? 800 years ago people recognized the power of the police, and why it is important to limit it, but now no one is questioning the "right" of NSA, FSA, (and the last to close the door) of harassing you on such a broad level that just leaves me speechless...
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.
The reason for the change in direction is because between the original decision and June 4th, a portion of the HDDs were decrypted and proven to contain the incriminating files. Once Feldman was already proven to have child porn in his possession, he is no longer incriminating himself on child porn charges.
Here is a 48 minute video from someone much more qualified than you to tell you why we need the fifth amendment and it's role in our society. https://www.youtube.com/watch?v=6wXkI4t7nuc Do not vote away the rights that many others before you fought and died for simply because you do not understand them.
Anybody competent to answer this question will value their time too highly to read this article.
I'm probably not competent to answer this, but I can point you in a general direction: the Inquisition. See e.g. this quote from the case Thomson newspapers ltd. v. Canada (Director of investigation and research, restrictive trade practices commission), which was rendered by the Supreme Court of Canada in 1990:
It's simple. The fifth aids in the prosecution of crimes by ensuring witnesses will never be endangered by prosecution for their testimony.
A killer who is accused of murdering multiple people including prostitutes is caught and put on trial. Key witnesses have also engaged in prostitution, but the prosecution (rightly so), is not interested in pursuing those crimes compared to these heinous murders.
No fifth amendment, the defense can try to get the witness to admit to committing a crime to discredit the witness. Convince a witness to testify in that environment. Difficult, no? So, without it, key evidence and facts are missing, and a guilty party may go free.
With the fifth amendment, any attempt by the defense can be immediately objected to. It removes whole avenues of irrelevant questioning by the defense. And it goes the other way. Defense witnesses are also free from the risk of prosecution based on their testimony.
This isn't TV, where somebody is being sweated by a lawyer and finally has to invoke their rights in a dramatic fashion. The reality is that those questions would be objected to and dismissed, and many a smart lawyer would not even try such lines of questioning, lest they raise the ire of the judge.
TL; DR? It's a key part of the judicial process, which is obvious with just a bit of thought.
Let's assume I have just shot and killed a person in a true self-defense scenario. I can tell the police that I shot the person in self-defense, but police are suspicious and want to know more than my simple statement. I would be in a highly compromised position emotionally and psychologically having had to use deadly force to take someone's life to protect my own life or that of someone else. Having a right to remain silent until my attorney is present to review the facts and truth of the matter when I have regained my sound mind and body would protect me from speaking to police something that may in fact not be true or may make the police feel as though it was not truly self-defense when in fact it that is the truth. I could end up being prosecuted on something I said "in the moment" while under duress that could cause an innocent person to lose their freedom. This is an example of where I could see the fifth, or right to remain silent, as appropriate. Granted I would probably not remain silent as to my name and other basic identification information with police, and again I may state I did shoot that person in self-defense, but that would be the extent of my admissions until my lawyer was present.
The author fails to realize that most the the rights he cites as reasons for the fifth amendment being unnecessary, are based on the fifth amendment. You do not have a spontaneous right against police beatings to extract a confession, the confession elicited through beatings would be inadmissible because it violates the fifth amendment, therefore police would not beat people. Yes i know people still get beaten, but the fifth amendment is the root of the law which says you can't beat people, if you actually read the law that says you can't beat people, BECAUSE it violates the 5th amendment.
This is like saying we don't need a root directory because we have all these other directories that can hold stuff just as well. It is easy for a 1st year CS student to criticize a system he doesn't grasp, at all.
I guess i FAIL0 on this. Throw the constitution out the window! Bennett Haselton will tell us what our rights are! It must be so hard being the smartest guy in the room. A thousand tears for you.
The job of a detective or a prosecutor is not to find out the truth. It is to get a conviction. On the prosecutor's side especially, it doesn't matter if they believe the defendant is guilty or not. It is the job of the defense attorney to stop a conviction. The balance of justice is supposed to be found in between. In an ideal world where the prosecutor was only interested in the truth of the matter, and people would forgive small slips that contradict later evidence etc. etc., perhaps the 5th amendment may not be as vital. Unfortunately it is not an ideal world.
The innocent can use the 5th amendment to defend themselves. If you are innocent of a crime you are accused of, one of the things you do is shut the hell up until your lawyer tells you to say something. The fifth amendment lets you do that. (Well, you're supposed to do that if you're guilty too.)
The important thing to glean from that is that the fifth amendment helps to protect the innocent, which is an important thing.
Generally speaking, it is better to let 10 guilty men go free than to imprison one innocent one. It is^H^H was part of the foundation of the way we view liberty.
You may say that in the grander picture of humanity I am wrong, but when your entire life is taken away from you, and your family, and your dreams, and your prospects, and everything you've ever worked for is put to waste, and you get to stare at a box and guard your food while you eat in a best-case minimum security prison scenario, and when you get released you have no job prospects, because someone decided to lie and you were forced to testify about yourself, you would understand.
If you would like a concrete example, a study came out in 2012 that showed that more than one in ten of the men convicted of sexual assault in Virginia between 1973 and 1987 were innocent. Do you realize what that means? Usually it means that these men have been sent to jail for being called rapists without any physical evidence, for whatever reason - be it mistaken identity or vengeful ex or whatnot. How many innocent men went free because of the fifth amendment that said they didn't have to testify that they had no alibi, etc. etc.?
This post is getting overly long now. The important thing to note is the courtroom dynamics of the jobs of the prosecutor and defender and how the fifth amendment interacts with them.
I know this doesn't conform to the answer format you will accept, but the format is asinine.
What you seem to be completely oblivious to is that the external circumstances, once you're in custody, place you at a serious disadvantage. Probably the major point about why you should only talk when and if you want to is that to give answers that have any semblance of truth to them, you must be controlling the circumstances. It's very easy to say things that will be taken to mean something entirely different from what the truth is, when you're under pressure/duress (interrogation just after arrest, etc.).
So, what are the positive outcomes? One positive outcome is that you'll not be asked about stuff in the heat of the moment, and you'll have your lawyer present. Your lawyer will direct you to be specific and to the point so that you don't say things that can be interpreted to mean what you didn't intend.
In other words, you're completely delusional in your belief that human speech is something that has only one meaning, and you're similarly delusional in your belief that you have full control over what you say. Sorry, it doesn't work that way. You are most definitely not in control of what you say when the external circumstances are set up for you not to be in control. When you are arrested or interrogated, you're interfacing with people who are trained to extract the information they want (not the truth!). The positive outcome you're looking for is that by 5th letting you keep your mouth shout you won't implicate yourself in stuff that you didn't even have any idea about.
Basically the whole idea that you're telling the truth is flat out wrong. You think you're telling the truth, but still you will be guided to say it in such a way that it'll be taken to mean precisely what you think is false. Remember, you're dealing with people who don't arrest you to have a chat with you. Once you're in custody, nobody presumes your innocence until you get into the courtroom. It'd make no sense to arrest people who are presumed innocent by the police or prosecutors. Nobody does that. When they arrest you, they think you're guilty, and their job is to prove your guilt in any legal way, and often in any illegal way that you won't object to.
You're naive beyond belief.
A successful API design takes a mixture of software design and pedagogy.
Bennett Haselton, please reply to this post telling us about every wrong thing you've ever done in your entire life.
If you don't, then ponder this ... I'm an AC on Slashdot, with no authority to do anything to you. And yet you won't answer.
It'll get real interesting when someone with real authority to change your life circumstances (i.e.: police, prosecutor, judge) asks you and you don't have the 5th amendment, eh?
An innocent man is on trial for a murder he did not commit.
He is forced to testify and is asked both "did you commit the murder?" and "where did you hide the body?"
Being innocent he cannot answer where the body is and when convicted for the murder he is also given an additional sentence for not disclosing the whereabouts of the body.
With the fifth he would not be expected to answer nor punished for not telling.
Hopefully the benefits of the ban on conscription, requirement for a criminal indictment, double jeopardy clause, due process clause and property protection parts of the Fifth Amendment don't need further explanation.
The Fifth Amendment protection against self incrimination reads:
"nor shall be COMPELLED in any criminal case to be a witness against himself" (emphasis added)
The benefit is that the government can't torture a confession out of you.
First there is an assumption that one could comply with an order to provide passwords. I have about 15 hard drives in my home. They go back as far as twenty years. Some are encrypted and some have partitions that are encrypted. I have used numerous passwords over the years and would have no hope of correctly handing over those passwords. In addition individual files are encrypted and also have passwords. At times the passwords connote a topic and are stored on a hard drive different from the one that the files are on.
I have from time to time allowed others to use my computers. They may also have encrypted files that I have no knowledge of what-so-ever.
And here is the rub. Suppose I supply a password and a file that is discovered has damning material on it. If it is of a sexual nature many jurors would automatically link me to the file. The prejudice created can easily go beyond all reason. And that is even more true of the files are sex oriented or vivid in nature. That prejudice could drag me to a prison cell over a file that I never knew existed and was place there by my idiot step son.
Also if one has a serious enemy who hacks it is very possible that that enemy can hack in and plant kiddie porn or maybe even terrorist materials on my drive. In the case of data the notion that possession is in itself proof of possession is totally false. Forcing someone to take the risk that they will suffer prejudice or rage from the public's mood of the moment is wrong. It is equally true that a potential suspect could plant exculpatory materials that would falsely indicate innocence. An email, for example, in which one prays in a church group online that the police will locate the killer of your loved one and rantings about your need for justice for their murderer should not be taken as indications of innocence.
Why you should never talk to the police:
http://www.youtube.com/watch?v=6wXkI4t7nuc
Even if you are innocent, and you tell the truth, saying something instead of nothing can allow the state to introduce additional evidence against you that they would not have been able to had you remained silent.
Duh, what if there were undetectable, unprovable ways to torture or coerce you into confessing? Like,say, you suspect the authorities will whisper that they'll kill your mother next year if you don't confess now. Duh, couldn't you invoke your 5th amendment right to remove their incentive?
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?
Man, you are really messed up. I will give you pretty straightforward answer:
I would agree to answer any question, even as you mentioned before, but only and only if do ACCEPT my answer for what it is. If i say YES, and you could prove that i don't lie, then YES, i am guilty, end of story.
BUT, and here comes the important part, if i say NO, and you cannot prove that i do lie, then you MUST LET ME GO. End of story. No more questions.
Do you see the problem now??? The police DOES NOT want to prove whether you are guilty or innocent, their only task is to prove you GUILTY. No matter what, no matter how.
You still don't see the problem? I give up then...
The government could put you on a lie detector or similar machine and ask you the questions. Even if you refuse to speak, the machine could detect a response which incriminates you. Given that there are now machines that can use 'mind reading' to control other machines, the likelihood that such machines some day soon be able to detect if you did it without your speaking is quite high.
Original poster is dickhead.
I invoke ULTRAFAIL! on the summary itself.
Go do your own law school homework.
Blah blah blah fail bullshit.
Never ever ever talk to to police. Not ever.
http://www.youtube.com/watch?v=i8z7NC5sgik&list=PLF86A38E34934761B
Criteria 3 is a FAIL. Just because something may benefit a criminal is no reason to take it away from an innocent person. Cell phones, vehicles, even guns, take your pick. These things all benefit criminals more than innocent people*, and yet no one is calling for them to be taken away en masse. Even the gun lobby just wants to regulate guns, not take them away from every person.
* Take cars for example. Innocent person uses: drive places, haul things, etc. Criminal uses: drive places, haul things, etc, PLUS get away from crime scenes/police, run over enemies, hide drugs, etc. For every 'thing' that can be used by a normal person, a criminal has those same benefits, plus some additional crime-related uses.
I'm going to extrapolate that to relate to laws as well. Even if a right may aid a criminal in some cases, how do you justify taking that right away from innocent people?
The fifth amendment (along with the rest of them) have all been substantially changed by various court rulings that they might as well not exist in the first place. We've seen in the last 100 or so years so much "compromise" when it comes to the constitution that it might as well be used as toilet paper. Its stopped being a rule and started being a "guideline" and now is simply ignored. It is too far gone to save.
Taxation is legalized theft, no more, no less.
Without the right not to incriminate yourself, "the government" could coerce you to incriminate yourself, with whatever methods of coercion are currently available (jail, fines, threats, torture, etc). And they could also punish you for not incriminating yourself during a trial.
Skipped civics much?
Scenario: I work for a bank, and I embezzle money by coming back to the bank after hours and doing transfers between accounts and changing the books to make it seem legit. One night I see a fellow employee in the office with the president, when no one should be there (including me). The employee pulls out a gun, shoots the bank president in the head, turns around, sees me, smiles, and takes off.
If I report the murder, I only have the 5th amendment to protect me from being found out about my embezzlement, which has NOTHING to do with the murder.
"When life gives you lemons, don't make lemonade. Make life take the lemons back!" -- Cave Johnson
http://www.youtube.com/watch?v=i8z7NC5sgik
Srsly go write a blog or some crap elsewhere.
There are something like 50,000 laws on the books. You probably break 1 of those laws every day without knowing it. Yet if you admit to something while talking to police even if innocent of what they are asking you about, and you admit to 1 of those things, then all F'ing hell is brought down on your head.
I will always preach and tell my family/kids. Never talk to Police without a lawyer present. Just don't do it.
The supreme court has recognized the importance of the 5th amendment for innocent people, and I would say they probably are all smarter then you, esp in the area of Law.
And your: "But since it would "help" all other criminal defendants, too, most people would consider it a silly idea."
WTF? I don't consider that a silly idea. Let more guilty go to protect 1 innocent. Sorry your whole thing just fails. Please go somewhere else to spew your civil liberties restrictions and taking away our rights. That are already shrinking every year.
Actually, what happens in cases where immunity is granted is extremely instructive here. If granted transactional immunity, you can be held in contempt of court and jailed until you agree to testify. Without the protection against self-incrimination, that would apply to all actual or potential defendants.
Maybe you call "FAIL3" on that argument, because you think jailing everyone until they agree to testify would still disproportionately affect the guilty. This seems to place a lot of faith in the police to accuse only the guilty. Also, consider the situation in Ohio v. Reiner. Reiner's son had died of apparent "shaken baby syndrome", and Reiner was charged with manslaughter as a result. At trial, his defense raised the theory that a babysitter was the actual guilty party. The babysitter initially refused to testify until granted immunity on the advice of her lawyer. The lawyer was right to demand his client be granted immunity, because, as Justice Clark wrote in Slochower v. Board of Education, "The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances."
Doesn't the Fourth Amendment specifically deal with illegal search and seizure, or am I reading this wrong? "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Just watch the video below, a Harvard prof will explain it to you, and he's real fast.:-)
Don't talk to the cops, part 1 and part 2.
http://www.youtube.com/watch?v=i8z7NC5sgik
http://www.youtube.com/watch?v=08fZQWjDVKE
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.
I can still remain silent in the face of a subpoena unless the court is granting immunity, and even then I still have the right to remain silent.
You raise some valid points about the risks/benefits of this particular Fifth Ammendment right, but you fail to raise an important component: context.
Yes, all things being equal, you shouldn't need the right against self-incrimination, because police and prosecutors should be able to convict you without your help. The problem is, when the Fifth Ammendment was adopted, it was needed to preserve some of the other rights that you raise as superceeding this one. Torturing people to extract a confession was commonplace, and without a right against self-incrimination, those confessions (legitimate or not) would be used against people. Also, how many times were laws selectively enforced, where one group of people was targetted and another allowed to get away with things?
As to not being able to use the refusal to answer against someone, that's actually fairly straightforward. Having sat on a jury a little over a year ago, I had to deal with the questions of what can and cannot be inferred from limited evidence. In our case, we all agreed that the jeep and the cell phone were guilty, but the question was could we tie them conclusively to the defendant. Eventually we all agreed that we could, but only because there wasn't any other plausible answer. But we did reject one of the charges because the evidence wasn't sufficient to prove that particular piece. Taking silence as guilt requires inferring things from the evidence, and that means reaching. It could be a small reach (yes, they did it, and just won't say so) or a big reach (they're hiding something that has no bearing on this case, and might not even be illegal, but they really don't want to admit it in open court. That last bit is key - court testimony is almost always public record.
So is th Fifth Ammendment really a net positive for society? I can't answer it in any official capacity, but my gut says yes. It might well let people get away with things that thet shouldn't, but it also protects them from things that the authorities shouldn't do either. And in most cases, if the authorities do a good job investigating and prosecuting, they're going to get a conviction without the defendant's help anyway...
CAPCHA: oblige
That is what the 5th amendment allows you to do. Weather or not you did it is entered as a plea, and you can't plead the fifth on the plea.
If there's no fifth, then I can torture anyone and make them tell me anything that I want. If they say things to stop the pain, things that aren't actually true, it doesn't matter because I can still proceed as if it is true. My ability to proceed within reason is the whole battle here, and your fifth amendment is all that we have to prevent this type of information exchange.
Also, whoever wrote this article is less than an ivory tower fuckwhit, he's probably as low as being into politics to some degree.
Here is a defence attorney explaining why you should never speak to the cops.
at 27:21 begins an opportunity given to an officer for a "rebuttal". These two gentlemen both give numerous situations where an innocent person gives honest testimony, and it damns them. BOTH and officer and a lawyer agree that even an innocent person giving perfectly remembered and honest testimony (which, in and of itself is almost impossible) can STILL harm their case.
http://www.youtube.com/watch?v=6wXkI4t7nuc
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.
How? I'm not even saying I necessarily disagree with you. I don't know because you haven't explained your argument.
Q) Did you do it ?
A) No.
You are convicted on other evidence, and now you are
on trial for perjury.
Scenario: I am being questioned as a defendant by the prosecuting attorney. I am innocent. The attorney is only interested in proving my guilt, not innocence. By invoking the 5th or "right to attorney", the prosecution does not have a way of asking questions where the answers will look to be incriminating when presented to a jury. The case will be more based on truth instead of "verbal entrapment". The system is supposed to be for truth and justice, no a positive outcome for either party.
You've set up your criteria to turn this into an extremely biased discussion. Simply by stating the benefit can't be equal for both innocent and guilty parties rules out every single right we have in any scenario possible, as we all benefit equally from them. They're rights, they're meant to be equally beneficial. Convictions aren't supposed to be easy, that's why the burden is on the prosecutor to prove beyond a reasonable doubt that the defendant is guilty. You've stated that torture can't be cited as a reason why this right should exist, but you leave out the fact that we do have legal means to extract information that many would consider torture if ever put in those positions themselves. You are clearly determined to have a one-sided discussion and you've decided that anyone who doesn't meet a long list of absurd criteria is wrong, revealing your own self-righteous attitude. You've given extremely narrow requirements to any argument against you, and gone in the opposite direction with very non-specific ways to "fail" or, "superfail." Simply telling people to label things as "Fail#" or "Superfail" illustrates better than anything that you're not looking for a reasonable discussion, you're trying to bring others down to boost your own ego. I fully expect you to try and argue that posts like this are exactly why you set your criteria. But that's a lie, you and I both know your criteria were set to ensure the debate is rigged in your favor. Your post doesn't belong on Slashdot, it's nothing more than an attempt to troll people who you know don't agree with you by setting impossible to meet criteria for a debate you're running yourself to ensure you can win it yourself. You are a troll, a troll who managed to get some front-page Slashdot space, but a troll none the less.
I Googled "History of the 5th Amendment" and got a crap=ton of hits. Not the least of which is this:
... shall be compelled in any criminal case to be a witness against himself." The right was created in reaction to the excesses of the Courts of Star Chamber and High Commission—British courts of equity that operated from 1487-1641. These courts utilized the inquisitorial method of truth-seeking as opposed to the prosecutorial, meaning that prosecutors did not bear the burden of proving a case, but that sufficient "proof" came from browbeating confessions out of the accused.
These courts required the accused to answer any question put to him, without advance notice of his accusers, the charges against him, or the evidence amassed. With the abolition of the Courts of Star Chamber and High Commission, the common law courts of England incorporated this principle of nemo tenetur—that no man should be bound to accuse himself. By the 18th century, English law provided that neither confessions coerced during the trial nor pretrial confessions obtained through torture could be used. This was based on the belief that coerced confessions were inherently unreliable.
The right to be free from self-incrimination was established in nine state constitutions and was a tenet of the common law throughout most of the colonies before it appeared in the U.S. Constitution. Since then, the U.S. Supreme Court has expanded the Fifth Amendment to apply not only to criminal proceedings and pretrial proceedings in criminal matters, including police-station interrogations, but also to "any other proceeding, civil or criminal, formal or informal, where his answers might incriminate him in future criminal proceedings." The law also prohibits prosecutors from making reference to a defendant's refusal to take the stand as probative of guilt. So long as the government is compelling potentially incriminating speech—either before a jury or a Senate Committee—the right can be invoked."
"The Fifth Amendment to the U.S. Constitution provides that "no person
Seems plausible.
#!/Jerald
Clearly, Mr. Haselton has not read the fifth amendment in its entirety before forming this 'challenge'.
The fifth amendment covers a far greater scope than portion of one clause stating, "nor shall be compelled in any criminal case to be a witness against himself". Without going into a detailed breakdown of the fifth, it covers topics such as the aforementioned to right to a trial by jury, just compensation of property seized under eminent domain, and double jeopardy. Surely you can find a good reason for those on your own time.
Please read the Bill of Rights before posting nonsense like that.
This is absolutely correct. The way the final problem of the summary is posed applies equally well to the fourth amendment.
The traditional rights embedded in the U.S. Bill of Rights are not based on questions like, 'does the existence of this right make the world a better place?' Rather, they proceed from the assumption that certain rights are the natural possession of free men and that the burden of proof is on government and civil society that any infringement of these rights should occur.
If a man asked to testify against himself, he is asked to do so when he is still presumed innocent of the crime for which he is asked to testify. (If he is already convicted of the crime, it is pointless to ask him to incriminate himself for one cannot be more guilty than guilty.) To try and compel a free and (presumed) innocent man to testify against himself is a disparagement of his freedom, an attempt to control his body as you would a criminal's, and denial of his innocence (for it assumes he no longer has rights over his body).
Of course, my response, that his whole line of questioning proceeds from the wrong premises, qualifies for his "fail". Well, if these are the kinds of answers he gets then maybe he really should reevaluate his lines of thinking. But, perhaps he just makes this demand because he is more clever than those who respond to him.
Apparently, "superfail."
Man, you are sooo messed up...
Why the heck do you expect than anyone here will ANSWER you, and not only this, but will answer you the way YOU want him/her to answer you? What's wrong with you? Are you a teacher? A policeman? Or just an idiot?
http://youtu.be/6wXkI4t7nuc
... or the 12,000 word summary.
Only problem is that once upon a time in its history, this country had a justice system. Now it has devolved into a legal system. The distinction between the definition of "legal system" vs "justice system" are left as an exercise to the reader. That shouldn't be too hard to figure out, though.
Without the fifth amendment, the local DA of your city could send every single person in his jurisdiction a letter requiring them to swear, under penalty of law, that they have not broke the traffic laws of their district in the past year or to admit the violation and pay the normal fine.
The DA could then cross-check people that have been caught on radar cameras or red-light cameras to the responses. People that lied on the form are then brought to court on felony perjury charges.
Specifically, it protects folks from being prosecuted based on "confessions" gathered under torture.
That was the original intent. We seem to have deviated a bit from that premise.
I am very small, utmostly microscopic.
Trivial. Consider a petty thief unwilling to testify that he witnessed a murder because it would leave him open to prosecution for stealing. With the 5th amendment, the petty thief can submit testimony for the more heinous crime without fear of incriminating himself for petty theft. ndykman's comment has it exactly right.
Higher Logics: where programming meets science.
Until the judge bangs his gavel and says guilty, I am innocent under the law. I have done no crime, that is the assumption. I don't have to answer the question "Did you commit this crime?" because the law already assumes I didn't. I can sit and not say a word for the entire process because it's not my job to prove or disprove my innocence, it's assumed. Many people get offended when stores want to search their bag when they're leaving, why? Because the store is assuming they're guilty. This assumption is taking away from your liberty and happiness. The government takes the high road and assumes you are a good and honest person in all situations until the judge finds guilty.
This isn't a matter of making things easier or tougher to solve crimes, it's a matter of living up to an ideal. The ideal that everyone is an innocent person.
You remove the 5th amendment you remove a major tenant in the idea of innocent until proven guilty.
... what Bennett Haselton thinks about the right against self-incrimination? Convince me why I should read this instead of an article by a competent legal scholar, or why I should bother trying to convince Bennett Haselton of anything.
This is well hashed-out 4th amendment stuff. If I've got a video tape of me killing my wife in my safe and law enforcement has a taped conversation of me talking about it, they can get a warrant with "probable cause" to force me to provide access to that safe; with a penalty of contempt of court until I do.
I swear to God...I swear to God! That is NOT how you treat your human!
Agreed.
Logic: The Fifth Amendment is the extension of the Fourth Amendment into the mind. You cannot be compelled to prosecute yourself, for two reasons: (1) it's unethical to compel a sentient being condemn themselves, and (2) you cannot trust any direct product of a person's mind, like you can trust objective verifiable evidence. This already exists, but I expect more and more encryption tools will support a duress or plausible deniability passcode: give the wrong key and a less-damning content is revealed.
[
For one thing, FAIL0, no scenario given.
For another thing, the statement makes no logical sense. It would be perfectly conceivable to have the right against your house being searched without a warrant, without having the right to refuse to answer the question, "Did you commit the crime?" Just like you could conceivably have the First Amendment without the Second Amendment, or the Third without the Fourth. That's why they're enumerated separately.
Unless I completely don't understand anything this example makes sense. I am arrested on suspicion of murder because I was leaving an apartment complex where a murder had taken place. The reason I was at the apartment we because I was robing somebody. If I did not have the right to not incriminate myself then I would either have to lie to the court which later could be an issue, or I would have to tell them I was there because I was robing somebody. This assumes that the police at the time of my questioning have no knowledge of the robery.
GENERATION 25: The first time you see this, copy it into your sig on any forum and add 1 to the generation. Social exper
http://en.wikipedia.org/wiki/Central_Park_jogger
The currently accepted understanding of the miscarriage of justice in this case was that the suspects were generally lied to or browbeaten into "confessing" to a crime they didn't commit (it's easy to terrify people when you're the police, isn't it?).
The 5th amendment prevents police forces from prioritizing confessions, which can be pretty unreliablet, instead of actual detective work and evidence gathering, which is much more reliable. Sure, sometimes criminals confess, but there is past evidence that the police are willing to ignore the actual innocence of the person they can get a confession out of because it makes their numbers look good.
I don't think you put much thought into this. Please learn more about this topic before addressing it again.
Bennet and his ilk are exactly why this country is in the shape its in today.
I submit you can't, other than perhaps a small child.
Now, without the 5th, and with laws in place for lying to authority, anyone can be arrested and tried - a simple question on a driver's license application or tax form - "What crimes have you committed in your life?" - would do it. You either accuse yourself of jay-walking at some time, or don't and risk a felony conviction for lying when they find a video of you doing so.
I don't think that sort of society is compatible with goals of freedom and liberty.
"National Security is the chief cause of national insecurity." - Celine's First Law
Yes, it is. But society has also decided that it's the prosecution's job to show a) that a murder was committed and b) that you committed it. It's not your job as the defendant to prove the prosecution's case for them. What that part of the 5th Amendment boils down to is that the prosecution can't compel you to confess to a crime.
There's also the double-bind situation. Suppose you didn't in fact commit the crime. The prosecution demands that you confess to it. If you do, you go to jail. If you don't, the prosecution charges you with felonies starting with lying to a Federal agent in the course of an investigation and you go to jail. The only way out is for you to prove you didn't commit the crime, and as a society we've decided that it's not the job of the innocent person to prove their innocence, it's the job of the prosecution to prove their guilt.
Seriously, the entire "poast" is written by a retard. It assumes everyone has any alibi!!! FFS! Most of the time my alibi is "I'm sitting at home". "I was sleeping alone". "I was reading a book." Collaborating evidence? None.
US is already has the most jailed individuals than at any time in history of this planet (aside from Nazi concentration camps). Even at height of Soviet Gulags under Stalin, they had a smaller population jailed than the Land of the Free.
http://en.wikipedia.org/wiki/Gulag
http://en.wikipedia.org/wiki/Incarceration_in_the_United_States
So I guess we don't need 5th amendment. We need more people jailed because they don't have an alibi or they paint themselves into a well engineered corner. Innocence? Fuck that!
It's very simple. If you aren't a lawyer, you don't know how your words can be used against you. If you aren't an interrogator, you don't know how pressure can be applied to make you slip up. And by the time your innocence is proven, the cost could be social life and medical and legal bills that the rest of the nation has to pay.
All in the name of (maybe) catching a few more crooks who aren't the root cause of the problem, and whose capture will change nothing. Police and prosecutors have an iffy reputation precisely because of this kind of "let's stack the argument against the layperson" line of thinking.
If you want an answer, then study it yourself from many readily-available case studies, in law and the social sciences. Don't ask random passers-by who aren't educated, and don't smugly try to paint a hard-won right as something that may be superfluous.
The answer as usual is in history. The Fifth Amendment's roots are in common law as a protection from authorities compelling people from confessing through torture and other intimidation. The assertion that protection against this is a separate right is not historically accurate.
http://digitalcommons.law.yale.edu/fss_papers/993/
Hey Soulskill, you're an idiot. Or maybe just 12 years old.
Either way, your wall-o-spewage doesn't belong on Slashdot.
Way to fail, mods.
"The only good windmill is a tilted windmill."
If you're not willing to waterboard someone for the information they hold, then, maybe you don't want it enough. I think compelling anyone to say anything through force should be reserved for armed conflict (war) or at least to save the lives of 5 or more people.
Your article reminds me of the Randi prize for proof of the paranormal; it really doesn't matter what I say, you sure as fuck aren't going to pay out. I suppose this makes me "SUPERFAIL" (seriously?) in your eyes.
The first thing that popped into my mind was the Miranda warning, specifically:
Anything you say or do may be used against you in a court of law.
Note the use of the word against. There is no mention of anything you say being used in your favor. The criminal justice system is adversarial, not co-operative. The state prosecution in a court is there to convict you, it's not there to find out "the truth" and set you free. This works in a sense because eventually in such a scenario guilt or innocence can be proven.
Imagine that person A has been arrested on suspicion of murder. A policeman is currently interviewing him:
Cop: Were you at home after 6pm on April 15th?
Person A: I refuse to answer the question.
Now, in court, *beyond a reasonable doubt* where was Person A? Does it prove he wasn't at home? Of course not.
Without the 5th amendment and the protection it gives, the state would say Person A's refusal to answer the question would indicate he wasn't at home. But that assumption is by no means *beyond a reasonable doubt*. The refusal to answer the question could be used as evidence against you, like it is in some other countries. Yet that provides no information as to your actual whereabouts! It pisses on the burden of proof completely.
The founders of the United States weren't stupid by any means. They wanted to remove the possibility of guilt by mere inference and replace it with guilt based on actual evidence. I'm confused as to why anyone would consider that "unnecessary".
In the U.S.A., you are innocent until proven guilty. It is up to the government to prove your guilt, not you. That's why a verdict can only be "guilty" or "not guilty." Not guilty doesn't mean you didn't break the law, it means that the government's case against you failed.
Believe it or not, there was once an attitude in the U.S.A. where we believed it was better to let 1,000 guilty men go free rather than falsely imprison one guilty man. Alas, those days are gone.
The problem with justice is determining who deserves it. Measuring culpability is no simple science.
If we're talking about murder, then let's consider motive. Who is more culpable: one who kills in cold blood or one who kills in passion? Let's be more specific: murderer A robs a bank, and during the robbery, shoots the teller; murderer B is a law-abiding citizen whose daughter was raped by a depraved individual, and in a moment of passion, he hunts down and kills the rapist. Both committed murder, but who deserves justice?
I think as a society we would agree that while both murderers are responsible for their actions, murderer B is less responsible than murderer A, as his emotional state, induced by a signifantly emotional and personal event, led to a crime of passion rather than murderer A's act of cold blood, and that murderer B is much less depraved than murderer A. As such, we would apply a significantly lower punishment on murderer B than on murderer A.
Now, no matter what the circumstances, murderer A's going down. But let's see how this plays out sans the 5th for murderer B. Without the Fifth Amendment, one of two things happen: Either he/she lies about committing the murder, or he/she tells the truth about committing the murder. And here's where the fifth amentment makes the difference...
Say murderer B lies about the killing, and is caught doing so. The act of committing a lie will very likely prejudice the measurement of their culpability by the judge or jury. (The human thought process would be something along the lines of: "If he's capable of lying under oath, what else is he capable of?") This would negatively impacting the sentence given.
On the other hand, say murderer B admits his guilt. Then there's no need for a prosecutor to measure culpability. Why does the state need to know why it happened, when it has an admission of guilt served up on a silver platter? The motive for the crime is now irrelevant and moot. While a plea deal might be worked out to reduce the sentence, murderer B will get stuck with likely the same punishment as murderer A. This then also negatively impacts the sentence given.
Pleading the fifth forces the state to carry out a trial, find facts, analyze them, and deliberate on them. This will provide a much more accurate measurement of culpability, allowing the state to offer murderer B a more appropriate punishment to best fit the individual's crimes.
Real simple scenario.
Let's say you're driving down the highway, say somewhere in Dinwiddle County VA. You're driving down the highway and you're cruising along at a nice 45 MPH per your speedometer which is the speed limit. Now, in reality, because your speedo is inaccurate, you're actually traveling at 48 MPH. You drive by a cop, and because you have out of state plates, and because it's the end of the month and he needs to meet his quota, he decides to pull you over even though he didn't pull the 5 other cars around you all traveling at the same speed. Now at this point, the cop already has you for speeding (even though you didn't think you were), by the letter of the law, the cop can and will write you a ticket. The cop walks up to your window and says "Do you know how fast you were going?"
Scenario A: You say "No sir I do not". You have now just admitted to driving without paying attention to your speed. If not a wreckless driving charge, there's probably a few other road laws that you could be gigged for with that admission.
Scenario B: You say "45 MPH sir". You have now just lied to a cop. Obstruction of justice maybe or some other similar crime.
Scenario C: You say "I respectfully refuse to answer that question" (or even better, say nothing at all). You still get the speeding ticket, but you were going to get that anyway.
always answer, "No."
How will they prove you wrong? By convicting you?
"The jury thinks you lied, so, yeah, now we're trying you for perjury."
OP, your question is stupid and it assumes the courts can extract truth from criminals, which it can't. The 5th Amendment also makes sure the state does a better job of making its cases based on evidence and fact instead of extracted testimonies.
You sir are and idiot.
An interrogation by police is not a level playing field. The police may have been doing interrogations every day for the last 30 years, while the innocent suspect is walking into the situation with no understanding of what is about to happen. Eye witness reports are unreliable, even from witnesses that are trying their best to say only the truth and the whole truth. Innocent people's recollections are unreliable to the same extent. In that way an innocent person is likely to incriminate himself in any police interrogation, for example by unintentionally lying about a fact that can be checked. The police officer can draw on his education and decades of experience to make a suspect incriminate himself. Being innocent is not an effective counter to that, not even if you are the strongest-willed person in the world with photographic memory. If you are none of those things, you are even more likely to incriminate yourself in some way in an interrogation - even if you are innocent.
Let's look at this another way. Suppose you believe some statement X and that X happens to be true. You are put in a debate against the world-champion debater who has been debating every day for the last couple of decades. You are not likely to win the argument. It doesn't matter that X is true. It matters that you are out-matched. Just as an innocent is out-matched by the experienced police interrogator. Go watch that video that everyone is linking and that you should have already seen if you are really so interested in this matter.
The value of the fifth amendment is that it allows innocent people to avoid incriminating themselves. The reason this particular way of helping the innocent is important is that they are likely to incriminate themselves if interrogated - even if interrogated in court after preparation by council. That situation is unacceptable. It is too dangerous to the innocent. It's not that it helps the innocent more than it helps the guilty (though I'd think it does), it is that it is too risky to compel the innocent to testify, lest we find them guilty when the experienced prosecutor or the police trip them up. Interrogation is not an effective way to sort the guilty from the innocent - it is just a way to make everyone incriminate themselves. It is not about how much or how little it helps the guilty. It is about how likely we are to punish the innocent in the absence of the fifth amendment.
The points that the author make against the 5th amendment all seem to be along the lines of "The 5th amendment protects guilty people just as much as it protects innocent people, so we'd be better off without it" The author assumes the (incorrect) premise that prosecuting guilty people is just as important as NOT convicting innocent people. I reject this premise completely.
It is infinitely more important to protect the innocent from false prosecution than it is to convict the guilty.
Try that in front of a grand jury sometime.
Hypothetical: You are an activist, and the government wants to silence you. They create an investigation into anything, and the investigators demand the password to an account you haven't used in years. You tell them you don't remember the password, and that becomes enough to convict you.
Taken to the extreme, anyone can be put into prison for any reason, we all have something we don't remember and refusal to disclose would be a criminal offence. Do you remember every password to every account you had? Even if there are other avenues to get the information (your example, they could brute force hack, albeit at great expense), simply not providing the evidence is enough to convict someone.
Clearly, you are not nor ever have been a civil libertarian, or you think civil libertarianism is about legalizing pot. It is about the rights of an individual being absolute up until the point that it affects the rights of others.
I will try to keep it simple and use small words.
World 1:
Everything exists, except the right to be compelled to be a witness against themselves.
Police: Knock...Knock.....Knock
Citizen: Hello Officer.....How can I help you this evening?
Police: I am here to go over your weekly list of criminal activity.
Citizen: I am sorry?!
Police: What laws did you break this weekend, it is in everyone's best interest if we know.
Citizen: Oh...OK....Well, I have not broken any laws.
Police: Sir, our laws are very complex, we have city, state and federal, laws, rules and statutes.....You haven't broken any of them?
Citizen: Well, I am no lawyer, but I don't think so.
Police: Did you drive this week?
Citizen: Of course.
Police: Did you go faster than the posted speed limit?
C: Um...Um....Um
P: Now you know you have to tell me.
C: Well, I guess so.
P: OK....Here is your ticket.
World 2:
The 5th Amendment exists.
Police: Knock...Knock.....Knock
Citizen: Hello Officer.....How can I help you this evening?
Police: I am here to go over your weekly list of criminal activity.
Citizen: I am sorry?!
Police: What laws did you break this weekend, it is in everyone's best interest if we know.
Citizen: Clearly you are an idiot.
Any law can be used as a cudgel to oppress the population. In this case, absurd as it is, we have a situation that protects a person who is guilty of nothing but living his life free from oppressive police and government action. It has benefited and innocent person as well as a guilty person. He is innocent in that the "crime" he committed is completely unknown to anyone and affects no one. He is guilty in the sense that he has technically committed a crime.
Nearly everyone breaks the law nearly everyday in one way or another. The right to remain silent keeps the government from using those inconsequential transgressions against us. For crimes of greater consequence, if we are innocent, it keeps us from having justify our lives to the government.
I think I have met all five of your ridiculous criteria, but even if I haven't there are two things you must consi
Historically, the claim of consensus has been the first refuge of scoundrels.
agreed. this reminded me of the resent article here on slashdot about the court ording a man to decrypt his hard drive suspected to contain cp, with a good set up he could have a plausible deny-ability partition filled with encrypted brownie porn so that when the court ordered him to unlock it he could and they would have no valid reason to suspect that he had any other information to hide as what he reveled while embarrassing would not be illegal.
---Saying gnome 3 is better than windows 8 not so much a compliment as it is damning with light praise.
Dear Mr. Bennette Haselton,
Have you committed any infractions, misdemeanors, or felonies that are still withing the statue of limitations? Please note that a failure to answer correctly and completely may result in perjury charges.
The reason this outcome is worse is that there are a number of common activities that are technically criminal. This would allow the state to coerce an individual into revealing all such activities, possibly resulting in large fines or prison sentences. Law enforcement could direct these questions a selected individuals for political, or personal reasons. Imagine asking that question of a political candidate?
Example offenses: Speeding (most people are guilty of many counts). Statutory rape - in some jurisdictions when you were 18 and had sex with a 17 year old you committed a felony. Tax evasion - many people may be guilty of inadvertent tax fraud - but ignorance is not a legal excuse. Illegal dumping, trespassing, gambling, soliciting prostitutes, marijuana use, aiding and abetting underage drinking: these are all quite serious, but do we really want to imprison everyone who has done them?
you dumb
I think very simply it is the state's duty to provide the all the necessary evidence to convict the accused without having to resort to making the the accused help in his own prosecution. Forcing the accused to provide a password - even if there is iron-clad evidence that the drives belong the the accused means that it is the accused himself that is providing the means for his own prosecution.
"A person may invoke his 5th Amendment privilege when he has a good faith belief that a direct, truthful answer would either furnish evidence of a crime or lead to the discovery of evidence needed to prosecute him. The witness need not demonstrate that a prosecution based on the incriminating answer would be successful. It is enough if it would "furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime" or a state crime. The claimant must face a real and substantial hazard of self-incrimination, not an imaginary or insubstantial one. [b]This is an easy standard to satisfy in the context of most antitrust grand jury investigations involving conspiracies to restrain trade since conspiracies can be proved by a "course of conduct," and only a single act is needed to connect an individual to a conspiracy once its existence is shown.[/b]"
I destroyed documents at the request of my superior. I didn't know what they were, nor did I have any reason find the request suspicious. I was not part of the fraud or conspiracy those documents provided evidence for. I can now be prosecuted as part of the conspiracy for destroying them. The lack of protection to me that the 5th amendment provides will impact my willingness to be a witness, and/or my answers while on the stand. My modified answers, or lack there of will directly impact the case's results.
"A judge, not the witness, makes the final determination of the availability of the 5th Amendment based upon the facts of the case and the "implications of the questions in the setting" in which asked. If the witness' basis for asserting the 5th Amendment is not clear from the questions posed or types of documents demanded, the claimant may be required to establish in camera the basis for the assertion by describing the nature of the criminal charge for which he would be providing evidence or by allowing a judge to examine the documents to determine whether they are of the type protected by the privilege."
You don't just get to say "I plead the 5th" and then everything magically ignores it. The judge determines if you get to actually plead the 5th or not. There is a SERIOUS lack of understanding on the part of Bennett about what the 5th amendment is and how it works.
you cannot be subpoenaed to testify against yourself.
A search warrant to ask you questions, well that could work, but the evidence needed for that warrant would negate the need to ask you those questions
But then I realized that with such a long question, the author already has an agenda and already knows his answer. You really can't argue or make a counter point with someone willing to START a debate from such a fortified position. Not that it's valid, but that he's so entrenched in it that there's not much point in arguing unless you've got a specific obvious case. This rule is more subtle than that - it's based on principles not necessarily specific scenarios that assume perfect behavior and consistent application of logic by all parties.
Perhaps OP should go live in a country that does not have this protection that he doesn't like so much.
I believe that there should be limits to the authority of the state. There is a sphere of privacy that includes the thoughts in my head. A sort of no trespassing sign, if you wish.
I am an atheist, but there are religious objections to self-incrimination. Christianity contains the idea that forgiveness is possible, if one confesses to God. In the middle ages, it was accepted that civil authority was inferior to God's authority. This was not a minor matter; people were killed for refusing to lie about their religious beliefs.
I reject the restrictions of the poster of the question.
Don't mess with The Phone Company. Piss them off and you'll be using two tin cans and a piece of string.
Your point 3 and FAIL3 have a bad assumption, that punishment for a crime and evasion of that punishment is of equal value to the guilty and innocent alike and also that personal utility is the only thing worth considering.
That said:
1. A person was murdered.
2. The murder weapon was in your trunk.
3. You have no alibi.
4. There are no other suspects.
5. You were with the victim in your car the night of the murder but only you have proof of that.
That evidence is sufficient to convict you on circumstantial evidence.
Under the 5th Amendment world you can refuse to answer point #5. Without the 5th Amendment you must answer that you were with the victim.
This, however, "benefits" the guilty and innocent alike in that they both will evade prison. However, the value to *society* of evading prison as an innocent man is far greater than as a guilty man because of Blackstone's formulation.
"Of course"? On the contrary, the two are directly linked.
If you don't have a 5th amendment right against self-incrimination, then the burden of proof is on *you* as to whether your "confession" was indeed beaten out of you.
The "FAIL0, FAIL1, FAIL2" thing seems kind of childish - if not a fun way to list logical fallacies you expect to see.
Makes me feel like you're looking to see a lot of people shouting FAIL FAIL FAIL ex dee random bacon!!
EAT SHIT AND DIE, PIG!
That is, when Ghandi/the Pope himself is trying to figure out if you are guilty, then no problems will occur no matter how what they do. If they find out you are gay, you are cheating on your wife, your wife cheated on you, etc. etc. then it won't matter. They will keep your secret to the grave and they should have the right to ask the questions. Furthermore, they wonâ(TM)t torture you, they wonâ(TM)t abuse their discretion and over prosecute you.
But you see our legal systems are in fact designed to work with human beings running them, not saints. In fact, prosecutors routinely over-prosecute. That is considered normal behavior and expected. Get caught in the passenger seat of someone joyriding who accidentally hits and kills a random person on the street? Expect to get charged with felony murder and watch the prosecutor offer you a misdemeanor if you rat out the actual driver.
The reason we have the fifth amendments is because the protections you are claiming - such as laws against torture and holding you indefinitely ARE NOT ENOUGH. As in nowhere near enough.
They routinely get abused. Examples include but are not limited to people accused of being terrorist tortured, people being held indefinitely, people forced to work in the prison laundry without being convicted of any crime. All of these things are drawn from actual headline, not made up by me.
One law is NOT sufficient to stop these abuses, we need multiple laws to prevent them.
In particular, cops, judges and prosecutors etc are often very devious about how they get around the laws that you are depending upon. This is in fact encouraged. We want people to go right up to what is legal, but not step over the line. This prevents true bad guys from getting away with crimes. But that also means we need BIG, BRIGHT lines.
But most importantly, once they go over the lines, other cops, judges, and prosecutors are reluctant to prosecute them. After all, they did so in good faith, and yes it is a pity that an innocent man got screwed, but they don't want their colleague to go to jail for slavery just because he illegally forced a man to work in prison.
So we need LOTS of big bright lines, and the Fifth Amendment is in fact on of the most well established, BEST lines.
More importantly, all those other laws you like? They came AFTER the Fifth amendment. The Fifth Amendment existed before them. Worse, many of them are not Constitutional amendments. Which means they can be repealed by a panicked congress.
In conclusion, don't get rid of our best defense against tyranny simply because we have other, weaker defenses against tyranny.
excitingthingstodo.blogspot.com
...on this post. The whole thing appears to be based on an incorrect assessment of why there is a bill of rights. Go back and re-take your civics classes, then try again.
Ever forget something? It hppens to people ll the time. It's a good thing we can't be put in jail for not remembering something.
Without the 5th ammendment, you could eqasily be jailed for not remembering the answer to a question put to you. With it, you're not required to say where you were or what the password to that disk is, and that's good because you habve no idea.
The prosecutor brings you in "Confess your crimes evil doer!"
You: "Uh... I didn't do anything wrong..."
The prosecutor: "Your honor, look at his baggy pants, sloped brow, menacing look! Clearly this man is a criminal"
Judge: "He does look pretty menacing... Why don't you just tell us what you did?"
You: "Because I didn't do anything!"
Judge: "Well this court has ordered you to confess, you'll be held in confinement until you do so."
You: "But! Wait... if I confess to something small, will you let me go?"
Judge: "Well... we really just want to confiscate your lands and prevent you from having those meetings where you complain about the government. So if you just confess to a couple of these small things we'll keep you for a few months and let you go, that work for you?"
You: "Not really... how long will you hold me for not confessing?"
Judge: "Basically I'll just hand you over to the Jail and tell them not to allow you any outside contact until you're ready to confess... could be a long time"
You: "Ok, I'll confess"
And if you don't think that would happen, just look at a few Journalists that are sitting in contempt of court for years for basically the same thing.
If they have a warrant for the drives, I don't believe the fifth applies any more than when you're required to provide the combination for a safe. In fact I'd say the exact same arguments both pro and con apply to the situation.
Passwords are not "speech." They're "keys."
I do not fail; I succeed at finding out what does not work.
Here's a scenario... Three weeks ago you uncharacteristically stopped for a beer after work, drank too much and drove home. When you got there you realized you were definitely over the legal limit and realizing how lucky you were that nothing bad happened vowed to never to do that again .
Today you're on trial for stealing a car (you didn't do it!) The prosecutor asks if you ever committed a crime( it's relevant). You're under oath, so since you have to answer, you say that you have. The prosecutor asks you what crime (still relevant). You admit to driving drunk. He asks when( still relevant). you answer 3 weeks ago. Depending on the jurisdiction you've just confessed to a felony in open court. You are subsequently acquitted of the GTA charge and convicted of the DWI and go to jail.
Since you aren't a habitual drunk driver and no one was harmed on the single occasion of your lapse in judgement, it seems pretty obvious that you (and society) are harmed by your incarceration and no benefit accrues to anyone except the prosecutor (+1 convictions).
If that doesn't illustrate the benefit to society of the protections against self incrimination to you then nothing will.
The purpose of the Fifth Amendment is to preserve a sense self-conviction, and allow for a chance to stand against injustice in the legal system. If people were required to confess to a crime, that would remove the human inclincation for self-conviction; a necessity for the development of moral standards and destruction of immoral rule.
This is one of the best abbreviated Slashdot posts I've ever read. Could you expand on it some more? Never mind the retards below.
Underlying your entire argument is a base assumption that wrongful convictions never happen. They do happen; they happen alot; they happen most frequently to already-disadvantaged people. If somebody says "I didn't do it" under oath and the court finds otherwise, they're "guilty" of perjury whether or not the court discovers the truth.
Without the 5th ammendment, accused criminal might have the following discussion with their lawyer: "This prosecutor has a 95% conviction rate with black people who plead not guilty. You'll do 6 months if you admit to the crime, or 3 years otherwise. Do you want to just take the 6 months?" That isn't justice.
The fifth amendment will be critical in the future to prevent the government from treating information in your head as property they can search. It will be in our lifetimes that we have the technology to enable the police to strap you in a chair, put a helmet on your head, and probe your memories.
I, for one, do not want to live in a society in which an individual cannot refuse to allow the police to probe their brains. In the 18th century when this amendment was drafted, such a notion was science fiction, and the only means we had to probe a person's brain was to ask them a question and demand an answer. Today, it's not a matter of if but rather a matter of when we will be able to probe a person's brain without any conscious action on their part.
...the gov't to torture witnesses.
Recently a high ranking us gov. official plead the 5th during a particularly complex trial that was part fishing expedition.
Now that I have more experience working in government, I realized I had a new interpretation of her actions that were not immediately 'she did it, but doesn't want to admit it'.
Every day officials are asked to make an awful lot of decisions, based on limited information. Some of them are no doubt corrupt, but many are trying to do the job to the best of their ability. But they are human, with biases and foibles and sometimes just plain oops moments.
In the case of this trial, it was high profile, and it was slanted just enough (as I recall) that the people on the other side of the table would have been very happy to find any misconduct, of any kind.
More than likely, at some point in her career, she did something that was not, strictly speaking, completely legal. I don't think it's possible to avoid it, given the size of the bureaucracy and the rules governing it.
In this case, the 'MAY incriminate me' becomes just that - 'I know what I did, and I did the best that I could, but frankly, maybe something in there wasn't strictly in line with every one of the 10.8 bajillion rules.'
This could (I'm not saying does in every case, but could) prevent some rabbit hole/witch hunt situation that just doesn't benefit anyone.
Let off some steam Bennet
http://www.youtube.com/watch?v=19R2fDXCzcM
[note: there are far too many threads where I could post this. I did not want to favor any of the excellent "TL;DR" over any other equally excellent "Blowhard"]
Say the following are true: (1) you are innocent of murder; (2) your alibi is that you were cheating on your wife with her sister.
Scenario - the prosecutor has a circumstantial case against you - they can identify that you went into building A where the murder occurred (to go meet your sister-in-law) and they saw you leave shortly after the murder hiding your face from security camera.
Problem: Your lawyer says "take the stand, tell them your alibi and walk." You don't want to because you love your wife (despite your abject moral failings) don't want to lose your marriage.
Result in a world with the 5th Amendment - you refuse to take the stand, the prosecution presents its evidence, your attorney points out all the holes in the prosecutions case, and the chips fall where they may.
Result in a world without the 5th Amendment - you refuse to take the stand, the prosecution presents is evidence and then asks the jury why you didn't take the stand - obviously, because you were guilty!! You go to jail.
Yeah, I really don't think the framers of the U.S. Constitution needed a pedantic and contrived example like the one Bennett is demanding in order to see the value in the Fifth Amendment. I'll side with them, and with generations of federal and Supreme Court justices that Bennett feels aren't worth bothering to read.
[Sir Garlon] is the marvellest knight that is now living, for he destroyeth many good knights, for he goeth invisible.
"Qu'on me donne six lignes écrites de la main du plus honnête homme, j'y trouverai de quoi le faire pendre",
for which one possible translation is:
"If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged."
source: http://en.wikiquote.org/wiki/Cardinal_Richelieu
And you should feel really, really bad. SUPERFAIL- pretentious douchebaggery
Person A is a viable candidate for crimes 1 and 2. He has means and motive for both. Police don't believe he committed crime 1. Police know but cannot prove he was in the area of crime 2. Crime 1 is more serious than crime 2 and has more evidence against person A. The government tries him on both crimes and compels him to testify about his location. Prosecution for crime 1 is dropped and he is convicted for crime 2 on circumstantial evidence. However, he is proven innocent when B is arrested with irrefutable proof of B's guilt in crime 2. The world is a worse place.
Your article is based on a false premise, namely that the Fifth is not about preventing torture. Your rules we accept this on it's face when history shows you to be wrong. You use your "Fail0" rule to prevent people from challenging your premise and showing your contention to be false on it's face.
You state
The right not to be tortured by the police exists separately from the right to remain silent -- more on that later.
Yet, you never show where there is a right not to be tortured outside of the Fifth. Please show specifically where there is a right not to be tortured. Note that a law against a thing is not a right to be free of said thing.
World 1 - The police have no right to detain you and CANNOT compel you to answer:
"I'm not answering these questions, and I'm leaving."
World 2 - The police have no right to detain you but they CAN compel your answers:
"Did you kill your stepmother", "In elaborate detail, what did you have for breakfast?", "Do you like my shoes?", "Here's Ulysses, read it and tell me what you think", "Here's a hammer, show us that you didn't hide your stepmother's head at the center of this enormous boulder?", and on and on for decades.
Forty-Two years later:
"Did you kill your stepmother?"
"Sure, whatever you want to hear, Man."
Bennett Haselton gets to be supreme dictator for a day, and writes new laws for the USA. He throws out the 5th Amendment, because it protects many people who are guilty in addition to a few people who are innocent. Bennett says, "If all you want to do is let people off the hook, it would be better to just roll the dice. We need to statistically be sure we focus on truly guilty people."
Then Bennett dug into the demographics of crime. He was delighted to discover that there are certain slices of the population who are (for complex reasons) more likely to commit a crime than others. He finally came up with a comprehensive system for weighting criminal convictions on the basis of race, sex, ethnicity, and other factors. A disproportionate number of innocent black people ended up going to jail, but Bennett was still happy, because the overall average in the entire population improved, and Bennett could prove it mathematically.
You go, Bennett! Like, preferrably... away... please...
The fifth amendment wasn't random it was added as a result of lessons learned. If you would like examples all you need is to take a look at the judiciary systems of the 1600s and before. If you are indeed unable to learn from past mistakes then I am afraid there is no hope for you.
By not getting through to you ;>
As Blackstone put it, and our Founding "Fathers" enshrined into actionable text, "It is better that ten guilty persons escape than that one innocent suffer". The entire US legal system is based on this notion. It is hard for the State to prove Guilt (beyond a reasonable doubt, hands tied in various ways, etc.). Yes, you could have probably developed a vast complex of rules that could exist without the 5th amendment and still accomplish its ends, but unlike the legislature of today, back then they sought brevity and relative simplicity of rules.
Even with all the rules stacked in favor of the defendant, innocents get convicted.
Imagine that there was not 5th amendment, then the likelihood of government focus on getting "lie detectors" ruled legitimate in court. Since all they actually measure is stress, they'd pepper the suspect with questions and convict of things they were nervous about (objective evidence no longer required). Just one of many probable outcomes of removing this protection.
Because it is not your job to do the police department's job.
Because they can, will and do take the most innocent, truthful and innocuous things and pervert, expropriate and abuse them grossly out of context to nail you to the wall for things you didn't do.
Because you should have the right to your own consciousness.
Because they have hundreds, thousands or millions of dollars, people and resources. You are one person. The right against self incrimination is one the few weapons you have.
Seriously, what the fuck is this over-privileged, rich white-ass, quasi-moral shitwit twaddle doing on Slashdot?
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.)
Although his argument is interesting (worth at least thinking about more, although I'm not sure I agree with it), this scenario really doesn't prove his point. In his scenario, he knows that either Roommate #1 or Roommate #2 stole his laptop, and that Roommate #1 has presented evidence that he did not do it. Therefore, it is simply the process of elimination to determine that it was stolen by #2 (based on the probability of #1's evidence is solid). I can't see that #2's refusal to answer changes anything.
I'm having trouble coming up with a situation where refusal to answer a question would actually constitute legitimate evidence of someone's guilt or innocence. They all seem to come down to "innocent men have nothing to hide."
How can we continue to believe in a just universe and freedom to eat crackers if we have no ale?
Plain and simple. Without this right police forces would do 'whatever' was necessary to get a confession, including torture. The American government under George Bush has admitted using torture so yes it could happen in America. It probably does happen but that is how cases get thrown out and the guilty get off the hook. Police misconduct is every bit as big a threat as terrorism.
I would like to point out that your third condition, which assumes that society only benefits if "good guys" and "bad guys" are treated differently is missing a critical point.
The guilty need and deserve all the same benefits provided the innocent. Our entire system is predicated on the idea that you need an extreme level of certainty in order to convict, and that everyone should benefit as if innocent until they have been found otherwise by a jury.
I don't know how much of the rest of this drivel was worthless, it got skimmed pretty heavily after I realized that you don't accept such a core tenant of our justice system.
By asking for a specific scenario you imply that such a question is relevant. It is not. In a society where a person is innocent until proven guilty, the burden of proof is on the state. Period. No person should be compelled to assist the state in meeting that burden. It's called a burden for a reason. The reasoning behind protection from self incrimination is inherent and inalienable. It protects people from torture, blackmail and coercion. It is SUPPOSED to be difficult to convict someone of a crime. We are not meant to have a society where it is easy to incarcerate a large percentage of the population just whenever the state feels like it. Do they not teach civics in school any more?
Proverbs 21:19
That wouldn't matter. Without the 5th as discussed the police could just show up at your door and demand answers to whatever questions they felt like asking. Not a search, as legally defined. But after you answer them, and give them what ever they were (or maybe were not) looking for, they get a search warrant. In terms the submitter can understand: the cops show up at your door asking about a murder. You didn't commit it, and you alibi is that you were at the bar till 4 am, had 18 drinks and then drove home. You committed the crime of driving drunk, but not the murder. Or, instead of being at the bar, you were somehow in the bed of the cop's spouse. Try to answer the question asked without the 5th and without jail or a beating by the armed thug at the door.
Nearly every state has a list of books that are illegal in that state. In fact, nearly every state has a list of content that is deemed illegal to publish. Answering the question, "What books are you reading these days?" truthfully, in some cases, can be self-incriminating. You may not even agree that the particular book you own is worthy of being illegal, but your agreement isn't necessary. You may not even own the book, you may just disagree with it being illegal; how should you answer the question: 1) "None of your damn business." or 2) "No, I do not own the book, even though I don't agree with the state that it should be illegal." Now you have set up for failure those people who *do* own the book, by cooperating with the government here, you have given legitimacy to the government, and those other people now *must* answer truthfully because you were willing to do so.
The important thing to realize is that the state believes everything is its business, whether the majority agrees or not. You may want to separate the crimes into two categories: crimes where you do not have the right to not be compelled to self-incriminate (murder), and crimes where do have the right not to be compelled to self-incriminate (owning a banned book), but the state does not have interest in separating these crimes. The state would push to have whatever crimes befits the agendas of its leaders in the first category (abortion, sodomy, adultery, etc).
Imagine, especially in this particular case, that the child pornography in question is in "e-book" form, and is perhaps sitting encrypted on this person's laptop. The question, "What books do have on this laptop?" is exactly the question being asked in this case. A question that you think isn't the state's business to know.
BREAK
I'm going to pose to you a challenge, a thought-experiment:
The First Amendment, among other things, protects your right to free speech. The Fifth Amendment, among other things, protects your right to free silence. Aren't both of those protections the same thing? If you have protection to speak when you want, about what you want, don't you also have the inverse? That is, if at any time, you were compelled to speak about something you didn't not want to speak about at a time you did not want to speak about it, doesn't that tautologically defeat your right to free speech? The amendments are both present, both labeling those protections specifically, even though both of those specific protections don't need to exist at the same time (because they are each other). The reason both are there is so it is clear to the government that it is not allowed to compel you to speak, nor compel you not to speak. In all cases. If the First Amendment's protection of free speech is important, then the Fifth Amendment's protection of free silence is equally important. But if the Fifth Amendment's protection of free silence is unimportant, than the First Amendment's protection of free speech is equally unimportant. Because they are the same protection.
Erode one pillar of our civil liberties, and the other becomes that much weaker.
BREAK
Finally, you need a lesson on what the Amendments in the Bill of Rights to the Constitution are actually doing.
They aren't granting you rights.
The First Amendment doesn't give you the right to free speech -- You have the right to free speech b
out of all the comments i have read in this thread, you are the ONLY person who has produced what may be a valid argument. congrats to you sir, you win the prize. everyone else so far has been a bumbling fuckwit or kneejerk reactionist.
And all your boldface FAIL FAIL FAIL stuff, just goes to show what a smug, ivory tower fuckwhit you are.
False or coerced confessions. Mistaken witnesses. Badly developed forensics. Prejudice. Public pressure to "nail the guy". Perception versus reality. Manufactured evidence. Corrupt police, judges, attorneys, witnesses. People trying to frame others.
The right against self-incrimination, aka the 5th amendment, was intended primarily to protect innocent people who may simply have been in the wrong place, at the wrong time. Our founding fathers recognized that the Just world hypothesis was a thing even back then -- people are all but too happy to crucify someone based on appearances, and police can easily be motivated by public outrage to nail the wrong guys so as to appear to be responsive and competent to public needs.
But even with the 4th and 5th amendment protections, far too many innocent people wind up in jail. The Innocence Project, which specifically helps people accused of rape, has been using DNA evidence to free people for decades. Something like over 15% of the number of people in jail right now for rape or murder have evidence that doesn't just prove them not guilty, but proves them completely innocent sitting on a shelf in a warehouse somewhere, but because they confessed or there was a mistaken witness, poor forensics, etc., they're now rotting in jail while the real criminal is still out there.
This asshole is trying to solve a human behavior problem with logic. And yes, he's an asshole for trying to do it -- "smug, ivory tower fuckwhit" is spot on, because only someone as incepid and stupidly naive as to believe that only the criminals lie or make mistakes would try this line of thinking.
What's wrong with the 5th amendment is that there isn't enough of it. What's wrong with the 4th amendment is there isn't enough of that either. These things are designed to protect innocent people -- reductions in them mean that more innocent people are going to jail, when there are already too many innocent people in jail. We have the highest incarceration rate of any country on the planet. Nicaragua? Podunk shit-hole African warlord country? China? Iraq? Iran? Countries that behead and chop off hands? We have them all beat. And whereas China only charges the family for the cost of the bullet... we're charging the families of those who are in prison their homes, livelihood, etc. -- the high cost of our prison system, which disproportionately targets minorities, is literally eating this country from the inside out.
And then we got fuckwits like this wanting to pour gasoline on the fire and thinking they have an educated position on the matter. It's painful to watch stuff like this... he's obviously trying to think... he's just really, really bad at it.
#fuckbeta #iamslashdot #dicemustdie
Step 1: I join the "Pretty Puppy" political party.
Step 2: The federal legislature passes, and the president signs, a retroactive law making membership in the Pretty Puppy party a mandatory death by torture offense. After several challenges, the Supreme Court rules the law Constitutional, not cruel and unusual punishment.
Step 3: At my trial, I'm asked "Are you now or have you ever been a member of the Pretty Puppy party?"
Figure it out for yourself. And don't even try to tell me that there aren't laws as bad as the one I've just fantasized, because a.) there are, and b.) it's irrelevant.
Contribute to civilization: ari.aynrand.org/donate
I'm convicted of committing a crime that I did not commit. During the legal process I am questioned and, because I have no right to remain silent, I must tell the investigators/prosecution/whomever that I did not do it (truth). That denial is then used against me during sentencing because I 'lied' and thus I receive a harsh sentence.
In a world in which I have the right to remain silent, I say nothing during the legal process. While I'm still incorrectly found guilty, I have no denial on which to pin a lie and therefore am sentenced more lightly.
If you want a poster child for the right not to incriminate yourself, I would point to Thomas More:
http://en.wikipedia.org/wiki/Thomas_More#Trial_and_execution. (Or you can wach the play / movie “A Man for All Seasons”.)
I think he meets all of your conditions.
But I am going to guess you want more. Assume that all men are of good conscious and we will not have any abuse such as torture, fishing expeditions, etc. You are altering the relationship between the citizen and the state in what I believe is a negative way. Citizens are put on the back foot with the state getting the upper hand.
Fist, some of your suggestions would add no value. For example, you would allow “Did you Do it?” and accept the answer "I didn't commit the murder, but I would prefer not to tell you where I was." Both the innocent and guilty (who has an incentive to lie) would offer the same answer – No. So it would be meaningless. Only if the policy had the right to pry deeper would this have any meaning.
Second, under Common Law you are presumed innocent until proven guilty. It is up to the prosecutor and policy to build a case. With self-incrimination the burden of proof shifts. Now you have to come up with proof of your innocence.
Side note, you bring up McCarthy and the Red Scare as a poor example because it hampers all criminal investigations. The argument is confused. Do I have the 5th amendment right sometimes but not others? The problem with pushing the burden of proof onto citizens (via loyalty tests or whatever) is that it instill a sense of fear. “Everything which is not forbidden is allowed” turns into “everything which is not allowed is forbidden”.
Third, it does erode privacy. You would allow the response “None of your damn business “ to the question “What books are you reading these days?" Why is this valid response? Maybe the victim was bludgeoned to death by a book. Now you have to defend why it is not their dam business while knowing nothing of the case, which would still be secret. And now your refusal can be used against you in court. You are obviously hiding something. Maybe not the murder weapon but maybe porn or Karl Marx’s Das Capital. It presumes that the policy can ask wide ranging questions and that you must answer.
Let me ask you 2 questions. First, where should the burden of proof be placed? Second, how many innocent people should go to jail verses how many guilty people walk? 1 to 1? 1 to 10? In statistics there are Type I Errors (innocence people are convicted of a crime) and Type II Errors (letting the guilty go). If you reduce the Type II errors more guilty people go to jail but also more innocent people go to jail. Personally, I am o.k. stacking the deck to favor Type II errors knowing this reduces Type I errors.
No worse than your scenarios. It's actually quite simple to find the answer. The fact that you don't want to take the time and do the research leads me to the conclusion that you are not truly not interested in the answer but rather want to be argumentative.
an encryption algorithm that every time you enter the wrong password it adds another layer of encryption! And to decrypt the file/drive you have to enter the correct passwords in the correct order, starting from the original password....
So password is Dave.
You try password Password.
Now in order to decrypt it you have to enter Dave, and THEN Password, in order to properly decrypt it. It's not perfect cause they can just make a lot of clones and keep trying passwords that way, but it slows the process down hugely if they are simply trying brute force dictionary attacks.
Or how about a method that requires long keys, but uses different subsets of that key to encrypt the drive. So you have to use something like supercalifragilisticexpialidocious for your key but it breaks it down a few different ways to apply encryption to different segments of the drive in an attempt to make is harder for the encryption to be broken by matching data pieces to come up with the original algorithm? like using every other letter for one subkey, then every 4th letter for another, breaking the key into pieces for 4-8 more ecryption subkeys...or would that make it easier to break by breaking parts of the data's encryption to rebuild the whole password from?
captcha: misuse
FAIL3 -- the alleged "benefits" of the Fifth Amendment apply equally to the innocent and guilty, or disproportionately favor the guilty.
Whoa whoa whoa, back the truck up. "It helps more than it hurts" is a awfully low bar of justification to set for a constitutional law. Here, have a hypothetical:
You have 3 suspects in custody. For some highly contrived reason too pedantic to relate here, you know for a certainty that two of them are guilty of a crime punishable by death, and one of them is absolutely innocent of any crime, but you haven't any clues as to which one is the innocent one.
By the symmetry argument you'll have to do the same thing to all three of them. If you do anything other than execute them, you "disproportionately favour the guilty". But our justice system needs to adhere to a higher standard than that, because that way despotism lay.
DRM: Terminator crops for your mind!
It was argued that socitey has a right to know if someone committed murder and when asked so outright, the accused should be forced to answer, (contrary to their right to remain silent).
However, that is ALREADY the case. When someone is charged in a court of law, they are asked to enter a plea. The plea IS their answer to whether or not they are guilty, and (assuming the accused pleads not guilty) there is nothing more a government should be able to FORCE the accused to say in their defense as the burden to provide evidence is on the accuser.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
That's the Fifth Amendment. I don't know what that ridiculously long drivel was all about by the OP as he lost me by not displaing an ounce of knowledge of the actual Amendment, but the portion of the amendment he seems to have trouble with--like the great Second Amendment that is rarely completely quoted nor understood--just says that you cannot be made to be a witness against yourself in a criminal case. Nothing too complicated about that except when and where it applies. That's what the courts are there to decide. Referencing an encrypted hard drive I lean toward the go-fuck-yourself model, however your property can be searched with a valid warrant and things like safes apply so not sure how an encrypted hard drive could be different.
...right out of the gate, but such a deep confusion on the topic that requires paragraphs of text to contemplate what can and should be refuted outright is understandable, with the modern trends to think what is true is a subjective question that should be determined by social popularity...
You fail at the outset with the notion that whether something is a "benefit" requires it to be of benefit to anyone other than the person claiming it, and that what "benefit" means needs to be determined by anyone other than the individual him/herself.
Both are false. Next.
"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. ... But since it would "help" all other criminal defendants, too, most people would consider it a silly idea."
I think your fault is with this premise. I argue that it is possible that socially there is a greater benefit from allowing protection against violating unjust laws than there is in allowing this one method of defense for the guilty.
Concrete example: assisting runaway slaves. I think you would be hard pressed to argue that enforcing slave laws is a positive thing. So the question is whether the good that came out of allowing people to break those laws and speed the end of slavery is offset by the evil that you get when allowing the guilty of just laws to not incriminate themselves.
In the case of someone who is guilty of a just law requiring them to incriminate themselves only helps in the situation where there is not enough evidence to otherwise convict them. I do not know what percent of the time this is but I suspect it is closer to 0 than it is 100%. So then your argument for #3 seems to boil down to "Since letting people rebel against slavery also might let a murder go free from time to time most people would consider the ability to rebel against slavery a silly idea" which I think is patently false.
You need only look to Martha Stuart's conviction for lying to prosecutors to see that they don't need to convict you of a crime to convict you of lying about not doing it.
Well, I haven't had time to really read the post in detail and ruminate on a cogent response, but this is Slashdot, so I'll post my knee-jerk reactions, instead:
The first reason I think we need the Fifth Amendment is because, without it, the way the courts could "compel" a suspect isn't by beating him up (like the OP mentioned), but by merely making the unwillingness to answer carry the same penalty as actually doing the crime you're being questioned about. "Oh, you won't answer our questions about whether you stole that Buick? Alright... 4 years for not offering an alibi for how you didn't steal the Buick". Boom. Welcome to "guilty until proven innocent".
Of course, this fails the OP's criteria of "does this make the world better because it has the Fifth Amendment in it?", I guess. Only "guilty" people would refuse to say that they didn't steal the car, right? This reminds me of when I was in high-school, and the school wanted to start doing random locker searches. There was a big debate between the "unwarranted search" people and the "If you didn't have something in there to hide, you wouldn't mind" camp. But there are plenty of things which could be in my locker which aren't illegal, but which are embarrassing (what if a girl has medication for a yeast-infection, for example?). And, compromising information like that can be misused by those in power. But I digress...
The second reason I think we need it (and I suspect that this is what the Framers had in mind when they wrote it) is to guard against over-broad searches of the suspect's mind. With a search warrant, cops need to state what they're looking for when they want to search your house. If they find unrelated evidence of other crimes which isn't covered under the warrant, they can't use it. Now, suppose the reason you didn't steal the Buick is because, during the time of the crime, you were out on the street corner selling crack. You'd be loathe to give your alibi, since it would incriminate you for another crime.
Now, the impression I get from the OP is that this would be just fine; we'd end up getting to punish someone for a crime we weren't even pursuing. It's a freebie. Certainly better than letting someone sell crack and not be punished, right? So, arguably, the world is better off, but it's not a world I prefer to live in. I guess one (slippery-slope) argument against it is that the cops can then haul you in for some silly infraction (a traffic violation, say), and then start asking you "What were you doing on January 1? Okay, how about January 2? What about the 3rd?..." in the hopes of getting you to admit to something. Again, according to the OP, I imagine that this kind of "drift-netting" would be just fine, and I have to admit that we'd solve more crimes this way, so the world's better off, right? Again, however... not a world I want to live in.
If a defendant did not have the 5th amendment's protection then they could be forced to speak potentially either forced or tricked into saying things that would make them appear guilty. Our justice system is built on the principle that all defendants are innocent until proven guilty. Words from the mouth of the defendant carry a lot of weight in the decision of their guilt and so if they could be forced into admitting something, regardless of guilt then the burden of proving something becomes irrelevant ... you just have to convince them to say they did it.
As an aside: I think this case is a clear a abuse of the right just as there are many examples of those that abuse our beloved 1st amendment's protections.
While it's purpose and use is obscure I'll agree, we would live in a very different world were it not for the protection of the 5th amendment.
The 5th amendment came about exactly due to abuses in the 1400s-1700s in the English court system, where prosecutors would browbeat people and torture them until they confessed. No charges ever had to even be filed or identified to the person being interrogated, and they would be beaten when they didn't answer a question (and many times beaten when they didn't answer in the way that the prosecutor wanted the answer to be). This is what brought about the amendment. The fathers of our nation wanted to make certain that acts like the above could never happen again. They wanted it spelled out in plain english that a person had a right to not answer to the government. That it was the government's job to prove someone did something wrong, not the defendant's job to prove he was innocent. That the government couldn't perpetually charge someone again and again with the same crime until the government received the verdict they wanted. All of these were issues that were abused time and again, which affected the parents and grandparents of the founders of this nation, to which they took great offense against such abuses, and wanted to make sure their children and grandchildren never had to suffer from the same kind of abuse.
We were all warned a long time ago that MS products sucked, remember the Magic 8 Ball said, "Outlook not so good"
WIthout this right, the police could abuse it easily. Pick someone they do not like. Arrest them for a crime. Tell them you have to give them some information. You assert you dont know what they are talking about. They say you are just trying to avoid self incrimination. They throw you in jail for intentionally getting the way of the investigation.
1. I feel like Steve Martin in The Man With Two Brains. Damn, your dunk tests are hard!
2. Okay, how about this. Suppose that the police ask the suspect whether he committed the murder. Suppose further that the suspect answers truthfully. Suppose even further than that that the suspect is convicted. Now lets examine the results. If the suspect was innocent, then he is convicted of murder and obstruction of justice. If the suspect was guilty then then he is convicted of murder.
3. Criterion 1: The outcomes are in a world with the fifth amendment are clearly different. With the fifth amendment the innocent person is not convicted of obstruction of justice. Without the fifth amendment he is.
4. Criterion 2: The outcome in a world with the fifth amendment is clearly better. It's good not to convict innocent people.
5. Criterion 3: The outcome doesn't benefit all suspects equally. The truthful, guilty, convicted people have the same outcome with our without the right. The truthful, innocent, convicted people are harmed without the right. (By the way, I don't see why a right should only benefit some people. I would rather you not included this criterion.)
6. Criterion 4: The outcome doesn't exist separately from the fifth amendment. Without the right against self-incrimination the risk of an obstruction of justice conviction is possible. With the right, assuming it's exercised, it isn't.
7. Criterion 5: The argument has no major implication for the competency of courts in general, therefore no discussion is necessary.
8. Fail 0: A scenario was specified. See paragraph 2., above.
9. Fail 1: . The outcome in the fifth amendment world is different than the one without. See paragraph 3., above.
10. Fail 2: The outcome in the fifth amendment world is better than the one without. See paragraph 4., above.
11. Fail 3: The benefits of the fifth amendment differ for the innocent than for the guilty. See paragraph 5., above.
12 Fail 4: The benefits are exclusive to the right against self-incrimination. See paragraph 6. above.
13. That was hard work. Can I at least have a cookie?
~Loyal
I aim to misbehave.
Constructive conversation?
Hardly. His argument and constraints are flawed from the get go. My right to a 5th Amendment does not stem for or from society. It stems from individual liberty, which is a precursor to any mention of societal implication.
Submitter has framed it such, that my rights, as outlined in the Bill of Rights, come to fruition from societal need. Wrong! They existed before they were ever written down, and only then came to text out of freedom from tyranny, misrepresentation, and oppression. ( I won't go into previous historical texts because that is another discussion)
For the short answer; society benefits when individuals having a 5th Amendment Right, by the fact that it limits the power of Governing bodies who have been given such oversight as to placate any individuals free will.
Self-determination! Might be a concept of interest to you, and anyone else thinking this topic is lack-luster.
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.
done! until you propose a viable fix, let's keep the fifth amendment.
btw, that viable fix would include changing human nature. there's a reason why "regulated adversity" works fairly well, be it in economics or law; without it, you have to trust a higher power implicitly.
you call this problem "incompetence," but really what you need to be worried is malice.
"They were pure niggers." – Noam Chomsky
If the 5th amendment didn't exist, then we would have issues of police torture, which even occur now but far less frequently. Being coerced in many ways would become common tools. The key thing is the straw-man argument of, "We have this known pedophile..." but the reality in aggregate is more gray. Maybe you were having an affair or doing something that could be construed as illegal that has nothing to do with the current case, but divulging some information would expose those other details. Why should you be compelled to admit those other private details? I would argue you shouldn't. Having the 5th draws a line. Some cops, as we often see in movies, may still go the "heavy" route and rough a suspect up, but because of the 5th and asking for a lawyer, it helps to keep our good-guys good (hopefully).
Justice is imperfect. There is a nonzero risk that you will be convicted of a crime you didn't commit. The fifth ammendment protects you from having to answer questions that might tend to incriminate you. If you are innocent, then you have an incentive not to answer such questions.
If there was a murder in a park, and they ask: Were you in the park on the night of the murder? Supposing you were both in the park and innocent, answering truthfully still might tend to incriminate you. Without the fifth ammendment, they might hold you in contempt for failing to answer ( torture you with incarceration ) until you tell them what they want to know and the answer *satisfies them*.
What if they have preconcieved notions they expect your story to be consistent with? What if the truth is not consistent ( to a reaonable doubt standard ) with their preconcieved notions. The defendant can't explain the discrepancy. Must they now fabricate a story consistant with preconcieved notions they may not even be aware of or be slapped with contempt?
Faced with two bad choices, the innocent defendant now has an incentive to lie. They may believe this is preferable to telling the incrimnating truth or enduring the torture, and they may be right. This incentive for innocent people to lie, unjustly ruins their credibility either by causing them to lie or by incriminating them, for it is unjust to incriminate the innocent.
Interrogators have all the advantages. They put questions looking for answers that confirm their preexisting biases. Without the fifth ammendment there is no defense against this and so prosecutors become nothing more than interrogators, with contempt of court charges the new torture implements.
...
"Have you stopped beating your wife yet? I insist that you answer yes or no!"
When the questioner gets to set not only the question but the range of acceptable answers -- just as you have tried to do here -- the right to remain silent is vital.
The penalty for murder is greater than the penalty for perjury, yes; but that's not true for all crimes. "Making false statements" was part of Martha Stewart's conviction. And cops will lead you into false statements, that's their job. If you can watch this video and not understand the importance of the Fifth Amendment, you're hopeless.
Tom Swiss | the infamous tms | my blog
You cannot wash away blood with blood
Why is this on Slashdot, and not a legal blog?
Here's an answer
Because a world in which I do not have a right to remain silent is a world which perversely incentivizes me to compound my crime.
Because having willfully broken a law, I still desire to escape with minimal punishment.
Because in the course of desiring minimal punishment, with the fifth amendment -- I have the choice of lying (risking further punishment), remaining silent (risking less), or confessing (should be less risk)
Because without it, I have the choice of lying to mitigate it, or being punished as if this is an admission. Being compelled to speak without even a benefit for saving time and cost by confessing which I am expected to do.
In a world without the fifth amendment, the most optimal outcome barring the presence of a lie detector (let's call it a truth oracle though) for *ALL* parties is ... pretty much always to lie.
For the defendant, lying is a chance to get off. For the prosecution, lying is a chance to add time. For the innocent, lying is probably optimal (if innocent and likely to be found guilty -- lie. If guilty and likely to be found guilty... lie to get off).
Also, the words of cardinal Richeleiu remain applicable...
If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged.
Sorry Ben. your assumptions about a just, verdant, equitable world... are not applicable. The fifth amendment is needed as a check on the abuse of power by assholes -- who are far more dangerous than most of the criminals they routinely prosecute.
The fifth amendment protects the individual. Any individual acting in rational self interest will not take any action that harms themself. Testifying against one's self harms one's self. The fifth amendment isn't there to protect the society, it's there to protect the individual. The state cannot be compelled to cause you to harm yourself. This is a good thing in every conceivable case.
You see? You see? Your stupid minds! Stupid! Stupid!
Obviously they know its wrong. Obviously they have to lie to get away with it. They have to conspire to get away with it. Yet they do it to extract confessions.
Once you understand the basic flaw in human psychology:
Us = The good guys
Them = The bad guys (must be true because they are not Us)
Us doing something is good because Us = The good guys
What happens to them is ok because Them = The bad guys
You tell a group of people enough times they are the good guys, they forget right and wrong.
Apparently many Slashdotters remember the civics and history lessons taught in those subversive and supposedly poor American schools. Either Bennett doesn't, or he is being very coy. Alternatively he was fishing for material, in which case he's got enough for a treatise.
FAIL3 -- the alleged "benefits" of the Fifth Amendment apply equally to the innocent and guilty, or disproportionately favor the guilty.
So you've predetermined what is an acceptable argument for showing benefit from the 5th amendment.
In particular, you've decided already that if the fifth Amendment doesn't benefit the innocent at least as much as the guilty, it's not worth keeping.
That is MUCH more strict than
"come up with a specific, precisely defined scenario, where the Fifth Amendment makes a positive difference."
So, while I may actually use a few brain cells trying to come up with a better example than the "encourage witness testimony" and "discourage torture" arguments above, I probably won't. You changed the rules of the game in your FAIL list, I don't really feel like playing.
Of course, since I forgot my Slashdot password and the password to to the old email account that I had when I created my Slashdot login, nobody will see this.
Why you shouldn't talk to the police.
The OP acts like the law is interpreted like a computer program and that everything has to follow the rules of logic. The above linked video shows how this is not the case and why this protection is important - even for innocent people. Is it important for innocent people with "honest and truth seeking prosecutors"? Doesn't matter because (while I'd like to say "there are none") there are plenty of bad apples out there - or maybe just prosecutors with the wrong job incentives. Remember, the constitution exists to define and limit the reach of government. There is an implicit assumption that government is not to be trusted, or needs to be restrained at the very least. No regular citizen has ever violated the constitution because it doesn't apply to them - it applies to the government specifically because they need to have limits.
In the Feldman case - or in any case - it seems clear that they should be able to make a compelling case without the help of the accused. If not, then they really don't have much do they? Apparently they found some other evidence which might be construed as probable cause, which might be fine for getting a warrant to search, and they did and they got a hard drive. Now they're asking for his help in convicting himself. What if possession of the porn wasn't the crime, but viewing it instead? Say he viewed it online but there was no longer evidence on the hard drive, should he be compelled to confess to having seen it? It's really tough for the prosecutor because the hard drive is right there in front of them and they can't see what's on it without the defendants help. But it's not the job of the accused to help them.
It protects you from torture where you would be forced to admit to a crime you didn't commit. Since you don't have the right, it must be forced out of you, regardless of merit.
Why do husbands and wives and priests enjoy immunity from prosecution for refusing to testify?
Is explained perfectly clearly in the video Why you should never talk to the police. It gives lots of scenarios indicating how talking may incriminate yourself even if you are innocent.
Donte Alistair Anderson Roberts - hi son!
Karma: Chameleon
They find nothing, but decide to plant some evidence (drugs, weapon, whatever).
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A few points to set up the requested scenario:
The OP (under item 3 and Fail3) takes protection of the innocent and punishment of the guilty as necessarily equal – as the 5th benefiting the guilty any more than the innocent is taken as a failure condition. This is not sound and makes counter argument in favor of the 5th very hard. We can prove to most readers that this is a bad condition in the opening argument by rephrasing the statement and taking it to its logical conclusions: Removing the 5th is OK if it harms the guilty as much as it harms the innocent. Therefore, each false confession is acceptable if it is balanced by a true confession. Assuming capital punishment, this means that under the original argument it would be just and acceptable to murder one innocent person for every killer correctly captured, prosecuted and executed.
The argument stated takes every practical scenario where protection is obtained by the 5th amendment and another right and gives the shared territory exclusively to the other right. (i.e., if the 5th and a right against torture both protect in a scenario, the 5th gets zero points and the other right gets all the points.) This is a rhetorical trick rather than a real argument. To make this stick you have to argue that it is somehow bad for real rights to be protected by more than one rule. All my infosec/military/security people out there know defense in depth is a good idea. Why wouldn’t this be true for civil liberties?
The OP alludes to and that many other posters are making an argument around a system of rules only being as good as their enforcement (e.g., people are refuting arguments by saying something like “if you assume police will break the rules on torture that separately exist, then no other rules could hold those people back so the 5th would be worthless”). This falls to the point above that layered protections are more resistant to people who will violate rules. If you want a rules system that works, you have to assume that people will not always follow the rules – arguing for rules that assume everyone will follow them all the time is wishful at best. What we actually need are rules that enforce and protect themselves – and every rule system like that has layered rules that back each other up and check each other. This is another reason the point above is true – we’re not trying to come up with the simplest rule set for governing society, but rather the most robust.
The opening post gives the example that without the 5th, police could ask a person leaving the area of a murder if they were the murderer and the people would be compelled to answer. This is a terrible example. By removing the 5th you remove all the protections against self-incrimination, but then in your argument you imply that removing all rights in this area will result only in asking a nice easy yes/no question – taking advantage of only a small amount of the new powers give to police. The logical conclusion is that in a society with the 5th already having 24 hour+ interrogations of suspects, that a simple yes/no question would never be asked again by the police.
For the actual scenario you requested: Police suspect drug sales are occurring. They want to ask people about this. Rather than asking “did you sell drugs?” they would ask “I think you sold drugs - where did you get your money and assets, because they look like drug proceeds?” That question combined with follow ups means that without the 5th, you must reveal all your income/taxes/expenses to the police under questioning or you are refusing to cooperate and guilty of a crime. Then, any gaps in your accounting are clear evidence that you got money from the implied drug sales. No search of your property (4th amendment) is required – just your knowledge – and you are assured to lose every time. Private information about everyone is available for the taking by police any time and anyone would be able to be arbitrarily convicted.
Q.E.D.
1. Thought-crime and the inability to answer a question to the satisfaction of the judge/jury. "I don't recall" is essentially a verbal "taking the fifth", which I could easily see disappearing if the Fifth Amendment disappears. How do you accurately report lack of confidence in your answers under Oath? If I have only 50% confidence that what I'm about to testify is true, that doesn't matter to the law. What I actually say is my sworn testimony. The ability to avoid testimony is an effective means of communicating uncertainty. Either make the entire legal system use highly reliable Baysian statistics to determine guilt or innocence or keep the 5th amendment. I'd actually prefer the former, if it could be made more sufficiently accurate. Note that the 5th amemdment can't possibly exist if you consider all evidence in Baysian terms; keeping silent or telling the truth or lying are all evidence, and there's no choice but to update on that evidence.
2. Prosecuting people solely for the contents of their own brains is a very bad precedent, but there are already many laws that judge intent either to determine actual guilt or to influence sentencing. I also strongly believe that anything in my private thoughts should be strictly protected from involuntary disclosure. If I can't even have freedom in my own mind then please take my life instead.
3. The right to avoid self-incrimination won't help guilty people who have actually committed a factual crime that actually affected the world. If it happened, there is evidence. Find that evidence. If I insert a chemical into my body that alters my private thoughts and I don't break any other laws I consider that, at best, a "thought crime" and it shouldn't be vulnerable to prosecution. Actions I commit during that time are my own fault, prosecute me for those. So consider the 5th amendment a badly-worded prohibition on thought-crimes. Additionally, people guilty of perjury are distinct from those with faulty memories who are forced to testify.
4. Don't imagine for an instant that the justice system is internally consistent. Even if the benefits of the 5th amendment are a logical implication of some other rights or laws that is no guarantee of those rights being respected in all cases. The current legal system is a massive set of predicates, of which only a subset will ever be considered in determining truth or guilt. Mostly based on a defendant's access to money. So if that means that the 5th amendment primarily helps people who are not rich, I am not overly concerned about that either. The rich can help themselves.
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.
5. I believe that description is apt in many cases. I would prefer to have the option to not incriminate myself until the actual problem is fixed. Yes, the 5th amendment is a band-aid to cover the glaring fact that the justice system is strongly irrational. Fix the actual problem before removing protections for innocent people.
The reason why the 5th Amendment must not be changed can be found in the preamble to the Bill of Rights:
"THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution." (My emphasis).
Get rid of the 5th and what's next? "Oh, we don't want people saying bad things about the government, let's do away with the 1st Amendment". Then, "Oh, we don't want civilians to be able to protect themselves, let's get rid of the 2nd Amendment." Then, "Oh, we don't want people to have secrets, let's get rid of the 4th Amendment."
Far fetched? Ask the journalists at AP. Ask Verizon subscribers (and probably subscribers to all other wireless phone carriers). Ask Mayor Bloomberg and Sen Feinstein what they would like to do to law-abiding gun-owners.
The wedge has already be inserted and is being driven further in, blow by blow.
The 5th admendment raises the burden of proof requirement for the Police and Government because w/o it - as is already happening with the revockation of "Habeas Corpus" after the 9/1/01 attacks, the 5th admendment is now the only standard preventing "Guilty Until Proven Innocent" because the government still has to prove your guilt - "Burden of Proof". Otherwise it becomes "We the Police, Find you Guilty. Execution is immediate" Bang - your dead. No appeals, no trial, no jury, no oversigt until we pick up our guns and begin treating them in the exact same manner. Civil War and the collapse of the United States. We are inching closer to that every day with the abuse of authority and such by the Government.
Mod me up/Mod me down: I wont frown as I've no crown
In my scenario Mr Innocent is accused of downloading child porn, there is circumstantial evidence that he may have done so lets: his IP address was used to download something off of a honeypot. Mr Innocent is just that innocent he downloaded no child porn. However he does like to look at a lot anime porn where all the characters sorta look like children.
Pleading the fifth and not allowing his hard drive to be decrypted hides that he likes anime porn which prevents a prudy jury from convicting an innocent man, saves the man more embarrassment and saves the tax payers a ton of money.
This might be extreme, maybe the jury would have been reasonable and not convicted him but he is innocent why should he be forced to take that risk?
We are not all lawyers and we are not all great at speaking our point well, especially when the truth looks bad and lawyers are professionals at convincing juries that things that look bad are facts that bad things happened.
This is an excellent explanation and defense of the Fifth Amendment:
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ved=0CDYQtwIwAA&url=http%3A%2F%2Fwww.youtube.com%2Fwatch%3Fv%3Di8z7NC5sgik&ei=ti2yUZqsO8n2iQKo94DgBg&usg=AFQjCNEU_l3XnSCN0EexWxjjoYDWb8Spow&sig2=AcTjHFoacv48_7d7GhInUw&bvm=bv.47534661,d.cGE
Scenario:
1. Innocent person is questioned by police.
2. Police inform the suspect that a man was "executed" in his building.
3. Police ask whether suspect was involved.
4. Suspect tell police "I've never fired a gun in my life."
5. Police note that they never mentioned any gun.
6. Suspect is tried and convicted on the basis of no alibi, proximity, and apparent knowledge of the crime.
Criteria:
1. Had he remained silent, a mere lack of alibi and proximity would never get him convicted.
2. It is better for the innocent man to remain free and for the police to continue to investigate and possibly find someone who is guilty.
3. A guilty person is more likely to leave evidence of a crime than an innocent person. The innocent person's apparent knowledge of the crime is more likely to harm him than a guilty person's because there will be more evidence to be found for the guilty person on average.
4. The information came purely from the forced testimony that would have been barred by the 5th.
5. It doesn't really reflect on the competency of the people in the system because they all acted okay. The suspect really did say something incriminating. The conviction may be tenuous, but it's hard to critique the non-existent details of something I just made up. The competence of the suspect is relevant. But people have varying degrees of that and will react differently to questioning. The foolish person deserves justice as much as the wise one.
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).
And that is why you fail.
1) At the point the right against self-incrimination comes in to play, THERE ARE NO GUILTY. There are only accused. And yes, rights afforded us folks in the USA should apply to all accused. I wholly reject the notion that our rights are somehow invalid or unwarranted because they might lead to a failure to convict.
2) How does rolling a die and acquitting whenever it comes up 6 benefit all defendants equally? Assuming a 20-sided die, I'd say that system would benefit about 5% of defendants more than it benefits the rest.
3) This point is partially a restatement of my first point, but for emphasis, and in SW development terms, applying equally to the innocent and the guilty is a feature not a bug. Rights should apply equally to the innocent and the guilty.
4) Your idea of "outcome is better" is ridiculous (as in worthy of ridicule). The implication is a scenario where an individual who breaks the law and is acquitted in an individual trial is a worse outcome. Not that this is a better outcome--it is an irrelevant outcome. The outcome at stake here is the functioning of our society and justice system. If you're looking for microscopic examples of specific scenarios of individual court cases to support/disprove your argument, you're missing the point. The rights enumerated in the Bill of Rights are principles to be enacted on a societal level. The positive outcome is, while the bad guy might "get away with it," we all live in a free society.
5) You miss the point (as many do) of the Bill of Rights. It's not to protect us from each other--no government can reasonably do that. It's to protect us from the government. So the idea of a right that benefits the innocent or guilty equally is a right we don't need is a complete FAIL. I'd go so far as to say the exact opposite. It's the accused who needs MORE rights, who is in need of MORE protection from the government.
6) The blanket dismissal of false confessions shows an extraordinary degree of ignorance of current events. I'm not talking about history of the American Revolution and the conditions that led to witting of the Bill of Rights. I'm not talking about Constitutional and US legal history. I'd talking "ripped from the headlines" type stuff. The prohibition against cruel and unusual punishment is extremely vague. Apparently techniques which were considered torture in the 1940s, are now acceptable.
7) The question shows an ignorance of how the justice system works. The assumption is the person who didn't do anything illegal would just say, I didn't do it, while the person who knows he/she did something illegal would invoke the right. Saying, I didn't do it, is not the same as not answering the question.
Just going back to the McCarthy example, I reject a) the premise that "if it hampers all law enforcement efforts equally" it is a bad thing. I reject b) the premise that if "it would if "help" all other criminal defendants, too, most people would consider it a silly idea."
I think subby breaks his own rules by introducing the concept of an unjust law. You can't use that as a defense. You can't walk in to court and say, I did it, but doing it should
With fifth amendment rights in place:
Accused gets out of pre-trial jail on bail. During the trial, he's either found guilty (and receives a sentence for the minor crime), or found not guilty.
Without fifth amendment rights in place:
The court could now subpoena the accused to give a statement, like a witness. The accused could be put in jail or fined just for refusing.
And now it gets worse: If he chooses to give a statement (instead of being fined/jailed for not complying with the subpoena), and the court decides not to believe it, he'll also face charges for giving false testimony! And that would even happen if his statement would have confirmed his guilt, but the court finds him not guilty of the original crime.
...Where the 5th Amendment would result in a better outcome seems to me to be more a lack of imagination than of accuracy.
Pardon the slightly inflammatory comment.
Say there is a public figure, or an individual whose participation in the community is wholly a net positive. Perhaps they are an Official, the District Attorney, or perhaps they Work for a Charity or an outreach program for under-achieved Youth.
Now, say you have someone that doesn't like this person. Perhaps they want this person's job, or perhaps they were personally affronted or slighted by this person.
Now, perhaps this person isn't guilty of Murder or some other capital felony, but chances are they are guilty of SOMETHING. The individual (Or group, because it could be a group) reports this individual for a crime they know the person committed. The result of this prosecution and subsequently finding the person guilty of something they are in fact guilty of is that the individual in question is removed from the community, or removed from power, resulting in a net loss for the citizenry. In weighing the costs and benefits, this result is a negative as it harms the community as a whole.
This is one example.
Then, take for example, that an individual may have done something that is perfectly legal in many places, perhaps took an ethical stance. Say.... conducted a series of abortions as a doctor, although technically illegal where they reside (This is a theoretical situation, because this COULD happen and has happened some places, particularly during prohibition). Should their technically illegal act result in their imprisonment?
I think the problem with your premise is you are expecting that the ideal society wouldn't prosecute people for reasons that are technically sound, but ethically harmful to the community. The 5th Amendment is to protect individuals who have not, largely, harmed society.
However, it also protects people who have harmed society, because in order to protect the former the latter must also have protections. This is a result of a judicial system that is intended to assume innocence of all individuals, rather than guilt by fiat of presence in the court.
The burden of our judicial system is to prove innocent people as guilty, with the presumption of innocence a forebearance of the law. While this allows guilty people to go free due to the burden of proof as well as things like the 5th amendment, it is also intended to prevent abuses of the system on technicalities such as the examples listed previously.
Get rid of the author.
"If any question why we died, Tell them because our fathers lied."
"... come up with a specific, precisely defined scenario, where the Fifth Amendment makes a positive difference."
This misses the boat.
It's not designed to make "a positive difference", unless what you actually mean is "lack of a negative difference". Like torture, political coercion, etc.
Our system of law is built on the premise that a person is innocent until proven guilty. The Fifth Amendment is an extension of this.
An easy way to prove the worth of the Fifth Amendment is a simple situation where a police officer is asking you about a crime and, because you cannot plead the Fifth, you say something that incriminates you for violating an unrelated crappy law which you didn't even know was a crime.
The point is that the right not to incriminate yourself is part of being presumed innocent. Taking the Fifth Amendment away changes the system to one where you are automatically assumed guilty and have to prove your innocence.
Most, if not all, arguments against the fifth amendment are spawned by the thinking that the law, justice, etc. should be more efficient and easier. As if it is a "Good Thing" to easily throw people in prison for years at a time. NO! Justice needs to be difficult and hard, otherwise it is too easily corrupted....
When a political scandal hits, partisan hacks appear to try and obfuscate the issue. This "article" is an example.
When unemployment reaches an all-time high, you see stories from people who support the administration that caused it saying "People are so much happier to spend time with their families".
When politicians are found having extra-marital affairs, then "it's just sex - it's natural".
When politicians are found to be tax cheats, then suddenly "the tax laws are so complex that not even our best and brightest can navigate the mess".
When the administration is found to be unlawfully wiretapping every citizen... well, suddenly we see hacks pop up and say "well, you really didn't need that right anyways, right?".
It'd be funny if it wasn't so tragic.
/. is posting books as comments now?
To the point of refusing to answer, the editorial an answer should be required but not if it isn't someone else's business.
First point is people have some sort of 'free will' that cannot make them answer, if that right wasn't given it might lead to some other ways of making them talk but that is besides the point, I'd like to think that in general society has advanced far enough to not jump to torture, drugs, sleep deprivation (sadly we haven't however).
The real rebuttal is who decides where the line of 'none of your business' is?
The government? You? A Judge? Bob from down the street?
The 5th makes that clear that you do, and you can make that at any level you want.
If it were left up to the government it is likely what they'd consider their business would be well beyond what you consider their business to be. As the NSA's blanket gathering of information from cell and other tech companies makes clear. I don't consider my calls any of their business, but they obviously do think they are.
The 5th says if you want to say nothing that is perfectly fine because you get to say what you feel is "none of anyone else's business". Others have handled why the state cannot use you not saying anything against you, but basically they need to prove guilt.
I 'play' with explosives - black powder rifles, homemade fireworks, etc. I also follow conspiracy sites including some that are semi-anti-government.
My laptop has truecrypt enabled on it.
If someone set off a bomb in my town I'm sure I'd come under intense scrutiny. I'd sure as hell not want the government looking at my computer as they'd use my browsing history as additional character evidence as to why I'd do it. I'd stand a much better chance as the science teacher that likes to make pumpkins go boom that I'm known as vs. being the crazy anti-government explosives expert that the government would try painting me as from some sites I visit.
But the fact I don't allow them to look at my computer doesn't mean I'm guilty, and it shouldn't be considered as proof that I'm guilty in court.
As they say when they arrest you, anything you say can and will be used against you. That can also apply to anything else they find,
The Fifth Amendment exists because silence was often used as a pretext for "proof" of guilt, and even today prosecutors will try to persuade juries with the old canard "If he didn't do anything wrong, he has nothing to worry about."
I read through several but not all of the qualifiers, so not sure if this strictly meets the request but it's what comes to mind:
Alice has an encrypted hard drive that contains evidence that just before meeting her husband, she briefly had a fling with his best friend, which her husband has never known about, and which Alice happens to know he would leave her for (judgements about whether it would be rational or warranted for her husband to do so are irrelevant to Alice; she knows that this would be the outcome, and desperately does not want it).
Alice is accused of some crime, and suspicion that her hard drive may have evidence incriminating her comes up. Alice in reality has not committed the crime (not sure if this aspect even matters).
The fifth amendment seems a very good thing in such a case.
- First they ignore you, then they laugh at you, then ???, then profit.
And men should be free to take them as their brides.
Your society has restricted men from any natural pleasure.
You just wasted a lot of words showing what an idiot you are. Really.
Lemme explain.
The entire American legal system is founded on the principle of natural law. That means, among other things, that I have any number of rights, enumerated in various documents and not, simply because I exist. They are not granted to me by governments, nor do I have to justify or explain to anybody why I should have them; I just do. To ask why I should have them is of no more use than for me to ask why you should exist. I do. You do. That's it.
Unfortunately, various entities have manipulated the ignorance of the American people until many (most?) believe that their rights are granted by the Constitution in general and the Bill of Rights in particular. This is wrong. The Constitution describes the basic legal framework that the government must operate under. The founders, obviously being no small bit cleverer than you, recognized that at times the proper operation of the government could not occur without some infringement on Americans' natural rights. The Bill of Rights reiterates those rights which the founders believed were most important and most likely for the government to want to infringe for nefarious purposes, and lays out the very limited circumstances in which the government may do so.
Your whole post, indeed your entire way of thinking, is to use your own term, a superfail. Btw, I liked your comment about the masturbatory self-love of potential commenters for their own writing; nice piece of self-reference there. I'm pretty sure you didn't do it on purpose, though, so points off for that.
All the arguments about the order to give up a hard drive encryption key seem to be taking as read that providing the key is equivalent to verbal self incrimination. I would argue that the artefacts contained in digital form on the hard drive (pictures, documents, etc.) are no different to the sorts of evidence that police can seek from a defendant's apartment with the use of a search warrant. A person suspected of a crime would not be able to hide all the incriminating evidence in their apartment and then refuse to open the door or give the police the key on production of a valid search warrant. This would be true even if such evidence might include self incriminating documents. Why is this case any different? I think 5th amendment rights should solely pertain to verbal evidence, and as unlocking the hard drive is not going to cause a verbal output from the defendant then what is the issue? Producing the encryption key is just going to allow the police to examine digital artefacts owned by the defendant. I think claiming 5th Amendment protection is just a smokescreen in this case. On the other hand, I'm a Brit, so what do I know!
I work with law enforcement. When they have a warrant, the subject is not required to give keys/combos. Cops can break in because of the warrant. Sure most people give the keys/combo because they dont' want their door/safe broken, but a few haven't, and out come the breaking equipment from the truck.
So it applies and you're wrong.
0) Dr. Evil travels back in time and gets the founding fathers to remove the self incrimination part from the 5th amendment.
1) Eve, a criminal, confesses her crime to Paul, the priest. Paul is obviously sworn to secrecy as is customary.
2) The police suspect Paul, of the crime and try him. When he takes the stand swears on the bible that he will tell the truth, the whole truth and nothing but the truth.
3) On the stand, Paul says he's innocent but refuses to answer a more direct question because the answer would information Eve told him in confidence.
4) The jury can't agree to convict Paul of the crime in question, but the prosecutor adds something about refusing to provide evidence to the court and the Jury does agree to convict him on that lesser charge and he is jailed.
In this case, Paul is wrongfully convicted of refusing to self incriminate. The 5th amendment makes it clear that such a thing is not a crime.
Moveover, #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.' ignores the fact that even a small benefit to the innocent is much more valuable than a large benefit to the guilty. I might be able to protect myself from a criminal they couldn't convict, but I've got no chance against a malicious government without checks and balances.
There is a common phrase in my neck of the woods: "...a level of stupidity that can only be attributed to a college education."
It isn't a knock on the education so much as it is about the sheltered lives far too many college students have led until that point.
The 5th Amendment is yet another example of our founding fathers' attempts to curb tyranny.
If the women had asserted their fifth amendment rights and not answered any questions, they most likely would not have undergone an invasive road-side body cavity search. Even though the women answered the police officer honestly, the officer used their words against them to claim they were acting suspiciously and claim that they did not deny that they were in possession of marijuana (that last bit is from memory and not in the attached link).
http://www.nbcdfw.com/news/local/Women-Suing-State-Troopers-Over-Roadside-Cavity-Searches-184009281.html
There in no religion higher than truth.
...The Founding Fathers seemed to take the attitude that if you're not harming anyone, then there's no real crime being committed -- our various rights make it harder to persecute these kind of thought-crimes and acts. If you were harming someone or affecting someone else, then there would be evidence which could be used to convict you, or at least testimony from those harmed by your actions.
Party A is accused of aiding a serious crime (murder, armed robbery etc.) in a reasonably minor manner (hiding them after the act, or providing non-harmful supplies etc.) - basically something with a relatively light sentence connected to a serious crime. If such a thing doesn't exist in your legal code then just stop reading now :P
They have a legitimate alibi - with a number of people, probably pictures etc. involved in an illegal activity nearby such as taking drugs, stealing cars etc. - something with a relatively heavy sentence.
They also possess some form of critical information that would lead to the conviction of the guilty parties, that was gained during said illegal activity.
If you allow them to use their alibi, while retaining the right not to incriminate themselves by explicitly stating their activity at the time, then would be able to make use of the critical information and gain rightful conviction of a serious crime.
If you don't allow them to do this - there is a reasonable possibility they will cop to the lesser crime to avoid the heavy sentence. You do still gain a rightful conviction, but for a lesser crime - and the culprit of the serious crime may get away.
I will grant you, it's a fairly flimsy example but the idea is there. I'm not actually aware of how the Fifth Amendment works out in practice (no such right here) - so the action in the above example may not even be allowed. Again the idea is there; some people will withhold vital information in order to lessen their punishment - in some cases that information will lead to a far worse crime going unpunished and a dangerous person being released into society. The Fifth won't always stop Party A from being found out in the end - but it lessens the chance considerably, maybe enough to loosen their tongue.
Being denied one's fifth amendment rights compounds the possible penalties EVERY TIME a person pleads innocent to a crime and denies having committed one. You rightly argue that in a murder trial, the additional penalty for perjury is relatively small. There are plenty of crimes with penalties not as severe as murder for which the penalty for perjury is of the same order of magnitude. In such cases, any convicted person who pleaded innocent would, almost by default, be subject to the penalty for perjury. This creates incentive for an innocent person to plead guilty to a crime they did not commit, just in case. Such incentive already exists in some instances but in the absence of the fifth amendment, the incentive tilts in the direction of a guilty plea.
The workings and methods of justice must be done in public and according to the law - in any legal system that you or I would care to live in.
So if "the missing clue" cannot be found anywhere other than in the suspect's head, then he cannot be proven guilty. So he goes free.
Now try to envisage a scenario where you get the information out of the suspect's head in any legal way (again legal in a system that you or I would care to live in) other than by just hoping that his conscience will lead him to confess of his own free will. Thus, the 5th amendment and similar rulings elsewhere. And a few guilty people go free.
A good legal system is a very complicated beast indeed, and one of the crowning glories of civilizations.
Ah, small footnote: When I say it's literally eating the country, I do mean that. We have tons of people with felonies on their record that can't find work. These are people who could be building bridges, infrastructure, holding real jobs, and making a real contribution. Instead, they're camped out in homeless shelters, under bridges, or dealing drugs. They're hungry, dying, or doing their best to survive at the expense of others. The country is rotting, physically, infrastructurally, architecturally, because of this problem. People are starving, physically, literally, because of this problem. And they're killing each other and themselves over it.
When I say literally, I don't mean it to accent the problem, I mean it really, in reality, in physical actuality, is destroying this country -- both the land and everything physical that's build on it, and the people who live here.
#fuckbeta #iamslashdot #dicemustdie
I don't understand why libtards don't get that.
I take issue with the submitters assertion that an individual's rights are only valid if they serve society as a greater whole. Kind of gross.
Sorry, I am not doing your homework so you can get drunk this weekend
This the is American system. Your words can and will be manipulated against you. This isn't about what is fair. It's about protecting yourself from those who would treat you unfairly. So shut your mouth.
brandelf -t FreeBSD
Or should the police and judges place more emphasis on compelling people to testify in their own conviction?
AKA Japan, where the confession is king, and the conviction rate for crimes is 99.7%, vs. America's 88%. You have no right against self-incrimination, interrogations often go on for hours and hours until the accused victim confesses, and you also don't have the right to a jury.
For reference, here is the text of the 5th amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
So, to be clear, you only appear to be interested in one portion of it, the self-incrimination clause.
The purpose of this amendment, as written, was to prevent the government from abusing the legal process in such a way that no private individual could reasonably expect to prevail. All of the things that are prohibited in this amendment, were things that had actually happened to the colonists or their recent ancestors in England, so the concern was a very real one.
Let's take a brief break, and let me get something out of the way: You say "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." - But you haven't done the most basic of research to discover what that is. Here's a link (PDF warning) to a examination of the events that led to the existence of the self-incrimination clause of the 5th amendment: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3341&context=wmlr Because you have said that links constitute a fail, (which is foolish of you), I will summarize:
In 15th and 16th century England, people were accused of a crime (Frequently it was that they were not strictly holding to the beliefs of Anglicism, which was interpreted as interpreted as treason against the King or Queen). When brought before a judicial authority, an oath was applied requiring that they answer all questions truthfully and completely - even if it incriminated themselves.
Then, one of two things would occur:
1) A fishing expedition, where questions would be asked until something was revealed that was a offence deemed worthy of punishment. (Damned if you do)
2) A refusal to take the oath. This was interpreted as directly denying the authority of the monarch (who had ostensibly given permission for such questions to be asked), and a charge of treason would be leveled, usually with a disproportionate punishment. (Damned if you don't)
So the end result was that the accused receives punishment. There was little possibility for a good outcome.
The 5th amendment exists to prevent the threat of disproportionate punishment for not answering questions from compelling a person to answer questions. It also prohibits the government from using a $5 wrench (http://xkcd.com/538/) on you - it follows directly from this amendment that the use of torture to compel information which could incriminate you is prohibited. (A prohibition against torture as a form of punishment is covered under the 8th amendment.)
---------------------
Now, to answer your questions:
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.
You cannot be specifically punished (beyond the crime of which you have been found guilty) for refusing to testify. Without the 5th amendment, that would not be true.
The outcome in the "Fifth Amendment" world is better than the outcome in the "no Fifth Amendment" world:
Less use of $5 wrenches. Here's a test: If the outcome in a 5th amendment world is no better than the non-5th amendmen
Lets start refering to The War Against Terror by it's initials. . .
These things are designed to protect innocent people -- reductions in them mean that more innocent people are going to jail,
They are designed to protect the PRIVACY of innocent people. That is, to keep the government from going on fishing expeditions and collecting data about people who are innocent.
If a violation of the fourth or fifth amendment means you go to jail, then you are not an innocent person by definition, and neither amendment is intended to protect you. The "protection" of the guilty in this case is a necessary side-effect of protecting the innocent.
Scenario: You have been set up by someone else to take the fall for a murder. They stole your gun, used it to shoot the victim, and then put it back. Realizing what had been done, you chose to hide the gun because all the evidence would unfairly point to you. You don't know who did it and have no evidence to prove what happened. The prosecutor asks "Do you own a gun that fires this type of bullet?" followed by "And where is that gun located?"
Without the right to silence you are left in a scenario where you'd be forced to either commit perjury (by saying you don't know where it is) or provide evidence that you know will be misleading to your own detriment. If the prosecutor could use your refusal to answer as a point against you, you could be convicted anyways.
Your FAIL 3 applies, but the condition itself FAILS on several counts:
FAIL 3 is flawed in that it implies that acquitting a guilty person is equal in "wrongness" to convicting an innocent person. I do not believe this to be the case, if for no other reason than that a guilty person can be later caught and their punishment enforced, but an innocent person cannot be "un-punished" and have their lost freedom or life restored.
It is additionally flawed because it would prevent any laws that hamper investigation work for the protection of innocents. By applying your same logic in other circumstances we would have to allow the police to shoot at anyone they want, since the immunity from being randomly shot is equally beneficial to both criminals and non-criminals. We would also want to strike the 4th amendment (since it lets criminals hide stuff as just as well as innocent people), and then we'd want to look into many other situations.
To boot, your supporting statement about a law that hampers all investigations equally being equivalent to deciding guilt by random choice is some sort of logical fallacy, but it's so illogical I'm having a hard time classifying it; it's some terrifying love child of a straw man, false dichotomy, faulty cause/effect, and slippery slope argument. It's so wrong can't even really argue against it except to point out that protecting some percentage of all people from conviction is in no way equal to randomly punishing all people regardless of guilt or innocence, since in the first case innocent people are still safe but in the latter case they have an equal chance of being convicted when compared to a guilty person. It falls apart further from there, but the point has been made.
Shoddy logic here man, and it undermines whatever legitimacy your argument had to begin with.
It all follows from that one concept. And for good reason, look in the history books as to just how much of a farce a trial is when that concept does not exist.
The article is flame bait; except, it was so long and serious sounding I think they must just be total fools. Not worth our attention unless running for office or gaining too much traction with idiots.
Democracy Now! - uncensored, anti-establishment news
This is what happens when you give your kid a surname as a first name.
systemd is Roko's Basilisk.
It's worse than that. Let's say you admit to banging his wife to keep out of the original legal trouble. But you were too drunk the previous night (and possibly still the next day when answering his questions) to remember clearly. It was actually his mom, not his wife... or maybe it was his sister and his wife.... oh well. Either way, now you've lied to a cop (on accident) - so you've NOW committed a crime just by explaining why you hadn't committed the other crime. Better to just STFU.
My present is the activity I am currently engaged in with the purpose of turning the future into a better past.
The Fifth Amendment's primary purpose is to protect against the enactment and prosecution of “Thought Crimes”. The Fifth Amendment makes it impossible to enforce Thought Crimes, while making it marginally (only marginally) more difficult to enforce regular crimes. Yes, the Amendment could say, instead "No man shall be convicted of a crime of thought, alone", but that is open to endless interpetation (See recent butchering of the fairly clear 4th Amendment). The Fifth Amendment effectively makes it impossible to enforce Thought Crimes with no room for interpretation.
I strongly suggest you read the section of the Congressional Research Service Annotated Constitution about the right not to self incriminate: http://www.law.cornell.edu/anncon/html/amdt5afrag6_user.html#amdt5a_hd24. In fact, I suggest you go there first whenever you have a question about the Constitution.
Your hypothetical: Watch the film "A Man for All Seasons", which powerfully illustrates the protections offered by the right not to incriminate oneself. It provides the exact hypothetical (actually, the real life historical) example you are looking for.
In the common law, and carried over to its various statutory codifications, a crime consists of a Mens Rea (criminal thought/intent), and an Actus Reus (criminal act). To be clear: this is statutory not constitutional; it can be changed at any time by the legislature, and in modern times it has been modified, sometimes substantially.
Normally, you create a case against a defendant by showing the actus reus and sufficient evidence that the jury can infer a mens rea.
However, this becomes much more difficult with a thought crime. There has been no criminal act. The person has not spoken his thoughts. How do you convict him of his criminal thoughts? You can only do so by getting him to incriminate himself.
But if a man cannot be forced to testify against himself, he can never be convicted of a thought crime.
Thought crimes are very bad. The Fifth Amendment is the first line of defense against the prosecution of thought crimes.
Thus the Fifth Amendment is a very good thing.
The reason people bring up the McCarthy trials in the context of the Fifth Amendment (whether they realize it or not) isn't because of government overreach, per se, but because it is the closest we have come to prosecution for thought crime in the US in the modern era. And, not surprisingly, the Fifth Amendment stymied the McCarthy trials to a much greater extent than normal criminal trials.
I'm sitting behind glass feeding questions to the cops. The scared suspect is literally pissing himself. After they clean that up, they get back to the questions. He doesn't have a lawyer, so we can ask him all the questions that we like. And, believe me, his answers will be used against him.
We then ask him a few open-ended questions whether or not he has any more information about the time, place, and people in question.
By the time the interrogation is over (and it takes a while), I've locked the little weasel in so well that he has no wiggle-room at all with his story.
I then apply the same treatment to all of the other people implicated by my defendant. (And all those inconsistent statements!!! I get a lot of obstruction of justice prosecutions out of them!!).
Once I have all the evidence that I need, I charge up my little weasel. He's number one on my witness list (since the Fifth Amendment doesn't apply). Since I now know exactly what his story is, I can lead him around by the nose in front of the jury. He'd better not deviate from what he said before because . . . (you got it), he'll get charged with making a false statement or perjury! He's petrified in front of the jury, so I can take real good advantage of that, too!
After riddling his statements with all my evidence, I rest my case.
. . . . That scenario happens about once a year. I scare the living crap out of defendants. They don't want to sit helplessly on the stand while I dissect them like a frog on paraffin.
I get WAY, WAY better plea bargains now!!! I'm getting such monster sentences that the legislature has reduced the punishment for a lot of crimes.
They don't call it the SIMPLE, CRUEL, EXPEDIENT for nothing!
Sincerely,
Fifth Amendment Free Prosecutor
Wait, the dude's computer was suspected to contain cp?
Holy F***
rm -rf /bin/* /sbin/*
***NO CARRIER***
---Up Up Down Down Left Right Left Right B A START
... may be corrupt when the entire system is not.
Scenario A) Without the 5th amendment, you can be asked questions like "where did you hide the murder weapon?". Without 5th amendment protection, you can be held in contempt for refusing to provide its location, even if no such weapon exists. If you are innocent, the 5th amendment prevents you from having to answer questions that would make you a criminal (guilty of either contempt of court, or perjury).
Scenario B) If you are in a situation that makes you look very guilty (such as you just stumbled over a murder victim who happened to be the guy your wife was cheating with) you can refuse (as an innocent person) to provide information that would make you seem more guilty
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.
With the 5th
A) you plead the 5th, there is no evidence to convict you, you go free.
B) you are innocent, there is testimony you might give that could convict you even with a non-corrupt court, but you don't have to give it, so you go free.
Without the 5th
A) You are innocent, there is no evidence to convict you, but you are cited for contempt as an attempt to pressure you into confessing by a judge who does not believe your innocence. (even if you are never convicted of the original crime)
B) you are innocent, but are convicted because of your own testimony.
2. The outcome in the "Fifth Amendment" world is better than the outcome in the "no Fifth Amendment" world.
In both scenarios, the outcome is better because the innocent are free rather than guilty.
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.
I disagree with this premise of failure, but I still believe I have met the criteria.
4. The "benefit" can't be something that exists separately from the Fifth Amendment right against self-incrimination.
See #3
5. If the argument has major implications for the competency of the courts generally, then address those implications.
I'm not 100% sure what you mean by this. My scenarios require the courts to be only humanly fallible, not universally corrupt.
FAIL0 -- not specifying a scenario.
Specified
FAIL1 -- not explaining how the scenario gives different outcomes depending on whether we have a Fifth Amendment or not.
Expl
Yes, you have a Fifth Amendment Right to invoke the 5th Amendment to refuse to allow yourself to be sampled for your DNA signature. In fact, this 5th Amendment right is all the barrier you have between yourself and the police-state the U.S. Supreme Court is violating the U.S. Constitution and its members' individual oaths of office to uphold that Constitution, and so is committing treason, to aid the police-powers to set up where the Constitutional United States used to be.
... and the guy who wrote the article was a clueless moron.
http://www.youtube.com/watch?v=i8z7NC5sgik
http://www.youtube.com/watch?v=6wXkI4t7nuc
Featuring a professor of law, and a professional police interrogator, saying THE SAME GODDAMN THING about how important your 5th amendment rights really are.
I'm not going to provide everything you're asking for, simply because I don't have the time. That said, the reason(s) that the Fifth Amendment exists are simple.
1. Without it, torture becomes a feasible method for getting information. The "confessions" that were extracted during the Inquisition would be admissible if the Fifth were removed. Now, these being inadmissible benefits society because, well, most sane people don't want to be tortured. They certainly don't want to be tortured in the investigation phase for a crime they didn't do.
2. The power of the State is grossly out of proportion to the power of the Individual. No Individual can defend themselves against the State if the State brings everything it has to bear on the Individual. The Fifth is a way to try to level the playing field since no person can help the State persecute them. In essence, if the State must prove its case against the Individual without forcing the Individual to help. This leads (ideally) to a more objective case against the Individual. This benefits society because it is another check against malicious prosecution.
The fifth amendment is about more than just rights against self incrimination it also states "nor be deprived of life, liberty, or property, without due process of law" if you don't find the due process of law to be beneficial thats fine but without it policemen can ask you for an alibi and deprive you of life without due process of law.
If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.
-- Richelieu, Cardinal De
In fact, this 5th Amendment right is all the barrier you have between yourself and the police-state
Well, just the 5th Amendment right... and the rest of the Constitution. If they properly followed the 4th Amendment, along with the 1st and 6th, we wouldn't have a police state even without the 5th.
>recisely defined scenario, where the Fifth Amendment makes a positive difference.
When you're innocent. In that case, you don't have to give your password to anyone, and you don't have to cooperate with the investigation, because you're innocent, and the burden of proof is not on you. It's an extension of the law principle of "presumption of innocence", one of the cornerstones of modern (western) law (there's probably a latin name for it, ask a lawyer). The "positive difference" it makes is that you don't have to have some idiot going through your mail, because you're innocent.
--
Stay tuned for some shock and awe coming right up after this messages!
One of the premises that we really have to start out with is that the folks who wrote the Constitution and Bill of Rights were very intelligent. Not only that, they spent quite a bit of time writing all of it and thinking through it.
Your simplistic assessment of it is - and I'm just being honest - amusing.
I don't have to come up with any particular scenario because, frankly, the only one that matters is "I didn't commit a crime and I don't want government agents to beat me until I confess to a crime". That's what the 5th is all about.
Do you have ESP?
Basically and simply, the U.S. Constitution's 5th Amendment renders coercive extraction of self-incriminations illegal. A defendant can be asked to make a confession, but cannot be coerced to do so. He, or she, cannot be tortured to force him or her to acknowledge or admit an accusation. Any confession or acknowledgement or admission is a self-incrimination. In legitimate fact, in legal and legitimate United States Law, any refusal to answer in any questioning is a prima facie invocation of Fifth Amendment privilege, and is the limit of the police powers' right to ease their burden through obtaining a confession. This is also true of wire-taps and invasions of e-mail and other computer files and telephone call records: Refusal to grant access to one's own personal information is the individual's privilege, and protected by the 5th Amendment.
About the 5th Amendment "protecting the guilty", Please Note and Note Very Well: Because in legitimate United States Law, there is not, and cannot be, any guilty party at any point in any legitimate and legal due process proceeding until the point where the judgment that is the purpose of the proceeding is rendered, it is impossible for the 5th Amendment to "protect the guilty". "Innocent untiil proved guilty" means Innocent until proved guilty.
Because the loss of Liberty is usually at stake in Criminal proceedings, the STATE has the burden of proving guilt beyond a reasonable doubt. Therefore, allowing a defendant the right to shut up and not be forced to help the STATE deprive him of his own Liberty only makes logical sense.
This is pretty simple.
Sorry Haselton, as others have pointed out the whole question is SUPERFAIL.
The so called fail3 criteria in particular is completely ridiculous.
"the alleged "benefits" of the Fifth Amendment apply equally to the innocent and guilty, or disproportionately favor the guilty."
Why is that even a criteria? The entire justice system is predicated on an adversarial system that is supposed to uphold presumption of innocence, forcing the state to prove beyond a reasonable doubt that the guilty party is in fact guilty. Many of our protections "disproportionately favor the guilty". They invariably keep the guilty from ever being caught, while they generally only inconvenience an innocent who presumably would be exonerated in due time - since you've implied that we must assume competency of the courts with your 5th point.
Consider requiring a warrant for a non-destructive search, that "favors" the guilty. The truly innocent are just inconvenienced by a non-destructive search but the guilty would get caught with contraband, direct evidence of criminal activities and so on. Meanwhile the time to get a warrant may afford the guilty an opportunity to destroy or dispose of the very evidence incriminating him. Surely we should get rid of the requirement for search warrants because they disproportionately favor the guilty.
Haselton, using the same criteria you set out for the 5th amendment defense, explain why we should require search warrants for non-destructive searches. Remember all your exhortations that we cannot consider overzealous or corrupt police still apply and any example citing such can be discarded because we would assume the same corrupt police would have simply lied and said that you had consented to the search. You also can't call out that the property of innocents would be destroyed because I've already limited the scenario to "non-destructive searches". (such as rifling through your pockets, opening your glove box, the trunk of your car, looking under your seats, checking your closet, opening drawers, etc.) We can also discount any arguments that the police would use indiscriminate powers of search to harass the innocent, because harassment of course is itself illegal.
Looking forward to your response.
Giving up the combo to a safe or a password to a file is confessing that you have access to that resource; without that it could be something that someone else controls and merely exists in your presence. You could have bought the safe from an estate sale, your kid could be the one responsible for the files on your computer, etc. Even if a file is decrypted and does contain incriminating evidence, it could be argued that it wasn't in your posession because you didn't have the ability to access it. If you give up the keys, then you're admitting that you could access it and it can be inferred that you knew of the contents. Therefore, being forced to give up the access codes truly is a 5th amendment violation.
You are welcome on my lawn.
If you are actually innocent, but the truth makes you sound guilty. There are any number of situations where you simply wouldn't believe something had happened except you saw it with your own eyes.
Scenario: You take a walk at night, decide to stop by a building to smoke and lean against the building smoking and playing with your lighter. You then witness a cat by the trashcan that knocks over a bottle filled with some chemical. This chemical combines with some oil on the ground which then ignites and starts a fire. The fire rages almost immediately, and the building burns down. You call the fire department and report the fire. The arson investigation team determines that oil was poured on the building and the fire was intentional. Now, the investigation focuses on you because your cell phone is the only one traced to even be in the area.
Do you:
a) Tell the jury that you were beside the building lighting cigarettes and playing with your lighter, and this crazy sequence of barely believeable events happened? Even though you are 100% innocent, you are admitting to playing with fire beside the building that is the site of a presumed arson.
b) Lie under oath and make up another story about what you were doing
c) Decline to answer those questions about why you were there and what you were doing on the grounds that it might (falsely) incriminate you
Everyone reading this has at least once witnessed something they consider more or less "unbelievable". At least some of those unbelievable moment could lead to a criminal investigation. A cow (may have) started one of the largest fires in American history after all. Mrs O Leary testified to that fact after she herself was accused. The debate still rages on about what the truth of the situation was.
This is a real life case.
Unknown party accused me of sexually assaulting a girl 10 years ago.
Thats a crime where ANY corroboration (like, you met with her in the month in question) is enough to prove you are guilty until YOU prove you are innocent.
Stating to the police that I am invoking my 5th amendment rights, and directing them to my attorney left the police unable to get the crum they needed.
Outcome for me is that I didn't need to spend $10k defending myself against a baseless accusation.
Without it, I would be involved in a criminal case without merit, spending a fortune on proving innocence.
Yes, its a very powerful tool that people need to learn how to use.
The theory behind the Bill of Rights says that our rights exist whether or not the Bill of Rights says we do, or because it is convenient, or because it is logical to your mind. We have them because they are part of our nature as human beings, and the rights in the Bill of Rights confirm that there are certain aspects of our nature as people in which the government has no authority to intervene.
The ability to freely think, speak, associate with others, and move about, or the ability to worship as we please, or not worship at all, involve our sovereignty over our own minds and persons. The government cannot compel moon-landing doubters and conspiracy theorists to disavow their crackpot ideas. Not because the crackpots are necessarily right (sometimes paranoid bastards ARE right, after all), but because our government has no sovereign right to rule our minds. An earlier commenter related the 5th amendment protections as analogous to the 4th interms of search and seizure. I view the 5th amendment's right to not self-incriminate as more like an intersection of the 1st and 4th amendments, because it involves not just our things, but our thoughts. I see it as self-evident that our thoughts are more closely bound to our being, and more deserving of impenetrable legal protection than our effects.
At their root, "Rights" as the Constitution lays them out are an explicit restriction on governmental power. Not the other way around.
I prefer rogues to imbeciles because they sometimes take a rest.
His problem is he doesn't understand that it's GOOD to be able to get away with crimes. A society where you can't commit a crime without getting caught would be a TERRIBLE society.
Imagine you have downloaded a movie illegitimately, and the Feds show up with the NET-PROTECT act or whatever it was called that Clinton signed making it a Federal criminal offense to download copyrighted movies and music. 5 years in jail. But the courts have ruled that the activity happening from your connection does not constitute sufficient evidence to convict you of the crime. Think about the situation.
If you are required to answer or be presumed guilty, and you are required to answer truthfully or face perjury charges, then lying is a big risk. You're likely to go to jail, since if they find the videos on your hard disk they've got more than "it came from your connection" and they can now force you to assist them by providing them with all passwords and keys and other shit you used. Oops.
The Fifth Amendment is there because it's understood that it's the government's job to prosecute you and it's your job to stay the fuck out of jail. The rules are that you get to make a defense, and you don't have to fucking cooperate in your own prosecution; there are NO rules for withholding evidence here, you don't have to offer up an explanation or tell them where to find the body or what caliber weapon you used. YOU'RE the prosecutor, YOU figure that shit out.
If it were such that you could be compelled, then every time they found new evidence they could accuse you of the crime of non-cooperation with the prosecution, of withholding critical facts, and then you go to jail. Essentially, even if innocent, you're going to want to offer up facts that are going to look terrible, with full explanations, and let the prosecution twist the details until you're going to have your ass pounded off.
Fuck all that. Sometimes the law is bullshit; sometimes you're an idiot, and you'll learn eventually; and sometimes you just don't want to be held responsible for not helping the state put your ass in jail, guilty or not.
Support my political activism on Patreon.
Thanks for the troll post that illustrates why slashdot is largely ignored.
,,, then anytime you're sworn to tell the truth, the prosecutor would simply have to ask "what have you done in the last X years that is considered an offence, a felony, or a crime?" and throw the book at you from your own testimony. Failure to answer would get you perjury.
To the lawyer raising an objection to that question, it could said they are establishing character...
JigJag
"The hallmark of humanity is the ability to move beyond sensory inputs" - Mary Helen Immordino-Yang
The 5th amendment is all about curtailing power.
For instance, let's assume for a moment that Bennett Haselton's wasn't into rape and wasn't into child pornography (despite the anti-censorship web sites he founded and despite his completely unsolicited and off-topic comment about masturbation). Would any of us believe it?
Never completely, for us to believe that Bennett wasn't into those things, he would have to recount to us under oath and under the penalty of perjury his entire sexual history -- down to minute details (so that it can be corroborated with his previous sexual partners). His computer would also have to be searched exhaustively.
And since proving a negative is almost impossible, we would almost never be sure he wasn't a rapist and that he didn't withhold some other important piece of information. So with his help, we would have to establish a timeline from birth until today detailing every activity he ever undertook. And if one day, we discovered that he lied or omitted anything in his life, then we could put in prison for perjury and question him more about his omission or lie to find out what he was hiding.
And that's the thing, the person with all the power gets to ask all the questions (and even lie), and the person without the power only gets to answer all the questions truthfully (or goes to jail). I believe that's the outcome Bennett Haselton is looking for by wanting to get rid of the 5th amendment.
There is a simple answer to why we have the fifth amendment. It is what prevents corrupt authorities from forcing and coercing individuals into admitting crimes they did not commit. This means that the state can not force a person to lie, under the assumption that a person would lie in their best interests anyway and that any crime must have sufficient real evidence upon which to convict the person; not simply the word of the accused (if that is all that is available).
The fifth amendment was designed as a reponse to abuses seen in legal systems. That is, the authors had direct knowledge of courts that did compel people to act as witnesses against themselves, it was not just some theoretical abuse.
For instance if someone is religious and has a moral obligation to tell the truth, but at the same time is involved in possible sedition, that person is in a very tricky situation when called to the stand and asked "did you or did you not throw those barrels of tea overboard?" or asked "are you now or have you ever been a member of the communist party?" Even if not for religious reasons, it is possible to be caught in a quandary where any answer will condemn you with one party or another.
For some of these cases it seems like overkill. Ie, they have decrypted some of the drive and found child porn, so there's already enough evidence to convict and give a long jail sentence. If they want to decrypt the rest just to find out who else is in the ring and he refuses to divulge the password, then they won't get very far by threatening some small extra time due to contempt of court.
Police officers stop everyone on the road tonight and ask the following question:
When and where did you last drive over the speed limit? OK, here is your traffic ticket.
Have a nice day and thanks for supporting your police department and city government with your fines.
1) Now answering under penalty of perjury, have you ever committed any crime?
2) Now answering under penalty of perjury, what crimes? Be specific.
If one cannot invoke the fifth amendment, we have automatically moved into a world where the state could routinely interrogate people about their activities and send them to jail based on self-incrimination, or send people to jail later both for the crime plus perjury (failure to self-incriminate).
Petitioner pleaded guilty to federal charges of conspiring to distribute five or more kilograms of cocaine and of distributing cocaine, but reserved the right to contest at sentencing the drug quantity attributable under the conspiracy count. Before accepting her plea, the District Court made the inquiries required by Federal Rule of Criminal Procedure 11; told petitioner that she faced a mandatory minimum of 1 year in prison for distributing cocaine, but a 10-year minimum for conspiracy if the Government could show the required five kilograms; and explained that by pleading guilty she would be waiving, inter alia, her right "at trial to remain silent." Indicating that she had done "some of" the proffered conduct, petitioner confirmed her guilty plea. At her sentencing hearing, three codefendants testified that she had sold 1 1/2 to 2 ounces of cocaine twice a week for 1 1/2 years, and another person testified that petitioner had sold her two ounces of cocaine. Petitioner put on no evidence and argued that the only reliable evidence showed that she had sold only two ounces of cocaine. The District Court ruled that as a consequence of petitioner's guilty plea, she had no right to remain silent about her crime's details; found that the codefendants' testimony put her over the 5-kilogram threshold, thus mandating the 10-year minimum; and noted that her failure to testify was a factor in persuading the court to rely on the codefendants' testimony. The Third Circuit affirmed.
Held:
1. In the federal criminal system, a guilty plea does not waive the self-incrimination privilege at sentencing.
...
Before sentencing a defendant may have a legitimate fear of adverse consequences from further testimony, and any effort to compel that testimony at sentencing "clearly would contravene the Fifth Amendment,
...
A sentencing court may not draw an adverse inference from a defendant's silence in determining facts relating to the circumstances and details of the crime.
You are arrested, the DA tells you that you must confess to the murder. You have no idea what they are talking about; after professing you innocence, they lock you up 'until you are willing to talk.'
Prevention of this scenario is precisely why the 5th is needed.
"nor shall be compelled in any criminal case to be a witness against himself"
Without the Fifth Amendment to the US Constitution - Master TomÃs de Torquemada may wish to have a word with you.
He's not a lawyer, he has a degree in math.
Here's a clue, Bennett: go study some legal history and past abuses of judicial authority before you pontificate.
For some reason you are a suspect in a case, say murder. Now this murder you did not commit, but there is evidence that makes you a suspect, and the court is willing to try the case based on the limited evidence against you. Even if the evidence is failing to convice the jury of your guilt, they may try to put you on the stand to testify as to where you were on that night.
Perhaps you were engaged in some other crime (however minor), you now are compelled to testify and confess, and risk being charged with that crime. Doing so possibly destroys your credibility with the humans (who are automatically fallible) on the jury (remember, they may just go "oh he's a criminal anyway, he probably did this too") and secures a confession for whatever else you did. If you retain the right to remain silent, but it is allowed to be used against you: You've still destroyed your credibility and the jury can now weigh this while deciding your guilt or innocence.
Also, your FAIL3 doesn't really apply. Self-incrimination automatically assumes you have done something that would violate a law, but there is not enough/any outside proof. Possibly an unjust law.
If we had a perfect system where we only charged criminals, tried by an infallible judge/jury.. we wouldn't need the 4th or 5th amendments.
I put on my robe and wizard hat..
Here in Chicago, we had a police squad that was infamous for beating or otherwise compelling confessions out of innocent people.
So in other words, the Fifth Amendment didn't stop it?
Worse, you are encouraging the invasion of a person's privacy for "fishing expeditions", where questions are asked and answers compelled until a crime is discovered.
So at least they wouldn't be beating people? Or would they still be beating people and fishing for questions, like they already do now?
I find it interesting that agreement on the idiocy of the original post is universal, an idea I wholeheartedly agree with.
I also find it interesting that discussions on Slashdot concerning other amendments tend to have far more people saying "hmm, maybe that one's not so good", or "I'm good having that one go away".
I'll leave it to you to decide which amendments these are.
The origin of the 5th Amendment is not limited to self incrimination, but to extend to the right to be free in thought. It requires that due process be followed.
Courts, when abused, can be used to try people merely on whim. In the old days courts would be abused to go after people of power who were contradictory in opinion to the majority.
In retrospect, the Japanese Internment was a clear violation of the 5th Amendment .What was even more damning was it was upheld by the US Supreme Court. As years and time have passed, there is recognition that a great wrong was committed.
If you need example of how it benefits society now, consider that people are able to be express their 1st Amendment without being locked up for it. If you need more than that, you can go find a Constitutional Lawyer and argue with them.
Methinks you are trolling with your absurd parameters, and verbose diatribe. If you are willing to write that much, maybe you should research and read the equivalent amount.
Devil's advocate, here:
Scenario 5: They find something harmful, such as an (illegal) bomb that they knew somebody had acquired materials to build but hadn't been able to pinpoint. Your guilty ass is arrested, but a lot of innocent people and a bunch of property is *not* blown up.
Scenario 6: They find an unusual number of laptops / TVs / etc. stowed in some bags the trunk. They check the serial numbers and discover that several of them were reported as stolen. Your guilty ass gets arrested, but I get my stuff back (eventually) and can sue you for damage caused when you broke into my house.
The purpose of laws is to benefit the society, not the individual. While the points you make above are valid, they are also incomplete. Not everybody stopped by the police is innocent.
Now, it's perfectly reasonable to argue that the societal harm of not having the right to refuse a search.is greater than the harm of allowing criminals to go free who could have otherwise been caught, but that's not what you were doing. Your second sentence is only true if "you" refers to the individual and ignores societal costs and benefits.
In any case, "unreasonable search and seizure" is different from "avoid self-incrimination". If the police have a warrant to search you car (which generally removes your right to object to the search), are you of the opinion that you should be able to prevent the search on the basis that to do otherwise would constitute self-incrimination? Because that's... absurd. Basically, your whole argument is, at best, irrelevant to the topic at hand.
There's no place I could be, since I've found Serenity...
First, there is no "right" not to be tortured in the U.S. Constitution that I am aware of. What there is, is a right that nullifies any information that might be gained should one be tortured and that right is the 5th. It's an amazingly succinct way to remove such a temptation on the part of the state isn't it? Think about it...
Many people go to jail each year on what is no more than circumstantial evidence. Juries use reasonable doubt, not "beyond all doubt". For instance, you don't want to be innocent of a crime as well as have had the motive, means, and opportunity to commit a crime and, then, also be the *only* person they can find anywhere relatively near the scene. I assure you, with all of those in the hands of a motivated prosecutor you are more likely going to jail than not, innocence be damned. What if you are the only one they find near the scene but they have nothing else then should you be compelled to give them motive and means? After all, they'll need that in order to convict. It is their "business", after all, according to what you wrote and thus the accused would be compelled to answer.
The 5th is more than you seem to think. What it means is that you have the right to withhold your subjective experience and knowledge from the courts, and their agents, when you are the accused. Put another way, the accused is under no obligation to aid the prosecution in this way.
The right exists because some wise soul realized that it is seriously sub-optimal to introduce the accused to the dilemma of having to commit a crime in order to avoid being found guilty of another. They recognized that if guilty a suspect should (more reasonably, would) answer with lies designed not to aid the prosecution when appropriate and also that If innocent the accused should, once again, answer with the same lies. Without the 5th, the fact of accusation together with the act of interrogation strongly motivates the accused to perjure themselves if there is any circumstance that might make them appear guilty.
I believe that the world is better without that dilemma. With the 5th, the innocent are protected from admitting that they appear to be guilty or to yielding knowledge that might enable the prosecution to gain it. The guilty person might avoid successful prosecution with the 5th intact, too. Good enough, I believe Blackstone asserted the correct and moral choice for society when he said; "It is better that ten guilty persons escape than that one innocent suffer".
In the case you've been following it's a tough call. The 5th means you don't have to give up subjective knowledge but evidence independent of that kind of knowledge is another story. The court believes that it is a "foregone conclusion" that:
1) The evidence exists, they have the names of the files.
2) That only Feldman could have placed them there, his was the only account, he lives alone, and the partition they have already decrypted has Feldman's personal info which indicates he knows the password.
The password is subjective knowledge, yes, but it is being used to hide the evidence that the court believes is a "foregone conclusion". The court is not asking him for that password, they are asking him to "aid" in the retrieval of that evidence by decrypting the remaining partitions.
TL;DR - I have no clear recollection of that.
If you don't believe me - prove it. I forget things from yesterday all the time. Heck, I forget things from 3 minutes ago.
I do not know the passphrase to my encrypted partitions. I don't know it for any of them. There might be data that is considered illegal on there ... somewhere. I don't think there is, but how can I possibly keep up with laws in my state, country, and countries where I travel? I can't.
"Right to remain silent."
"Right to not incriminate one self."
I find it best to leave the password manager off the device when traveling.
I don't understand the question at all. The 5th amendment (and all others) were written to protect the innocent from an overreaching government. Therefore, all amendments have a net benefit by protecting innocent people. If you claim that there is no benefit to the 5th because criminals are hiding behind it, then you have your premise wrong, that's not what the 5th is there for. The founding fathers found it much more important to allow 100 criminals let go on a technicality if it saved 1 innocent life (mind you that back then, the punishment for eg. grand theft auto (or horse) was death by hanging).
Like all laws in the US, the government is ALLOWED by the laws to do certain actions and is NOT ALLOWED to do any other actions not specified by law. While the government can make more laws, the 5th (and all other amendments) restrains the government from overstepping their boundaries while making those laws.
There are plenty of scenarios which you immediately dismiss:
- The overzealous prosecutor/cop, this happens a lot and the 5th DOES protect innocent people against incriminating themselves against a crime they have not committed. Sure, the "government" could still make someone innocent admit it but this can then be challenged in higher courts which are (supposed to be) 'more pure' and 'more experienced' than the lower courts.
Another example, a murder has been committed. Did you commit this murder. According to law:
- If you say YES, you're immediately found guilty, trial is merely a fight about sentencing.
- If you say NO and you DID commit the murder, you have lied and therefore can be found guilty for making false statements plus your credibility goes down drastically (credibility aka "your name" is being held in high regard in common law, this stems from the fact that way back when common law was established - magna carta etc. - your family name was quite important not to be blemished by lies especially if you ever wanted to hold a position of power such as a lord, king or enter into knighthood)
- If you keep your mouth shut, plead the 5th and it goes to trial you can go ahead and make your case that the murder was done in self defense (or back in the day, to defend your honor, defend your name from an impostor, you were challenged to a duel, he touched your property/wife...)
There only needs to be 1 case for the 5th to be beneficial in order for the 5th to have merit to society.
Custom electronics and digital signage for your business: www.evcircuits.com
Interesting points. I always thought the 5th was more aimed at protecting someone from a crime or evidence of a crime they committed while witnessing another. So if I witness a murder while driving a stolen car, the Question "Where did you get the car?" is not relevant to the murder case, but if you admit it you open yourself up to an investigation tangential to the real line of questioning. Might not be the best example but there are others, like witnessing a murder while buying drugs. What were you doing there, should not be part of the testimony of the murder trial. My two cents.
We could probably survive without #3 though.
#3 was not just about letting the cops use your house for staking out your neighbors or the army using your home for a free bed-and-breakfast.
It was to keep them from planting a spy in your house, to report on all your activities.
IMHO it is even more apropos now than back when the "quartered troops" were redcoats. Now they're spyware or hardware keyloggers planted in your computer, or racks of tapping equipment in server rooms, as with "Study Group 3" or "Prisim".
We just need a supreme court decision that these automated agents, located on people's or companies' premises, consuming their space and resources, and spying on their activities, are "quartered troops" within the meaning of the Third Amendment for it to become as important in the electronic legal landscape as the First, Fourth, and Fifth are in meatspace.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
Many people in this country don't understand why we (still) have the 2nd Amendment. But we do. And while it's still our law, we need to enforce it. It's there to protect us, like the other rights. I think you could make a better argument against the 2nd Amendment than the 5th -- the 2nd was meant for the people to be able to rise up against their government to overthrow it, which is not practically possible today with guns -- so what's the point?
There are quiet a few things in the Constitution that might not make sense to you. But they are our rights and our laws, and we are a nation of laws. So we enforce those rights, even if you don't understand them or think we should have them.
Besides, as many others have pointed out, the 5th Amendment does serve a useful and necessary purpose.
Software sucks. Open Source sucks less.
The JonBenét Ramsey case is one you should think about. The police accused the parents, and the parents got lawyers and refused to cooperate with the police. To everyone, it looked like the parents were guilty, or trying to cover something up. But the reason they stopped talking is that the police were making accusations against them, and turning the circumstantial evidence against them.
It took almost 10 years, but eventually the family was proven NOT to have been involved.
Software sucks. Open Source sucks less.
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.
Here's my scenario:
Bennett, did you ever steal anything?
Bennett, are you still beating your wife?
Bennett, did you write "I was masturbating to the sound of my own superbly polished writing skills and I just came all over the keyboard." in a forum readable by 9 year old girls? That is a felony in my jurisdiction.
No need to consult a lawyer, just cough up a binding series of Yes/No answers and bask in the brilliance of your impeccable logic.
What people don't seem to realize is that the 5th amendment; "a person cannot incriminate themselves" is to prevent coerced testimony. A person is not a great witness against themselves -- unless they are confessing, so the "5th" is really a stopgap against the abuse of police or judicial power.
If a person says; "I did it" then fine. But if you want to coerce them to say; "I did it" then it's likely by force. Better ten guilty people go free than one innocent go to jail. People who don't agree, obviously don't think they'll ever be falsely accused -- it's a comfortable and convenient point of view.
>>"ad space available -- low rates!!!"
It sure did. There were civil rights suits claiming that this unit violated the Fifth Amendment rights of the people involved (among other things).
Since this case, the CPD has undergone a striking transformation. The quality of the new officers and their understanding of civil rights has vastly improved from the days of Commander Jon Burge, who is now a convicted felon.
You are welcome on my lawn.
Except, that's totally not deserving of +5, because it equates two things that are not equal. Logical fallacies don't get a lot more simple than that.
Search and seizure is lawful (or not) based on the justification, or probable cause to believe that a crime occurred, which is documented via the acquisition of a warrant (which must be obtained searching or seizing). Why, if I (an agent of law enforcement*) have sufficient evidence to obtain a warrant to search the contents of your filing cabinets, can I not obtain a warrant to search the contents of your files? If destroying a hard disk instead of turning it over to the authorities who are serving a search warrant considered destroying evidence, why are you permitted to destroy (from law enforcement's point of view) the contents of that hard disk when you have the ability to produce them? If you can be forced to turn over all your physical possessions (including video tapes showing you murdering people, which certainly will incriminate you), why can't you forced to turn over all your electronic possessions (including video files showing you murdering people)? If you have the encryption key, the plaintext version of those files are still in your possession; why can't I serve a warrant on them?
* Note: I don't actually work in law enforcement. However, I have previously aided forensic investigation of a hard disk image.
There's no place I could be, since I've found Serenity...
The fourth amendment prohibits *unlawful* search and seizure. Warrants exist to make such search and seizure lawful. If the fifth amendment is an extension of the fourth, and the fourth amendment allows me to obtain a warrant to seize and search your physical property, why does the fifth offer no such option?
Or, perhaps the fourth and the fifth are actually different things after all, and the GP's post is just complete bullshit for attempting to equate them?
There's no place I could be, since I've found Serenity...
I think the author's assumption is that people are stupid. It's better and more realistic to assume that each person will act in his own best interest, and given the choice between telling a little lie and going to jail, only an idiot would tell the truth. While we are all taught, morally, that lying is bad, that will only influence behavior when there is no clear and tangible gain in lying-- consider that we are taught as children to be truthful by being punished when we lie while being rewarded for honesty. Thus are ulterior motives of witnesses used to discredit their testimonies. If the defendant's testimony is assumed to have significant value, the trial itself could be skipped simply by asking the defendant whether he's guilty, for none could possibly be a better witness than the defendant. That said, it's a foregone conclusion that the answer is 'no, i did not commit a crime', and so it is worth nothing to ask it.
In a world where one's future hangs on his ability to lie, the honest men will go to jail while the liars will go free. Court cases will hinge not on the witness's statement but on expert lie detectors. One man will say that a nervous tick indicates a lie while another will say that the man is nervous because he knows that his free life will end should he fail to seem truthful. Evidence will be less important than (possibly unconscious) bias of the ones who evaluate the witness's honesty. Further, there is a dignity in knowing that one is a good citizen; an honest man is one who thinks he is better than the sort of base scumbag who lies. Forcing citizens to lie degrades them.
I'll omit cases of police harassment and the sorts of psychological games that might well necessitate such a law, similar to evidence sometimes needing to be considered invalid to deter police from violating constitutional laws to get it, because my imagination in this area is gladly limited.
And lastly, as an extrapolation, if the government forces one to confront and overwrite his morality or go to jail, the convenience throughout society of assuming that most people will tell the truth in other contexts is lost: honesty will no longer be a virtue.
Why would you ask a question that has an obvious answer in any constitutional law 101 on Slashdot, and spend countless hours writing such an elaborate pamphlet obviously before searching for the widely available answer is amusing. Like Slashdot is a renowned law authority or something.
No, dude, you don't get to say this
"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."
After it took you nine pages to ask a question that could have been asked with twenty words. The superfail is your inability to compose.
Oh, here, let me go on for nine more pages to make my point...
"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."
And why do you suppose the Court can't use your refusal as evidence of guilt? Hmmmmm? That's right. The fifth amendment. Stupid.
- A Frog in a pond utters an azure cry. -
The burden of proof rests on the prosecution. If we require a statement, the burden is either partly shifted to the defendant (not the defense, just the accused), or the threat of perjury is now very real. While typically not prosecuted, a reasonably solid case plus threats of additional charges like perjury and obstruction of justice make it easier, and more affordable, to plead guilty or no contest.
(btw parent - torture is explicitly off the table, as apparently its no big deal to society if a confession is tortured out of someone because they can always come back and get justice, in every case, without fail, so your comment is irrelevant. instead you should have gone with "any coercion other than what is not legally considered torture nor duress" which I think OP has some other weasel requirements to invalidate but can't be arsed to figure out which)
You (OP) have to consider this within the structure of the justice system, and all of its leanings toward potential abuse. As a defendant, with little or no power, a lengthy appeal process, and if vindicated a lengthy and expensive road to exposing abuses, you are automatically at a disadvantage even if you don't self-incriminate.
Scenario: I talk with the police, or prosecutors. At any point in the future, I mis-remember or mis-state something, on the record. Immediately anyone can say we have evidence that you are at best unreliable and more likely lying. Nothing I say at that point holds any water. I have damaged my own case, and it would be far better had I not said anything if it were optional.
In this example, we can consider the types of evidence that lead to Innocence Project victories because DNA evidence proves that the evidence was really just circumstantial. This isn't just clearly circumstantial evidence, which cannot be used as the sole evidence in a criminal case. This is the kind of rock-solid, 5 eye witnesses, your vehicle leaving the crime scene, you are guilty of murder evidence. But you didn't do it, and you are set free after years in jail.
Let me interrupt you and say that Innocence Project victories are not the subject here, they are only proof that people get convicted of Very Serious Things (c) on very shaky evidence, so don't claim that this type of scenario is impossible.
Instead of mis-stating, I can remember more details which are relevant, and share those when I have to. Either I was hiding them originally, or I'm making them up now. I am undermined, and two eye witnesses who claim it was me now outweigh me, an obviously guilty person lying to stay free.
False memories are surprisingly easy to create, especially accidentally. Depending on the timing and nature of the questions, you could develop a false memory. Your statements will be different because you remember what happened differently. Better to write down what you remember and put it in a locked, unpredictable location.
Any number of variations on scenarios like this boil down to one thing: the moment you appear to contradict yourself, your ability to defend yourself is diminished.
Very clearly, "frequent contributor Bennett Haselton" has never been in a situation with another person where he/she had to say "that's not what I meant." And even more clearly, has not uttered the words "that's not what I meant and you know it." I'm going off into the gender stereotypes here, but I'm fairly certain that everyone over the age of 15 has met that one super-bitch who decides what your words mean, and can recite everything you have ever said when it best suits her argument. Even if that super-bitch is a dude. When the police or prosecution have a record of your statements, "that's not what I meant" works never.
"It is better that ten guilty persons escape than that one innocent suffer."
That's all there is to it, really. But I'll ramble more.
I'm having an affair, and my lover is the only alibi I have, along with hote
The fifth amendment does substantially more than protect you from having to answer "did you do it".
Scenario:
You are innocent of the crime you are accused of.
Prosecutor: Were you at the scene of the crime?
Accused: Yes.
This statement can be used against you to find you guilty.
Prosecutor: Did you have anything against the victim
Accused: Yes.
This statement can be used against you to find you guilty.
Prosecutor: Do you have a gun?
Accused: Yes.
This statement can be used against you to find you guilty.
Prosecutor: Were you having an affair with the victims wife?
Accused: Yes.
This statement can be used against you to find you guilty.
I could go on and on and on. We know from the outset of this scenario that the accused is not guilty but each and every one of his statements can be used against him in court to find him guilty despite his innocence.
This is why we have the fifth amendment.
- A Frog in a pond utters an azure cry. -
There were civil rights suits claiming that this unit violated the Fifth Amendment rights of the people involved (among other things).
But that "among other things" is the important, relevant point. It is illegal to beat on people, regardless of the Fifth Amendment. A confession taken under duress would be useless in court anyways, as it would be unreliable evidence, regardless of the Fifth Amendment. If for some reason you couldn't show the cops did anything otherwise illegal to you, and you couldn't show that they did something that impacted the soundness of your mind, then it would be admissible, regardless of the Fifth, because it would be viewed as you, of sound mind, waiving your right to silence.
But if you want to coerce them to say; "I did it" then it's likely by force.
You coerce them to waive their right to remain silent first. Then you coerce them to say they did it.
People who don't agree, obviously don't think they'll ever be falsely accused -- it's a comfortable and convenient point of view.
People who think that it stops coercion prevents false accusations from going anywhere probably haven't been in such a situation either...
FAIL5: Posts 3845 words when about 100 would do
FAIL6: Doesn't look at case law to see the Supreme Court's rational for their interpretations of the fifth amendment
FAIL7: Provides a set of contraints that aren't useful for anybody other than Bennett Haselton's own little intellectual exercise
MURICA
Here's a scenario you probably didn't think about:
I (hypothetically) own a farm on a river, where the state wants to put a reservoir.
With the Fifth:
State purchases the land from me. I go buy another farm.
Without the Fifth:
State compels me to give them title. I have to go find land, sell off my livestock and equipment to pay for it, and end up broke.
Yes, that is the Fifth. Last clause of it, to be precise.
As a Libertarian, you should be conviced of its importance by now.
OK, OK, I'll give you something that's relevant to the right of silence as stated in the Fifth Amendment. Example is drawn from the previously linked video (Never talk to police), but modified because I know this context.
I buy gas with cash, and so I often have no proof I did so (real fact). I come home on Fridays, and often couldn't provide "admissible" evidence (ie-beyond my family) of having done so until Sunday (past fact).
Now here's the scenario from the video (purely hypothetical):
I am accused of having robbed a store in a town a hundred miles away, where I stay and go to college during the week.
That store happens to be one I purchased goods at previously, and tossed the receipt because hey, I buy with cash, it's something small, there's no way I'll need the receipt.
But that robbery happens to have been done on Saturday, while I was home.
A former acquaintance thinks they see me near the store, ten minutes before the robbery. (You should know that mistaken identity happens a lot.)
I'm accused and brought in for questioning.
Fifth:
I say nothing. At court, the case gets thrown out because they have no evidence (except maybe something that from all the law can tell may have been purchased or stolen there)
No fifth:
I hear the brief accusation (someone stole goods from such-and-such store on Saturday), protest "I was a hundred miles away! There's no way I could have done that! And I don't have the goods!"
The mistaken testimony of the former acquaintance is used to establish that I lied, then they produce the goods I bought and threw away the receipt for (not that that would have helped, my name being absent).
Prosecution says: "As you can see, Mr. So-and-so lied about both his location and having the goods."
Jury convicts me.
I could have sworn that the 5th ammendment only was intended to apply to someone other than the defendent, Like you haven't been charged for something but your friend Bob did and you were actually there doing it too so you don't testify at all because it would incriminate yourself as well and make charges be brought. In theory, charges would have been brought if there was any evidence that you were involved so I guess that means you get away with it due to lack of evidence or something. I dunno. It even sounds stupid that way but it pales in comparison to "that might prove I did it so I'm not saying anything" protection.
The OP here sets up a set of rules he knows up front results in a logic equation that has no solution. Item number three is the trick, that turns the whole contest into a trick question, like asking for the timing of a 357cu. in. engine in a 1957 Buick Skylark.
Any benefit that would benefit the innocent would by necessity benefit the guilty as well, at least as much. But that's the point, the point isn't to protect the guilty, but to protect the innocent. Take for example that wonderful video, linked many times in this article "Don't Talk to the Police". But here's the OP's sought for example, anyway. Shamelessly loosely taken from the video.
Police question: "Did you know the victim?"
Innocent Suspect: "Yeah, but I never really liked the guy." [police now have motive for the innocent man - i.e. suspect didn't like him.]
Policeman tells about the murder, then asks if you killed him
Suspect, remembers hearing about the murder on TV, "So and so killed last kight in what appears to be gang-related violence.
Suspect answers: "No, I don't even own a gun.", but police never mentioned the murder weapon, nor did the TV News. This is human nature at work filling in the blanks, based on too little information. Police now have you're testimony corroborating the murder weapon.
There is your example that benefits innocent people. Innocent people get convicted on circumstantial evidence, often times as a result of police questioning. Then of course the OP has the ridiculous idea that bad guys are going to actually tell the truth when asked a question. Asking a murderer if they killed the victim isn't going to help solve the crime even without the 5th. Unless he/she is the World's dumbest criminal.
Bennet started off wrong, and everything he wrote after that is based on that initial wrong assumption.
He writes, ''I've never seen what's so great about the Fifth Amendment "right against self-incrimination"''
Well, duh.
The purpose is not a "right against self-incrimination" but rather the right not to be punished for refusing to incriminate oneself.
You absolutely can incriminate yourself. People do it all the time. You cannot later go recant and say "the Fifth Amendment says I have a right against self-incrimination" or any other variant of that phrase.
People go to jail regularly for refusing to answer questions in court.
People do not go to jail for refusing to answer questions which might incriminate them.
Why? The Fifth.
Technically, the United States only has the highest documented incarceration rate of any country on the planet.
It's suspected that North Korea has a comparable rate, and that the Soviet Gulags under Stalin post-WW2 were a little worse.
This is, of course, what's known as "damning with faint praise".
Submitter's question framework exactly encompasses the purpose of having a Fifth Amendment: to prevent you from having to justify your own innocence through a barely-comprehensible legal trap.
It would be nice if the submitter was that clever, but I doubt it.
It is simple. The fifth ammendment is the right not to be tortured. If you won't talk, the government doesn't have the right to MAKE you talk. I love living in a country where the citizen's are not allowed to be tortured when the police think you are guilty.
I miss the Karma Whores.
"Sir, what do you have in your home?"
"I don't believe that's any of your business, officer."
"Okay, you're under arrest for obstruction of justice."
Who needs a warrant to search your home when they have the right to ask you to identify everything inside it? And the second you give a sufficiently unsatisfactory answer ("he seemed nervous, which I found suspicious"), boom, probable cause, no warrant necessary. That's how it's tied together.
There is an office block out on the inter-state. Nobody knows why it was built there - it's a bit out of the way. Aaron Golding worked there, and he worked long hours. In fact, his Friday night had turned into a Saturday morning. Around 9 am, he phoned his wife to let her know he would be home around lunch-time. By 6 pm, he still hadn't come home, and Lucy, fed up with him spending his entire life at work, began packing to move back to her parents' home. This weekend was the final straw.
When office workers began to arrive at work on Monday morning, they found Aaron's body. He was slumped over his desk. Crime scene investigators quickly established that he had been shot from several feet away, ruling out suicide. A stray bit of office gossip led them to believe that Aaron's wife may have been having an affair with Robert Roberts ("Please, call me Bob!"), who worked in the same building, and they dropped by to ask him a few questions.
The police questioned a number of people, but ultimately they charged Robert Roberts. At the trial, he was asked a sequence of questions which had become very familiar over the course of the investigation.
"Mr Roberts, were you having an affair with Mr Golding's wife?"
Mr Roberts was, in fact, having an affair with Lucy.
"Mr Roberts, Lucy was also found dead in her home not long after the discovery of Aaron's body. She was killed sometime on Saturday night. Have you ever been to the Golding home?"
Robert had, of course, been to Lucy's home many times.
"Were you at the Golding home at any time on the weekend in question?"
Robert had, in fact, visited the Golding home three times that weekend - twice on Saturday, and once on Sunday, after Lucy was killed.
"Mr Roberts, there is evidence that Lucy had sex with someone not long before she died. Did you have sex with Mr Golding's wife on Saturday evening?"
Bob had, in fact, had sex with Lucy on Saturday evening.
"Mr Roberts, you were seen at the office you shared with Mr Golding four times on the weekend in question. Can you tell us what you were doing there?"
Bob didn't have any work-related excuse for his trips to the office. The first three times, he was really only dropping in to make sure Aaron's car was still there before visiting Lucy. The fourth time he went there to confront Mr Golding, but he hadn't gone through with it.
"Mr Roberts, have you ever owned a gun?"
This was the worst one of all. He had owned a gun, but he'd bought it back before you had to register them, and he didn't think anyone else ever knew he owned one. It was a general match for the weapon used to kill both victims, and he couldn't volunteer the weapon for ballistics to rule it out: he'd thrown it in the river years ago, after reading about how often gun owners get shot by their own weapon.
For each question, Bob is faced with a problem. He can tell the truth, which makes him look guilty even though he isn't, or he can lie, and risk being caught in the lie.
Here is the full story. On Saturday morning, Bob checked that Aaron's car was at work - and as usual, it was. Bob picked up coffee and bagels, and surprised Lucy by letting himself in with the spare key - he knew where she hid it. When he left he forgot to replace the key. Later on Saturday, he made another trip past Aaron's Audi before visiting Lucy again. She was upset, emotional, angry with her husband, and she'd needed to feel loved. That was the basis for the whole relationship, not just the sex that Saturday night. As he left, he slipped the key back into its hiding place - and someone else was watching.
It turns out that Aaron had gotten himself involved with some professional criminals. It had started out as a few extra bucks on the side, but soon he was too deep to get out - he couldn't go to the cops without implicating himself. He started working longer hours to try to find a way to dig himself out of the mess he was in. Eventually, the people he was working with began to suspect he was looking to rat them out, and they decided on a
Oh you just scored a SUPERFAIL. How DARE you suggest that someone with actual legal training and experience might have a little bit of an inkling what they're talking about and that Bennett's arrogant dismissal of every last one of them, as though no Constitutional scholar has ever been as clever and thoughtful as he, a non-lawyer without legal training, might be enough to put someone with such training off of the idea of wanting to put their valuable time and energy into explaining it to him. Again, how DARE you, sir.
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.
I call fail on this argument. Of course the right to not be beaten by the police exists as a separate right. Now how do you enforce it?
"Your honour, I was told I would be beaten until I testified against myself."
"Those are serious allegations. And yet, these 5 fine police officers all testify that you banged your own head against the wall repeatedly in an attempt to make it look like you were mistreated. Please continue with your testimony. And remember, you can be imprisoned for contempt if you fail to answer the questions of this court to its satisfaction."
The right to not be forced to testify against yourself helps protects the innocent from police looking for a quick conviction rather than the correct one, and using any means to get it. The power of the court to compel testimony is very powerful, and needs counterweights to help prevent its abuse.
It also protects society from having guilty men go free because an innocent person was convicted in their place. If you cannot be forced to testify against yourself in court, then it removes a lot of the incentive to compel false testimony against someone's will. They go to court, refuse to confess, and instead of going back to jail for contempt, they walk free as there is no other evidence against them - and are no longer at risk of torture, as they are no longer in custody.
If an inference of guilt can be drawn from silence, then the right to remain silent is pointless - refuse to confess to these trumped up charges? Then go to jail anyway because we've decided your silence makes you guilty. The state is a powerful actor, with many resources. Requiring them to provide evidence - literally, that which is seen - of guilt prevents the state from simply offering innocent people this choice:
a) confess to this crime and go to prison
b) refuse to confess to this crime and go to prison for refusing to confess.
The right to not be considered guilty merely because you stay silent is only part of the counterweight against the state imprisoning the innocent, but it's an important one. This is not a theoretical - there have been abuses in the absence of it.
Lilburne was arrested upon information by an informer acting for The Stationers' Company and brought before the Court of Star Chamber. Instead of being charged with an offence he was asked how he pleaded. In his examinations he refused to take the oath known as the 'ex-officio' oath (on the ground that he was not bound to incriminate himself), and thus called in question the court's usual procedure. As he persisted in his contumacy, he was sentenced (13 February 1638) to be fined £500, whipped, pilloried, and imprisoned till he obeyed.
On 18 April 1638 Lilburne was flogged with a three-thonged whip on his bare back, as he was dragged by his hands tied to the rear of an ox cart from Fleet Prison to the pillory at Westminster. He was then forced to stoop in the pillory where he still managed to campaign against his censors, while distributing more unlicensed literature to the crowds. He was then gagged. Finally he was thrown in prison. He was taken back to the court and again imprisoned. During his imprisonment in Fleet he was cruelly treated. While in prison he however managed to write and to get printed in 1638 an account of his own punishment styled The Work of the Beast and in 1639 an apology for separation from the church of England, entitled Come out of her, my people.
That was the first in a long series of trials that lasted throughout his life for what John Lilburne called his "freeborn rights". As a result of these trials a growing number of supporters began to call him "Freeborn John" and they even stru
Remember kids, it's all fun and games until someone commits wholesale galactic genocide.
And yes, he's an asshole for trying to do it -- "smug, ivory tower fuckwhit" is spot on, because only someone as incepid and stupidly naive as to believe that only the criminals lie or make mistakes would try this line of thinking.
I think that perhaps what I found most offensive about his ponderous, overblown ranting was his pooh-poohing of anything that benefits the innocent and the guilty equally -- as though the fact that "guilty" people might incidentally benefit from something invalidates it, no matter how critical it might be to protecting the innocent. I suppose he must not be a fan of Franklin's oft-cited view that it's better to let 100 guilty go free than to imprison a single innocent (I cite Franklin rather than the original Blackstone as Franklin increased the guilty number by an order of magnitude, suggesting that in America the principle is held even more strongly -- or ought to be).
+1 Insightful.
I would give you my last mod point if I hadn't already posted.
I'm not a constitutional expert, but my reading of the 5th amendment indicates that *it* is the protection from torture... "nor shall be compelled in any criminal case to be a witness against himself"... The key word there is compelled...
compelled past participle, past tense of compel (Verb)
Verb
1) Force or oblige (someone) to do something.
2) Bring about (something) by the use of force or pressure.
So you see, bennett brainiac.. the 5th amendment is what protects you from having the cops show up at your door and *compel* (read: torture) a confession out of you. Where else is the right not to be tortured spelled out? I suppose in the 8th no cruel and unusual punishment... but that is generally applied after a conviction.
This whole article is just an epic fail in understanding your rights. Certainly it might allow some criminals to get off, but the whole point of the justice system is geared towards that. It is hard to get a conviction precisely because when you get it wrong and put innocent people in jail, well... thats the worst possible scenario in a free society. And that already happens far too often. There are overzealous prosecutors, policemen, judges, etc who every day to look good will ignore evidence, trump up charges, and do whatever they can to look good/get promoted/etc. Why would you want to have the cops able to go knock on everyone's door and demand confessions for all crimes committed? You really think in this day and age, with cities and states bleeding red, that they wouldn't resort to this sort of thing? How long did it take after the red light cameras got widely deployed until suddenly all the cities decided 1.5 seconds was a better yellow light time than 3-5 seconds previously?
Seriously, in search of revenue, the cops would be knocking down all sorts of doors demanding everyone confess their speeding/parking violations, etc and collecting millions in fines.
If the government can't prove their case without your confession, then they haven't reached the burden of proof you are *entitled* to as a free being. You bennet are what is wrong with america, lets just give all of our info to the NSA and let them round up any criminals they find it will keep us all perfectly safe... it'd be more cost effective than the justice system probably... but just hope your dog never poops on an NSA agent's lawn!
All you really have to do is look at the crap that happens to people all the time on Wikipedia.
Blocked by an admin protecting his friends in a content dispute? No problem, you're supposed to "fill out the unblock form." Fill it out. Explain that the block is against policy, it's being used in a content dispute..
oh wait. Wikishittypedia's rules changed. Now you can't mention policy. You can't say the block is against policy - you HAVE TO "fess up to a crime" (http://simple.wikipedia.org/wiki/Wikipedia:Guide_to_appealing_blocks). You can't show where the people who were in the content dispute ran running to Their Buddy The Admin, not that it usually matters - those assholes have the corrupt admins (redundant I know) on email, speeddial, or IRC chat.
Accused of being a "sockpuppet"? You can't even request a checkuser evaluation. It can CONVICT but it can NEVER PROVE YOU INNOCENT.
You want the US justice system to look like what those crack smoking losers called "admins" on wikipedia dreamed up, where it's not even "guilty until proven innocent", it's "kiss ass and fess up to something you didn't do or fuck you"... well that's what you get without the 5th amendment and other rights in the Bill of Rights.
It's good that Soulskill asks the question, though in some ways sad that we struggle to answer it quickly and with vigor.
I don't need to create hypothetical, because the United States Supreme Court was dealing with the real 80 years ago. And, yes, I am an attorney.
In Brown v. Mississippi, 297 U.S. 278, (1936), a white farmer named Raymond Stuart was murdered. Local deputies figured some Blacks must have done it. So they picked three and beat them until they confessed. The third man, Ellington, proved to be a tough son of a gun. Deputies hanged him, three times, from a tree outside the Stuart's home. They beat and whipped him each time they unhanged him from the tree. The deputies told him if he confessed, they would stop. Ellington was made of stern stuff. He refused. The deputies eventually dragged him back home.
Two days later, the deputies returned. They drove Ellington to Alabama, whereupon they whipped him over and over again -- the deputies later admitted at trial they told Ellington they would not stop until he confessed. Finally, Ellington said he murdered Stuart. The deputies wrote a statement, and Ellington signed. Ellington's two co-defendants (one of whom was Ed Brown) had already confessed.
Here's the kicker -- the real sickness of a world without the Fifth Amendment. At trial, the State entered the defendants' written confessions against them. The defendants took the stand and pleaded with the court to disregard the statements. The three described, in detail, how they were tortured until they confessed. The judge called the deputies to the stand and questioned them. And the deputies admitted it! Every lick given. When the chief deputy was asked "how hard did you beat the men?" the deputy honestly remarked "not too much for a negro; not as much as I would have done if it were left to me." Satisfied that justice had been done, the judge convicted all three men and sentenced them to die. The Mississippi Supreme Court affirmed the convictions.
The men appealed the Supreme Court of the United States of America. Mississippi was vehemently defending the convictions. Their response? "The Fifth Amendment doesn't apply to the states! Mississippi is free to coerce confessions if it so chooses!" Yes, really. That was the argument.
Chief Justice Hughes had heard enough. Writing for a unanimous Court, the convictions were struck down. The 14th Amendment's due process clause extended the protections of the Fifth Amendment to citizens against the states. There would be no more torture in the United States of America. At least no longer under the color of law. The inequities of the star chamber, the inquisition, and the evils that lay behind them would not be tolerated in this nation.
Why do we need the right against self-incrimination? Because without it deputies drag you out of your home at night, hang you, and whip you, until you confess. Then they laugh about it in open court as you're sentenced to die.
* * *
On a more technical note, OP is incorrect that other constitutional guarantees protect you from coercive confession. First, in a federal criminal action, the 14th amendment does not protect a citizen from coercion -- the 14th only regulates the states, and so your protection against coercion solely derives from the Fifth Amendment. Second, while there is an argument that substantive due process guarantees of the 14th amendment prohibit coercive confessions by the state, I think most scholars (and Chief Justice Hughes) would agree that the 14th is really incorporating the Fifth Amendment's protections against the states (as has been done, periodically over the past 100 years, for most of the bill of rights). In short, the right-against self-incrimination is the source of our protection against coercive confession.
But OP also wonders why we should prevent the government from using our silence against us as substantive evidence of guilt at trial. First, recognize that the government constantly tries to use silence against the accused at trial -
0. your crtieria are, like the legal system, stacked heavily against the defendant....you did, however, forget to say "SUPERFAIL if your initials are not B.H.". merely an oversight, i'm sure.
0a. the right to silence redresses a small amount of the power imbalance of the ordinary individual vs the state
1. a defendant's alibi may be that they were committing another crime somewhere else. they should not have to admit to a crime the police may know nothing about to clear themselves of a crime they did not and could not possibly have committed.
2. the defendant's alibi may be that they were doing something perfectly legal but embarassing or career/family destroying. they could be blackmailed or simply exposed by a leaked transcript of their interview, or when it becomes public record tendered as evidence.
or it may expose someone else to same. which also leads to:
2a. if your alibi is not believed and you end up getting convicted anyway, the other person will be charged with attempting to pervert the course of justice (or whatever that's called in the US). this may make no difference to your sentence (but probably will due to added charges of conspiracy), but it certainly harms you to have your loyal friend or sexual partner or whatever imprisoned for a crime they didn't commit.
or have them forced to recant their alibi for you in order to avoid charges,
3. silence is golden. whatever you don't say can't be twisted, selectively quoted, misremembered and used against you.
"I didn't say that, i answered No Comment to every single question" is far stronger and more credible reply under cross-examination than a wussy "i didn't quite say that, i said something similar instead but it is being taken completely out of context. it's not what i meant!". the former is definitive, the latter makes you sound like a lying weasel crybaby.
cops and prosecuting laywers are accomplished and skilled liars, far better and more practised than you are ever likely to be and they also have the advantage of being presumed honest and truthful by the courts.
Nothing you say to them can help you - it will only ever be used against you. a cop giving evidence against you in court will *never* voluntarily recount anything you said that might exonerate you, they will cherry-pick the things that might make you seem guilty. and they are very skilled at getting you to say many such small, seemingly irrelevant things in an interview which, added together, can be presented as tantamount to a confession.
4. answering some questions but refusing to answer others will be used against you.
5. it is the job of the police, not you, to find evidence to prove you guilty. you're not allowed to actively obstruct them or lie to them, but you also have no obligation to assist them.
Obviously I immediately rejected the constraints the OP attempted to put into place. As they needlessly guide the discussion into a fruitless path.
(and I posted as AC so not to be a karma whore given that I simply states what most of us already knew, but hopefully I presented that kernel in a non-flamey way)
I simply asked where the emphasis should be. I assume that if you spend resources on one front that you must spend fewer on another.
It's your government, where do you want it to go?
It's YOUR government. Even if you didn't vote for the current people in power, you were given every option to fully participate in the elections. And you choose to continue to live here and whine on the internet. You haven't taken to the streets to protest injustice, so guess what. You're part of the problem and not part of the solution.
Bearing responsibly for decisions that you were not directly involved in and do not agree with is part of being an adult. And it is quite logical for all of us to be help accountable for our inaction or our ineffectiveness. Complaining is definitely not good enough. Trying is not even good enough. You either need to succeed or unfortunately be declared an enemy of the state before you're really off the hook.
The amendments were put in place for reasons which are defined in history. You are willfully ignorant of history and didn't choose to speak to any real experts.
Go fuck yourself.
Do your own law school homework jackass...
In your "Peter Pan" universe; law becomes, "Guilty until proven innocent." Apologies to Billy Goel
And how do I know this? I can read.
They knew how to think back in the day.
If a criminal knows he/she/it doesn't even need to lie he/she/it can relax in his/hers/its inherent stupidity (criminals are stupid 9 times out of 10).
If they had to lie they'd need to grow some brains (and that would either make crimes worse or better).
The enemy you know is better than the unknown.
The right to remain silent is meant to protect the innocent, especially when they would only make themselves more suspicious by revealing the truth, i.e. that they had no alibi, that they were at the scene of the crime, or that they had a motive.
Let's say one evening you walk over to your neighbour to resolve a long-standing conflict: Three years ago, he borrowed your monkey wrench and never returned it. However, even on that evening, you are still unable to resolve the conflict. He just won't return your monkey wrench. You go home, get hopelessly drunk and fall asleep, crying over your lost monkey wrench.
The next day, the Police knock on your door and tell you that your neighbour was killed last night. This must have been shortly after you left him. However, you didn't do it of course. You are certain you left no fingerprints or other traces. However, the Police have heard of the conflict between your neighbour and you and would like to hear from you what your Alibi for last night was, and would like to know if you can confirm that you had a motive.
This is exactly the situation where, despite innocence, you are best advised to say nothing, call a lawyer, and heed your lawyer's subsequent advice to keep silent.
I'm amazed.. splitting hairs about the Fifth Amendment.. Go watch the "Don't talk to cops" YouTube video and never question the Bill of Rights again... https://www.youtube.com/watch?v=6wXkI4t7nuc
Paraphrasing the founders and SCOTUS, "Because fuck you, you statist piece of shit, that's why."
I'm sorry you didn't learn how and why we have the Constitution in 5th grade. Find a well-read 10 year old to explain it to you.
And next time, masturbate in private, not in a post on /.
In response to this article I'd have to ask why thy think he had child pornography on his hard drive? What caused them to believe he was doing anything illegal? Next I'd say what is his profession? Computer Programmer? Might he not have proprietary data on the HD that can't be shared or seen by anyone without the owner’s permission, say his employer? I just get very cautious of not only the use of Amendments being used in a flip way but also AMENDING the Constitution! So I'd say, if he chooses to use the Fifth, which in my opinion automatically seems like he's guilty, it is STILL HIS RIGHT as and American to do so and for any court or judge etc. to question that ability makes me wonder how much of our Legal System is truly based on the Constitution and how much the Supreme Court really DOES up hold the Constitution in favor of WE THE PEOPLE??? That statement of course removes the context of Corporations being PEOPLE as the SC has so adamantly stated they are. I have to say as someone has stated elsewhere, "If a Corporation can DIE for this Country, then I will say they are PEOPLE!" Just love that! Sorry, I didn't really play the game well and just used this to spout off my angst and frustrations with the whole Corporate World and Governments...at least I didn't mention religion this time.
Perhaps this will help: http://en.wikipedia.org/wiki/Origins_of_the_Fifth_Amendment
What I don't understand is why the suspect doesn't just say "Sorry, I don't remember the password". If it is a high-strength password, that certainly is possible.
Besides, how could they prove that he does remember it?
The point isn't the right to remain silent when asked "Did you do it?" Of course, that question is useless because almost anyone bad enough to murder is going to have no moral qualms about lying about it.
The point is probably more easily displayed with this example:
Johny was at the park. Someone was murdered at the park. Johny didn't do it. But Johny is charged with the murder. Johny is asked if he was at the park. If Johny says he was at the park, he will be convicted regardless of the fact that he didn't do it. So when asked if was at the park, the defendant remains silent. He has the right no to incriminate himself.
Exactly.
This fucking moron is making an assumption that only infants make: that men are good and honest. Officer Friendly and District Attorney Smilypants just want to help you and punish bad people! They couldn't possibly just be men, with human failings, frailties, motivations and ambitions. He almost develops an adult thought in his closing paragraphs, "then if the problem is the authorities can't be trusted, then FAIL find a way to only have good and honest people in charge herp derp!"
Good fucking luck with that. You might have heard about this dude, Jesus? Yeah about 2000 years ago he suggested to people that "hey, maybe we should all be nice to each other!" You know what they did to that guy? They nailed him to a fucking tree and let him bake, bleeding in the sun until he died.
Fuck you and your good men. We are a nation of laws, not men, because some men are bad and most are stupid, like this author.
We don't have a state-run media we have a media-run state.
The submitter is either an ass, or he's playing a game provoking people to generate additional arguments for the 5th Amendment, perhaps specifically looking to combat the "give us your password or we'll lock you up" crap.
The submission is to full of fail to bother addressing it all, such as complaining that protections for the innocent sometimes make it harder to convict the guilty. Whaaaaaah! Whaaaaah! Whine!
But there's another fundamental reason that no one seems to have mentioned. The government requires a court ordered search warrant before they can intrusively violate the sanctity of your home. But there is something far more sacrosanct than one's home... one's very MIND. I can't think of anything more intrusive than the government wanting to invade your mind to carry out a "search" of your thoughts. There is nothing more sacrosanct than one's mind. Government agents showing up with guns and locking yuo in handcuffs, and screaming at you "Hand over your THOUGHTS and MEMORIES, or we will imprison you by force, if you resist giving us your thoughts and memories we are authorized to use lethal force if necessary to haul you off and imprison you."
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
Yeah. That's bullshit. The government wants to seize, invade, and search your mind, and the government promises not to imprison you if you comply. FUCK THAT.
And if you decline to comply, the government declares it's going to imprison you... and if you resist they can and will use any and all force, up to and including lethal force, to carry out that imprisonment.
-
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
My Scenarios:
Scenario 1
COP: Mr Kessler--
ME: Oh please call me Dave.
COP: Okay Dave, did you murder Bennett Haselton?
ME: None of your damn business.
JUDGE: I hearby sentence you to six months in prison for failure to answer a police question.
JURY: And we find him guilty of the murder of Bennett Haselton, drawing inferrences from his silence.
OUTCOME: Unjust if innocent of the murder
Scenario 2
Same as above except that jury does not find me guilty of murder
OUTCOME : Unjust if guilty of the murder
Scenario 3:
COP: Mr Kessler--
ME: Oh please call me Dave.
COP: Okay Dave, did you murder Bennett Haselton?
ME: No.
COP: Okay thank you. You can go.
OUTCOME: Unjust if I DID kill Bennett Haselton.
Scenario 4
COP: Mr Kessler--
ME: Oh please call me Dave.
COP: Okay Dave, did you murder Bennett Haselton?
ME: Why should I answer?
COP: 'Cause you'll be in big trouble if you don't.
ME: All right, the answer is no, I didn't kill him.
COP: I don't believe you.
ME: So why did you ask me the F****** question in the first place.
COP: Gee I don't know.
OUTCOME: a lot of wasted time and no progress in the investigation
Thanks for saying this, I had a hard time taking his argument seriously when it looks like it was written by an 18 year old pothead who just got to college.
There are two main types of legal systems. They are inquisitorial and adversarial. In adversarial it is the government against the accused. In inquisitorial it is the government prying in to find out what if anything you have done wrong and it can be about anything.
In the United States we have an adversarial system with the burden of proof on the government in criminal cases. This is intended to give the presumption of innocence to anyone accused of wrong doing.
The 5th amendment right against self incrimination is a block against the government being able to operate the legal system as an inquisitorial legal system.
If there were no rights against self incrimination then the government would be able to ask you about every crime that has been committed, whether they have any indication you committed it or not, once you are in custody. Without the 5th amendment you have two choices, admit to everything that you did, or be punished for not admitting to everything you did.
Either way the burden has now been removed from the government and has been completely transferred to the individual citizen. It would now be your responsibility to try to prove why you shouldn't be punished, whether for something you did or simply for not answering, not the governments responsibility to prove you did something.
This would allow the government to simply ask a long list of questions to anyone that they detained.
So for instance, if there was a murder in an apartment complex, the police could go door to door and interrogate everyone. Nominally the police are only investigating the murder, but you have to admit to doing any wrong doing if they ask. You didn't do it because you were high? You have to admit that you were high to the cops and they can then arrest you, they now have probable cause to search your apartment and you have no defense in court.
The 5th amendment protects against the creep of a police state where the government has the right to know everything you did wrong, but has no requirement to prove it, you have the requirement to confess it.
The people that wrote the Constitution and the Bill of Rights thought enough of the 5th amendment to include it for a reason---specifically protection against self-incrimination was directly related to the question of torture for extracting information and confessions. Since the time of the founding fathers, the need for the 5th amendment has only increased.
Maybe the OP should watch James Duane's video about the fifth amendment: http://www.youtube.com/watch?v=6wXkI4t7nuc
I wonder (without posing a scenario) if the problem is that there are two concerns that the 5th plays into. First, while the police cannot beat you into confessions they can exert a lot of pressure just by the ways they ask questions and many have suggested we have overcorrected with things like Miranda etc. Maybe. Second, the real benefit may to accrue to the guilty or innocent person who invokes the 5th, but to the rest of us, who enjoy a certain level of freedom because we can count on the 5th? Just posing questions.
"There is no god but allah" - well, they got it half right.
Have you ever read 1984 by George Orwell?
Originally I was fairly swayed by the OP. Then lots of posts pointed out the whole"shades of gray" thing in terms of the legal system not being black and white. Easy to forget for us programmers. Still others pointed out downward spirals like the Salem witch trials. Hmm, perhaps a weaker point, but still good. I get the feeling the OP is still not convinced, however. So here are a couple of simple things I thought of after reflection.
Not in the form of a scenario, so fail0 me if you wish, but in this case I think clarity is not best served by a rambling scenario.
Basic premise: people so not ask simple questions that are yes/no when trying to extract information. They ask questions that are convoluted and complex, trying to catch someone in a lie. This is fine on tv, and acceptable when the party is guilty.
But you can't know the party is guilty. Many people get triples up under stress. Many are not articulate. Many (by definition) have below average intelligence. A goodly number do not speak English as well as the general public would hope. A goodly number have hearing problems, mental illness, senility, or other issues that prevent coherence under time-pressing pressure situations. There are even people, believe it or not, who have not grown up in a hostile or debate-heavy environment, and thus may fall into all sorts of verbal traps simply out of being an ingenue (or the male equivalent).
Oh, that reminds me: the point someone else made about all of the crazy statutes around, plus the vague nature of many of them, means that all of us, no exceptions, are lawbreakers. If that sounds silly or melodramatic, I'm not sure why. Look up crazy laws on the Internet, they are funny and concerning both. Also not known to the public or law enforcement in general, and thus not enforced.
Which really brings me to my main point, which is the need for counsel: many people don't know all of the rules of the "game" they have just been thrust into when they are entering the legal system. Many are petrified by fear and will make egregious mistakes. All are in violation of frivolous laws not material to the case. Potentially a majority are likely to be caught in verbal traps laid by experienced interrogators. Forget torture, it's hardly needed.
As for benefitting the guilty more often than the innocent: NO. This actually benefits the innocent more than the guilty (on a case by case basis, not in overall percentages that include the disproportionate number of guilty interrogatees). Repeat offenders are more familiar with the system. So are those from a culture of crime. Those with high intelligence and a taste for crime have an excellent incentive to study up. Those who come from hostile environments (not all of which are crime prone, but certainly many are) may be used to hostility and this on average less likely to get shaken and thus fall into certain kinds of verbal traps.
In other words, the right to remain silent is the same as the right to have counsel speak for you for many practical purposes.
Originally I was fairly swayed by the OP. Then lots of posts pointed out the whole"shades of gray" thing in terms of the legal system not being black and white. Easy to forget for us programmers. Still others pointed out downward spirals like the Salem witch trials. Hmm, perhaps a weaker point, but still good. I get the feeling the OP is still not convinced, however. So here are a couple of simple things I thought of after reflection. Not in the form of a scenario, so fail0 me if you wish, but in this case I think clarity is not best served by a rambling scenario. Basic premise: people so not ask simple questions that are yes/no when trying to extract information. They ask questions that are convoluted and complex, trying to catch someone in a lie. This is fine on tv, and acceptable when the party is guilty. But you can't know the party is guilty. Many people get triples up under stress. Many are not articulate. Many (by definition) have below average intelligence. A goodly number do not speak English as well as the general public would hope. A goodly number have hearing problems, mental illness, senility, or other issues that prevent coherence under time-pressing pressure situations. There are even people, believe it or not, who have not grown up in a hostile or debate-heavy environment, and thus may fall into all sorts of verbal traps simply out of being an ingenue (or the male equivalent). Oh, that reminds me: the point someone else made about all of the crazy statutes around, plus the vague nature of many of them, means that all of us, no exceptions, are lawbreakers. If that sounds silly or melodramatic, I'm not sure why. Look up crazy laws on the Internet, they are funny and concerning both. Also not known to the public or law enforcement in general, and thus not enforced. Which really brings me to my main point, which is the need for counsel: many people don't know all of the rules of the "game" they have just been thrust into when they are entering the legal system. Many are petrified by fear and will make egregious mistakes. All are in violation of frivolous laws not material to the case. Potentially a majority are likely to be caught in verbal traps laid by experienced interrogators. Forget torture, it's hardly needed. As for benefitting the guilty more often than the innocent: NO. This actually benefits the innocent more than the guilty (on a case by case basis, not in overall percentages that include the disproportionate number of guilty interrogatees). Repeat offenders are more familiar with the system. So are those from a culture of crime. Those with high intelligence and a taste for crime have an excellent incentive to study up. Those who come from hostile environments (not all of which are crime prone, but certainly many are) may be used to hostility and this on average less likely to get shaken and thus fall into certain kinds of verbal traps. In other words, the right to remain silent is the same as the right to have counsel speak for you for many practical purposes.
The Fifth Amendment is to counter Law "Enforcement". There is no free society where the government forces its will (enforcement) upon the people it is supposed to serve. Enforcement itself is what the Fifth amendment protects us from. Enforcement of Law is called Tyranny.
Most people are mostly good most of the time.
This issue isn't really a 5th Amendment issue. It's a legal ethics issue. Legal ethics is a fundamental human right in any nation with a legal system. Even the appearance of ethical conflict of interest must be avoided whenever possible. Contradictions in the legal system, make it difficult (sometimes impossible, given the limited amount of time most people can spare for the task of understanding the law) for ordinary people to understand their legal system, and thus create an artificial demand for the services of the legal professional. It follows that for legal professionals to create contradictions in the legal system, or allowing such to persist, is unethical conduct.
A reasonable person examining the text of the 1st and 5th Amendments would conclude that those Amendments DO provide protection from coerced speech. After all, the 1st Amendment says Congress may pass "no law" infringing freedom of speech. A person does not have freedom of speech if they can be coerced to speak, as coercion and freedom are opposite by definition. If the government needs the authority to do something a reasonable person would suppose is prohibited by the 1st or 5th Amendments, only an additional Amendment can give that authority without running foul of legal ethics considerations (and even then, there will almost certainly be legal ethics issues that would need to be carefully considered). Certainly no legal professional can authorize this.
Putting this in simpler terms, Americans believe that they live in a free country. If you are free, then you are free to not speak to the government. It's that simple.
Unfortunately, history suggest that it will be a cold day in hell before the US legal profession takes legal ethics seriously. It took a massive effort, in the form of the civil rights movement of the 60's, to get race based discrimination out of the legal system, even though any thinking person had to know that the "separate but not actually equal" system violated all sorts of fundamental rights (and thus violated rights arising under the 9th Amendment: the "separate-but-equal" system was unconstitutional and illegal). Even that massive and prolonged effort on the part of the people did not result in prison terms for the government officials and legal professionals engaging in criminal conduct by enforcing grossly illegal laws.
It may not have been practical to prosecute these people, but this absence of any meaningful penalty for these government officials and legal professionals engaging in criminal conduct has seemingly taught the current incumbents that they can get away with this kind of stuff.
There shouldn't be ANY issue with courts going back-and-forth about individuals being forced to give up their passwords, and the fact that this is going on shows a massive problem with the integrity of our judges.
The right to ethical legal practice can reasonably be asserted as arising under the 9th Amendment as a right "retained by the people", or the 10th Amendment as a right "reserved to the people". As such, the judges attempting to force people to give up their passwords are not only being unethical, but they are in violation of their oaths to uphold the Bill of Rights, such oaths being a precondition to hold office, and thus -- at a minimum -- disqualify themselves from holding office.
What other cherished beliefs that we hold, that we don't think carefully about?
In this case, the cherished belief is that the legal profession is somehow competent to determine issues of legal ethics. It is not an accident that the USA is known as the "Land of the Lawsuit", and the negative consequences of the abuse of tort law (and many other areas of law) does damage to US society on many levels.
is the perfect time to exercise your 5th amendment rights, Since it is a crime to lie to and agent you should NEVER speak to an agent without advise of council. In the case of the FBI there will be two agents one asking questions and the other taking notes. They will never question someone with a recorder active ask they want the only "official record" of any conversation to be the notes taken by them. Good advice here: http://www.youtube.com/watch?v=PhrBH4UTujE
It is not the point of the US constitution to help the government or to protect the individual citizens from danger. It is there to Limit the government and prevent it from doing things. Citizens are assumed to be able to protect themselves, at least until help arrives. The government and police are not there to take care of you. (Much as most police would like to protect everyone, and do the best they can...)
That is how it was set up, and how it still is, reguardless of what some people think of it.
Rather, he agrees with you and you fail at reading comprehension.
I submit that the guilty can more often be convicted based on good evidence, without a questionable interrogation .
Therefore, removing questionable interrogations benefits the innocent more.
Without the fifth:
Innocent person is convicted based on questionable interrogation
Guilty person is convicted based on questionable interrogation
With the fifth amendment:
Innocent is not even interrogated .
Guilty person is convicted on the basis of independent evidence .
The fifth means the state has to PROVE their case, not just bully a random suspect.
The false premise assumed here is that it is the Government that grants rights, and that the right against self-incrimination would cease to exist if the Fifth Amendment did not specifically enumerate it as "off limits" to government regulation.
The right against self incrimination is a basic human right that exists by nature of our being - and it stands to reason that no person shall be required to assist other people in depriving them of their basic human rights.
The Bill of Rights limit the power of Government. Write that on the blackboard 100 times.
The Bill of Rights limit the power of Government, and place those inalienable rights with the people, or The States. And after the 14th Amendment, the same rights that People have when dealing the Federal Government, we now have when dealing with State governments and laws, too.
The Founding Fathers knew from bitter experience what governments with unlimited and unrestricted powers could and would and did do to people. This is about Government not legally doing particular acts.
Putting forth a means test, or cost-benefit test, misses the whole point. If there ever was an example of a real slippery slope, giving up rights to governments, or allowing governments to do things without boundaries, this is it.
I suggest the OP spend an half hour or so on Youtube, search for "bad cops." Visit the real world.
Anonymous coward. Who am I kidding. The NSA knows I wrote this.