Seeking Fifth Amendment Defenders

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Comments

And yet

[sunking2]

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

Re:And yet

[Jhon]

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

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

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

Re:And yet

[Mini-Geek]

There's a difference between something you have on you (e.g. a key to a lock, DNA, fingerprints), and something you know (e.g. combination to lock, password). It's easy for police to show whether you have something. It's not (currently) possible for police to determine whether you know something. I think that an encrypted drive should be treated like a locked safe. Given the proper warrant, AFAIK the police have the right to try to break into that on their own if you don't want to open it for them - but not to compel you to give them the combination to it. The same way, they should be able to try to break into encrypted files on their own, but not to compel you to give them the password. The only big difference between safes and encryption is that breaking encryption is far more difficult, so the courts will be more inclined to ask you for the password than just break in on their own.

Re:And yet

[AmiMoJo]

The idea is that physical evidence can be challenged to make sure it is genuine and is thus hard to manufacture. On the other hand if you force someone to confess something and then at the trial they try to claim they didn't do it and were under duress it is very much harder for them to challenge their original statement. Information that exists only in your head cannot be examined or tested by others.

That is what the right not to self-incriminate is for. It prevents the cops simply beating a confession out of you, or putting so much mental pressure on you that you admit something you didn't do. It's basically to stop torture and unfair interrogations.

Re:And yet

[Anonymous Coward]

FAIL0

Re:And yet

[Aighearach]

It isn't really a right against self-incrimination, and trying to understand it that way confuses people IMO. The actual Right is the Right not to have to testify against yourself. Because previously people would be put up on the stand, and ordered to confess, and called a liar if they refused, and even tortured until they were willing to say "what happened."

While I don't want the Government to be allowed to force people to give up passwords, I don't see how we can get there based on this right. None of the misdeeds of Governments that led to the 5th Amendment are really invoked by giving up a password protecting physical evidence. You're not being asked to testify against yourself, you're being asked for control of physical evidence.

Re:And yet

[Golddess]

I think that an encrypted drive should be treated like a locked safe.

No, it shouldn't. Because then you get people claiming that encrypted HDDs need "special" laws because they are effectively unbreakable safes.

Call them notebooks, because that is what they are. Notebooks, made out of metal, written to using magnets. I don't actually know what the law has to say about notebooks written in a language the cops cannot understand, but bottom line is that surely trying to force the decryption of a notebook is already well established as acceptable/unacceptable, right?

Re: And yet

[tinkerghost]

Part of the issue is that there is the assumption you know the passwords. There's no reasonable way to prove you don't, so if your asshole of a roommate changed it, the government can hold you indefinitely under the assumption you do. A physical key you either have or don't.

Re: And yet

[Mabhatter]

Bingo. In the case of encrypted drives from YOUR computer, they have already established the physical device is under your control, now open the locked door in front of us... Open THIS locked door, we saw you open it once, please do it now.

The police knowing what's behind the door doesn't necessarily matter.. As the have proof you controlled access to that room at one time.

Re:And yet

[Bill_the_Engineer]

IANAL and it should be evident by my opinion.

I believe the argument is that the 5th amendment protects you from directly incriminating yourself, but doesn't protect you from being compelled by a court order to allow investigators gather evidence against you.

You not giving instructions on how to access the contents of the hard drive can be argued as contempt since you are preventing investigators from executing their court sanctioned search for evidence.

By the above reasoning, you'd have a 5th amendment right not to disclose the existence of the hard drive but once the authorities have possession of the drive and the court determines enough cause exist to search the contents of the drive you'd have to comply with the search warrant.

Re:And yet

[Jhon]

Perhaps.

I still think it's a fundamentally different "thing".

The court cant' compel me to say "I did it". It can compel me to give finger prints and/or blood -- then they would compare that to whatever the collected at a crime scene and it would be up to the prosecution to make the case that BECAUSE my finger prints are at a crime scene, and other "compelling" evidence, this man (me) is guilty. All without me lifting a finger to help the prosecution.

I.e. -- the court doesn't have access to my private thoughts (I have the right to remain silent). They can get a warrant and get physical evidence -- and if that includes material they cannot read, they cant force me to open up my brain and tell them how to read it. However, if someone ELSE had the decryption key, they could compel them under penalty of contempt to provide the key.

I'm certainly not a lawyer -- nor do I necessarily agree with the argument Im making. I'm just trying to follow the logic and how the 5th amd could apply.

Re:And yet

[WaywardGeek]

So you consider the secret password to my hard drive as a secret the government can torcher out of me legally, but my secret off shore account information in my head is protected by the 5th amendment? Somehow, the physical location of the locked away data is what is important to you, rather than the reasons for having the 5th amendment in the first place. I have a secret, and I'm allowed to keep it. That's what they 5th says.

Now, to compare against forced blood draw, the court has to have a court order like they do to search your house. This was determined to be a right to privacy thing, rather than a right to keep a secret. They decided that a 5th amendment protected secret has to be some idea in your brain, and that it doesn't cover taking samples from your body. That's a pretty scary line they crossed, but at least it helps us put away rapists with more confidence that we got the right guy. Now, the fact that our communication, location, phone calls, emails, and internet browsing is mostly available to be data-mined by the NSA without any process at all is new since 9/11. The NSA knows your brand of toilet paper and the last time you slept at your girl friend's apartment, as well as who you had lunch with, and the contents of that last non-encrypted e-mail you sent. They've correlated that with the likelihood that dorks like you and me who post openly on Slashdot are going to do something violent. The right to privacy has been bent over a chair and anal-raped. Hopefully, we're at least a little safer for it. Are we?

Re:And yet

[Roachie]

I thought the hosts file guy was back.

Re:And yet

[ottothecow]

I would guess that the proper response to the cops having a notebook of yours written in a language they don't understand is "GTFO and find a translator"

If they can't find a translator (maybe because its a language you made up), they are free to get a language expert to try and figure out your language like they might with a dead language. They might discover that it would take that guy 10 years of working day and night to be able to read your language...but too bad. Either they are going to have to wait 10 years to prosecute you (pretty sure statute of limitations can't expire while they are actively investigating something so they are good there), or they are going to have to find some other way to do it. No way could they force you to translate your language.

Re:And yet

[cbhacking]

Except, there is knowledge of a crime, and evidence that you committed it may reside in that hard drive's data just as surely as it may reside in your fingerprints' unique pattern. If they have a warrant (which implies probable cause to search) for your digital data, how is that different from having a warrant for your arrest and fingerprinting / blood sampling? They already know a crime occurred, and the approximate location of it (which might be based on a virtual location, such as "one of the computers connected to the Internet through the IP address that was assigned to the router in this house").

How is being forced to give up some of your blood to see if it matches blood found near a crime scene any less a case of "information which might incriminate me" than being forced to give up the encryption key to a storage device to see if it contains data which was traced to a location (electronically) near a crime scene (where "crime scene" means the exact place and time that the crime occurred, and which the police cannot always determine with pinpoint accuracy?

If all that one could gather from fingerprints and DNA are that you were present, not what you were doing, you *might* have a point. However, that's not the case. Matching your DNA to that found under the fingernails of a murder victim shows that you were probably fighting. Downloaded material (which may or many not be child pornography) which matches content from a site that purports to host child pornography shows that you were probably (not guaranteed; it could have been somebody else using your computer or something) downloading it. If you do not have the right to conceal the evidence that you were fighting a murder victim, why should you have the right to conceal the evidence that you were downloading from a CP site?

Re:And yet

[russotto]

You not giving instructions on how to access the contents of the hard drive can be argued as contempt since you are preventing investigators from executing their court sanctioned search for evidence.

They can access the contents through the standard drive interface. Figuring out what the contents MEAN is up to them. For instance, Al Capone's ledgers were in code. It would have made a mockery of the Fifth Amendment if they could demand Capone decrypt them to be used in his prosecution. (so instead they tortured the decryption out of one of his underlings, but that's another story)

Re:And yet

[Jhon]

"Except, there is knowledge of a crime, and evidence that you committed it may reside in that hard drive's data just as surely as it may reside in your fingerprints' unique pattern."

No... there is a suspicion of a crime and evidence of that suspected crime MAY reside on the HD. It's not the same thing, I believe.

Re:And yet

[swalve]

Suppose you stored some incriminating evidence on a piece of paper, written in a language only you know. Could you be forced to translate it? My view would be no. Not even because of the 5th amendment, but because that kind of evidence would be horribly suspect. Someone who testifies on their own behalf is irretrievably biased for (or against, if they are crazy) themselves.

Re:And yet

[swalve]

They have the hard drive; they have control of the evidence. It is up to the prosecution to sufficiently explain how the evidence connects up to the crime charged. The relevant text is

nor shall be compelled in any criminal case to be a witness against himself

Giving up a password or being forced to enter the password is indeed being a witness against oneself. The only way to introduce evidence is through the testimony of some witness. The police can say testify that they found this hard drive looking hunk of metal in your house, and then some expert can get on the stand and proclaim that the drive functions that that it contains random seeming data. But to decrypt it, you would have to get on the stand, be sworn in as a witness, and asked to enter the password. It is no different than being called to the stand and asked to explain to the judge how you held the knife when you stabbed your wife.

Re: And yet

[Aighearach]

You can just as easily turn over a broken or bent key.

If you try to provide the password and don't have it, that is a going to be a rare situation. It seems reasonable to me that the Judge may (or may not) compel you to provide a list of people with the password depending on your credibility. That seems less of an issue than compelling you to provide it in the first place.

The right to remain silent

[fustakrakich]

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

Re:The right to remain silent

[OakDragon]

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

Great Ron White quote - "I had the right to remain silent... but I didn't have the ability."

Re:The right to remain silent

[Zemran]

I wish my wife would use this right...

Re:The right to remain silent

[Aerokii]

Simply put, Yes.

Re:The right to remain silent

[Xenx]

I wish I had a wife, who would then use this right...

Re:The right to remain silent

[humphrm]

Love this movie quote:

Shrek: Donkey, you HAVE the right to remain silent. What you lack is the capacity.

Re:The right to remain silent

[IndigoDarkwolf]

Slow news day on Slashdot, apparently.

Re:The right to remain silent

[Holladon]

You guys! It's funny because all women need to know their place and shut up AMIRITE!

what's torture?

[therealkevinkretz]

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

Re:what's torture?

[i kan reed]

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

Re:what's torture?

[Maxo-Texas]

Go to Youtube...

Watch "Don't talk to the police".

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

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

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

Re:what's torture?

[berashith]

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

Re:what's torture?

[therealkevinkretz]

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

Re:what's torture?

[i kan reed]

Yes, I know that, see my other post in this discussion. 4+5+6+7+8+14, with any one of those missing, the potential abuse the government could engage in would render the rest essentially pointless.

Without 4, they could go on fishing expeditions unrelated to the known crime, to find a way to send you to jail, regardless of guilt. The protections of the rest would do no good.
Without 5, they could just force a confession. To jail with you.
Without 6, they could use legal arcana to convict you without you understanding it.
Without 7, they could just detain you forever, forget the trial
Without 8, they could threaten so severe a punishment for a conviction, that any sane person would take the plea bargin
Without 14, they could just let your state do any of the above, instead of the feds.

We could probably survive without #3 though.

Re:what's torture?

[darkmeridian]

The highest appellate court in New York just reversed a murder conviction because the defendant endured a 49.5 hour interrogation. If you don't have the Fifth Amendment right against self-incrimination, they can just keep asking you questions until you answer, and there's absolutely no way you can make them stop. Currently, you could at least find a lawyer to say, "He's not answering, he's taking the Fifth, leave him alone."

OP is an ivory tower guy. He has no idea how abusive the police and the district attorneys can be in real life.

Re:what's torture?

[Anonymous Coward]

Without 8, they could threaten so severe a punishment for a conviction, that any sane person would take the plea bargin

This needs to be reexamined in our current society. Currently this is exactly what goes on. Point in case: Aaron Swartz.

Re:what's torture?

[Impy the Impiuos Imp]

This. That's the scenario.

Sir, your gf was murdered last night. Where were you?

I refuse to answer.

You have just committed a crime. Also, ladies and gentlemen of the jury, his very refusal should be considered, by you, as implicit evidence of guilt.

That last part was a change England made some years back, over the objections of many.

If this issue really concerns you, perhaps you should read why it was added to the Constitution along with other rihts, which were also abused by those in power to remain in power.

Sir, you were at a political meeting last night. What were you doing there?

By tying the analysis to common criminality instead of the real motivation, government abuse of power to maintain its power, OP.demonstrates world-class, full-on, all-caps FAILURE OF IGNORANCE CLASS 1, 2, 3, 4, AND 5-719.

Re:what's torture?

[jdharm]

The Fifth Amendment only addresses the competency problem as it applies to one type of evidence, and still leaves courts dealing incompetently with every other type of evidence.

So since the 5th doesn't solve every problem, only one, then it has no value and should be thrown out?

If judges are really so incompetent that they don't understand how someone can become flustered...

Let me stop you right there. It could be argued that judges are, as a group, above average intelligence (*citation needed) and would understand this. The problem is that we all get trials by a jury of our idiot peers, who are by definition at least 50% below average intelligence. If we're tried by an bunch of intelligent, competent, fair persons then sure, make 'em talk. The problem is that we're being tried by a bunch of common people ("A person is smart; people are dumb, panicky, dangerous animals, and you know it.") in circuses presided over by the most reviled members of our society (lawyers) and the ones of that cabal who fought their way to the top (judges).

In that environment, I'd like the right to keep my mouth shut, thank you very much.

Re:what's torture?

[oh_my_080980980]

Your failure to conceive of a situation for the value of the Fifth Amendment is yours and yours alone. More importantly if you are truly want to understand the Fifth Amendment, you should consult a lawyer.

Re:what's torture?

[Applekid]

We could probably survive without #3 though.

Are you kidding?
Without 3, they could set up camp in your house while they make it a new police headquarters

Re:what's torture?

[IndigoDarkwolf]

OP is an ivory tower guy. He has no idea how abusive the police and the district attorneys can be in real life.

What? It's not like they'd drive someone to suicide.

Re:what's torture?

[Anonymous Coward]

Look this up on google scholar..."COMMUNIST ATTEMPTS TO
ELICIT FALSE CONFESSIONS FROM
AIR FORCE PRISONERS OF WAR" by Alfred Bidermann, paid for by the Air Force to figure out how the North Koreans were able to convice people to convince themselves they had committed crimes and sign false confessions thereof. 23 of our American POWs stayed behind, in North Korea, after the official POW transfer at the armistice, and required calls from family members to bring them back to reality and to come home after the no-strings-attached parole. As you can read - physical torture is rarely required if an interrogator knows how to mentally badger an individual under duress. And the burden of proof, as we choose it in our democracy, is on the prosecuter. If you don't like that, I have many assignments open in Southwest Asia at the moment where you will be very happy in the local culture and justice system. Typically, at the moment of an arrest, a lawyer is not present. In the best interest of a client, if that client is in any sort of mental duress, the fifth is the correct choice. I would like to see the dash cam of the guy who wrote this post as he gets pulled over for speeding one mile over the limit and uses the excuse "but everybody else is going five over!". And I don't know if anybody else sees this - the original poster is clearly a control freak - just look at the little world and sets of absolutes he has created for us - forget it. I hope no one actually plays along with this.

Re:what's torture?

[i kan reed]

We actually have a document that is a checklist of grievances against the british crown, and it's more than 10 items long. It's called the declaration of independence.

If our constitution protected us against our government paying "indians" to attack us, it'd be kinda depressing.

Re:what's torture?

[bennetthaselton]

Well even in that case, there are a number of alternatives to an absolute "right not to incriminate yourself", such as:
- Not allowing the police to force you to answer questions, but allowing a court to force you to answer. Thus a prosecutor could ask you "Did you kill the man?" and you would have to answer "Yes" or "No". But now the questioning happens in open court, under the supervision of a judge and your own lawyer, who can say "Already asked and answered" if the prosecutor keeps asking you the same question, or otherwise keeps harassing you.
- Requiring defendants to answer (even if questioned by the police), but allowing them to answer through their attorney, who can object if the police keep badgering you with the same question

However, I think you're generally right about the sorry state of court proceedings, and that was one of the implications I called out in my article -- if *that* is the real reason for the Fifth Amendment, then we urgently need to fix the larger problem. Thus if that's the best reason to support the Fifth Amendment, the paradox might be, how can anybody support the Fifth Amendment *and* simultaneously be proud of how our legal system conducts itself.

(And I don't think that judges, at least at the state level, are the members of the legal profession who "fought their way to the top"'; in most district court elections, there is only one candidate running, and the job pays less than most attorneys make.)

Re:what's torture?

[Impy the Impiuos Imp]

If anyone doesn't understand what I said here, here it is even more brutally.

Leader: This guy is uppity. Go hassle him. Trump up something.

Lackey: Got it, boss!

(later)
Lackey: Where were you last night?

Citizen, who was at a political meeting: I refuse to answer.

Lackey: You are under arrest.

Does the OP finally understand?

Re:what's torture?

[therealkevinkretz]

It was the prior post that claimed it was the Sixth Amendment - "That's why we have a 6th amendment" , implying that it didn't involve the Fifth, not mine. I agree with you.

Re:what's torture?

[Binestar]

It boils down to this, (if you're still reading): There are so very many things that are perfectly legal to do or have that you might not want others to know you have them and would refrain from sharing.

1: The encrypted hard drive contains homemade porn with your wife.
2: You're digging a fallout shelter in your yard during that time and don't want anyone to know in case of disaster.
3: You're planning a surprise party and do not want to ruin it.
4: You were having an affair with police officer's wife and you are afraid if you tell him he will hurt you.
5: You were listening to Creed and don't want anyone to know you like that band.
6: You don't want to explain why you were at the bar with a friend your wife has forbid you from seeing when you told your wife you were at the movies with a different friend.
7: You were at your doctors getting the results of an STD test.

The list goes on and on. Unless you're saying secrets are no longer allowed?

Re:what's torture?

[Maxo-Texas]

Actually they are not except for extraordinary circumstances and then they usually need the approval of a judge.

In most cases, when you ask for a lawyer, they have to stop questioning you til one is present.

If you plead the 5th, they have to stop questioning you unless they have evidence to arrest you with. If they can't arrest you, they are bound to let you go or they get in serious trouble.

As facist as the U.S. has become (in less than 30 years!), it still has a LOOOOONG way to go from being a true facist state. We still have a lot of legal protections.

Go to Youtube and look for the motorcycle guy pulled over at the illegal checkpoint. I'm uncomfortable watching the damn thing. But the police let him go very quickly (under 10 minutes) because he actually knows his rights and they can tell he does.

Re:what's torture?

[jimbolauski]

The part that really opened my eyes was the mistaken witness example. Say someone was murdered and you are the main suspect, your alibi is that you were visiting your mother at the time of the crime. Now if you tell police your alibi and their witness says she thinks she saw you near the scene of the crime, a witness that would not be able to testify in court, now can because she is contradicting your statements.You are completely innocent are are now placed at the scene of a crime because you simply told the police where you were.

Re:what's torture?

[therealkevinkretz]

I think that making as big a distinction as you do between the right to not answer questions (which we seem to agree belongs to the Fifth) and the right not to be detained is misleading in the first place. But, that aside, that right to not be detained is part of the Fifth anyway (deprivation of liberty without due process, due process being enough evidence to arrest/detain).

Re:what's torture?

[dtmos]

Please cite one specific scenario where someone could be convicted of a crime they didn't commit, simply because they talked to police.

The Central Park Jogger case. Note that innocents were convicted of this crime even with the protection of the Fifth Amendment. Imagine how often this scenario would be replayed among the general population, not just disadvantaged youth ignorant of the law, if the protection were not there.

Re:what's torture?

[dtmos]

The Fifth Amendment only addresses the competency problem as it applies to one type of evidence, and still leaves courts dealing incompetently with every other type of evidence.

The fact that something is imperfect or incomplete does not mean that it is not useful or valuable -- no machine is 100% efficient. A system with the Fifth Amendment is better than one without, for at least this reason.

If judges are really so incompetent that they don't understand how someone can become flustered and contradict themselves after being questioned for hours on end, then that incompetency is the real problem . . .

One can either solve this problem, or avoid it. It's very difficult to come up with a scheme to ensure that judges (or jurors) will "properly" (whatever that means) evaluate the possibility that the defendant made a false confession. It's considered by most to be better to avoid the problem, by allowing the accused the opportunity to not say anything at all.

Re:what's torture?

[cbhacking]

No, the fourth could cover that nicely. Probable cause is required for a search or an arrest, so classify asking questions about crime a type of search (a search of one's intellectual property, to use an existing legal term). If the police want to search your brain (or your encrypted hard disk partition), make them obtain a warrant to do so. If they Do obtain said warrant, it is your legal obligation to allow them to do so.

Re:what's torture?

[Holladon]

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

Not a crime itself, but evidence of a crime, which might be even worse if it's a bad enough crime they're investigating.

Re:what's torture?

[berashith]

this is exactly my point, it would become a crime. It would be very easy for years of law to twist things to the point that not answering a question would be a crime. We are protected from this because of the 5th. It may not be the detail, but it is the foundation

Re:what's torture?

[__aasqbs9791]

Is the 5th actually protection against torture, though? I mean, you can give it up and if you were tortured you would be tortured into giving it up, assuming you consider torture to be possible without physical damage (which I do, but that's another discussion). This has happened in this country recently as others in this conversation have mentioned. Example: http://www.youtube.com/watch?v=qbzlLadbMDQ

Re:what's torture?

[Holladon]

Without more specific context for any given scenario, making failure to answer a question a crime in and of itself could potentially face resistance from the First Amendment even in the absence of the Fifth Amendment -- although certainly your scenario is not far-fetched (the First Amendment doesn't make obstruction of justice unconstitutional, for instance, and obstruction charges may in some circumstances be brought against uncooperative witnesses). But, regardless, I couldn't agree more that the Fifth Amendment is incredibly important, whether it protects you only from the fabrication of evidence against you or from the eventual creation of a whole new category of "crime."

What am I in law school here?

[Anonymous Coward]

Do your own homework.

Your words can always be twisted

[immaterial]

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

Re:Your words can always be twisted

[spire3661]

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

Re:Your words can always be twisted

[Anonymous Coward]

The fascists that want to take away your right to not incriminate yourself don't have a problem following some fascist FAIL rules. Posters that use this 'FAIL' system are showing their true colors.

Re:Your words can always be twisted

[apcullen]

A 40 minute video, half of which is a fast-talking virginia law professor, and the other half of which is a police office. I intended to watch 3 minutes of it, but wound up watching the whole thing. Surprisingly entertaining. And True.

Re:Your words can always be twisted

[Laxori666]

This is positively and absolutely the answer. The reason is to protect the innocent, not to protect the guilty. Short example deriving from the video (which you absolutely have to watch): Say a murder was committed in your neighborhood (not by you) at 10PM last Sunday. The police can ask you: what were you doing on 10PM last Sunday? Maybe you were actually taking a stroll in your neighborhood, as you usually do, though you didn't see anything/know about the murder 'till later. If you tell the police that you were out taking a stroll, alone, in that same region, they can easily use that to build a convincing case against you and put you away for a long time. If you say you weren't taking a stroll, and later it is found out you were, then that's obstruction of justice, which comes with its own penalties. Best thing to do is to REMAIN SILENT and get your ass to a lawyer!

Not all laws are just or constitutional

[Anonymous Coward]

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.

Re:Not all laws are just or constitutional

[j-beda]

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.

Additionally, being subject to investigation in a case where you are innocent is common. Not wanting to reveal that you are sleeping with the chief of police's daughter or that you were at a gay bar or at a protest against police brutality or at any other of a number of legal activities that you do not want to share with the police or the courts or your neighbours, is certainly a possibility.

Helping to solve crimes is probably good for the "average citizen" to try to do. Making it a legal requirement to do so is opening up such a large potential for negative consequences that I don't think it is a good idea.

Doesn't he also have

[emohawk]

The right to remain silent?

Re:Doesn't he also have

[gmclapp]

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

Re:Doesn't he also have

[Anonymous Coward]

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

Re:Doesn't he also have

[Baloroth]

It's actually a bit more complicated than that. You still have to answer a question if the answer alone is not itself incriminating. So, for example, a question like "where did you bury the person you murdered" would definitely not have to be answered (because knowing that implies you murdered the person in the first place). But a question like "what is the combination to your safe" would not necessarily be self-incrimination, because the combination itself doesn't incriminate you, and the court already knows you know, even if inside the safe are documents that show you committed a crime. The question of where that line is crossed isn't completely clear: hence, "judge", because they actually have to judge when that happens.

Re:Doesn't he also have

[bws111]

What??? There is no such thing as a 'Miranda right'. Where did you get that idea? The Miranda warning is just a statement of your already-existing constitutional rights, said in a way that is easy to understand. Thus "not shall be compelled in any criminal case to be a witness against himself" becomes "you have the right to remain silent", along with the caution that if you give up that right whatever you say can be used against you.

Also note that the actual right is to not be compelled to be a witness against yourself. If you give up that right by testifying in your defense, then you can be compelled to answer questions, even if they incriminate you.

Re:Doesn't he also have

[Obfuscant]

It does not protect you in a court of law where you can be held in contempt if you refuse to answer a question.

In US courts, the defendant is not required to testify. If he chooses to, he has waived his right to remain silent.

Re:Doesn't he also have

[matfud]

This partly derives from the 5th. If the prosecutor were to call you to testify the first thing you would do is take the 5th and they could not ask you any more questions. So it becomes a moot point that if you refuse to testify on your own behalf (as a defence witness) the prosecution can not force you too (so it has been formalised to simplify court proceedings and avoid mistakes by the defendant)

Re:Doesn't he also have

[PoolOfThought]

IANAL - this is just my understanding and what I've been told by friendly lawyers and friendly police over time -

It's actually a bit more complicated than that. You still have to answer a question if the answer alone is not itself incriminating.

No, you don't have to say anything. EVER. You don't have to talk to them at all before you are arrested because they're just some other person. Yes they're police officers, but unless you've been detained you don't have to say anything. Once you've been detained then you still don't have to say anything. If you like you can confirm that you've been detained and then ask to contact your lawyer or to be released / arrested. Then once you've been arrested you have the right to remain silent. At no point do you ever really have to say anything. It will escalate or deescalate itself on it's own. You might exchange niceties and be polite to move things along, but even that is a risk and you don't have to do it.

But a question like "what is the combination to your safe" would not necessarily be self-incrimination, because the combination itself doesn't incriminate you, and the court already knows you know, even if inside the safe are documents that show you committed a crime.

If you've been arrested (and even before so) then anything you say can and will be used against you. That means it's testimony and the fifth amendment says that you don't have to say anything at all if it means you're providing testimony against yourself. You do not have to testify in your own defense period - unless you waive that right. And then you're bound to answer all questions. You either testify or you don't... you don't pick and choose the questions you will answer...

Consider the way this is actually being applied. Think about it in the context of a parolee who is not allowed to possess a firearm. If the police SUSPECT or even KNOW there is a firearm in the safe then that's all fine and dandy, but asking the parolee to hand over the combination would essentially be asking them to show that they have control (ie. possession) over what is in said safe. So, in essence, asking them to tell you what may (or may not) be in their head would be asking them to incriminate themselves via their testimony.

By not providing a combination the parolee can show (or argue later) that they are NOT in control of the safe's contents (maybe their roommate controls the key, maybe the safe was left in the house when they bought it, maybe they just rent out the space and don't maintain access themselves) or that they don't know the combination. In those cases the prosecution would have a hard time proving that the person did have "possession" of the contents of the safe.

If the person provides the combination then they'll be presumed to have had access and likely knowledge of what was in it.

Let's try another example. Let's say you know the combination. Your spouse is a drug dealer and you do not know it, but you know the safe combination because it's the same as your shared ATM card or some other crap like that. You, with all good intentions, tell the government the combination and earn yourself a trip to jail - Just for knowing and telling the police the combination!

Let the police do their job and let your lawyers to their job. When you start doing the police's job for them you make it harder on your lawyer... even when you're innocent - perhaps moreso.

Re:Doesn't he also have

[Baloroth]

Hmm, perhaps I was confusing the situation a bit. You are correct that producing a combination might count as self-incrimination, what I was thinking of is that the defendant can (in certain situations) be forced to produce a key, because that is a physical object, not a piece of information (although the defendant may say he doesn't know where the key is, he can't not say anything, unless knowing where the key is would somehow itself be incriminatory. Seems to be a large body of case law on the subject, UNITED STATES V. HUBBELL (99-166) 530 U.S. 27 seems to contain most relevant rulings).

But, it's highly situational: if the government already knows you know the combination, it could compel revealing it, because then the revelation isn't testimonial about anything: they already know you have access to the safe. At least, thats how I'm reading the rulings. Probably should add that IANAL, so I'm not sure (and even then, most lawyers probably don't know, the law is a bit complicated and highly specific).

Re:Doesn't he also have

[PoolOfThought]

I do understand the physical key argument. When it comes to a physical key and there is proof that you did in fact have control of the key then an explanation will probably be in order for why your can't provide it. Heck, if they're filming the safe 24/7 and see the parolee open it up then maybe that would be grounds for forcing them to provide a combination. They've already proved access so now it's just down to what's in it - and if the have a warrant then they get to know.

In that case the contents are the the primary goal and serve as evidence of wrong doing because they already know you have access to them.

My example, as you saw, the police didn't not know that the parolee had access. It was a case where merely being ABLE to open the safe is what constituted breaking the law and proving that he could do so would be testifying against themself. What was in the safe was not necessarily proof of crime, but being able to open the safe was... crazy huh?... that's our world.

Re:Doesn't he also have

[chrismcb]

That is a Miranda right. It does not protect you in a court of law where you can be held in contempt if you refuse to answer a question.

Of course it does, that is the whole point of the 5th amendment (it isn't a "miranda" right, it is a Constitutional right)

Which society do you want?

[Anonymous Coward]

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?

Re:Which society do you want?

[jader3rd]

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?

I don't believe that the OP said that without the 5th we all of a sudden become truth tellers. Given that so many people would be lying anyway, the police would still need to be going after physical evidence.

We actively tortured people, in the last decade

[i kan reed]

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

Re:We actively tortured people, in the last decade

[suutar]

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

Re:We actively tortured people, in the last decade

[i kan reed]

I say "we", because I acknowledge that I am at least partially accountable for the actions of my government. I didn't support the politicians supporting the people doing it, but to pretend that denies culpability is insane. It takes more than cynicism and disagreement to stop abuse.

Re:We actively tortured people, in the last decade

[phantomfive]

Yeah, actually, the OP would be better off getting an 8th grade civics textbook, because that's where they talk about that stuff. Instead he spent who knows how long writing, asking a question. The answer is in the library. In the same amount of time, he could have found the answer.

At some point, you should spend time looking for answers instead of asking questions. The OP passed that point a long time ago.

Re:We actively tortured people, in the last decade

[phantomfive]

This. Submitter asserts that you still can't be tortured, but how long would that last when the court is allowed to insist that you answer and can choose to disbelieve a denial of guilt?

How uncomfortable do you think you can make someone without torturing them? Enough to get a confession? Even during the Spanish Inquisition they understood the limitations of torture; they didn't accept confessions made during torture (they required the confession to be repeated later).

And that doesn't even take into consideration that the confessor might be lying to protect someone who WOULD torture them.....

Re:We actively tortured people, in the last decade

[i kan reed]

Because to one extent or another, we're all at least a little culpable for the results of the actions we could've taken and didn't. I won't pretend I'm not part of a country that tortured people. What I'll do is remain vigilant, and never ever let anyone go without answering the question of torture again. It might not be the most I can do, but remembering that you can do something is important.

love letters & confessionals.

[gl4ss]

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

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

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

Re:love letters & confessionals.

[gl4ss]

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

What supreme court says...

[abhisri]

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

Re:What supreme court says...

[Anonymous Coward]

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

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

Re:What supreme court says...

[darkmeridian]

The OP is missing the point that under current law, if you take the Fifth, that fact CANNOT be used to draw a negative inference against you at a criminal trial. For instance, if you go to trial, and you refuse to testify, the DA cannot look at the jury and say, "Hey, he won't speak in his defense; he's gotta be guilty, right?" Whereas, if you got rid of the Fifth Amendment, you can still shut up, but then the judge can tell the jury that your silence is evidence of your guilt. Bottom line, the Fifth Amendment is crucial, and OP is a smug bucket of fail.

Re:What supreme court says...

[DJRumpy]

Simple and elegant as an answer can get. Hopefully they mod you up for that.

The police may be asking all of the wrong questions, which of course lead them to a 'guilty' conviction. It makes sense for them to do so, while they may understandably have less passion in proving you innocent. The answers they could compel may not have any basis in the reality of what actually happened.

Re:What supreme court says...

[Binestar]

Seems to me it is a pretty damn big burden to decrypt a hard drive that they "Suspect" has videos of the murder on it, but instead it is your webcam collection of yourself and your lady friend making "art" which is now in the hands of the police. The 5th amendment isn't just about answering questions. It's about not using your knowledge to assist them in doing witch hunts against you. There are things that are perfectly legal that you might want to hide. Why would a murder case you had nothing to do with change what you have the right to keep hidden?

I would rather people get away with crimes than innocent people get witch hunted. There is a reason the term is called a witch hunt, look at history.

Re:What supreme court says...

[Qzukk]

If I'm innocent, I don't consider it a huge burden to take the stand and say, "No, I didn't do it," since I'm already in court anyway.

Then it's added to the list of crimes you're guilty of when the prosecutor's DNA analyst lies on the stand to prove you did. Going to prison for just murder is objectively better than murder plus X more days for perjury. This meets all of the bullet points except for the one where you've gone off the deep end and demanded that we eliminate all the corruption that has existed for millenia and will continue to exist long after we're all dead.

Re:What supreme court says...

[darkmeridian]

It's not just at trial. If the police ask you a question, and you don't answer, that can be used against you absent the Fifth Amendment. Think about that. Do you think that a 49.5 hour police interrogation of a person should be legal? The courts disagreed; the NY Court of Appeals just reversed a murder conviction where the guy confessed after a 49.5 hour interrogation.

Re:What supreme court says...

[JeffAtl]

I agree with you, but unfortunately juries still tend to hold it against defendants that don't take the stand. It's always been the case, but it has been made much worse by the Nancy Grace's of the world.

Re:What supreme court says...

[Darinbob]

There are people in the jury box who will assume it's evidence of guilt though, especially if they're ignorant of the law.

And the Prize is?

[Saethan]

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.

Re:And the Prize is?

[berashith]

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

Wanted: Proof of evolution

[MetalliQaZ]

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.

Re:Wanted: Proof of evolution

[sqrt(2)]

My thoughts exactly. This guy is a useful idiot for the police state. He already knows what the answer "should" be, and the parallel to creationist challenges issued to proponents of the truth of evolution is incredibly apropos. They too "know" the answer ahead of time, their minds are made up and you can bet that any forum where they control the discourse with an arcane set of rules is intended to fluster the other side and make their position appear weak in the eyes of the audience. Neither the creationists nor this fellow are operating in good faith. You win by refusing to play by their specialized set of house rules and instead follow the laws of logic and humanist ethics.

The real rebuttal, which flies right over his ditzy rules and "fails" is self-evident to anyone who thinks about the issue for more than a moment. The burden of proof is on the State to prove a crime has been committed. You're assumed innocent from the start, so why should an innocent person be compelled to testify against himself?

Furthermore, it is a greater injustice for an innocent person to be punished, than for a guilty person to go unpunished. Justice always has a chance of being applied some time *in the future*, the wrong-doer's crimes may eventually catch up to him, but you can't give back a person's life spent wrongly imprisoned. Take the most extreme example of the death penalty. You can't un-execute an innocent person.

Re:Wanted: Proof of evolution

[ebno-10db]

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?

You can cite plenty of evidence for evolution - you just cant' force someone to believe it or even consider it evenhandedly.

More importantly though, I agree with you about the structure of the question and the rules, but the correct approach (at least if you're an argumentative sonofabitch like me) is to point out the errors and assumptions, or how it's structured to arrive at a predetermined conclusion, or doesn't ask all the right questions. For example, the 4th criterion is flawed (the 1st is similarly flawed, but I'll use the 4th as an example).

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.

This assumes that there are protections aside from the 5th that will be just as effective as the combination of those protections and the 5th. It's a theoretical assumption and not borne out by history. You have to appreciate that the Bill of Rights weren't written as a theoretical exercise, but based on a long history of actual government abuses. Most of the rights exist not because otherwise government could theoretically abuse its powers, but because in the past it actually had abused its powers. Moreover the people who wrote the Bill of Rights were pragmatists who realized than in reality it often wasn't enough to say "you can't do that". To be effective you should, where practicable, reduce incentives for doing the wrong thing.

The question "what's the philosophical argument that you shouldn't have to answer 'Yes' or 'No' if the police ask if you committed the murder?" is silly. The author even admitted it was philosophical. Pragmatists don't much care about that, because in reality lots of murderers say "I didn't do it". The way to prove they lied is to convict them at at trial, but after that what's the difference whether they lied? Perhaps if there was some way to magically ensure someone isn't lying (torture certainly doesn't do that) you could argue the 5th was a serious impediment. Since you can't, it's not.

It's one thing to have a "no torture" rule and quite another to enforce it effectively. It's like leaving $1M unguarded and saying "but there is a law against theft". That's true, but I'd still rather put the money in a safe. The 5th reduces the incentive to torture a confession out of somebody. It was a big problem in the 17th century, and I don't buy the argument that it's not an issue now because the 17th century was a long time ago. Many types of government abuse date to ancient times, and absent guarding against them, can and ultimately will be used again. Many abuses we don't worry much about nowadays precisely because they have been guarded against for a long time. I don't worry much about catching bubonic plague, but if a case crops up (it still exists in the US in prairie dog populations) I'm all in favor of a quarantine.

While "torture" sounds melodramatic, it doesn't have to mean stretching somebody on a rack. I'm not reflexively anti-police, but police brutality can and does occur. Suppose some crooked cops beat a confession out of somebody. They're smart enough not to leave marks. The defendant lodges a complaint. Who is going to believe the word of somebody convicted of CP? Alternatively they could drop put the defendant in jail for refusing to use the encryption key, and let the crime he is accused of "leak out" to the other inmates. Jailhouse "justice" can be worse than anything

Re:Wanted: Proof of evolution

[oh_my_080980980]

Actually you are demanding proof. Again if you are truly searching for an answer then you should consult a lawyer. The fact that you made a post on Slashdot, and not consulted a lawyer, tell us you are not truly interesting in learning about the Fifth Amendment but more interested in being argumentative.

Innocent until Proven Guilty

[Anonymous Coward]

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.

Re:Innocent until Proven Guilty

[sirsky]

THIS.

I was about to post the same thing. The 5th Amendment is there as a protection to help enforce the burden of proof. By forcing someone to answer the question "Did you commit the crime?" removes the prosecutor's burden to prove beyond a reasonable doubt the defendant is guilty, and places it on the defendant to prove their innocence. The difference between the police finding a bloody knife in the house using a search warrant, and directly answering the question "Did you do it?" is that the defendant didn't escort the police and show them where the bloody knife was -- the police do not require any involvement from the defendant to get a search warrant and execute it to find a bloody knife in the suspect's home.

The fact that this didn't even enter the OP's mind is not only worrisome, but then to devise a 'contest' so he can then say "No one was able to show me in my terms how my logic is flawed!" is even worse. Unfortunately, that also shows that he has precisely the required mindset to be a very successful politician in today's day and age.

Re:Innocent until Proven Guilty

[ArcadeNut]

Unfortunately, he's not the only one who has forgotten that.

These days the minute you are accused of anything, you're automatically guilty.

Re:Innocent until Proven Guilty

[bennetthaselton]

The right to be innocent until proven guilty is different from the right to refuse to answer the question "Did you do it?"

If the police ask me "Did you do it?" and I say "No", the burden is still on the state to prove that I'm guilty, not on me to prove that I'm innocent.

The easiest way to see this is to consider cases where the defendant like O.J. does waive their Fifth Amendment rights and say "I am absolutely 100% not guilty." That doesn't change the fact that the burden is still on the state to prove guilt.

Again, try to come up with a *scenario* that illustrates the difference, even when you hold all other assumptions constant. Often when an answer seems obvious, there are subtle problems that only arise when you try to come up with the scenario. That's why I phrased the problem that way.

Re:Innocent until Proven Guilty

[oh_my_080980980]

*Sigh* still trying to bate people aren't we? Your above statements are filled with errors. Answering "no" does not mean you proved anything. They might want you to produce evidence for your innocence. The fact that you did not grasp that simple concept leads us to believe you are either stupid or just want to argue with people. I'm going with the later.

Re:Innocent until Proven Guilty

[ZombieBraintrust]

At the start of every trial they have enter a plea. It can be guilty or not guilty. The 5th doesn't protect you from that.

Re:Innocent until Proven Guilty

[j-beda]

Unfortunately, he's not the only one who has forgotten that.

These days the minute you are accused of anything, you're automatically guilty.

In the court of public opinion, it has always been that way, and likely always will. It is human nature to make that leap.

Pressure (even torture) to confess

[bradley13]

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.

Re:Pressure (even torture) to confess

[bennetthaselton]

As I said in the article, if you assume the police are willing to torture suspects and then lie later in their official report about how the confession was obtained, then the Fifth Amendment doesn't help the suspect much, because the police can just say the suspect waived their Fifth Amendment rights and confessed anyway.

Consider the real-world cases where the police have beaten suspects; do you really think the suspect yelling "Fifth Amendment!" would have made them stop?

That's why I posed the problem as a challenge to come up with a specific, precisely defined scenario that illustrates the difference. Because sometimes the answer seems "obvious" but then if you try to come up with a defining scenario, it doesn't work as smoothly. (I.e. if you hold all other assumptions constant, the outcome is the same either way. If the cops are willing to torture people and sweep it under the rug later, they'll do that -- they *have* done that -- even with the Fifth Amendment.)

Re:Pressure (even torture) to confess

[oh_my_080980980]

Because you haven't bothered to talk to a lawyer or legal scholar. The fault is yours. We are not here to serve your ignorance.

Fellow civil-libertarians?

[tapspace]

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

Re:Fellow civil-libertarians?

[StormyWeather]

Yea no joke. Fellow, like he is one. What a fucktard. Sure the police should be able to force you to tell them anything bad you have done, and how you did it so they can convict you of whatever they want. I don't even know a police officer that would agree with this.

tl;dr

[Anonymous Coward]

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

LMGTFY

[Anonymous Coward]

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

Re:LMGTFY

[SJHillman]

Pretty much the entire Constitution and Bill of Rights was a result of the Founding Daddies correcting what they thought was wrong with existing governments at the time. So if you ever need to find out what it would be like without Amendment X, just crack open a history book.

Re:LMGTFY

[DerekLyons]

That's pretty much my thought... Haselton doesn't have a clue, doesn't want a clue. He has created a scenario where he is correct a priori and thus has no further need to demonstrate that he is correct - and his 'FAIL' codes are designed to reflect that... they seek to pre-empt argument and reasoned discussion.

Re:LMGTFY

[Alsee]

if you ever need to find out what it would be like without Amendment X, just crack open a history book.

For a while there I read "Amendment X" as meaning the 10th Amendment, chuckle. That confused me a bit. Anywho, I challenge you or anyone else to crack open a history book and show me how the U.S. would be noticeably different today without the 9th Amendment:

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The U.S. Supreme Court is loath to go within a hundred feet of that amendment. It is probably the Bill-of-Rights amendment mentioned by the Supreme Court the fewer times than any other, rivaled perhaps only by the 3rd Amendment. (The 3rd amendment almost never being addressed simply because the government never attempts to quarter soldiers in private homes). The few times the court has mentioned the 9th Amendment they have only done so only to say essentially "we're not going give it any application, not here, not now, not ever".

The quote Justice Antonin Scalia:
the Constitution's refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people.

In other words, the TRUE text of the 9th Amendment reads as follows:
Amendment IX
The Bill of Rights is inherently incomplete and obviously other Rights exist, but we only mention that here to troll you. lolz.

-

Re:LMGTFY

[SJHillman]

Right after I hit submit, I had a feeling I should have used Y as the variable...

You could argue that without the 9th, the Gov might be more willing to say "If it's not in the Constitution, it's not a right". However, it's ambiguity makes it simultaneously easier to find a historic situation that may have led to it and more difficult to defend why that historic situation may have led to it. Gotta admit, of the the first ten amendments, the 9th is the only one I've never really paid any attention to (at least the third is crystal clear as to why it exists from any history book).

in the real world...

[abhisri]

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

Re:in the real world...

[svyyn]

Yes, people enter guilty pleas all the time.

Ummm... Read Up On History

[Anonymous Coward]

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

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

-Experienced Criminal Defense Lawyer

Pretty obvious

[Maxo-Texas]

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

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

Re:Pretty obvious

[snl2587]

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

Re:Pretty obvious

[MetalliQaZ]

Your own words CAN be used to convict you.

Re:Pretty obvious

[Amigan]

There is a presumption of innocence in any criminal proceedings in the US - remember, everyone on trial in the .us is Innocent until proven guilty. The Fifth Amendment was put in place to make sure that the things you said wouldn't be used as the proof that the prosecution needed to convict. The burden of proof is on the prosecution to show guilt, not for them to have you testify (for them) to your guilt.

Re:Pretty obvious

[jader3rd]

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

But there are still laws against torture. So even without the fifth, they still can't torture.

Re:Pretty obvious

[dywolf]

the things you say can be used to convict you, such as confessing. hence the miranda warning "anything you say can and will beused against you", and confessions, etc. the 5th is in place to protect the things you do say that shouldnt or are not intended to incriminate you, from incriminating you.

if you legally confess, you legally confess. its a clear attempt to admit guilt and say "i did it". the action is initiated on your end. confession is still allowed. (but so is recanting a confession.)

but if you profess innonece, and maintain your innocence, the prosecution cannot call you as a witness and compell you to testify against yourself. and ordinary actions that you take in your own defense cannot be construed to prove your guilt. and even if you do agree to testify and answer some questions, they still cant force your to answer all of them, or prevent you from saying anything other than "i refuse to answer". and the fact fact that you dont answer canot be used against you to imply that you must be guilty.

any other witness can be held in contempt of court, of obstruction of justice, or wahtever else, for impeeding the process of truth-finding and refusing to speak.
but you, the accussed cannot. you are the only person involved who can refuse to help the process along.
that is what the 5th really protects you from: ie, being forced to help convict yourself and remove your own freedom and liberty, and allowing you to place the entire burden on the prosecution, and keep it there. this is why it extends to things like decrypting drives. not because there might be things on there, but because the fact you have teh capability to decrypt them could be construed to indicate your guilt.

Re:Pretty obvious

[dywolf]

which is what people arent understanding.
what you say can be used to convict you.
but not if what you say is "i didnt do it" or "i refuse to answer".

saying "yes i shot him, and watched him die" can be used against you as an admission of guilt.
saying "i refuse to answer under the 5th admint" cannot be used against you as an admission of guilt.

that's what the 5th does. it still allows the possibilty of actual confession or admission of guilt, but it must be actual admission of guilt. not "reading between the lines", not sayiing "well he refuses to answer, so he must be guilty"

Re:Pretty obvious

[bennetthaselton]

Yes, exactly. If you assume the police are willing to torture people and lie later on about how they obtained the confession, then they'll do it anyway even with the Fifth Amendment in place. The victim yelling "Fifth Amendment!" is not going to get them to stop. And if the victim "confesses", that can be used against them.

For that matter, since torturing suspects is not legal, the police would have to lie about how they obtained the confession, and if you assume the police are willing to lie anyway, they'll just lie and say you confessed whether you did or not.

That's why the challenge is to come up with a scenario where you hold all other assumptions constant.

Re:Pretty obvious

[oh_my_080980980]

You can't be held in contempt for not answering the court's question if you invoke the Fifth Amendment. You should stop and consult a legal scholar. They would be able to answer your questions.

Re:Pretty obvious

[ZombieBraintrust]

It is also still a huge issue in the world. In places like Japan and India over 90% of convictions are based on a confession. How do you think they get those confessions?

Re:Pretty obvious

[Maxo-Texas]

Go watch "Don't talk to the police" on Youtube.

Saying "I didn't do it" can get you in trouble. The policeman gives examples of how.

(this comment was already modded up elsewhere in this conversation so please don't waste your mod points on this 99% duplicate post).

Re:Pretty obvious

[Maxo-Texas]

You understand what "induce" and "incent" mean right?

If caught violating the 5th amendment, there are consequences (includingbut not limited to possible jail time for the police, huge fines for cities, suspension and job loss)
With the 5th amendment, there is no point in torturing you.

WIthout a 5th amendment and without consequences- and desiring a good conviction rate- you have the set up for a mess.

Re:Pretty obvious

[Maxo-Texas]

As we recently saw tho- you have to just invoke the 5th and otherwise SHUT UP.

If you say anything else about the case, you blew your 5th amendment protection. You can't start talking- then stop and claim the 5th for the rest.

Re:Pretty obvious

[Maxo-Texas]

Even with the 5th, they still torture.

And when they are caught violating the 5th, they are suspended, possibly fired, their cases are dismissed. Strong disincentive against violating the 5th (if they want a conviction).

And when they torture someone- the feds get involved for civil rights violations and the perpetrators stand trial and go to jail, face fines, lose their jobs. Strong disincentive to torture.

Each barrier protects our liberty in different ways.

Lack of a 5th amendment creates a stronger incentive to torture.

Re:Pretty obvious

[Maxo-Texas]

Oh... and as it says in the "Don't talk to the police" video- the things you say CAN'T be used FOR you. They are hearsay in that context. Only if you say something that leads to finding hard evidence that eliminates you as a suspect would saying anything be useful.

I.e.
"I'm guilty" - - DONE. You confessed.

"I'm Innocent" -- Pointless statement.

Any mistake in your memory can be interpreted as a willful lie. And lying to the police is a crime.

Re:Pretty obvious

[PoolOfThought]

Reminds me of one of my favorite Die Hard (40 stories up) lines. McClain sneaks up on one of terrorists, puts a gun to the guy's head, and tells him to "drop it... it's th e police".

Terrorist: You won't hurt me.

McClain: Oh yeah? Why's that?

Terrorist: Because you're a policeman. There are rules for policeman.

McClain: (Snidely) Yeah. That's what my captain keeps telling me. (Whack)

There are rules. But if they're not enforceable, then they're only there to make you feel good. And people being asked to do the job won't give a damn about the rules when it comes right down to it because at most it will result in some time off (paid or unpaid).

Re:Pretty obvious

[Maxo-Texas]

As we saw with waterboarding- "torture" can be a very slippery word.

Re:Pretty obvious

[dnavid]

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

But there are still laws against torture. So even without the fifth, they still can't torture.

Without the right to avoid self-incrimination the police could torture you into confessing even if it is illegal: they may have broken the law but you could still have your confession used against you. The right to avoid self-incrimination is there specifically because our system of laws, and those of many countries in the world, do not want to arbitrate what is "fair" and "unfair" questioning of criminal suspects. The moral decision encapsulated within the law is that the risk of coercion and the temptation to use it is too great to allow any grey area.

Addressing the OPs criteria:

#1: The world with Fifth Amendment-style protections *is* clearly different from the world without them. There is no need to invoke hypotheticals. No legal mind - for or against the protections - would argue otherwise. In particular, the claim that the "overzealous prosecutor scenario" fails this test is itself false: prosecutions are nullified because Fifth Amendment protections were not adhered to in the current world. It is therefore automatically true to state that if those protections didn't exist, the world would be clearly different: those prosecutions would not have been nullified, and those people would then be convicted.

#2: The question of whether the world is "better" with Fifth Amendment-style protections is a highly subjective, but it is instructive to note that in many parts of the world where such protections did not previously exist, they are being adopted explicitly because those people believe their world will be better with those protections. I believe that is strong qualitative evidence of this.

#3: The criteria that the Fifth Amendment protections be shown to not benefit all suspects equally is frankly ludicrous. I can find no reason to suggest that this is a necessary or sufficient requirement for a just or effective law. For example, the right to avoid double-jeopardy also, by analogous analysis, "hampers all law enforcement efforts equally." It is, however, also considered a cornerstone of the US legal system: not-guilty verdicts are final.

#4: As mentioned previously, the right to avoid self-incrimination isn't a black or white case of "it prevents torture." It more specifically takes away the incentive to conduct *any* vigorous non-voluntary interrogation. And moreover the law doesn't apply penalties to the government if they violate the right, it takes away the benefits of that violation. Criteria #4 says the right to not be beaten is separate from the right to remain silent and that's correct. But what the OP fails to understand, apparently, is what that means. If the police beat a confession out of you, they have committed assault upon you. They could be held accountable for that. But without the right to avoid self-incrimination, your confession could still be used against you. Because those two rights are separate.

#5: Since the fifth criteria links to a wikipedia article (Prosecutor's fallacy) I'll respond in kind: False dilemma. Critiera 5 presumes that failures in the criminal justice system are problems of incompetence, that perfect competency would eliminate problems of applying the law. However, its not true that this is the only problem the criminal justice system faces, nor is it even the most important one. The more important one is one of judgment and systematic drift. As mentioned above, what constitutes valid or abusive questioning is often a matter of judgment or opinion. The purpose of the right against self-incrimination is to eliminate that problem by eliminating the area upon which judgment can apply. That's why we have speed limits, and not a law that says "don't drive too fast." And when we have thousands of people applying individual

FAIL!

[TheCarp]

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

FAIL!

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

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

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

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

Re:FAIL!

[G00F]

+1

Nearly every advancement of civil rights came from people breaking laws.

That is quite profound, and true!

Re:FAIL!

[Jim Hall]

The OP is an absurdly long and wordy essay/rant, and I didn't read all of it. Don't expect me to. (At 3,730 words after the "Read on," that's just into 5 pages if I load it into LibreOffice at 10pt Times New Roman.) But I can give Bennett one example where the 5th Amendment right against self-incrimination is a good idea:

Q: "Where were you when you witnessed the murder?"

In this case, let's say the witness happened to be hotwiring a Mercedes-Benz on a dark and empty street - and saw one person rush out from an alley, shoot the victim right in the head, and run off. The whole thing happened less than 10 feet from where he was sitting inside the car. A perfectly valid witness, he definitely saw the murder (and murderer) even though no one saw him. After witnessing the murder, he called 911 from a nearby pay phone, then drove off in the now-stolen MB.

Without the 5th Amendment, the witness would be compelled to admit to committing an unrelated crime, so would self-incriminate himself.

Re:FAIL!

[magic maverick]

Sorry Bennett, but your premise is flawed. Fewer restrictions on government are bad for everyone, because police state. And what TheCarp said.

Also, there is a right to remain silent, beyond the right not to self-incriminate, but the government just doesn't recognize it. Even if a person is given immunity from prosecution, they should not be threatened by jail or torture (but I repeat myself -- jail is merely a lighter form of torture, and leaves fewer physical marks) for refusing to help convict their friends or family (or anyone else).

Moreover, it is not always good to convict the guilty, even if they are guilty. Take some of the many victimless crimes, such as prostitution or certain drug use. Where is the societal good in convicting either the prostitute or the client?

And, what if by providing evidence that I didn't have anything to do with one crime (such as murder) I incriminate myself in relation to another? "No officer, I didn't murder that person, I was being taken up the ass by my dominatrix that night. Sure she'll vouch for that." Whoops, I just confessed to sodomy, unnatural acts etc. And even if it wasn't illegal, what business is it of the police what I did that night?

And, even if I claim to have been on the other side of town, a witness might come forward and say they saw me near the murder scene. Whoops, my entire testimony is in doubt, and I'm convicted based on circumstantial evidence... You said "giving a guilty person a chance to avoid tripping himself up was hardly a good thing". Yet, it is if they are guilty only of a victimless crime. Moreover, it is good to give an innocent person a chance to avoid tripping themselves up.

So, scenario is:
Innocent suspect (suspected of breaking an unjust law, perhaps a law that defines no victim -- such as against prostitution) refuses to testify based on the right to not incriminate themself. Often a person found guilty who said that they were not, will be given a harsher punishment than a person who confesses from the start their guilt. However, nothing should be presumed from a person refusing to say anything. (They might be refusing for many reasons, including not wishing to say something embarrassing but not illegal that could harm their budding political career.)

1) By refusing to say anything, they can't be either tripped up, or provide testimony that could be contradicted (e.g. by a witness who didn't see what they thought they saw) and used as evidence of lying.
Obviously the outcome could be different, as without the right to silence, they would have to give details, and then they could be considered to be lying because of the witness saying the opposite.

2) The outcome is obviously better if an innocent person is not convicted. The outcome is also better if an innocent person does not have to provide embarrassing details to avoid conviction. ("No I didn't do it, I was being whipped by my dominatrix, which is not illegal in this jurisdiction, I didn't want to say that because this is a deeply conservative place, and now I have no chance of doing well with my whip & buggy business.")

3) Criteria three is overreaching and flawed. As noted above, we want to benefit all suspects, as all are innocent until proven guilty.
However, obviously it is better if even a guilty person walk free than be convicted of this unjust law.

4) The benefit relies solely on the right not to self incriminate.

5) I'm not entirely sure what you mean by criteria five.

I could argue that this scenario doesn't FAIL3, because innocent people have both the threat of conviction, and the airing of their dirty laundry in public. The guilty only have the threat of being convicted. Yet, because criteria three is a fail on its own, so is this criteria.

Re:FAIL!

[yakovlev]

This really is it, but you don't even have to go that far. Suppose I am a politician that is accused of a minor crime. Instead of committing that crime, I was doing something socially unacceptable (say, playing violent videogames) and the prosecutor knows it.

In this situation I am left with the choice of revealing something I don't want revealed or confessing to something I didn't do. This is an unacceptable situation for the court to be able to put an individual in. The 5th amendment right against self-incrimination is what protects against this. It allows a person to simply refuse to answer, and tells the court that it can't assume that silence represents a confession.

Now, does the right to remain silent disproportionally benefit the guilty? OF COURSE IT DOES. That is "FAIL3" and nothing will get around it. If you assume that the police and the judges are good people (essentially requirement 5) then you can assume that they will only arrest people reasonably expected to be guilty and release them if they are innocent. Under those rules any rights given to the accused would then disproportionally benefit the guilty.

Re: FAIL!

[Rob Kaper]

All. A world where everyone is a criminal except for one person is still better when that one person is free and not convicted.

Re:FAIL!

[Anubis IV]

Exactly. I skipped through most of it, but I nearly spat out my drink when I read his #3 point and the related FAIL3 , since it completely dismisses the point you've raised as an "alleged 'benefit'". Is he really willing to dismiss it simply because it might benefit the guilty more than the innocent? On that basis, why not just throw out the right to privacy entirely, since the guilty have more to hide than the innocent? It flows naturally from his idea, after all. Even if we assume that the rest of his rant is logical and well-reasoned, that chink in his armor is big enough to drive an eighteen-wheeler through.

Re:FAIL!

[bennetthaselton]

I agree that it's better to let the guilty go free and to convict the innocent, and that the burden is on the state to prove guilt and not on the defendant to prove innocent. But those two points are orthogonal to the question of what investigative methods the state can use.

If a cop asks me, "Hey, you were in the building at the time of the murder, did you do it?", I don't consider it a huge burden to say, "No, I didn't kill them." Now if they want to hold me for 10 hours asking the same questions over and over, or try to beat me into confessing, or fabricate evidence so they can railroad me even though I said I was innocent, those are violations of my rights, but those rights exist *separately*.

Again, the challenge is to come up with a scenario where the outcome is different depending on whether we have a Fifth Amendment or not. The right not to be tortured and the right against indefinite detention are separate from the right against self-incrimination.

Re:FAIL!

[tabytomcat]

THIS(Boy I love one word answers, you can tell I'm really educated. I've even got a Canadian high school law class.Supa smart).

I imagine this would be especially helpful in organized crime cases, where you couldn't witness against someone without convicting yourself. Yes you might be able to just cut deals with members you know about, but it wouldn't encourage other people to come forward.

Re:FAIL!

[tabytomcat]

So, he steals the car witnesses the murder DOESN'T call 911. No justice for the murdered, murderer on the lose, and a car stolen.

Net loss for not having the 5th.

Re:FAIL!

[oh_my_080980980]

The challenge is for you to talk to someone who understands the law and not post to a message board asking people to defend the Fifth Amendment. Thus this exercise is a complete waste of time.

Re:FAIL!

[Ionized]

ok, if you put your two posts together, you now have a complete valid argument in defense of the 5th.

Re:FAIL!

[Fjandr]

It's a defense against corrupted laws. The ability to help nullify corrupt laws will always trump letting the guilty go free. If you are guilty of violating a corrupt law, it is in the overriding benefit to society that you be able to be guilty and not have to help in your own prosecution. There are ample examples in history where it is right to ignore certain laws wholesale.

Re:FAIL!

[EMN13]

Because the alternative is that he wouldn't speak up at all, and the harm caused by murder is greater than that by theft. In essence, this can be construed as a whistleblowing case: better to

I also don't think it's a very convincing example, but just because somebody is guilty of *some* crime doesn't necessarily mean you want to convict him. Not to mention the fact that guilty does not mean bad - there are so many crazy laws out there, I seriously doubt there are many people in the country that aren't "guilty" of something.

Re:FAIL!

[Mad_Rain]

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.

I think that's the most compelling argument that I've read in this thread. If only this could be modded up further....

Re:FAIL!

[j-beda]

Without the 5th Amendment, the witness would be compelled to admit to committing an unrelated crime, so would self-incriminate himself.

To be fair, that is the type of situation that some people don't particularly like. "Why should we care if the thief self-incriminates?" they would ask.

The reason is that there are many valid reasons that an innocent person might want to keep quiet. Maybe they told their spouse they were at the gym rather than the bar, or maybe they were there due to a sexual fetish they have about alleys. Maybe they were taking a short-cut home from a meeting of AA, the White-Race Party, the Black-Race Party, or the local LGBTA. Nothing illegal, but potentially embarrassing, or politically dangerous. The principle is not to protect those who are guilty, but rather to ensure that NONE of those who are innocent will have to suffer.

"Better that 100 guilty go free than one innocent be jailed" is the type of thing we are looking at here. The "protection" of the guilty is an unfortunate side-effect rather than a feature of the system.

Dear Bennett Haselton:

[CanHasDIY]

Because FUCK YOU, that's why.

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

Go fuck yourself, troll.

Re:Dear Bennett Haselton:

[Anonymous Coward]

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

Re:Dear Bennett Haselton:

[Anonymous Coward]

I'd like to add that it doesn't really matter what kind of view this guy is planning to defend. His whole longish post reminds me of those questions on stackoverflow:

"Please Sir, give me C++ function to compute fibonacci numbers!
[somebody posts an answer]
function not compile with Visual C++, give me function that compile on Visual C++!!!
[somebody gives advice of how to compile]
need faster function, please, this one too slow!"

Re:Dear Bennett Haselton:

[zerosomething]

Second that

Re:Dear Bennett Haselton:

[SirGarlon]

I think you are the only one who cares about your obnoxious challenge and childish rules. So keep posting "FAIL0" if it makes you feel superior. Every time you do it, my opinion of you lowers.

Re:Dear Bennett Haselton:

[oh_my_080980980]

Failure - not consulting a legal scholar.

Re:Dear Bennett Haselton:

[CanHasDIY]

FAIL0, no scenario given.

Let me guess: you think you're being clever.

Got news for ya, Bucko - you're the only one who thinks that way. The rest of us see you as the narcissistic, self-affirming, royal douche-bag you are, questioning the need for a well-defined, long-standing civil liberty (the rationale for which should have been imparted on you in fucking high school, were you to actually pay attention in class instead of diddling your boyfriend in the back of the room).

Feel free to keep on with that "I'm so fucking smart, watch me trick these people into doing my homework for me by acting like a petulant child" act, and we'll all keep laughing in your self-righteous face about it.

Re:Dear Bennett Haselton:

[SirGarlon]

the rationale for which should have been imparted on you in fucking high school, were you to actually pay attention in class instead of diddling your boyfriend in the back of the room

I totally agree Bennett is acting like a narcissistic, self-affirming, royal doucehbag, but your homophobic aside weakens your attack. There's nothing wrong with being gay, and if I'd had a chance to get laid instead of listening in history class, I wouldn't know why the Fifth Amendment is important, either. :-)

Re:Dear Bennett Haselton:

[CanHasDIY]

the rationale for which should have been imparted on you in fucking high school, were you to actually pay attention in class instead of diddling your boyfriend in the back of the room

I totally agree Bennett is acting like a narcissistic, self-affirming, royal doucehbag, but your homophobic aside weakens your attack.

Meh, seemed like the kind of thing that would hit home with said personality type. Kinda like when you were a teenager, and called that asshole jock a 'fag,' not because he's gay or you have anything against gay people, but because you know his own homophobia will cause an extreme reaction.

For the record, I have nothing against homosexual people; hell, I was a theater geek as a kid, so I learned early on that they're no different than you or I, sexual preference notwithstanding (yes, I know, associating homosexuals with theater seems like stereotyping, but when the quite fashionable shoe fits...).

I'd had a chance to get laid instead of listening in history class, I wouldn't know why the Fifth Amendment is important, either. :-)

Ha - well played, sir.

Torture?

[Anonymous Coward]

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.

Re:Torture?

[TheCarp]

> 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.

Exactly. Or how about this.... Alice (I am really feeling these Alice/Bob/Carol scenarios right now) is a journalist who works on stories of international corruption. She keeps an encrypted volume to protect the very lives of her sources, and she recently got a doozy of a leak.

Bob comes knocking at her door, arrests her, and charges her with a number of unrelated crimes, child porn for example. Claims its all in her encrypted partition. Since there is no 5th ammendment she now either goes to jail for refusing to "testify" or she decrypts the volume, "proves her innocence", and moves on.

Meanwhile, Carol, the whistle-blower? Shes now being indicted on charges stemming from what was found on Alice's encrypted volume. Thanks Alice. Guess making people prove their innocence worked out right?

Re:Torture?

[frinsore]

Here's a simpler one:
"Alice, you're under oath, please list all laws that you have broken." If Alice says "I broke no laws" then if there's evidence of Alice speeding 1 mile over the limit or jaywalking last week then suddenly she has a worse punishment for a minor infraction. Or Alice could confess to all laws that she has broken and getting whatever punishment that she is "owed". It's a catch-22.

Or here's another one:
Police are going door to door asking everyone if they committed X crime. "Hey, Bob here didn't say he didn't do it. That must mean he did it!" Since asking the question of someone's guilt doesn't provide any evidence then the police are forced to actually collect evidence and find the guilty party. This also protects innocent people from being harassed without cause.

Re:Torture?

[TheCarp]

Objection! Question is asking the defendant to render a legal opinion which she is not qualified to do.

This isn't even something I made up: http://www.crikey.com.au/2010/12/02/when-it-comes-to-assange-r-pe-case-the-swedes-are-making-it-up-as-they-go-along/

Of course, their celebrity lawyer Claes BorgstrÃm was questioned as to how the women themselves could be essentially contradicting the legal characterisation of Swedish prosecutors; a crime of non-consent by consent. BorgstrÃmâ(TM)s answer is emblematic of how divorced from reality this matter is. âoeThey (the women) are not juristsâ.

Makes sense.... I am not qualified to give legal opinion. A question of what law you broke is a matter of interpretation of the law, which I am not qualified to do, I am not a jurist!

intead of wasting time on your request

[iggymanz]

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

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

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

Re:Not worth answering

[Anonymous Coward]

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

SUPERWIN

Re:Not worth answering

[P-niiice]

FAIL43 - failure to fall for this horrible post.

I rate this article

[Sparticus789]

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

Re:Not worth answering

[Anonymous Coward]

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.

Don't Talk to the Police

[Anonymous Coward]

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

Some thoughts

[DigitAl56K]

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

Also, tlmf;dr.

I will play your game, Bennett

[rk]

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.

Re:I will play your game, Bennett

[sstamps]

This.

Isn't there a pro-forma logical fallacy that amounts to an Argument of Adhesion?

Contempt of Court

[Anonymous Coward]

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.

Re:Contempt of Court

[jader3rd]

Why not just lie then?

Re:Contempt of Court

[nebular]

What people seem to forget is that the man accused of having child pornography is innocent. Everyone is until proven guilty. An innocent man doesn't have to answer to anyone, he is innocent. The courts have already given the police and the DA free reign to do what they want to try and break the encryption, but they can't make him give the password because he's innocent, they don't have anything to say otherwise and if they did, they wouldn't need to get into the hard drives

Re:Contempt of Court

[McFly777]

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.

Let me expand on this post slightly. I too was going to point at the case currently in question as one of the better examples, but I was going to suggest that you have a hard drive that has NO encryption on it, but does have some unused partition space. (Perhaps from an old install of another OS, swap space, or some other ligitimate reason. In any case there is non-zero "noise" in the unused partition.) You are, in fact, innocent of any crimes, but have been accused of some data related crime. The police confiscate your hard drive and, finding the "empty" partition space, the courts say "You obviously have some sort of truecrypt volume here. Give us the password."

Since you never actually created a truecrypt volume, you can't provide the key, because it doesn't exist.

Without the Fifth Ammendment, you could be held in contempt of court for not complying with the court order. By claiming the Fifth, you are able to say "sorry, but no" to the order to provide the non-existant key.

Re:Contempt of Court

[nebular]

But that is not established until conviction or aquittal. Before that, the law treats him as an innocent suspected of guilt, which put all burden of proof on the state. He doesn't have to say anything at all to them, they have to do all the work. If his drives are encrypted, they need to crack it or find his password from somewhere other than his head

Volume of text does not constitute proof

[DeathGrippe]

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.

Are you kidding me?

[Hatta]

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.

Re:Are you kidding me?

[phantomfive]

I think he must be kidding, actually. It's hard to believe that anyone is that naive/ignorant/dumb.

His post contains the form of logic, and shows a lot of work. Could it really be that someone can reason so long and deeply on the topic and still miss the obvious?

The Fifth Amendment, The Whole Fifth Amendment...

[Anonymous Coward]

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

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

Given my existing posts about this

[Murdoch5]

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!

Re:Given my existing posts about this

[Formorian]

Shouldn't that be determined in a court of law?

Sure take him to court on the drive you have as evidence. However, I personally feel we don't' have the whole story about that 1 decrypted drive.

Re:Given my existing posts about this

[nebular]

I don't have to go half way or any way to prove my innocence, it's a given until a judge says otherwise. I could be found holding a bloody knife in one hand and some guy's head in the other and I would still be legally innocent. That's how the system works. It works this way to make sure that people who are innocent are not convicted. If you have 10000 guilty go free but one innocent spared from conviction then the system is working as it should. A persons liberty is held paramount above all other things.

As for this case, if the files they had were enough to convict they wouldn't bother with the other drives until after the trial, and then they'd trade the password for lesser sentence.

Re:Given my existing posts about this

[ebno-10db]

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!

I agree, so why isn't the government doing that? Either the CP they supposedly found isn't very incriminating, or someone wants a test case to further erode the 5th amendment. Undoubtedly Truth, Justice and the American Way are on their side, because only Richard Stallman and other terrorists use encryption.

Re:Given my existing posts about this

[Murdoch5]

We might now and that's a fair statement but I'm drawing off what I've been told about it.

Re:Given my existing posts about this

[MozeeToby]

Once one volume had been opened and the files discovered he could not long self incriminate himself because he was guilty.

First and foremost, he is not guilty until he has been found by a court of law to be guilty. Secondly, simply being guilty of one crime does not mean the police get to search anything and everything they want. Thirdly, the police having hard evidence of your alleged guilt does not mean your fifth amendment rights evaporate.

Re:Given my existing posts about this

[Murdoch5]

It should instantly evaporate your rights to the fifth. Secondly this bullshit theory of innocent till proven guilty is retarded. Once you've been found to have Illegal material on you, such as child porn, your GUILTY! You should then be guilty until you prove yourself innocent, because it's not a question of if he did something illegal and wrong, they know he did, it's a question now of how much illegal material does he have. Now to be clear if NONE of the volumes ever got opened I would agree he is innocent until proven guilty, but that's not the case and I think the laws need to change to be more dynamic.

Re:Not worth answering

[ReallyEvilCanine]

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

<sigh>

Interesting question, but ...

[c0d3g33k]

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

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

Another fail.... What is truth?

[TheCarp]

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.

Re:Another fail.... What is truth?

[capedgirardeau]

That example is used by the prof the in the classic "Don't talk to the Police" youtube video linked to above.

Re:Another fail.... What is truth?

[jader3rd]

That's so sad that we don't want truth telling to happen in court.

Re:Another fail.... What is truth?

[magic maverick]

That's the video that others have mentioned. The one about don't say anything to the police.

Re:Another fail.... What is truth?

[nebular]

say nothing because you are innocent and have nothing to answer for

Re:Another fail.... What is truth?

[TheCarp]

Huh?

Its not about truth telling. In the example everyone actually told the "truth" or, at the very least, what they believed to actually be the truth at the time that they spoke it.

If someone walks by my office that looks like one of my coworkers but isn't, and my boss comes by and says "Have you seen so and so" and I say "Yes I saw him walk by about 10 minutes ago", am I not telling what I believe to be true? Its certainly not a lie. Its incorrect, but its honest mistake not misdirection.

This isn't to say misdirection doesn't happen. Maybe Carol didn't see Alice, maybe she knew she didn't see Alice and she lied. Maybe, but, her intention is actually not really relevant, only the fact that her statement and Alice's don't match up, and she is believed to have no reason to lie, whereas Alice might.

Re:Another fail.... What is truth?

[Ozymandias_KoK]

Unless she killed her mother during the visit, it seems entirely likely she'd have a witness to being out of town.

Re:Another fail.... What is truth?

[j-beda]

How is Alice worse off for telling that she was on the drive, compared to remaining silent?

I agree that it looks like Alice is in deep trouble, but I don't see how her statements are going to be used against her, or that if she had remained silent how she would be better off. If she remains silent and they finally come around and arrest her based on Carol's testimony, and Alice gets a chance to talk to her lawyer about it, is her lawyer going to not tell the police that she was out for the drive?

The British right to silence is interesting in that they tell you that if you don't tell them something (like "I was out for a drive") that you later use at trial for your defense, the jury may be allowed to consider it negatively that you held that information back.

Re:Another fail.... What is truth?

[TheCarp]

> How is Alice worse off for telling that she was on the drive,
> compared to remaining silent?

Sorry for the very very late reply.

The reason given (you can find other comments where people posted links or the name of the video I was refering to), was that the testimony makes her look like she has something to hide.

Sure her mother confirms she was there, but her mother is directly related to her and a close relation. Not as credible as the person who doesn't know her well and presumably has no reason to implicate her.

So now they have testimony by one person saying she was there, who has no reason to lie (and indeed, isn't lieing, she is just wrong) saying she is there, and a police officer testifying that she contracdicted this but had no proof.

This can much more easily be interpreted as "she is hiding something and lied to the police" than if she refused to talk from the start (which can't be used against her*)

* Some restrictions apply, apparently void where you do not explicitly state that you are invoking your right to remain silent; See recent supreme court decisions for details.

Re:Another fail.... What is truth?

[j-beda]

Thanks for the response. I now understand the worry - any statements may be used to show an apparent contradiction that might be viewed negatively at trial.

I'm curious what a competent lawyer would advise in this case. Alice gets picked up, and refuses to talk until her lawyer shows up. Her and the lawyer converse - would the lawyer say she was at mom's place, or would the lawyer want to wait until trial?

This starts to become part of a "game theory" exercise. For an "innocent citizen" there is a chance that giving the police information that you have will help them to find the guilty party, which is a positive outcome for you. There is also a chance that giving information will make it more likely that you will have increased legal troubles, possibly up to being wrongly convicted of a crime you did not commit. How to behave in a given situation depends on the chances of each of those things happening, as well as how serious the consequences might be if they do.

If nobody ever talked to the police, solving crimes would be much harder. I refuse to live in fear that my behaving reasonably will come back to bite me - so when I see someone rob a bank, I will probably come forward to testify to what I saw to the best of my ability. If I was out shooting at the target range with no witnesses and drove home past my enemy's house and stopped to apologize for shouting "The next time I see you I'll kill you!" after our last barroom fight, and just as I was reaching the door my identical twin rushes out and hands me a bloody gun before running off into the night - I might seriously consider not speaking to the police without my lawyer's very careful advice.

Dear Bennett

[SirGarlon]

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

Re:Dear Bennett

[Qzukk]

Agreed. Why not demand that arguments are only valid if presented by someone wearing a banana on their head?

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

Seriously? God forbid that everyone benefit from controls on the government.

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.

Is it really? You have a constitutional amendment that says so, or are you just hoping against all chance that people know what the 9th amendment means?

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.

If our argument applies to the world as it actually is rather than the ideal perfect world, it doesn't count?

Re:Dear Bennett

[Lakitu]

I wish I could mod this up.

Throughout this guy's entire argument, he makes the assumption that the person on trial is, in fact, guilty. Which is exactly what would happen in every single police investigation of a crime and the criminal prosecutions following every act of crime were it not for the fifth amendment.

It's a key part of the presumption of innocence. It doesn't just protect against torture, it protects against police bullying and prevents dubious circumstantial evidence from carrying weight in court.

Because if they don't have evidence

[G00F]

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.

Example

[Anonymous Coward]

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.

Re:Example

[jader3rd]

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.

Defendant: I didn't kill the man,

Re:Example

[oGMo]

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.

Defendant: I didn't kill the man,

Judge: You're lying, that's perjury, go to jail.
Defendant: But there's no proof!
Judge: The confession you refuse to give would be proof; refuse to give it, you're in contempt, deny it and it's perjury. Jail!

Were you born under a rock?

[Safety Cap]

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.

Re:Were you born under a rock?

[fermion]

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.)

This is where I realized that the entire exercise was crap. In terms of rule of law in the US, the right not be tortured and the right to not self incriminate are equal. This is because any such evidence will be inadmissible in the court room. The right not to self incriminate removes the incentive of the police to go to extreme measures, such as keeping someone in a room for a day without food and water. If we did not have the right to not testify against ourselves, or against our spouse, then the police would have an obligation to push the boundaries. of interrogation

Now, in non criminal activity, such as someone blowing up a school, then there may be a discussion of whether torture is valid. But in that case we are trying to save immediate innocent lives, not build a criminal case against the attacker.

Re:Were you born under a rock?

[TheCarp]

Thank you.... this is the video I was thinking of when I posted a previous comment about how, through no wrongdoing on anyone's part, the honest truth can look like a lie in court. It was a brilliant way to show the scenario too, because nobody, not the police, not the suspect, not the mistaken witness actually lied, or even tried to hide anything.... they all said exactly what they believed to be true.... it just so happens that, they were contradictory.

Frankly, I think you could make a better case for banning any and all eye witness testimony from court (people's memories are demonstrably terrible) than for getting rid of the 5th.

Re:Were you born under a rock?

[magic maverick]

How is blowing up a school non-criminal? Well, I guess if I had permission and it was an old school, and I was part of the demolition team, in which case, why are you torturing me in the first place? All I want to do is blow up the school and get onto the next job! I'm not doing anything wrong!

But those terrorists, they're criminals. Blowing up a school full of children is a criminal act. And there's no good justification for torture ever. Even if it could, allegedly, prevent someone blowing up a school full of children.

Re:Were you born under a rock?

[fermion]

Yes, I misspoke. The difference is if one is trying to build a criminal case or if one is try to prevent a crime. In the former there is no point trying to extort a confession as the evidence that means anything is on the stand, and the fifth protects us. IN the later where lives might be saved and the charge may well be conspiracy, the baseline changes.

This question is its own answer.

[argStyopa]

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.

Miranda

[StormyWeather]

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.

Re:Miranda

[fractoid]

What the poster is asking is *why* he has the right to remain silent and why the right to remain silent benefits society. As far as I can see, this constitutional right is, pure and simple, a defense against the general propensity of power to use force to extract confessions. Excluding any non-voluntary self-incrimination is the simplest, most foolproof way to exclude torture as an option for obtaining confessions.

Re:Miranda

[lgw]

Excluding any non-voluntary self-incrimination is the simplest, most foolproof way to exclude torture as an option for obtaining confessions.

The US was founded not all that long after the Inquisition ended. Let's not forget how profoundly important it is not to encourage governments to take the easy path of torture.

The most fundamental benefit to society of the 5th is that it blocks using torture (or more modern interrogation techniques) to extract false confessions. We can debate about extreme circumstances in which extreme measures might be used to extract information from a terrorist or whatever, but false confessions are lose/lose. No one but the career of the prosecutor/DA benefits from a false confession, yet history shows that enough prosecutors care more about their careers than justice that it's worth ruling out torture under any circumstances, because the alternative is sending many innocents to prison and letting the guilty go free in each such case.

Being forced to decrypt a hard drive sounds at first like it might be OK - after all, it can never lead to a false confession. The problem is: if you give someone a tool that makes his job easier, he'll use it even when he's not supposed to. If you tolerate forcing someone to reveal any information about himself for any reason, no matter how strictly defined, the excuses and rationalizations will grow over time.

We have an adversarial system. A prosecutors job is to seek conviction, and abstract ideals easily take a back seat compared to ones career. If we start making excuses about in this case or that it's OK to force the defense to give information, if we give that tool to a prosecutor whose job is to use every possible tool to get convictions, we cannot depend on restraint. It will end badly.

Re:Miranda

[NotSanguine]

The best argument I've heard recently for the Fifth amendment and for not talking to police, prosecutors or any other law enforcement folks can be found here.

Clearly you're not bright enough to understand why the Bill of Rights included the guarantee that you cannot be forced to bear witness against yourself. That's sad. I feel pity for you.

Re:Miranda

[Spazmania]

If you have the right not to be beaten but don't have the right against self-incrimination then after the beating the confession is still valid in court. If the executive then declines to punish the officers for the beating, the right not to be beaten fades to a paper tiger.

Your error lies in thinking like a computer where something is an absolute yes or an absolute no. The law is a living thing implemented by people in a "more or less" fashion. If you're serious about preventing a bad behavior, you make it worse than futile to engage in it.

Re:Miranda

[Spazmania]

Also, the right against self-incrimination disrupts chains of horror like the Salem witch trials.

Re:Miranda

[Sowelu]

Summary, for those of us who can't watch Youtube wherever we happen to be?

Re:Miranda

[Binestar]

Summary: Police want to search your car. Nothing benefits you and lots is bad.

Scenario 1: They find nothing and you go on your way. This is the BEST scenario from a police searching your car and you have lost time.

Scenario 2: They find nothing, but during the search they dropped your stuff on the ground and broke something. They aren't liable for that. Now you have a broken widget, lost time.

Scenario 3: They find a knife or other item you put there months ago while moving and you told them you had no weapons when they walked up. You now have lied to the police.

Scenario 4: You say to the police officer "I am sorry officer, I do not consent to searches". The police officer has no other reason to search you and sends you on your way.

When you're being questioned by the police, anything you say can be taken the wrong way and turn out bad for yourself. Saying things to the police at BEST leaves you right where you started. You're not getting cookies after the interrogation...

Re:Miranda

[invid]

Let's say there's no 5th amendment. And let's say person A is arrested for murder. Person A is on trial and is put on the stand. The prosecutor asks person A a question. Person A stays quiet. Person A is judged not guilty of murder, but arrested for contempt of court for not answering the prosecutor's questions.

Re:Miranda

[oh_my_080980980]

*Sigh* people really need to do research.

"If the accused were forced to produce evidence that they did not commit an act, innocent people would be forced to prove a negative. Proving a negative is usually far more difficult, if not impossible to do. Anyone without an alibi would be convicted. No one could afford to spend even one minute alone in that kind of world. The right to remain silent preserves a functioning system of justice and a functioning society."

http://www.lewrockwell.com/orig11/rounds4.1.1.html

That's the point.

Re:Miranda

[Zcar]

The US was founded not all that long after the Inquisition ended. Let's not forget how profoundly important it is not to encourage governments to take the easy path of torture.

And the British equivalent, the Star Chamber, in which coerced (read tortured) confessions were admitted.

To the OP: it's not so much about the benefit to society of someone "taking the 5th" as the government abuses prevented by it outweigh the benefits of not having the rule. Many of the constitutional rights, e.g. freedom of speech, we have weren't designed (at least not entirely) for the direct benefit of society but to limit government abuses of society. With freedom of speech, it's not really protecting , for example, the KKK's speech is seen as a benefit but that the dangers of allowing the government to choose who's speech is worthy are greater.

So, I pretty much reject to premise of examining specific cases to find a benefit where the only variable is the exercise of a right or not. Often the direct benefit from a specific case is on the side of not having the right. The benefit of the right only becomes clear by examining the historical pattern of abuses which arise from not having the right.

Re:Miranda

[NotSanguine]

Summary, for those of us who can't watch Youtube wherever we happen to be?

Don't talk to law enforcement or prosecutors. Ever.

Go somewhere where you can watch it. It's worth it.

Re:Miranda

[bennetthaselton]

That's all true, but I'm not talking about searches; in fact I said in the article that I considered searches (including searches with a warrant) to be *more* invasive than being asked the question, "Did you do it?" For some of the same reasons that you laid out.

Re:Miranda

[bennetthaselton]

FAIL0 - no scenario given. (Actually you even copied almost exactly the sentences that I used in some of my "FAIL0" examples.)

Re:Miranda

[NotSanguine]

If the executive then declines to punish the officers for the beating, the right not to be beaten fades to a paper tiger.

The previous sentence is irrelevant to this. If they chose to not punish someone for beating you, regardless of why they did it or their motivations, that lack of enforcement is what causes you to lose your right to not be beaten.

You might as well say something along the lines of: You have a right to not be murdered, but someone might murder you to stop you from saying something they don't want. If the executive declines to punish the murderer, your right to not be murdered disappears. ... therefore freedom of speech exists to stop you from being murdered.

Stop trying to layer other stuff on right to not self-incriminate. You simply shouldn't be incriminate your self, or be further punished for not incriminating yourself. Speaking of other rights, like to not be physically harmed, only conflates the right and hides its more basic principle behind other independent rights.

Know your rights. All three of them.

Re:Miranda

[Binestar]

I wasn't answering your question, I was summarizing a youtube video that someone asked for the summary. Perhaps you should read the thread?

Re:Miranda

[Rhinobird]

You can also look at Martha Stewart. She wasn't under oath; lied to an officer about something that wasn't a crime and was sent to prison.

Re:Miranda

[Binestar]

I will give you an example: You are asked by a prosecutor where you were on Sunday Night at 5PM in regards to a murder. You have already said you didn't do it. You refuse to answer, using your constitutional rights.

Why did you refuse to answer? Well, you weren't doing anything illegal, you were out with your friends watching the new Iron Man movie in 3d. Nothing bad about that.

Except your wife LOVES Robert Downey Jr and you promised not to see the movie without her. Now you telling the prosecutor where you were on Sunday night at 5PM has caused maritial strife when a white lie would have been fine.

Re:Miranda

[homey of my owney]

You seem to have constructed the legal equivalent of the Kobayashi Maru.

I reject your scenario criteria. Just because you make it sound reasonable, doesn't mean it is.

If you disagree, perhaps ypu can answer this: Have you stopped beating your wife?

Re:Miranda

[bennetthaselton]

If the police break into your house without a warrant, then after the search, whatever they find would be inadmissible. So even without the Fifth Amendment, if the police beat you into confessing, shouldn't the confession also be inadmissible?

(Remember we're talking about a hypothetical world where the Fifth doesn't exist but you still have the right not to be beaten. That hypothetical world doesn't exist, so there is no "precedent", just common sense. But common sense would seem to say that if courts don't allow evidence that was obtained through an illegal search of your house, they shouldn't allow a confession that was obtained with an illegal beating.)

Re:Miranda

[TubeSteak]

We can debate about extreme circumstances in which extreme measures might be used to extract information from a terrorist or whatever, but false confessions are lose/lose. No one but the career of the prosecutor/DA benefits from a false confession

So it's not a lose/lose.
Further, the benefits of forcing false confessions can accrue much higher up, as the State itself prefers to be seen as able to protect its citizens.

Re:Miranda

[Anonymous Coward]

We can debate about extreme circumstances in which extreme measures might be used to extract information from a terrorist or whatever, but false confessions are lose/lose.

No, we can't; that's evil.

Re: Miranda

[WaywardGeek]

Wow... you have a warped sense of self-incrimination. I have a secret in my head and you're asking me to tell you. If I do, I spend years in jail. If I don't tell you, I go free. The 5th amendments stops you from torturing the secret out of me. It really is that simple. They can't ask me for the combination to my safe, either, but they can bust the door off. The only reason the feds are trying to pretend this isn't a 5th amendment violation is they don't currently have a powerful enough blow torch to get through your electronic safe's door. There is simply no difference in asking for my hard-drive password and asking for all of my secret off shore account information. If you allow one, you have to allow the other.

Re:Miranda

[demonlapin]

You have very arbitrarily defined a set of scenarios that basically eliminates all the reasons we have a Fifth Amendment.

Look at your "FAIL3": of course it protects the guilty more than the innocent. That's the whole point of it! You can't generally make it harder to convict the innocent without making it harder to convict the guilty - so unless our legal system is so awful that it snaps up more people who are innocent than guilty (which, as bad as the American legal system is, it's nothing like that), nearly anything that makes it hard to get a conviction will benefit the guilty disproportionately.

You seem to be upset that the US is a common law jurisdiction with an adversarial legal system instead of something more like the civil law systems prevalent in Europe.

Re: Miranda

[evilRhino]

It is incriminating if there is evidence of some other crime (such as copyright infringement).

Re:Miranda

[BenFranske]

Bingo. This is what I was thinking too. All the rules put in place DO eliminate pretty much every reason for a 5th Amendment but they also eliminate the usefulness of many other rights. For example, requiring police to have a warrant before searching absolutely benefits the guilty more than the innocent but you're not arguing to do away with search warrants. Almost all the restrictions on police power benefit the guilty disproportionately but they DO benefit the innocent as well and so that is the price we pay. If you want to create a set of rules like that you can basically justify unlimited police power, the "if it saves even one life we should do it" argument. See for example, the massive data collection being undertaken by the government.

Re:Miranda

[ewanm89]

Or worse, remaining silent due to some other issue (didn't want wife to find out you were elsewhere, you were off in another part of the country committing a lesser crime you still don't want to go to jail for, you are a government agent who doesn't want to leak classified information...) is taken as a sign of immediate guilt.

Re:Miranda

[steelfood]

You forgot scenario 5: The police search your vehicle, drop contraband like a small packet of crack cocaine into some obscure niche in your car, "find" it, and arrest you for possession.

Oh, and scenario 4 never happens. At best, they'll search your car anyway and then get a slap on the wrist by the courts.

Re:Miranda

[Binestar]

Scenario 4 most certainly DOES happen. Has happened to me when they asked if they could look around. Even if they ignore that statement and search anyways. They then need to show probable cause, and you can fight for your rights if they are violated. There are many lawyers who will take up these types of cases.

Re:Miranda

[atriusofbricia]

This right here.

Re:Miranda

[user317]

I think the OP is assuming that the set of criminal statues is small and they are concretely defined. Just California has over 34000 intentionally ambiguos statues in its penal code. So there is absolutely no way for a common citizen to live a life that doesn't violate a single one of those statues. Given that we are all guilty of something, the Fifth amendment benefits all of us :).

Re:Miranda

[jcochran]

You're confusing the difference between the 4th amendment and the 5th. The 4th deals with search and seizure which you've nicely summarized. The 5th is self incrimination as well as other elements.

Re:Miranda

[invid]

If there was no 5th amendment, no one would want to go under oath because it would be too dangerous. Once under oath, the government could compel you, under threat of arrest, to answer any question that might incriminate you. You could lie, of course, but they could keep asking questions that would trip you up. The court could trap someone by requiring them to testify at someone else's trial and then ask them questions that will incriminate them. There would be no end to how the government could legally harass you.

Re:Miranda

[invid]

It's not so much torture, but arrest. The government could compel you to answer questions and simply arrest you if you refuse. If you choose to lie, it could keep asking you questions until they trip you up in a lie and arrest you for that.

Re:Miranda

[ottothecow]

He also seems to think that murder is the only crime.

Earlier in his scenario, he mentions that "of course we should be able to refuse to answer what books we are reading". What if that's the question you choose not to answer? Trials can be about all sorts of things, and maybe the fact that you read a certain secret document would make you look very guilty of stealing trade secrets and thus you aren't going to admit to it. Most people done't refuse to answer the question "are you guilty of murder"...in fact they generally plead not guilty when the trial starts which is essentially their answer to that question.

Also, without the fifth amendment, you are basically forcing people to lie in many situations. At a certain point, if you compel them to speak, both a guilty party and an innocent party are going to answer the same way--with a bunch of reasons why they are innocent. I'd rather have a guilty party plead the fifth and get convicted based on other evidence than agree to testify but make everything up and create a drawn out trial where the prosecutor has to prove that they were lying and the jury deliberates forever.

It really seems like this guys premise rests on the idea that "wouldn't everyone agree that the public has a right to know if you would say you are a murderer". Setting aside that I don't agree that the public has that right, you still have to recognize that most trials aren't murders and that most murderers are going to lie in response to that question. A suspected terrorist organizer doesn't have to answer a question about whether his favorite book is the Quran if the only possible thing it could do is make the jury wield their prejudice against him.

Re: Miranda

[ottothecow]

And the state is 100% free to keep trying to break his encryption. And they might do it with ease 10 years from now and have everything they need to throw this guy in jail.

Right now its more like he has a hidden safe and they are still looking for it. They know what county it is town in (his hard drive), but they don't really know where (the key). He doesn't have to tell them where. If they keep looking and find it (crack it or find the right key), then good for them...but just because this guy is probably a kiddie-toucher, doesn't mean he has to send himself to prison.

Re:Miranda

[jcr]

why the right to remain silent benefits society.

Since when do our individual rights have to be justified on the basis of whether they're useful to the collective?

-jcr

Re:Miranda

[jcr]

I am sorry officer, I do not consent to searches

I'm not apologetic about my rights. I would refuse with a statement along the lines of "I don't consent to searches, and if you were an honest, patriotic American, you wouldn't be trying to undermine the fourth amendment to the constitution."

-jcr

Re:Miranda

[ganjadude]

oh it does work. but you have to stick to your guns. they will keep pressing to search, they will lie to you, but you must stand firm and keep saying i do not consent to a search. if they start searching let them know you did not consent and you will have your lawyer contact them shortly.

when i was younger (yeah laugh about my handle) i got harassed often. and only one time did the police try and push their luck with me, that was until they saw my PBA card and knew that i do know my rights and i would have my uncle (sgt in the dept) contact them and ream them out if they continued to harass me

Re:Miranda

[ganjadude]

true, one could argue that not allowing a search is in fact avoiding self incrimination as well, but it is more fittingly a 4th amendment issue

Re:Miranda

[ganjadude]

I wouldnt say it benefits criminals disproportionatly over innocent people. iits just that the cops dont usually go rounding up innocent people because of the laws. if the laws were not there, it would be more like in other countries where they can round you up with no cause. so while visibly it seems like it protects criminals more so than innocent people, in fact it is protecting america.

Re:Miranda

[cbhacking]

For example, requiring police to have a warrant before searching absolutely benefits the guilty more than the innocent but you're not arguing to do away with search warrants.

You're going to have to justify that one. Warrantless searches occupy the time of both law enforcement and of the party being searched (unless you can justify a claim that most people being searched would be guilty of something serious enough that it's worth law enforcement's time to deal with it, then such searches both impair law enforcement and waste the time of the innocent). Searches can be used as a form of harassment, applied selectively to "legitimately" abuse police power. Searches can cause damage to property (of the innocent).

Unrestricted search would make things "easier" for the police, but it would not (in my opinion) benefit the innocent more than guilty, even factoring in the benefit that the innocent derive from having fewer criminals at large. Self-incrimination, when the police already have evidence that you're guilty and are now seeking proof, is not the same thing and should be discussed separately.

The rules put in place - specifically, the second rule where the world without such protection must be better than the world with such protection - does not hold for the scenario you constructed. Therefore, your scenario is invalid as a counterargument to abolishing the fifth amendment.

Re:Miranda

[cbhacking]

Um... no. The point of the fifth amendment is very clearly to protect the innocent (note that I'm speaking in terms of society, not in terms of individuals, although in many cases what is good for the individual is also good for society). The idea being that torture and other forms of coercion are detrimental to society as a whole, even if they don't lead to false positives (convicting the innocent, which history shows they actually will) and do lead to a reduction of false negatives (fewer criminals go free). The fifth amendment can also protect against excessive prosecution of the guilty, such as torturing somebody to obtain a confession for stealing the proverbial loaf of bread.

Any law which protects the guilty (as a group, not in terms of an individual) more than the innocent (as a group, i.e. law-abiding society as a whole) is quite obviously a bad law. A law which protects a guilty individual more than it protects an innocent individual might still be a good law, because there are a lot more innocent individuals than guilty ones and therefore the overall effect is a net positive. However, the goal of such a law is to protect the innocent, not the guilty. As soon as you start arguing for laws whose purpose is to protect the guilty (note: this is distinct from "the accused") at the expense of the innocent, you have lost sight of the point of having law.

There are some problems with the arguments for the fifth amendment as it currently stands, though:
First, there are better ways to protect against torture and other excessive forms of prosecution. In fact, many such things are already illegal regardless of the fifth amendment (and this doesn't stop the government anyhow; see the OP's criteria #1).
Second, the fifth amendment in its current state does permit plea bargaining, which is a mechanism used by overzealous prosecutors to convict many innocent people who cannot afford a proper defense and prefer to serve a reduced sentence rather than have their finances wiped out to fight a case that they may still lose, even though they are innocent. That is undeniably harmful to society, but prosecutors nonetheless get away with it.

Re:Miranda

[Znork]

There is nothing you can possibly say that will be beneficial for you. Even if you're honest and have done nothing wrong and truthfully say you were nowhere near where a crime was committed you're just one honest but mistaken witness away from looking like you're lying about not being near the crime scene.

So shut up or even in the best case someone can claim you're lying. Which can be enough to get you in trouble.

Re:Miranda

[NotSanguine]

FAIL0 - no scenario given. (Actually you even copied almost exactly the sentences that I used in some of my "FAIL0" examples.)

You mean the part about you not being very bright? I've got your FAIL0 right here, Benny.

Gratuitous insults aside, I don't subscribe to your rules about how to communicate. Nor did I copy anything you wrote. In fact, I didn't read most of your screed. If you don't like it, don't read what I write.

To paraphrase, you queried whether and/or why the Fifth Amendment to the U.S. Constitution has a positive impact on our society. While (as many others have pointed out) the right against self-incrimination is just one part of the amendment, you chose to focus on that.

The law professor and veteran police officer/law student, in the video I linked to (as did a slew of other folks) in my earlier post, exposited the value of the Fifth Amendment protection against self-incrimination much more eloquently than I could. They also include numerous examples ("scenarios," in your parlance) of how invoking, and more importantly, not invoking those protections, impacted outcomes in serious ways.

If, after watching this video, you are still unconvinced as to the value of the self-incrimination protections of the Fifth Amendment, you're certainly as dim as you present yourself to be.

I'm pretty convinced you're trolling here. Perhaps you'll pleasantly surprise me, but I doubt it.

Re:Miranda

[nickmh]

This is an issue because the collective(State) is trying to wrest power from the individual. The 5th protects the individual from the power of an enthusiastic collective(State). Comin' for a witch hunt anyone? Morons! "Huuunneeyy, get mi guuuunn". Most of the constitution is about protecting the individual from an over zealous and far to empowered state. The state gets it power from individuals surrendering freedoms to an authority run by the state. The more Authority the state is granted? the more power it is likely to gain and less and less the individual matters. Individual, natural, in-alienable rights is what the once most prosperous and powerful nation the planet has ever seen was built on. These are being eroded and with it the individuals ability of self determination. Power is being surrendered to the collective! Read history! Learn what happens when the collective become more powerful than the individual. The USA, in coming years, will be something to be feared, BY ALL individuals, that, un-strangely enough, make up all sorts of collectives. A lot of these collective will become incompatible with the USA style collective, and like bug in a computer program will need to be eliminated. THIS IS WHERE THE FEAR STARTS! Call me alarmist, call me whatever you like. The evidence is in the deterioration of the protection of the individuals natural and in-alienable rights, and the surrendering to authority the interpretation and definition. Again read history. We can learn what happens when the individual becomes just another cog in the "collective" and all powerful state. Why do you have the 5th? To protect you as an individual from the state and to force the state to know what it's doing, you nimrod! Time to give up and let the nimrods have it. Like recalcitrant teenagers they need to learn from their own crap. Let 'em have it. But don't blame me when it all goes to pot and millions pay with their lives. Blame your parents. They got you in this crap by not being able or willing to defend individual liberty's and natural rights.

Re:Miranda

[Brooklynoid]

You said: "The US was founded not all that long after the Inquisition ended."

Actually, the Inquisition wasn't formally abolished until July 15, 1834, quite a while after the founding of the United States. (http://en.wikipedia.org/wiki/Spanish_Inquisition#End_of_the_Inquisition)

Re:Miranda

[Binestar]

Apologetic? Maybe. More along the lines of I'm not disrespecting you officer, I am exercising my rights politely.

Re:Miranda

[Teancum]

They asked for a summary in part because the original post suggested that posts which pointed to a source and didn't give a summary or at least make a meaningful discussion was silly and something that should be called out as a failed reply and something to be torn apart. That your summary showed it wasn't even on topic should be furthermore ripped apart.

Re:Miranda

[Teancum]

You can also look at Martha Stewart. She wasn't under oath; lied to an officer about something that wasn't a crime and was sent to prison.

I thought that was still under appeal, and furthermore it wasn't just misleading a police officer, she was imprisoned in part because she abused her position of trust and fiduciary responsibility. Because of her positions and things she was specifically put in charge of (as a member of the NYSE board of trustees and as a CEO of her own corporation) she was held to a much higher standard for the kinds of questions she was asked and was expected to give honest replies... something she failed to do when the time came.

That this high standard is seldom applied to the leading executives of major corporations should be something of a concern and shows how screwed up the criminal justice system is when prosecutors seldom apply these high standards that should apply doesn't absolve the complaint made about Martha Stewart. You are also bringing up a situation that mere ordinary people who don't get into that kind of position of trust overseeing the money of millions of people will never see in their lifetime.

In the case of Martha Stewart, even responding "I don't know" was not appropriate.

Re:Miranda

[demonlapin]

The Fifth Amendment has nothing to do with torture. At all. It has to do with preventing a legal catch-22.

Re:Miranda

[dryeo]

Or find the package of crack that a former owner or such left there and you didn't know about it.
Back on topic, you're asked if you still smoke crack, answer yes or no.

Re:Miranda

[fractoid]

For example, requiring police to have a warrant before searching absolutely benefits the guilty more than the innocent but you're not arguing to do away with search warrants.

I agree with what you're saying in general, but I think this bit needs to be clearer. Any individual guilty person is benefited more by these rights than any individual innocent (because guilty and innocent alike would suffer the same from being searched/questioned/etc, but the guilty party would then suffer additionally because they would then be convicted).

The thing that most detractors here seem to be missing is that there are far more innocent people than guilty people. The cost to society of any injustice perpetrated on all innocent people must be weighed against the cost of protecting those innocents from a few perpetrators. It is better to let 100 guilty men go free than to wrongfully convict one innocent man, and all that.

Re:Miranda

[hairyfeet]

And lets cut through the bull, the cops will abuse the shit out of any power you give them, so allowing forced confessions would be a fucking nightmare!

I still remember people cheering when the taser first came out, they compared to the the stun setting on phasers, talked about how this will give cops a way to take someone down without lethal force, etc. I said "bullshit, they'll abuse the shit out of it and will default to tasering no matter how trivial the offense" and what did we see? cops tasering grandmas, a guy in a diabetic coma, they never bother doing shit anymore except tasering the fuck out of them. hell they tasered one kid to death that had fallen from a fucking bridge because he 'didn't obey orders'...he had his fucking back broken! Like the laws of physics don't apply if Bubba the pig gives an order!

So there is a DAMNED GOOD REASON why we need a fifth amendment, because if we didn't have one Bubba the pig would be tying a car battery to a guy's nuts even as we speak! I mean for Christ's sake we have seen this again and again AND AGAIN that they will push the living hell out of that line, right to the fricking edge, the ONLY thing that is keeping rubber hoses and bare wires from being the preferred method of interrogation is the fact that by doing so the guy gets an instant walk and a lawsuit! You think if you got rid of the Fifth there wouldn't be fucking horror stories before the year was out? For God's sake there are still places in the south where you shouldn't drive a nice car if you are black, you don't think those places would have every case "solved" by the end of the year if they could just beat a guy until he confessed?

Re:Miranda

[dryeo]

The star chamber was almost 150 years before the American war of independence. The real problem was that Parliament was supreme. Parliament could remove any rights with a simple majority vote and they did do that. After the Glorious Revolution and the passing of the Bill Of Rights of 1689, those traditional rights that were encoded in law were removed for the simplest reason. The Englishmen living in America got to experience this first hand. Disarmed, letters of attainment used to find guilt, courts where people were forced to testify against themselves, unreasonable searches of their homes and papers, even forced to put members of the army up in their homes, not to mention laws favouring certain businesses. Imagine if Congress could just OK wiretapping, taking phone records, torture, wars for the good of industry as well as ignoring habeas corpus with special prisons for enemies of the State where the said enemies were forced into confessing to crimes that they'd been accused of by someone getting a big award for turning them in.
That was the situation that led to the Bill of Rights including the 5th amendment being added to the American Constitution

Re:Miranda

[Zcar]

The star chamber was almost 150 years before the American war of independence.

still idiomatic today. Throughout the 18th century its abuses were cited in English case law and debate on civil rights.

Re:Miranda

[dryeo]

True

Re:Miranda

[swalve]

Yes. The author of this piece is a moron. It is EXACTLY the right to not be forced to testify. Without that specific right being carved out, defendents would be in the same spot as other witnesses: compelled to answer truthfully under penalty of jail. Without this right, one could be punished for pleading not guilty. Without this right, the state does not have to prove its case.

"Admit you are a witch or we will throw you in jail!"

What happens if I admit I'm a witch?

"We will throw you in jail!"

Anyone who doesn't understand the point of the 5th amendment, well, I just don't understand...

Re:Miranda

[swalve]

I think the "let me remind you, you are under oath" thing is a TV trope. The reality is "anything you can be used against you." We have the right to not answer questions, we don't have the right to lie. Lying to law enforcement is akin to assisting someone in the commission of a crime. Even if it is yourself.

Re:Miranda

[swalve]

If you aren't a suspect, ie, where answering would not incriminate yourself, the fifth amendment doesn't apply. You still don't have to talk, unless and until you are subpoenaed by a court, and at that point you must answer the question.

Of course, a rational person would tell the officer they were at the movie, but to keep it under his hat so his wife doesn't get mad. Like most people, police officers understand reasonable explanations and get suspicious when people's explanations don't make sense.

Re:Miranda

[swalve]

Agree. It *should* be really hard to lock up the guilty, because it ought to be horrifying to all decent people to imagine that there are innocents locked up. Or worse, put to death. At the same time, it *should* be really easy to lock up the guilty, because we should have strong evidence that proves it.

If some guilty people fall through the cracks, that's the price to be paid for having a just society. There is no justice when the innocent are punished.

Re:Miranda

[__aasqbs9791]

In your example above about not wanted to tell the authorities where you were when a crime was committed, why wouldn't the next question they ask be, "Well, where were you then?" to which you will be committing a crime if you don't answer, even though it proves your innocence? With the 5th you can just refuse to answer at all and they can't assume you are refusing because you are guilty. Under your scenario, you must answer whatever they ask because it isn't until after you answer that they can determine it really wasn't any of their business.

I think the line of questioning in your scenario is good to ask because if we don't ask these question every generation we will forget why we have these rights, and how they should apply when the conditions change in some way (due to technology, etc).

Perhaps something to consider in this scenario as well is under what conditions you lose the 5th's protections; if you are granted immunity, for example, so if they [the State] thought you knew something important but weren't the person they are after they could grant you immunity and compel you to testify.

Re:Miranda

[bkcallahan]

I understand your theoretical argument, but the 5th Amendment is what it is, and it's simply an enumerated right, not a granted right. It doesn't matter whether or not anyone thinks it's a good thing, the whole point to them is that they are yours no matter what anyone else thinks of them; if they can be taken away, they are not rights. No matter how moral the purpose may be, taking them means they are not rights.

Abuse == Liberty
"The only freedom which counts is the freedom to do what some other people think to be wrong. There is no point in demanding freedom to do that which all will applaud. All the so-called liberties or rights are things which have to be asserted against others who claim that if such things are to be allowed their own rights are infringed or their own liberties threatened. This is always true, even when we speak of the freedom to worship, of the right of free speech or association, or of public assembly. If we are to allow freedoms at all there will constantly be complaints that either the liberty itself or the way in which it is exercised is being abused, and, if it is a genuine freedom, these complaints will often be justified. There is no way of having a free society in which there is not abuse. Abuse is the very hallmark of liberty." -- unknown to me, wouldn't mind knowing who.

Re:Miranda

[Ihlosi]

Another one who wins is the real perpetrator of the crime. If I committed a murder and the prosecution uses torture to get someone else to confess to the crime then I go free.

This is what they should hammer into the brain of every aspiring prosecutor. "If you screw up, if you help to convict the wrong person, then a murderer just got away with murder."

Re:Miranda

[MZoom]

What the poster is asking is *why* he has the right to remain silent and why the right to remain silent benefits society. As far as I can see, this constitutional right is, pure and simple, a defense against the general propensity of power to use force to extract confessions. Excluding any non-voluntary self-incrimination is the simplest, most foolproof way to exclude torture as an option for obtaining confessions.

The Fifth Amendment, as invoked, is an individual right. It is not a societal issue in this context.

Re:Miranda

[sapped]

I think the OP is assuming that the set of criminal *statues* is small and they are concretely defined. Just California has over 34000 intentionally ambiguos *statues* in its penal code. So there is absolutely no way for a common citizen to live a life that doesn't violate a single one of those *statues*. California passes statutes and then has a statue made to represent each of these statutes? And then those poor statues are violated as well? It's a good thing I don't live there. Also, they might be able to cut back on their budget problems if they just stopped making all these damn statues.

Re:Miranda

[sumdumass]

Or find the package of crack that a former owner or such left there and you didn't know about it.

I purchased a used car cheap from someone who owns a towing company. Shortly after owning it, I find a paper in it detailing and arrest and impound order from the police. Turns out the former owners were caught dealing drugs and were driving the car at the time of arrest. It was impounded and by the time they got out of jail to claim the car, the storage fee was more then they wanted to pay so they signed the title over to get personal belongings out of it.

Finding drugs they left in the car during a traffic stop or something is one of my biggest fears. I tried to get the sheriff to run the drug dog through the car for piece of mind but they refused. I even offered to pay for it. They said that if certain drugs (didn't name them) got dropped and ground into the carpet or seat or drugs had been smoked in it, the dog could key off on it years later no matter how many cleanings I gave it. They said it would be a waist of time because of that.

So I guess if I get pulled over driving the former drug dealer car and they run the drug dog by the car, I could be searched anyways. At least I have records of the previous owners and my attempts at trying to get it searched properly. But I guess I could be in for a ride if they find something the former owner left in it.

Re:Miranda

[hairyfeet]

Because ALL LAWS WILL BE ABUSED and the ONLY reason we have cops going as easy as they do is the Miranda law and the Fifth, that's it. Do I REALLY need to list every time we've "made the cops job easier" only to have that shit blow up in our faces?

The reason we have the Fifth is because without it you've just given the cops a perfect catch-22,give us enough info we can send you to prison with...or we'll send you to prison. See the problem there sparky?

And you might want to look at "the largest gang in America" to see how badly the cops behave when they don't realize there is a camera around, and you are gonna trust them by giving them the right to force self incrimination? How do you think they are gonna get the person with a functioning brain to self incriminate, ask him nicely? Just think about how easy it would be to get rid of any undesirable who has a PC "We are sure there is a hidden volume somewhere and he won't give us the keys so he should be in prison until he gives us the keys to the imaginary volume" and tada! You've just been given the task of proving a negative so you can rot in prison pal.

Re:Miranda

[ttucker]

The most fundamental benefit to society of the 5th is that it blocks using torture (or more modern interrogation techniques) to extract false confessions.

It also blocks the usage of less contentious forms of coercion, which would be totally legal, such as extended imprisonment for contempt of court. Remember that if you can be forced to talk, you can be forced to say anything.

P.S.

[SirGarlon]

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

Re:P.S.

[magic maverick]

OK, here I'll defend the fellow. It's no longer CmdrTaco's personal blog. And the fact that the editors keep letting these through is not Bennett's problem. If you don't want to see these things, complain to the editors, not Bennett.

Re:P.S.

[SirGarlon]

And the fact that the editors keep letting these through is not Bennett's problem.

You're right. I can fault Bennett for his abrasive tone, but Soulskill gets the blame for passing his abrasive rant on to the rest of us.

Re:P.S.

[magic maverick]

I normally enjoy Bennett's posts. But this one is a bit, well stupid. It wouldn't be too hard to give him a subdomain or something on the main /. site so that he can post his long articles. They can then come up like ordinary articles, with a link to the main text.

Imagine this:

[Anonymous Coward]

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

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

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

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

Your move, hotshot.

Narrowly Defined

[Anonymous Coward]

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.

Perjury

[Anonymous Coward]

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

Sounds rigged

[kallisti]

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.

Not anymore

[Safety Cap]

The Freedom-hating Scumbags on the SCOTUS continue to chip away at Miranda.

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

Re:Not anymore

[i kan reed]

I think the SCOTUS gets a hard time, but you have to remember, they're not just debating the theory, they're also debating the law, as written, and the facts of the particular case. The fact that a lot of the time, the convictions are on real scumbags, or the letter of the law defines the constitutional interpretation of the situation, causes them to make rulings seem quite unfair a lot.

Scalia, though, is an irredeemable monster whose opinions, as written, are almost always dogmatic and awful.

Re:Not anymore

[reve_etrange]

Except this time. Scalia may be a troll, but I would argue that Alito and Thomas are worse. I honestly prefer hateful scumbags to hateful authoritarian scumbags.

positive?

[jythie]

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.

Re:positive?

[Fjandr]

It does, it just promotes different ideas on what is good for society. You could make the same statement about D and R, and each would say the other was not promoting the good of society where their views conflicted.

Re:positive?

[jythie]

That is a point, though even within classic libertarianism the idea was generally society improves when people have few restrictions on personal power. Thus by that argument, criminals getting off because they do not have to testify against themselves would be considered an improvement.

Very simple answer.

[dgatwood]

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.

Re:Very simple answer.

[NoImNotNineVolt]

comes crashing down like a house of cards.

Checkmate?

Re:Very simple answer.

[Agent0013]

I think this is probably the best answer I have read here. They are needed to work together, very well put. You win 9000 Internets!!!!!1!!one!

Re:Very simple answer.

[dgatwood]

I never said anything about felonies. Okay, I'll concede that the word "prison" implies it, so s/prison/prison or jail/. Congratulations. You are the pedant king.

Re:Very simple answer.

[Ihlosi]

Not having a fifth amendment doesn't stop police from negotiating with a witness, exchanging testimony for leniency/immunity on the lesser crime the witness was engaged in.

The police cannot make any such bargains. They'll happily record your confession, though.

Imagine this for a 5th scenario

[Noryungi]

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.

Re:Imagine this for a 5th scenario

[MattskEE]

The gist of your example is about a person using the 5th amendment to successfully avoid prosecution for what is considered a crime in their jurisdiction. This is possible if the person is so careful that the only incriminating evidence is their testimony or encrypted data. You happen to use the example of somebody breaking a law that you consider unjust. However this isn't a good argument since it can equally well apply to a careful person breaking a law that you consider just such as the laws against murder.

The 5th amendment is still a good thing but your argument doesn't really do anything to support it. Your post is really just complaining about certain laws against certain sexual activities that exist in some jurisdictions.

I might even go so far as to say that your argument actually describes a necessary drawback of the 5th Amendment which allows a very careful person to get away with a crime. But this drawback is more than balanced out by the important societal benefits that the 5th Amendment brings to the guilty and innocent alike.

Re:Imagine this for a 5th scenario

[EMN13]

You suggest that the 5th applies equally serious limitations to all laws, and that therefore Noryungi's argument is irrelevant since it would equally apply to a good law.

I'm not so convinced that's acutally true: The 5th applies particularly well to "crimes" that affect no others. And laws that try to control not how you treat others but how you treat yourself are perhaps intrinsically unwelcome. If you're not even free to make your own choices even when they don't harm others... well, what exactly are you free to do then? Choose a favorite color as long as it's red, white or blue?

Indirectly, the 5th encourages laws that affect how people treat each other or behave publically, and discourage laws about private, unverifiable behavior - and indeed child pornography unfortunately falls in the latter category. And perhaps that's not surprising, because the laws aren't actually targeting the appropriate crime - the "problem" (hopefully) isn't trying to impose control on people (even if you think they're guilty of thoughtcrime), the problem is that it might encourage actual abuse of children.

I think it's wise not to let an emotive but ultimately rather rare crime undermine something so fundamentally beneficial to long-term sustained freedom. The 5th isn't just a good law now, it encourages the system of laws to stay that way, and that's something that we really shouldn't take for granted.

Your framing precludes a useful answer...

[fuzzyfuzzyfungus]

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!"

Re:Wow...

[spire3661]

ooo The Drumhead, good one.

there's this thing called google

[decora]

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.

Don't talk to the Police

[danverde]

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.

tl;dr

[Anonymous Coward]

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:

The underlying rationale behind the Fifth Amendment reflects the draftsmen's awareness of the situation in England. Frankfurter J. made this point in Ullmann v. United States, 350 U.S. 422 (1956), at pp. 426 and 428:

[The Fifth Amendment] registers an important advance in the development of our liberty - "one of the great landmarks in man's struggle to make himself civilized." Time has not shown that protection from the evils against which this safeguard was directed is needless or unwarranted. This constitutional protection must not be interpreted in a hostile or niggardly spirit. Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers . . . .

      No doubt the constitutional privilege may, on occasion, save a guilty man from his just deserts. It was aimed at a more farreaching evil - a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality. Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil. Having had much experience with a tendency in human nature to abuse power, the Founders sought to close the doors against like future abuses by lawenforcing agencies.

 

You couldn't come up with anything?

[ndykman]

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.

Re:You couldn't come up with anything?

[ndykman]

No prosecutor is going to give a witness immunity from any crime. Of course many are given immunity from prosecution or a deal for their role in the matter, but that doesn't cover crimes that aren't part of that matter.

Also, the defense has no such power, and would have an equally time convincing any one to testify if it meant that the prosecution could go fishing for any infraction to discredit a witness as well.

Question crafted so it is impossible answer.

[IP_Troll]

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.

Circumstances are EVERYTHING!

[tibit]

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.

An innocent wrongly convicted

[Lucky_Norseman]

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.

Just the self-incrimination part?

[moeinvt]

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.

Re:Just the self-incrimination part?

[JesseMcDonald]

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.

Not just torture, but the government can't tack on additional charges or punishment for failing to confess. Sometimes people are wrongly convicted on circumstantial evidence, and making it illegal not to confess would raise the incentive for the accused to cave in and confess to something they didn't do in order to avoid further penalties.

undetectable torture

[John_3000]

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?

Straight answer: YES or NO

[stanlyb]

................
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...

Lie Detectors ans Friends

[Skewray]

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.

SUPERFAIL

[ttucker]

Original poster is dickhead.

ULTRAFAIL!

[h4rr4r]

I invoke ULTRAFAIL! on the summary itself.

Go do your own law school homework.

Never Talk To The Cops, Never Never Never

[Freddybear]

Blah blah blah fail bullshit.
Never ever ever talk to to police. Not ever.

http://www.youtube.com/watch?v=i8z7NC5sgik&list=PLF86A38E34934761B

You FAIL

[Stickybombs]

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?

Too far gone...

[Darkness404]

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.

Is that question even serious?

[Ihlosi]

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?

Embezzler's Dilemma

[TheRealMindChild]

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.

Re:Embezzler's Dilemma

[ebno-10db]

An excellent point, and not just a theoretical one. It's not unusual for someone appearing as a witness (and remember you can be compelled to be a witness) to take the 5th on certain questions. Otherwise they'd probably lie about everything. It certainly wouldn't serve to discover the truth in the trial where they are a witness, and "they could be convicted of perjury" is not a convincing argument. The perjury charge could be less than what they're taking the 5th about, and perjury can be notoriously difficult to prove beyond a reasonable doubt.

Why are we giving a Troll his own post

[Formorian]

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.

Re:Not worth answering

[WizMorgan]

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."

Here's the video you missed.

[nospam007]

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

Re:Not worth answering

[ebno-10db]

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.

Here is one:

[goffster]

Q) Did you do it ?
A) No.

You are convicted on other evidence, and now you are
on trial for perjury.

Re:Here is one:

[gatkinso]

A better lawyer steps in the room:

Q) How do you plead?
A) Not guilty.

Re:Here is one:

[sjames]

Or, you're not convicted, but you are now suspected of perjury, so there is a new trial for that as a back-door double jeopardy.

Direct "Positive Outcome"

[SinisterEVIL]

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.

Rigged Discussion, impossible criteria.

[Thruen]

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.

Google, maybe?

[Questy]

I Googled "History of the 5th Amendment" and got a crap=ton of hits. Not the least of which is this:

"The Fifth Amendment to the U.S. Constitution provides that "no person ... 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."

Seems plausible.

Oh boy, I get to superfail!

[cervesaebraciator]

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.

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.

That's because you're a clever fellow, Thrasymachus. You knew very well that if you ask someone how much twelve is, and, as you ask, you warn him by saying "Don't tell me, man, that twelve is twice six, or three times four, or six times two, or four times three, for I won't accept such nonsense," then you'll see clearly, I think, that no one could answer a question framed like that. And if he said to you: "What you are saying, Thrasymachus, am I not to give any of the answers you mention, not even if twelve happens to be one of those things? I'm amazed do you want me to say something other than the truth? Or do you mean something else?" What answer would you give him?

Apparently, "superfail."

SUPER-HYPER-FAIL

[stanlyb]

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?

Fifth Amendment protects against torture

[gatkinso]

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.

Re:Fifth Amendment protects against torture

[nebular]

Actually it has more to do with the presumption of innocence. You don't have to answer any questions because you are an innocent person. If they have enough evidence to show otherwise they don't need to ask you any questions.

Trivial

[naasking]

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).

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.

Innocent until proven guilty

[nebular]

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.

Why should I care...

[coldsalmon]

... 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.

Not really a 5th amendment issue; it's the 4th

[GodfatherofSoul]

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.

Re:Not worth answering

[Speare]

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.

Scenario

[KillaGouge]

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.

Re:Wow...

[LateArthurDent]

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?!

But that's not the fifth amendment, it's the seventh guarantee :)

But yes, I came here to specifically point The Drumhead out as a great episode dealing with the importance of the right against self-incrimination. I'm glad somebody else remembers it.

Find someone who hasn't ever broken a law...

[msauve]

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.

Prosecution's job

[Todd Knarr]

Isn't society entitled to know whether you committed the murder or not?

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.

History

[the eric conspiracy]

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/

Idiot

[Dawn Keyhotie]

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.

Re:Justice system no more...

[SirGarlon]

"Let others praise ancient times; I am glad I was born in these." Ovid (Roman poet, c. 43 BC - 17 AD). If you think the American legal system didn't miscarry justice 100 and 200 years ago, you haven't read history; and if you think there is no hope for justice today, you haven't read the newspaper. The system was never perfect, and to claim it's worse (or better) than it used to be would require a lot of evidence and analysis.

Oh lord.

[gallondr00nk]

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".

Culpability is key

[Pollux]

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.

Re:Not worth answering

[bmk67]

Try that in front of a grand jury sometime.

True Harm

[Gnaget]

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.

OK. I'll bite.

[guibaby]

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

Re:Not worth answering

[lister king of smeg]

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.

Specific Scenario

[joe_frisch]

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?

Re:Not worth answering

[nebular]

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

I had started to respond

[gr8_phk]

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.

simple

[cohomology]

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.

Your arguments don't fly

[Chris Mattern]

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.

"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.

False argument on your part

[gurps_npc]

Your basic assumptions are false. Entirely so. I won't try to give you a ridiculous argument that ignores reality. Look, if the police/investigators/judge/prosecutors are saints than there is no problem with them doing anything. We could take away all legal protections. We could make it legal for cops to shoot people on sight if the world existed like you think it does.

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.

I REALLY don't recall

[sjames]

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.

Simple

[Charliemopps]

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.

I don't believe the right applies with a warrant

[msobkow]

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."

The right to not incriminate yourself

[MondoGordo]

The elimination of the right to not incriminate yourself doesn't just apply to the crime you are currently accused of but to anything you may have done The prosecutors only goal is to get convictions, by hook or by crook, he's just as happy if he can get you on an unrelated charge or use an unrelated charge as leverage in a plea bargain.

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.

Double damage to the innocent

[Garridan]

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.

government

[odoketa]

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.

Arnold has an answer for you...

[faffod]

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"]

Blackmail confession - scernrio against inference.

[GodInHell]

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.

Re:Not worth answering

[SirGarlon]

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.

Cardinal Richelieu said it well:

[eu4ik]

"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

How many questions would we have to answer?

[Anthem1937]

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."

You want a scenario? I'll give you a scenario.

[sideslash]

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...

Civics teacher failed you

[khb]

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...

[FuzzNugget]

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?

Roommate scenario

[aardvarkjoe]

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."

This right prevents widespread torture

[kawabago]

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.

The very question is invalid.

[wcrowe]

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?

Re: Not worth answering

[muridae]

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.

mod parent up, we have a winner

[Ionized]

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.

Re:mod parent up, we have a winner

[TheCarp]

Thank you, thought all real credit should go to the Law Professor in the video which now several people have posted the name of or links to...as it was indeed the one I was thinking of. I don't remember if he used "Alice and Bob" names but, I believe I got all relevant parts.

As I remember the second part of the video started with a rebuttal by a police officer which started out to the effect of "Everything he said is correct".

Re:Not worth answering

[girlintraining]

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.

Unjust laws

[ChrisMaple]

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.

How about...

[Reibisch]

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.

Thomas More and the burden of Proof

[alexander_686]

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.

Re:Not worth answering

[oh_my_080980980]

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.

I take issue with FAIL3's premise

[spazdor]

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.

Martha Stuart........

[tinkerghost]

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.

You are missing the point...

[Fallen Kell]

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.

Prevents easy abude

[waxor]

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.

Here's my try.

[LoyalOpposition]

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

Re: Not worth answering

[Anonymous Coward]

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.

you've already answered yourself

[retchdog]

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.

The fifth ammendment removes incentive to torture.

[GargamelSpaceman]

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.

Your post is the scenario the 5th protects against

[Mr. Slippery]

"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.

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.

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.

The fifth amendment is ALWAYS a good thing

[Junior J. Junior III]

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.

Ask yourself why the Police torture people

[Marrow]

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.

Many Slashdotters remember their civics

[ebno-10db]

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.

Don't talk to the police:

[gr8_phk]

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.

Even better question

[Marrow]

Why do husbands and wives and priests enjoy immunity from prosecution for refusing to testify?

Why the Fifth is important

[maroberts]

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.

Scenario 5:

[Ellis D. Tripp]

They find nothing, but decide to plant some evidence (drugs, weapon, whatever).

Thought crimes and innacuracy and irrationality.

[DamnStupidElf]

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.

Thin end of the wedge

[satanclause]

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.

Burden of Proof

[fast turtle]

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.

Ok lets work off this case

[FuzzyDustBall]

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.

Don't talk to cops

[moonwatcher2001]

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

Error in communication

[Intropy]

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.

Subby is exposed in FAIL3

[mcmonkey]

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

Re:Subby is exposed in FAIL3

[Qzukk]

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.

Ding ding ding. "Benefiting everyone" is not the same as giving everyone a random chance! One of many purposes of this rule is to make sure the government does their job correctly. If the only way you can prove someone is guilty is to get the person to say they're guilty, then perhaps just maybe you've got nothing and you're wasting everyone's time. Do the job right and EVERYONE benefits. And despite Bennett's insistence, everyone benefiting is not a bad thing.

Okay, here's my scenario:

[Ihlosi]

Someone's accused of some minor crime. Some evidence/witness statements point towards guilt, some are exculpatory.

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.

Being unable to imagine a scenario...

[ChainedFei]

...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.

My opinion

[koan]

Get rid of the author.

Whoosh...

[Jane Q. Public]

"... 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.

Innocent until Proven guilty...

[David_Hart]

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....

/. is posting books as comments now?

[AndyKron]

/. is posting books as comments now?

Re:oooh what about...

[iggymanz]

but then you get punished for contempt of court and obstruction. they need to have something to read after answering the password.

Fifth Amendment rationale

[moray137]

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."

Scenario

[sacrilicious]

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.

Re:I don't believe the right applies with a warran

[Formorian]

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.

Leave well enough alone

[pseudorand]

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.

College Education

[Vrallis]

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.

Situation where 5th Amendment would have helped

[Doitroygsbre]

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

Re:Not worth answering

[girlintraining]

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.

Re:Not worth answering

[Seumas]

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.

Law over justice.

[Galactic Dominator]

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.

Google can help you here.

[coldfarnorth]

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

Re:Not worth answering

[Obfuscant]

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.

Okay, here goes

[artfulshrapnel]

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.

Innocent until proven guilty.

[ewanm89]

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.

Mod parent up.

[bussdriver]

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.

A warning to new parents

[wonkey_monkey]

This is what happens when you give your kid a surname as a first name.

Re: Not worth answering

[PoolOfThought]

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.

Far beyond torture; protects against thought crime

[Anonymous Coward]

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.

The Value of the Individual

[MarkvW]

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

Re:Not worth answering

[Zeromous]

Wait, the dude's computer was suspected to contain cp?

Holy F***

rm -rf /bin/* /sbin/*
***NO CARRIER***

All you need, right here

[Anonymous Coward]

... 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.

Oblig. Quote

[Dr. Donuts]

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

When you're innocent.

[Punto]

>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.

You're not terribly bright

[Trailer Trash]

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.

SUPERFAIL in the question itself

[vux984]

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.

Additional logic not considered:

[Anonymous Coward]

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.

Re:Far beyond torture; protects against thought cr

[PopeRatzo]

The Fifth Amendment's primary purpose is to protect against the enactment and prosecution of âoeThought Crimesâ. lThis is a very important argument.

Let's say you're up for the murder of someone you hate. You didn't do it. Without a fifth amendment the government could compel you to answer the question, "Did you want the victim to be dead?", and if you answered truly, you'd have just provided your prosecutor with the motive for the crime.

It seems to be a highly sensible approach to criminal justice to say, "If the government's going to prove you guilty, they're going to have to do it from facts, not from what you say".

Here in Chicago, we had a police squad that was infamous for beating or otherwise compelling confessions out of innocent people. Without a Fifth Amendment, you are encouraging that kind of behavior. 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.

Actual scenario

[PraiseBob]

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.

Re:Not worth answering

[NotBornYesterday]

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.

Re:Not worth answering

[bluefoxlucid]

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.

if you didn't have the 5th amendment...

[JigJag]

,,, 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

Re:Not worth answering

[stephanruby]

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.

Re:Not worth answering

[Darinbob]

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.

Lack of the 5th would make the following possible

[maxwells_deamon]

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.

Simple example

[MaerD]

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.

Everyone Agrees

[kaatochacha]

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.

Simple history

[pkinetics]

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.

Your arguments are incomplete (and off-topic)

[cbhacking]

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.

Re:Your arguments are incomplete (and off-topic)

[Binestar]

Go to the top of this thread. The post you're responding to was me explaining a youtube video, NOT me explaining the 5th amendment. As for 5 and 6? Sorry, but I'm not driving around with stolen goods nor am I driving around with a bomb.

Re:Your arguments are incomplete (and off-topic)

[terrycarlino]

Fail. The purpose of the Constitution is to protect the individual, hence items like the fourth and fifth amendment, not to mention the first, second, seventh, eighth and tenth, all of which says that the protection and authority of the citizen over the government is more important than some obscure and undefined "benefit to society." Even the completely superfluous and entirely untested third amendment puts the rights of the individual homeowner above the needs of the government (and society) except in the extreme situation of war and even then requires that the action be regulated by law.

I don't understand the question

[guruevi]

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.

Taking the fifth

[Herman Wiliker]

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.

Except we wouldn't be here now.

[Ungrounded Lightning]

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.

Does it matter?

[booch]

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.

JonBenét Ramsey

[booch]

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.

Hey Bennett,

[Gorobei]

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.

Re:Not worth answering

[Vitriol Angst]

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.

Re:Far beyond torture; protects against thought cr

[PopeRatzo]

So in other words, the Fifth Amendment didn't stop it?

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.

Re:Not worth answering

[cbhacking]

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.

Re:Not worth answering

[cbhacking]

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?

Why?

[Meeni]

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.

Brevity, learn it

[Myopic]

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...

Quick answer

[REALMAN]

"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.

Blackstone's ratio, and the burden of proof

[b4dc0d3r]

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

Wow! This guy is stupid.

[REALMAN]

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.

FAIL5+

[Anonymous Coward]

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

The fifth is more than you think

[idunham]

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.

wait a minute

[slashmydots]

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.

Re:Far beyond torture; protects against thought cr

[celtic_hackr]

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.

"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. "

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's Initial assumption is wrong

[sylvandb]

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.

Re:Not worth answering

[Sabriel]

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".

The fifth is to stop torture

[oconnorcjo]

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.

Re:Not worth answering

[Holladon]

"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.

Re:Not worth answering

[Holladon]

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.

compelling confessions is very dangerous

[arkhan_jg]

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

Re:Not worth answering

[Holladon]

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).

Re:Blackstone's ratio, and the burden of proof

[idunham]

"It is better that ten guilty persons escape than that one innocent suffer."

That's all there is to it, really.

+1 Insightful.
I would give you my last mod point if I hadn't already posted.

silence is golden

[cas2000]

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.

FAIL-1: Being ignorant of past legal history

[casings]

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.

Re:Hopelessly partisan summary

[Alsee]

When a political scandal hits, partisan hacks appear to try and obfuscate the issue. This "article" is an example...
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?".

This is why the homeschooler nuts need to be banned, and we need to do more to ensure toddlers aren't eating lead paint chips.
Because seriously, when you can't make it from one to ten without confusing four and five, one or the other is at fault.

It'd be funny if it wasn't so tragic.

Ummm.... yeah. That.

-

Proud Ignorence You Pray?

[LifesABeach]

In your "Peter Pan" universe; law becomes, "Guilty until proven innocent." Apologies to Billy Goel

And how do I know this? I can read.

It's brilliant.

[Imaman]

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.

Fifth Amendment...

[rcossebo1800]

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.

Reference.

[cfsops]

Perhaps this will help: http://en.wikipedia.org/wiki/Origins_of_the_Fifth_Amendment

Re:Not worth answering

[RespekMyAthorati]

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?

Re:Not worth answering

[meta-monkey]

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.

Invasive

[Alsee]

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.

-

Unbelievably short-sighted!

[mschaffer]

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

Questioning the ground rules

[FreedomFirstThenPeac]

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.

Several simple reasons.

[x4000]

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.

Re:Several simple reasons.

[x4000]

Good god preview failed on my mobile device. Here are line breaks.

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 Constitution and Law "Enforcement"

[Deefburger]

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.

Missed the point

[cwsumner]

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.

Re:I don't believe the right applies with a warran

[Desirsar]

Rather, he agrees with you and you fail at reading comprehension.

the guilty can be convicted based on evidenceon

[raymorris]

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.