Slashdot Mirror
The Reporter's Fifth Amendment Paradox
In my last article about the Fifth Amendment, I tentatively made the argument that I couldn't see a principled reason why defendants should be able to refuse to answer the question of whether they committed the crime or not. My argument was that you're perfectly entitled to keep information private that is none of anybody's business -- you ought to be able to say, "It's none of your beeswax where I was on the night of the murder" -- however the fact of whether you committed the murder or not, is everybody's business, and I didn't see why the state shouldn't be able to make you choose between saying "Yes, I committed the murder," or "No, I didn't." (If you think the state would then try to convict you of lying if they were determined to railroad you, then my answer would be: If the state is going to railroad you anyway, they can convict you of the murder regardless of whether or not you say you're innocent, so that's not an argument in favor of the right to remain silent. I addressed this and several other counter-arguments in the original article.)
However, the argument I'm making this time is different. I'm saying that regardless of how you feel about the Fifth Amendment granting criminal defendants the right to remain silent, there's no consistent argument that would support giving defendants the right to remain silent, that should not also apply to third-party witnesses.
Here's the basic paradox: Suppose Bob may have committed a crime, and Alice is known not to be an accomplice but appears to have been a witness. If the courts ask both Bob and Alice the same question -- "Did Bob do it?" -- and both of them refuse to answer, then Bob's right to remain silent is protected under the Fifth Amendment, but Alice can be sent to jail -- despite the fact that Bob may have been guilty, but Alice is innocent! To me, that sounds crazy. (As explained at Findlaw and elsewhere, generally third-party witnesses can be required to testify in a way that defendants cannot. Witnesses can only plead the Fifth Amendment right against self-incrimination if they believe that by answering they could incriminate themselves. If it's generally agreed that a person is a third-party witness who was not guilty of any wrongdoing themselves, they can be forced to answer.)
In my first article arguing that defendants should not have the right to refuse to answer "Yes" or "No" as to whether they committed a murder, I wasn't sure of the conclusion, and I invited readers to submit arguments as to why I was wrong (I called the article "Seeking Fifth Amendment Defenders", after all, not "Let's Abolish The Fifth Amendment"). I'm still weighing the arguments coming in, and haven't decided what I believe. However, I'm more sure about the point I'm making this time: that there's no principled, consistent reason to give defendants the right to remain silent but not third-party witnesses. This is after talking to multiple lawyers, law students, and law enforcement officers and asking for any argument to the contrary.
There are two counter-arguments that I've received multiple times, that deserve a response:
-
"The defendant's rights as a presumed-innocent citizen have to be protected until they're actually convicted." This is absolutely an important principle in a free society, but generally those "rights" refer to rights that free people have as well, and that are preserved even if you've been arrested -- for example, the right to free speech and the right to be presumed innocent, are all rights that the general public enjoys as well. Insofar as the Fifth Amendment says you have the right to refuse to answer questions about the particular incident that got you arrested, that's a right that innocent third-party witnesses don't have. Even in the most progressive societies, generally speaking criminal defendants don't get more rights than the public. Why should they get that special right in this case? Maybe there's an argument why, but you'd have to at least make that argument.
So all the talk about protecting the rights of a criminal defendant, is valid, but it misses the point: Why shouldn't we also give the same rights to a third-party witness who we know is innocent?
-
"It would be very difficult to prosecute many cases without compelling testimony from third-party witnesses." This is true -- particularly in the cases of reporters like Risen, who refuse to divulge their sources' identities, so all you have is the option of compelling the reporter to testify, when you don't even know the defendant's identity yet.
However, that's really an argument that if you had to choose between having the ability to force defendants to testify, and having the ability to force third-party witnesses to testify, you would choose the ability to question third-party witnesses, simply because there are often more of them and sometimes they're available even when the defendant isn't. But that's not an answer to my question, which is: Is there an argument from moral or legal principles as to why the defendant is allowed to remain silent but third-party witnesses are not? Obviously, we don't actually have to choose between requiring defendants to answer and requiring third-party witnesses to answer. If we place more importance on giving courts the power to gather information, we should empower them to question third-party witnesses -- but wouldn't that argument also apply to requiring answers from the defendant? On the other hand, if we place more importance on individual liberty, we could grant the right to remain silent to defendants who are presumed innocent -- but shouldn't we grant that same right to third-party witnesses that we know are innocent?
The argument that "it would be too inconvenient to prosecute cases if we couldn't require answers from third-party witnesses", is a bit like saying that if we had to choose between the courts having the power to force Eskimos to testify, and having the power to force non-Eskimos to testify, we would choose having the power to force non-Eskimos to testify, just because there are more of them. But obviously that's not a principled argument as to why we should be able to require answers from non-Eskimos but not from Eskimos.
Of course, many people's sympathy for James Risen might stem not from the fact that he's a third-party witness (to the crime of leaking information), but from the fact that his supporters are sympathetic to the cause of the anonymous leaker, who was exposing what he believed was a corrupt government. (Risen's book is subtitled "The Explosive Book on the Abuse of Power of the Bush Administration", always a way to get fans.) If James Risen knew the identity of someone who had raped and killed a child, but had gone to jail for refusing to name the suspect, probably a lot fewer people would be hailing him as a hero. But that hypothetical just makes the argument from the opposite direction: If we instinctively feel that third-party witnesses to a murder can be forced to answer questions about what they saw, why can't we make a suspect (who is, after all, a special case of a "potential witness") answer questions about what they know as well?
Our courts' current stance on the "right to remain silent" -- that it can be claimed by criminal defendants, but not by innocent third-party witnesses -- seems so absurd to me that I'm going to go out on a limb and say that I think it's an example of groupthink, an assumption that we accept because we're immersed in it, but that few people would ever come up with on their own if they were working from first principles about balancing liberty vs. the rights of the state.
Here's what I mean by that: Suppose you had been raised in a world that was identical to our own, except that our rights under the Fifth Amendment were inverted, so that innocent third-party witnesses could refuse to answer questions, but criminal defendants could at least be required to answer "Yes" or "No" as to whether they committed the crime. My hunch is that that, instead, would seem natural and sensible. You wouldn't scratch your head and say, "Wait, that seems wrong -- it should be the defendants who should have the right to remain silent, not the innocent witnesses."
By contrast, suppose you had been raised in the world that was identical to ours, except that portions of the First Amendment were inverted -- so that we could write any political arguments that we wanted to, but the government demanded prior approval of any fictional stories that we wanted to publish. I would hope that to many people, this would seem like a nagging contradiction, and over time more and more people would point out this inherent hypocrisy and call for restrictions on political thought to be abolished. That's because I think the First Amendment guarantee of free speech is something that can be derived from first principles about individual liberty -- if you want to write something and someone else wants to read it, and neither of you is harming anyone else in the process, it should be nobody else's business, period, full stop. And I just don't see a compelling argument from first principles in support of our current interpretation of the Fifth Amendment -- that we can make third-party witnesses answer questions, but not require the same of a criminal defendant.
Regardless, a court has already ruled that James Risen can be made to testify, and barring a successful appeal, he may choose to go to jail rather than reveal his source. The judge writing the ruling against Risen made an interesting slip-up, though, when he wrote:
The reporter must appear and give testimony just as every other citizen must.
But of course "every other citizen" does not have to give testimony -- if the defendant is ever identified, they won't have to. And that's the inconsistency that I find hard to explain.
There was once a common practice of forcing defendants to testify, and adding more charges if they denied guilt and then were found guilty anyways. The Fifth Amendment protects against that practice, and only that practice.
The Fifth Amendment should be extended to any party in any type of court. Testimony should always be voluntary to all parties, unless there is an immediate danger to the life and safety of a third party. Even with this system, I could see this being paraded and manipulated in court and used to extract testimony.
There is no reason why someone should be protected from self incrimination in a criminal court, but not in a civil one.
Sig: I stole this sig.
Which part of "nor shall be compelled in any criminal case to be a witness against himself" was unclear.
"Against himself" is the key term here.
Why have you sent so much time and effort proving yourself an idiot by ignoring the actual text of the Amendment which you seek to explicate?
It's a right to not bear witness against yourself.
At present it seems reasonable to conclude that the US is the biggest threat to freedom in the world -- because they still pretend to be acting in favor of freedom, while undermining it for everybody in the world.
The great empire is in decline, and has become a sad pathetic joke. Which if they could keep within their own borders, the rest of us could live with.
The reason that the defendants right to remain silent is protected is because his testimony is worthless anyhow. If he is guilty then obviously he is going to lie and all that you achieve is the ability to stack perjury charges ontop of the normal charges, which just makes the entire procedure look awfully like a show trial rather then a proper trial.
I'll also quote part of the Wikipedia history section why the right is important:
" The Latin brocard nemo tenetur se ipsum accusare ('no man is bound to accuse himself') became a rallying cry for religious and political dissidents who were prosecuted in the Star Chamber and High Commission of 16th century England. People coming before these tribunals were forced to make the ex officio oath by which they swore to truthfully answer the questions to be put before them without knowing what they were being accused of. This created what has been termed the cruel trilemma whereby these accused were forced to choose between committing the mortal sin of perjury (if they lied under oath to protect themselves), harsh punishment for contempt of court (if they refused to answer), or betraying their "natural" duty of self-preservation (if they told the truth to honour their oath)."
If she can be sent to jail, she's not an innocent third-party witness, and would be able to refuse to testify.
The Fifth is only to prevent forced self-incrimination. If the prosecution waives any ability to prosecute, then the Fifth simply has no application in that case anymore. The Fifth is not about the overall power of the government to compel you to talk, so anything along those lines is out of scope.
than go through the time and expense of "innocent until proven guilty" burden of proof that one is indeed guilty. The whistleblowers have already made it clear that they're the ones who spoke, the criminals are more stealth (and protected) with their info.
Laughter is the Spackle of the Soul.
If someone is facing criminal charges for not testifying does that not make them a defendant and thus protected under the fifth amendment? Seems to me that this is just a good example of the government twisting the wording of a certain law or amendment to suit what best fits their interest and not an issue with the amendment itself.
Witnesses can be compelled to testify so that they cannot be intimidated into silence.
There is also the fact that the courts are supposed to be about determining the facts of a case and to mete out appropriate punishment (it could be argued that it has shifted, but that is their design). By not revealing his source, he is in fact hampering the function of the court which, to me, is equal to contempt. If a person in the gallery of a court started yelling and protesting and refused to be quiet and kept the court from continuing, one would expect that person to be arrested. He is essentially doing the same thing.
The only thing necessary for evil to triumph is for it to be pitted against a slightly greater evil
When the executive decides that certain classified information is beneficial to them, they leak it and go unpunished. This happens on a weekly basis as a form of propaganda.
When the executive wants to retaliate against someone, they leak classified information and go unpunished, e.g. dick cheney revealing valerie plame.
If anyone else leaks classified information, the government goes after them with full force.
Given that the government has taken to classifying just about everything it does, this results in a propaganda machine where only information beneficial to the government tends to be revealed.
Liberty.
However, without knowing what the testimony would be, there is know way to know for certain if giving the testimony would or would not be evidence of a crime committed by the person giving it...a crime which may or may not be related to the actual testimony.
So while technically I can see an argument here, as a practical matter, how do you prove a person wouldn't incriminate himself by a statement of which you don't know the content?
"I opened my eyes, and everything went dark again"
Why do prosecutors have the ability to bring legal consequences against anyone who refuses to testify, in any case?
The Fifth Amendment should be extended to any party in any type of court. Testimony should always be voluntary to all parties, unless there is an immediate danger to the life and safety of a third party. Even with this system, I could see this being paraded and manipulated in court and used to extract testimony.
Our Constitution and our laws are supposed to strike a balance between your rights and the rights of others. The reason that an uninvolved third party should be compelled to testify is so that the defendant receives a fair trial by having all available information brought forward. What if that witness' information could exonerate an accused innocent but the witness would like to remain silent for personal revenge or personal gain?
Why shouldn't we also give the same rights to a third-party witness who we know is innocent?
How do we know anything about the crime scene? If we did, then the prosecution job would be done and no testimony would be needed. Given the Bob/Alice scenario, how do we know that Alice is an innocent bystander? If she is not, then she has the same fifth amendment rights as Bob does.
Likewise, we don't know James Risen's role in the CIA information leak. Did he conspire with an insider to obtain the information? If so, it would seem that the Fifth Amendment applies to him as well. If the DoJ knows any different, then they can just present that to the court without the assistance of Risen's testimony. Yes, the DoJ can offer immunity and remove the self-incrimination hurdle. But immunity from what? We don't know what other illegal acts Risen may have committed in order to acquire the information and even the act of negotiating immunity may reveal other acts that the prosecution is not aware of.
Our US legal system is adversarial by design. It's us (the public) against the government. So nobody should be compelled to assist them in any way.
Have gnu, will travel.
Each person cannot be compelled to testify against himself in court.
While the author may intentionally not make a distinction, the Alice would only face contempt charges which rarely produce the levels of punishment as murder convictions do.
It's a poorly thought-out argument.
The issue with being compelled to testify is that the courts don't wish people to be applying their own judgement standards instead of the court. What happens if a person is lynched and no one who saw it testifies because by their own beliefs, it's okay to kill niggers? The idea is that the information is brought out and the law decides the punishment.
I don't know why there is a right to not self-incriminate. Apparently it comes from English common law, but I don't know the history of it. Maybe it's to discourage torture or other coercion?
http://lkml.org/lkml/2005/8/20/95
This right is established to prevent forced confessions, plain and simple. Witnesses typically (although not 'never') are not subject to this type of governmental abuse, and thus do not need the protection.
Why not the reporter attend but when taken to the witness stand, every question asked should be answered with "I am under duress and I am not here under my free will". If I recall correctly, people who are under duress with threat on their person are permitted to commit perjury, which is why defendants, when found guilty, cannot be charged with perjury for claiming to be not guilty. So when asked a question, the reporter should state that he is under duress and then give an obviously nonsense answer. So when asked to name his source, he should give the name of the Judge's dog, for example.
I may be very wrong but it would be interesting...
Just my 2.
No sig. Move along - nothing to see here.
This practice still exits anyway; it just has a new name. It's called "plea bargain".
Pleading "Not Guilty" is the same as saying, "I didn't do it." Is there anything an innocent defendant needs to add? If they didn't do it, they probably don't know more than that.
Why are criminal defendants allowed to remain silent, but not third-party witnesses like Risen?
Because the defendant's right to a fair trial trumps the third party's desire not to get involved. What if the information from the third party could exonerate the defendant?
A court does not exist to gather information. In essence the police gather information. The prosecution presents that information in relation to the law to the judge and jury. The judge and jury both act as finders of fact.
The resources of the state in gathering information can be extensive as is their budget for detectives. By the time a case reaches trial there should be no new information. Yet there often is due to prosecutors and cops who are zealots who make absurd errors. The OJ Simpson murder trial is an example of a case that should have been allowed to ripen and not brought to trial until much better police work was done.
A witness to a criminal act must not also be a conspirator. Failing to report a crime is a crime in itself. So what we have is a situation in which a reporter knew that he was receiving what amounted to "stolen goods". The state takes the position that he must identify the person who carried the stolen goods.
Frankly the press needs to be exempt from this line of reasoning. When government goes astray the public needs heroes that are willing to spill the information. A liberal court might agree with me but the chances of a conservative court agreeing are close to zero. Conservatism is against freedom, is a hazard to our nation, and currently is so vile that it approaches treason. We have a severely under educated public that is frightened and due to those fears is willing to betray our Constitution.
YHBT. STFU
The Fifth Amendment does not say you can't be compelled to testify... it says you can't be compelled to testify against yourself. If the government grants you immunity, then you cannot -- by definition -- testify "against yourself." A defendant can be compelled to testify, as many have, by granting them immunity.
I agree that a reporter shield law is a good thing, but it is not a constitutional mandate.
Here's the text of the Fifth 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.
The Fifth only protects against self-incrimination. There is no "paradox".
The defendant does not have to testify against himself, because you have a right not to testify against yourself.
A third party witness, as long as they are not your legal life partner, does not have a similar right not to testify against some other person.
Troll is not a replacement for I disagree.
I sure wish the author/submitter would have exercised their rights to remain silent.
Transactional immunity.
This isn't about 5th amendment issues, nor is it about whether or not a reporter is criminally involved.
It's an issue of Freedom of the Press. For rather a long time, roughly since Lovejoy, the courts' position has been that an open and free press requires that the reporters be able to collect information free from any risk of reprisal (from the government). This is what has been getting ripped to shreds by the last 3 or 4 administrations.
https://app.box.com/WitthoftResume Code: https://github.com/cellocgw
Here's the basic paradox: Suppose Bob may have committed a crime, and Alice is known not to be an accomplice but appears to have been a witness. If the courts ask both Bob and Alice the same question -- "Did Bob do it?" -- and both of them refuse to answer, then Bob's right to remain silent is protected under the Fifth Amendment, but Alice can be sent to jail -- despite the fact that Bob may have been guilty, but Alice is innocent! To me, that sounds crazy.
1: That is not a paradox. If you mean confusing, say so, but there's nothing paradoxical about it.
2: It may sound crazy to you, but there are two different crimes here. Whether Bob committed the original crime and Alice is innocent of that crime has no relevance to whether Alice commits a crime by disobeying the court.
Stop thinking in black and white.
Self-incrimination is the point of the 5th, not the right to your own "beezwax".
I am not a lawyer but i am sure witnesses can choose to remain silent... then they may be charged (but can still choose to remain silent)!
Anyway, it's good that a witness has to testify even if he does not want because otherwise many/most trials would end up without witnesses (one practical reason is that often witnesses fear the defendant so they must "forced" to testify - another is that often witnesses are also involved with the crime)
One big point you miss is that to do otherwise basically assumes that silence=guilt. If you refuse to talk to the police, right now that's a protected right. If people didn't have 5th amendment protections, it would be a crime to refuse to be interviewed by the police about some crime you were suspected in, guilty or not. In the real world, people incriminate themselves all the time. It's the police's job to try to trick them into doing so. Confessions are the goal of police interviews with suspects. Giving police the power to threaten jail for merely not talking would pretty much allow them to jail anyone they wanted.
Historically, the 5th amendment is about something much larger and more sinister, the practice of using torture to extract forced confessions. This isn't necessarily some outlandish thing, it happens in more subtle ways every day. When the cops keep a junkie too stupid to lawyer up in an interview room for 12 hours, eventually they will say anything to get out of there, once the withdrawal really hits.
Regarding your other scenario, extending 5th amendment protections to third parties, there have been some limited cases of that, married couples for example. The idea behind there being a different standard for third parties is that a third party testimony is a lot more suspect than a confession from the suspect. The motivation to torture a confession out of a third party about some crime they weren't involved in is pretty low.
I've had enough abrasive sigs. Kittens are cute and fuzzy.
"I dont remember"
He's going after the wrong law, in this case, it should be whistle blower protections that need strengthening to include the journalists who write the articles based on the whistle blowers information.
Can't someone plead the Fifth to avoid saying anything in court that might be self-incriminating? Can't a third-party witness plead the Fifth to prevent self-incrimination of possible perjury (by having to decide whether to lie to avoid testifying)? Maybe they're pleading the Fifth because they might get asked about something other than what the lawyers are thinking about... such as that expired parking meter the previous week, that they did not get a ticket for.
The main premise behind your argument is flawed, I believe you are over generalizing the right to remain silent. You do not have an absolute right to remain silent, you have a right to remain silent to avoid incriminating yourself.
In your hypothetical situation, both parties have the exact same rights, they just can't use them in the same way because the situations are different for each party.
The defendant has the right to remain silent to avoid incriminating himself and since he is on trial then potentially anything he could say could incriminate him. The third party witness has the same right, IF any of his testimony would incriminate him.
The discrepancy in the broadness in which it is applied is purely down to the different situations each party finds itself in. If the situations were reversed, the former defendant, now witness, could be compelled to testify unless it incriminates him.
You may as well be arguing about why the witness gets to go about their life during the trial (when not on the stand) while the defendant has his freedoms curtailed. Our rights are applied and interpreted differently in different situations. If both parties are in the same situation and one had rights the other didn't then you might have an argument but your hypothetical situation puts each party into separate and distinct situations.
The fifth amendment applies to everyone these days. It states, in part, that no one must self-incriminate during testimony at trial. Like a good slashdotter, I haven't read this article, but I imagine the DoJ's argument is that there was nothing privileged about the communication between Risen and his source which allows Risen to testify against his source without invoking any objection to the admission of that evidence. Maybe the DoJ prosecutors promised him immunity from criminal prosecution if he divulged, hence, no self-incrimination.
While this is a new topic on /., it has been beaten to death in law schools across the country. Also, don't talk to cops for legal advice. Believe it or not, they never went to law school... or school.
In case today appears to be slow for you:
http://www.law.cornell.edu/wex/fifth_amendment
http://en.wikipedia.org/wiki/Kastigar_v._United_States
a First Amendment issue. The Fifth is pretty clear - no self incrimination. Does the right to free speech encompass the right not to speak? Should the government have a right to compel speech? We say "No" when it is speech we disagree with, such as allowing someone not to recite the Pledge of Allegiance; should that be extended to testimony in court? What if you refuse to speak because you want to avoid helping a defendant? If you are their only alibi is tehre a compleling interets in forcing testimony that overrides your right to free speech?
I'm a consultant - I convert gibberish into cash-flow.
<semiserious>Maybe to provide you another cause to blurt out more outraged verbiage for?</semiserious>
"I know I will be modded down for this": where's the option '-1, Asking for it'?
My solution is to amend the constitution to extend the right to refuse to testify to everybody. After all, there's no way to be sure what will and won't incriminate a person or otherwise deprive them of their well-being. In the case of a reporter, I would consider compulsion to testify to be both damaging to his livelihood and an infringement of his first-amendment rights as a member of a "free" press in that it greatly reduces his ability to continue as a productive member of the free press.
Self-incrimination does not always manifest its harm in terms of court rulings against you.
In SOVIET RUSSIA... erm...NSA AMERICA, the Internet logs onto YOU!
What if the 3rd party claims they may or may not have been involved in the said crime and therefore choose to use the 5th? Is it lying?
The best possible rebuttal to this argument can be found in the book "rights talk" by mary ann glendon. seriously.. go read the amazon reviews to find out what its about.
Or reporters become ordained ministers. They will be protected by the clergy-penitent privilege.
Kidding aside, the two professions share many of the same protections. Freedom of the press and of religion are covered by the same amendment and for many of the same reasons. If a reporter can be compelled to testify about a third parties' criminal activities, then why not a priest?
Have gnu, will travel.
IANAL, but aren't there many cases where a 3rd party can not be forced to testify?
Doctor/patient confidentiality. (Which could be seen as the right for the defendant to receive medical care even under the situation where receiving such care could be implicating him in a crime.
Attorney/client privilege. (Right for the defendant to receive the best possible defense.
Even spousal privilege. (Not gonna go there)
It could be looked at as a matter of who is affected. In most cases, a third party witness should not be affected. (emphasis on should) So if my testimony does not impact me directly, then why should I refuse to give it.
The argument here is that there should be some privilege between reporters and sources. But what right for the defendant is that defending?
In all other cases, if someone tells me that they committed a crime, and I do not report it, I can be convicted of a crime. Why should reporters be immune to that?
The reporters argument is that it could affect his ability to do his work. IE, if sources are afraid to talk to him, he will be unable to be a good reporter. So which is more important, protecting the public interest by arresting or prosecuting a criminal, or protecting a reporters ability to work.
How about protesting against unfair laws?
Suppose Alice knows that Bob attended a protest. The police would like to arrest everyone at the protest because it wasn't sanctioned - the people didn't apply for a parade permit or permission to gather on public property. Alice believes that once arrested, the police will apply for search warrants to go through Bob's possessions. They won't find anything on the first round, but they will discover something that's both illegal and obscure, so they either argue inevitable discovery or back-fill the information for a new search warrant that turns up the new evidence.
Essentially, Alice wants to prevent government overreach for something that she believes shouldn't be a crime.
The government doesn't act in the interests of the people, and the people have no way to change government. Withholding evidence is a soft way of protesting, one that impedes government overreach without getting you or your friends in trouble.
Just say "I don't remember", and when the police press you, say you "just don't pay attention to these things".
That's why you have a lawyer. He asks the judge based on what you tell him (and the NSA!) as to whether you have grounds for 5th amendment. The judge can either agree or disagree and compel you to testify. If you have reason to believe answering the question may possibly incriminate yourself, then you ask for immunity from prosecution if the judge doesn't give you outright 5th amendment protections.
I'm actually unsure why this even got posted. "Why aren't 3rd parties protected?" Uh, because they aren't in jeopardy perhaps?
People in cars cause accidents....accidents in cars cause people
Is US right now. The government became not trustable. Then it forced internet companies to not be trustable. Now is forcing your friends, colleages and other people you know to not be trustable. Probably "Trust no one" will be part of the next american anthem. You can jump out now, but the fire probably will reach you wherever you run.
If I am a third party witness, what is my motivation to testify? I'm sure lots of people would be willing to testify voluntarily, but I'm sure that anybody that thought there was even a chance of retaliation from the accused would refuse to testify. Since there will be no punishment from the government, the safest course of action would always be to not testify.
And once the bad guys realized that witness could decline to testify with no penalty from the government, it would be open season on threatening witnesses.
You do answer "yes" or "no" when you plead guilty or not guilty. The rest of the questions then support to what degree you may be prosecuted. And most of the reason for the fifth amendment is the result of forced self-incrimination that the founding fathers saw back in Europe. The third party's protection is more addressed in the fourth amendment.
My understanding is that it's vestigial. There isn't a moral or legal argument. It's axiomatic and meant to prevent torturing confessions out of people.
Imagine if you weren't allowed to use roads because a bus company complained about your driving 3 times. --skunkpussy
The 5th amendment arose from the history of the accused being compelled to testify against themselves by torture, and the fact that such testimony is worthless.
The reason it doesn't apply to 3rd parties is that the interest of the state being able to get the facts overrides the right to privacy in this instance.
Why do the editors bother with these over-long, pointless screeds by Bennett Haselton? It's like he has nothing better to do, they should refuse to publish these essays and force him to write something that people would actually pay for.
The Fifth Amendment does not say you can't be compelled to testify... it says you can't be compelled to testify against yourself. If the government grants you immunity, then you cannot -- by definition -- testify "against yourself." A defendant can be compelled to testify, as many have, by granting them immunity.
I agree that a reporter shield law is a good thing, but it is not a constitutional mandate.
Immunity doesn't work that way.
A court doesn't have the authority to grant immunity from a different court, and there are several separate court systems.
For example, a local court can't grant immunity from federal charges, and a federal court can't grant immunity from IRS charges (if your testimony shows that you evaded tax law). The same is true for any agency that's decided that they are the governing legal body for something: FCC, FDA, EPA, NRC - typically none of these agencies is prevented from screwing with you under an immunity agreement.
The best you can get is that the issuing court promises not to pursue charges that it could normally pursue.
Immunity is really a very narrow protection.
End of story.
Unless you are accused, you should have EVERY RIGHT to refuse a summons to court, since the court is not accusing you, therefore you have no requirement to accede to the courts demands. "I don't want to go" or "I'm washing my hair" should be allowed as responses.
And as to this case, unless the reporter is on the hook for passing information on illegally, charge him with it. Or let him say "I refuse to come to court when I'm not accused".
Indeed, since he can be jailed for not telling, he has a right not to say anything that could incriminate him: including a refusal to divulge. Hence he has a fifth amendment right to not say whether or not he will divulge the source from that avenue at all.
I think you are missing a key point. The fifth amendment doesn't talk about what un-accused people can or cannot do. This means that if another law forcing them to testify exists, it is completely legal because it doesn't conflict with the fifth amendment, so it will stand until a new law is passed to change it. Oddness of it aside, the accused fifth amendment, and what you refer to are legally, in no way related
Ha ha, you fool! You fell victim to one of the classic blunders! The most famous of which is "never get involved in a land war in Asia," but only slightly less well-known is this: "Never correct an AC who is deliberately misquoting song lyrics"! Ha-ha. Ha-ha-ha. Ha-!#@$NO CARRIER.
When our name is on the back of your car, we're behind you all the way!
It seems to me that those who protect the guilty are colluding to obstruct justice, and prevent the prosecution of a crime.
How is refusing to testify, any different, than hiding a murderer or rapist in your basement? It would seem like you are attempting to shield them from justice. What am I missing?
However, the catch-22 in that argument, is that if they haven't been convicted yet, how can we say you are protecting a criminal? We cant, so. . . I think someone should be able to refuse to testify, and not *immediately* be guilty of a crime merely for not testifying, but if the other person is later found guilty and convicted, and the prosecutor has solid evidence you knew and refused to testify, then you should be able to be prosecuted separately for obstruction or some similar charge.
While there are exceptions (for example, in many states, teachers who become aware of the sexual abuse of a child must report it) there is no obligation to prevent or report a crime. But justice is a community project, and those who know something about a crime have an obligation to accurately testify if called as a witness, regardless of how it cuts. That general pricinple breaks down in certain special cases; the lawyer couldn't function if she were required to tell what she has learned, and the priest is allowed to keep his secrets, and, likewise, for historical functional reasons, the defendant also is allowed to remain silent. These exceptions (there are others) accomodate other values which we hold equal to that of reaching the "correct" result. It isn't pretty, and creates problems, as the Risen example reveals, but reality is like that.
I am not a lawyer, but...
Based on (at least) the Barry Bonds prosecution by Congress, any potential witness should be able to assert their 5th Amendment right. Why? Because in that case, it was established that the government could prosecute you solely for your testimony, if they felt your testimony was not revealing enough, regardless of how accurate it was.
Under that precedent, it would be impossible to give any testimony without potentially incriminating yourself. Thus, you have a 5th Amendment right to refuse to offer testimony (unless the state offered you transactional immunity at all government levels for anything arising from your testimony, which would be highly unlikely). I'm somewhat surprised more people haven't realized the implications of that prosecution, but it seems pretty clear-cut to me.
Bob is part of the Mafia, and some of Bobs friends have made it pretty clear that if Alice testifies against Bob, something unpleasant will happen to Mike, Alice's husband.
The idea is that the 3rd party must testify, to prevent this sort of issue. Wont stop it I am sure, but there are other things that can be done to prevent it (sealing the records so nobody is sure what Alice said for example, vs some of the other witnessess, if early enough even preventing it from being known Alice is a witness.) Any choice you make can be turned to good or evil, in this case its maybe not in the defendants best interest to let the guy testify, but he has no choice. In other cases, it might be the reverse. Pick your poision, at least this way the goverment has a harder time nailing a 3rd party to the wall if they testify on something they dont want coming out, at least from a legal standpoint.
I made a sort of incomplete statement of analogy above. I meant to write,
"How is refusing to testify against a murder or rapist, for example, and different, than hiding. . ."
In a case like this, the key reason not to testify is that doing so will ruin your reputation and destroy your livelihood as a journalist.
Alternatively, you could try to plead the 5th, saying that by answering the question fully, you'll implicate yourself in criminal activity. This may be untrue, but if they grant you full immunity, then you can say something outlandish, like plotting to do away with someone in the midst of this. This may make your testimony suspect, but also does the same thing as the first conjecture, you run your reputation and destroy your livelihood as a journalist.
In this situation, it seems to me that your choices are to protect your source to some degree and destroying your livelihood, or you can tell the truth and destroy your livelihood.
I would ask: To what degree is the court willing to protect the innocent for telling the truth?
Awk! Pieces of eight. Pieces of eight. Pieces of seven... ERROR: General Protection Fault. [Paroty Error.]
Suppose Bob may have committed a crime, and Alice is known not to be an accomplice but appears to have been a witness. If the courts ask both Bob and Alice the same question -- "Did Bob do it?" -- and both of them refuse to answer, then Bob's right to remain silent is protected under the Fifth Amendment, but Alice can be sent to jail -- despite the fact that Bob may have been guilty, but Alice is innocent!
If the government thinks that Alice knows whether Bob did it or not, then she might very well also be a suspected accomplice. She would be well within her rights to plead the Fifth until and unless she was offered immunity.
I would think it boils down to the only method to combat coercion. If Alice witnesses Bob commit a murder, and Bob threatens to do the same to Alice if she talks, then that's the reason she can't remain silent. The government has Witness Protection services in place to keep Alice safe from Bob once she does testify (the argument as to effectiveness is another topic). So to help convict people who would otherwise coerce witnesses, those witness have to have a requirement to testify.
Now, we could take that another step. By failing to testify, Alice becomes an accomplice to the crime, and therefore is not innocent. So in that regard she sort of would need the right to remain silent. But that's really getting too pedantic about it. The bottom line is if we allowed criminals to silence witnesses without limitation, we'd probably have a lot more crime. Simply knowing that anyone witnessing the crime will be required to report/testify, in theory at least, may cause them to abandon the criminal intent.
Would that immunity extend to perjury from testimony? What if the prosecutor believes that a person has witnessed something which they have not? Perhaps the person made early statements, which what they now consider to be truthful testimony would contradict?
If such an immunity was granted, such that a person on the stand stood no jeapordy at all, not even perjury for his statements on the stand... would he be considered "under oath" and would the jury (if any) be informed of this unique status? What would really stop him, at that point, from telling them he was Abraham Lincoln and has been hunting vampires for the past 160 years?
Putting any sort of condition upon what can be said doesn't seem like it should fly either; as it presupposes the answer to the very question the trial is attempting to settle.
"I opened my eyes, and everything went dark again"
Rather like the "Am I under arrest? Am I free to leave?" which indicates that you KNOW that unless you're accused of something officially, the law machinery has no right to tell you where you can be or go.
So why does Alice have to agree to be a witness?
Unless there's a crime of "Being a witness", what does the court have hold over them for?
Bennett Haselton is a fucking idiot. His writing and questions are no better than that of a junior high student. Contemplate, contemplate... try shutting the fuck up and actually study the subject instead of cherry picking court cases to prove a commie point.
Most effective way for the OP to satisfy his intellectual curiosity on the subject. It's only three years, there's financing available, and if first-semester Constitutional Law doesn't fix it for him, he can try and write a law review article on the subject. Sure beats trolling on Slashdot for the answer he thinks he wants to hear, and he might just learn something.
Grant them immunity. Then, you can compel them to testify.
I swear to God...I swear to God! That is NOT how you treat your human!
In Canada you must answer all questions put to you in court. If you should incriminate yourself in the process, it can't be used against you.
The 1980s courtroom drama Street Legal had an episode where this happened: the cops were so certain of the guilt of a high school student who they thought was selling drugs that they got a friend of his to testify against him, without checking to see what he had to say first. When he said in open court that the drugs were in fact his the cops couldn't do anything about it.
...laura
We have courts so that disputes can be resolved in a non Hatfield-McCoy manner. If you don't have reliable courts, you have one sort of tyranny or another.You can't have a court without witnesses. You obviously want as much reliable witness evidence as you can possibly get.
You're only going to limit the kinds of evidence used in your courts if that evidence is unreliable (not at issue here) or if the people decide that they want to be shielded from giving evidence (like the 5th Amendment does). You can't give these privileges away wholesale because if you do you will undermine the integrity of your courts' fact finding process.
And you also have to make your witness process compulsory--or you will undermine your fact finding process.
The OP talks about criminal cases, but this applies to civil cases as well. Imagine a divorce trial where one spouse couldn't get any of his/her witnesses to testify because of a privilege, but the other spouse could. You are not going to get just results in such a situation.
The Right Against Self-Incrimination is valuable in spite of the fact that it fucks with the fact finding process. We are only going to go so far when we go after the bad guys--and we're not going to go one step farther. We're not going to compel people to be witnesses against themselves.
Testifying as a witness is a fundamental duty of a citizen. That duty is necessary to the existence of an organized civil state. If your statements (either as a witness, a suspect, or a defendant) place you in hazard of incrimination, you can take the Fifth.
In other words, we MAKE you be a witness, but we DON'T MAKE you be a witness against yourself (criminally).
When discussing rights held by the press, there is additional reason to allow them to remain silent. Upholding the ability for the press to protect their sources has a compelling state interest, in that empowering them to investigate criminal activity is in the public interest. Once you start compelling the press to divulge their sources, people stop talking to them.
If a reporter can't, then no one can.
You know, since freedom of the press applies to everyone.
Off the top of my head I can think of two reasons why the Government would want to be able to compel a 3rd party witness to testify.
1. The witness might be intimidated into not speaking and by compelling them the Government removes this. (At least from the court room, the witnesses may still disappear or outright lie.)
2. To break a silent conspiracy. Say a man kills another man in a small town in board daylight by hitting him with his car. There is very little evidence that the killer was the one who did the crime except for eye witness testimony of him driving the car. The police know the killer's car was the weapon used but the owner had reported it stolen 2 hours before the crime. Now lets say that this guy who got killed was hated by all the witnesses (known fraudster, drug dealer, worshiper of the blue God instead of His holy Greenness, etc...) so they are actually great full that our killer ran this guy over. If the witnesses couldn't be made to talk in our case the killer would go free because the court couldn't prove beyond a doubt that the man was behind the wheel of his car.
Fundamental Fail.
The Constitution says what it says. You don't get to change it with some moral equivalency. You want it changed? Do it in the manner it provides.
When Fascism comes to America, it will call itself Anti-Fascism, and tell you to give up your guns.
I tentatively made the argument that I couldn't see a principled reason why defendants should be able to refuse to answer the question of whether they committed the crime or not.
Then you are an idiot. The reason that exists is so that the state cannot compel a confession from an innocent person. They sometimes manage to do this anyway but without the 5th amendment the problem would be far worse. This is hardly a secret.
I didn't see why the state shouldn't be able to make you choose between saying "Yes, I committed the murder," or "No, I didn't.
Because the state can force you to say "yes I committed the murder" even when you didn't.
Why shouldn't we also give the same rights to a third-party witness who we know is innocent?
Because the third party witness is not accused of a crime. If they do however lie on behalf of the accused then they are committing perjury and perhaps obstruction of justice which are crimes. Really, I should think this stuff was obvious...
While the point of the article might be interesting in terms of comparison of Fifth Amendment rights, I believe it's potentially more interesting in the perspective of the language used to describe the apparent dichotomy. Specifically 'innocent witness' vs 'defendant' rather than 'innocent witness' vs 'innocent person charged by the state for a crime that was suspected of being committed'(part of the state's case must also be to prove that a crime was in fact committed to begin with...just because someone was found shot to death doesn't mean the person was murdered). By definition until convicted every person is 'innocent' but society has transitioned to the point where just being charged for a crime implies some guilt when it should imply nothing of the sort. In fact the transition from 'innocent witness' to 'suspect' to 'defendant' is purely in the eyes of the state, after all what makes 1 person automatically considered 'innocent' when another has some guilt attached other than the state charging a person with the crime supposedly committed. Ultimately it's the state that decides going in to trial if you are 'innocent' by virtue of deciding not to charge YOU with the crime or in fact ANY crime that you may need to confess to by virtue of them wanting your particular testimony in exchange for potentially not being charged with a secondary offense (ex. a burglar who witnesses a murder).
Secondly, it shouldn't be up to the state to decide what you are or are not allowed to take the fifth over...eg 'self incrimination' normally reserved to not being forced to incriminate yourself over a criminal offense or potentially even a civil offense (e.g. I don't think you can be compelled to testify if your testimony wouldn't necessarily lead to a criminal charge but you may be forced to testify if it may lead to a civil lawsuit against you, though I'm not at all sure, since in my example to follow if 'girlfriend' is changed to 'wife' I think you can still be compelled to testify even though it may easily lead to a divorce). There is also 'moral incrimination', by that I mean it should be perfectly valid to refuse to answer simply on personal grounds, for instance say you witnessed a crime while perhaps cheating on your girlfriend, while the cheating isn't criminal and it may be morally disturbing to most, should we really force a person to confess to a moral indiscretion to satisfy our belief that this is less deserving of protection than being able to convict an innocent person charged with a crime? (Notice the purposeful use of the term 'innocent person charged with a crime' as opposed to 'defendant'). Or let's say that you personally haven't done anything wrong at all not even morally, simply been somewhere such that you witnessed someone smoking marijuana or taking any other 'illegal drug', but if you personally don't identify that as a crime (e.g. your 'moral persuasion' is that using drugs is not criminal) why should you be compelled to testify about what you witnessed?
Ultimately this is entirely one of perspective and granting to the state the 'benefit of the doubt' when they charge a person with a crime "Hey, they must have SOME evidence he/she is guilty or they wouldn't have charged him/her, therefore the assumption isn't that the person is innocent prior to being proven guilty but rather 'potentially innocent but we have reason to suspect the person is guilty", which as evidenced by the many, many, many improper convictions is simply not so, and thereby we confer GREATER rights against 'self incrimination' then to any 'innocent person not charged with a crime', which of course is entirely bogus.
Ipso facto, given that the only difference between an 'innocent person charged with a crime' and 'innocent person not charged with a crime' is the 'charged with a crime' part, nobody should be compelled to give any testimony if they do not want to for ANY reason. It shouldn't be up to society/the courts to decide what is a 'good reason' and what isn't. Heck, even if a person chooses to testify it should be p
Then please explain to me what "cosmonaut" in this context is deliberately trying to convey. Because I admit that if it was something coherent and relevant, it went way over my head.
They will be protected by the clergy-penitent privilege.
I have no idea why any privileged protection should be enjoyed by clergy. Attorney-client and doctor-client and spousal privilege I understand. But clergy serve no societal purpose that is deserving of such protection. If clergy become aware of a crime then they should be required by law to provide information relating to that crime to the same degree as any other citizen.
You have a right against self-incrimination. You have no right against being incriminated by others, or against incriminating others. If you possess material facts and evidence that would incriminate someone else in a trial, you can be compelled to give it up, and nothing in the constitution prevents it.
There are some legal exceptions that have been carved out over time that do offer protections in some circumstances, for example Attorney-Client Privilege, Doctor-Patient Privilege, Spousal Privilege, and so on.
The case here is pretty clear cut. There is nothing journalistic about acting as an avenue for the commission of a crime. You are not writing a story or documenting anything - you are an accessory to a felony.
In neither this article or the previous is there any evidence that the author has done any research on the issue. It's not as if the Fifth Amendment right against self-incrimination just magically came out of nowhere. Plus, a lot has happened since the 18th Century. Why should we listen to you ramble on when you have clearly not paid attention to the many things that have been said before you?
These articles are like the argument that evolution could not possibly be true because it sounds preposterous if looked at from first principles. Both appear utterly ignorant, and sometimes willfully so, of the vast discussion and background for the issue. The author naively believes he can go about this out of whole cloth and Boolean logic. It may not be all that popular after you've gotten used to using a search engine to find things, but there are vast stores of knowledge found in books in libraries - especially for a constitutional right instituted over 200 years ago. You might even find a whole, and well researched, book dedicated to the topic. Instead, I suppose in the next Indiana Jones movie, instead of rifling through dusty scrolls and tablets, our hero should go to the New York Public Library - how ancient and quaint!
In response to the first article, someone was even nice enough to point you to a solid summary of how this right ended up being introduced into the Bill of Rights, to save you the leg work of going to the library (although it is not a substitute for it):
http://www.law.cornell.edu/anncon/html/amdt5afrag6_user.html#amdt5a_hd24
It also seems obvious, and would be helpful, to look into what the US Supreme Court - the body that defines how these rights are concretely applied - has said. Their opinions typically talk about the historical background, and clearly set out their reasoning and conclusion. Their opinions on this kind of material are much more accessible than obscure statutory questions. There aren't all that many opinions on the topic, and someone has already indexed them.
Odds are a fair amount of what you're interested in has already been addressed. If nothing else, the overall discussion would benefit from a brief summary about the history of this right, seeing as it is significant, relevant, and most people are not informed on the issue or its development in any detail. These articles might have been more profound if the author said, "The Founding Fathers included the Fifth Amendment right against self-incrimination because of x, y, and z. However, after 240 or so years, we can see that x and y never happen, and z is of no consequence. What should we do? Here's what I think and why." Instead, you're just winging it, and might have completely missed x, y, and z - the very reasons for the right in the first place. The democratic process is one that invites changes when and where needed, but it doesn't work so well via uninformed discussion.
The Slashdot editors have posted up your half-baked ideas - twice. It looks someone is miscorrelating being long-winded with being informed and intelligent.
I expect that would get you a contempt of court citation. You are there to answer the questions presented to you, not make polemic statements. No one else in the court room wants to hear about your hurt feelings, or how you don't want to betray OJ.
Out and out lying can get you a perjury citation, so don't do that either.
Courts didn't spring into existence yesterday, and neither did people like you. They can and have been dealing with this for a while.
Our rights our protected. We can exercise them.
But we're not protected from people working around that to penalize us for exercising our rights.
They simply define any situation where you would conceivably exercise said rights as "bad" or "illegal" and then persecute you with a sadistic choice.
Let them screw you over directly. Or let them screw you over indirectly.
Either way, you're screwed.
Chas - The one, the only.
THANK GOD!!!
I can think of plenty of consistent reasons for this (not saying I necessarily agree or disagree with them)...
First, this should limit the risk of coercion. The main reason that people (the internet) seem to cite is that the self-incrimination clause was put in in response to an English history of torture (or other coercion) to elicit guilty pleas. Writing a law to restrict unwanted behavior is pretty straightforwardly reasonable. Also, it should be easy to accept that the risk of torturous coercion of a person suspected of being guilty of a crime is less than the risk to someone (or many someones) suspected of witnessing that same crime, if for no other reason than reviewing such instances in history.
Next, the risk of false testimony and the usefulness of self-incrimination due to personal incentives. The incentive for a guilty party on trial to lie is very high, but the incentive for the third party is very different. A witness, typically offered protection from prosecution for self-incrimination in these cases, has no supposed social or personal reason to lie (although obviously they could be biased for some reasons). They are, by not testifying, at worst facilitating a miscarriage of justice, and at best simply choosing not to assist in a process that is all but undeniably in the public interest. Note that this applies if the testimony leans towards innocence or guilt of the accused.
This social responsibility aspect is another justification for punishing witnesses who refuse to testify. It is in society's interests to find and punish criminals. Witnesses are a necessary component of that process. The more unbiased and uncoerced witnesses and evidence that can be supplied, the more confident we are that justice is being served accurately. It is therefore reasonable to establish an incentive to promote testimony. The threat of jail time is the incentive we currently have. Again, the value of witness testimony almost certainly is more valuable than testimony of the defendant, given the incentive to lie, so adding a disincentive to remain quiet can easily be seen as balancing the value and likelihood of receiving good testimony.
Beyond that: you're oversimplifying. Your example is merely a yes/no question of guilt, but, at least in the US, a defendant is in fact required to enter a plea. Guilty, Not Guilty, no contest, and variations (such as not guilty by justification) exist. The defendant must take some stand on that point, but other details they can keep to themselves. This isn't really a justification of an answer to your core query, but it is an important distinction, and related to...
Oversimplifying part two: your example pretends that if a defendant pleads the fifth nothing happens while a witness not testifying goes to jail. This is apples-to-oranges. Witnesses CAN take the fifth amendment, for one thing, which is different than not testifying when they are not self-incriminating. The sixth amendment is actually the one that causes witnesses to be held responsible for not testifying, not the fifth. That the two rules are based on different portions of the constitution is not justification itself, but it does lend some clues to understanding why we've balanced things this way. Remember that all a witness needs to do to avoid punishment is to answer questions, presumably with the truth. If the witness believes what they say will be self-incrimination they can plead the 5th, but this is a very different scenario than the one you're depicting.
Witnesses can be compelled to testify what they KNOW, or SAW, etc. Since they didn't actually commit a crime, there's nothing else you can do. But what can they do?
Alice sees Bob run out of a house where she later finds out a murder took place.
She testifies that she saw him. No more, no less.
Sometimes this puts Alice in a vey fearful position as to what Bob will think of this.
This is a difficult problem, but falls under witness protection, not case law itself.
How is this an issue again? Hasn't this been done 100000 times on TV trial shows?
( See also : every other mafia movie ever made )
and I didn't see why the state shouldn't be able to make you choose between saying "Yes, I committed the murder," or "No, I didn't."
Every defendent has to enter a plea of guilty or not guilty. They do this at the start of the trial in front of the judge. 5th admendment is about going beyond that.
Easily explained. "Thank you for being a comrade", and therefore the cosmonaut reference, was in the Russian version of the Golden Girls. If memory serves, it starred Valentina Tereshkova and Svetlana Savitskaya.
Benjamin Franklin? He lived 200+ years ago. He was an idealist philosopher, and as practical to us today as Plato or Socrates (pronounced "so crates").
Today, we have figured out how to do everything with computers. We can solve the world's problems with statistics, matrix math, and simulated annealing. That's how we identify criminals now. If your composite score is above the threshold, statistically speaking you must be doing something illegal. The pay-to-play criminal justice system is economically rational - if you can afford the high-powered counsel needed to walk, then odds are you are doing something economically valuable for our country and should be allowed to keep at it with minimal interruption.
That's the real world - cold and efficient. It's time to wake up from your ideals.
If I recall this has been addressed.
There may be some case law but a real legal beagle
should cite it. Not a bystander like me.
Whistle blowers and reporters have had tenuous exceptions
as has legal counsel.
Apparently, You can invoke the 5th and then be compelled to answer the
question in some cases. Any fall out from this testimony is fruit of a poisoned tree
or some such. The reality is that any testimony that demonstrated you had been involved in
a crime makes you an investigative target for other crimes. As anyone sitting
in a criminal proceedings might note the long list of charges presented
can prove astounding and can fence witnesses in as well as the defendant.
News media has an interesting shield but in these cases of national security
things get tangled. The confidentiality of legal counsel is also under attack.
Sure you may be protected from prosecution for crime "A" but protection
from persecution for "B", "C", "D"..... for all time past and future seems to be
under attack.
The massive data collections are virtual time machines. Thus your history
well beyond any statute of limitations is opened up and those childhood
connections make you one degree away from a criminal. All that is needed
is to have a k-12 classmate be convicted of a felony to connect you to a
criminal element.
For many on /. Hans Thomas Reiser may be the necessary direct or one
removed criminal connection to permit digging into your stuff to any degree
some zealot wishes (kernel.org mailing list for example). In too many cases
it is the connection not the nature of the connection that opens the gate.
Some might doubt the legal umbrella -- http://www.groklaw.net/article.php?story=20130818120421175
but if any or all communication in and out is monitored it gets tangled as heck to
be a legal firm. Umbrellas are near worthless in a high wind -- and here we go
hang on to your hat Mary.
Truth is stranger than fiction, but it is because Fiction is obliged to stick to possibilities; Truth isn't. Mark Twain.
It seems pretty clear to me as why to third party witnesses can be compelled to testify.
It because their silence is little different than what a person an accessory to a crime does. Where a person does not participate in the crime but had knowledge of the crime. The court by jailing a witness for contempt for refusing to testify is actually being lenient. A case could be made that the person was acting as an accessory after the fact by withholding their testimony as to the facts of the crime.
A innocent witness no longer innocent by refusing to testify. Instead they are committing a crime by aiding the defendant in covering up the facts of the crime.
If Mr. Haselton wants to understand why a third party witness can be compelled to testify then I suggest he reads up on the history of the laws surrounding being an accessory to a crime.
Some guy on the internet continues to not understand how the fifth ammendment works. News at 11
I'm actually unsure why this even got posted. "Why aren't 3rd parties protected?" Uh, because they aren't in jeopardy perhaps?
Also, if you are a 3rd party witness, and are asked a question that would potentially incriminate yourself, you cannot be compelled to answer that one. So for example, this line of questioning can sometimes be stopped by the Fifth Amendment:
Prosecutor: "Did you observe any illegal substances in the defendant's hands?"
Witness: "Yes, sir. The defendant was holding a jar of pot."
Prosecutor: "Did the defendant hand it to you?"
The witness can legally refuse to answer the second question, because that question has no purpose other than to incriminate the witness.
I am officially gone from
Scenario:
Person Bob lives in a ghetto controlled by a gang. Joe is in the gang and he murders Susan. Bob watches through their window as the event unfolds and sees everything.
Now, our knee jerk reaction is that bob should be forced to snitch on the whole event so that susan gets her murderer put in prison.
Add to this that bob's whole family lives on his block. Add also that the gang joe is in is very vindictive and always kills all snitches and/or all their family members just for kicks.
Who would get witness protection? Bob, his wife, all of his family (say 20+ people)? I doubt it. We don't live in a perfect world and this (I think) was put into place to ensure that they catch the Joe's of the world, but screw the bob's living and helping in them since they wouldn't put out more money into protecting them after the fact.
What if you DON'T want witness protection? I know there's the good samaritan law, but notwithstanding, sometimes you just don't want to be involved. I also know this isn't what the OP's questions were about, so I'll add this.
What if the reporter knows fully that if they tell who the original source was, that 1) the source might be prosecuted, tortured, who knows what, and also, 2) that once they've been outted as a person that reveals their sources, their primary means of income (and their passion) [i.e. reporting] is now gone into the trash and they will never work again. You can take alot of different viewpoints on this if you're willing to sit in their skin (virtually) and feel their pain.
ac since this hits too close to home for me.
As has been noted. Having a question that incriminates the 3rd party witness by default makes that person not a 3rd party witness for the purposes of the question.
The situation being asked about is someone who is 3rd party and not at all related and quite presumably not affected by anything that might be asked. If they are asked something like that then plead the 5th because they aren't 'disinterested' anymore.
People in cars cause accidents....accidents in cars cause people
It isn't conveying anything. They've deliberately changed the word confidant to cosmonaut in an attempt to see how many people they can lure into correcting them. As Admiral Ackbar says, "It's a trap"!
When our name is on the back of your car, we're behind you all the way!
Protecting the sources of journalists is strictly necessary for a free press. This isn't a fifth amendment issue. This is a first amendment issue. The government sticks up for this right almost universally, except apparently when it is the "victim" of having its dirty laundry aired.
There's this little thing called the 1st Amendment that protects the press. It's the only profession mentioned in the Constitution for special protection against government suppression.
Even spousal privilege
They can't convict a husband and wife for the same crime
The fith amendment applies equally to everyone. There is no need to be arrested or even under suspicion to evoke it. All this BS here is because people are dumb and believe Miranda rights are real. NO you DO NOT and have and never have had the right to remain silent. You have the right not to incriminate yourself that is all.
The reason I was taught in law school for the rule against compelling self-incriminating testimony was that too many defendants would lie under oath, thus condemning themselves to hell. Supposedly it was thought too inhumane to put people into such circumstances.
This seems completely ahistorical to me.
A better rationale more inline with the logic of common law evidence (which is actually _highly_ logical) is that compelled self-incriminating testimony is simply not credible as a general matter, for much the same reason you don't place psychics or fortune tellers on the stand--in none of those cases do you have any sort of remotely reasonable expectation of unbiased testimony.
But there's a more historical rationale--political persecutions. If you could throw people onto the stand and ask them, "how long have you been beating your wife!?", then it's far easier to persecute people. Especially when they're high-profile and juries already have a bias against that person. So, instead, you ban compelled self-incriminating testimony, and require prosecutions to at least put on some marginally credible third-party testimony. It's a slim protection, but then again we've long forgotten the history of political prosecutions in this country. Many rules of evidence stem from Middle Age England where this was very common, but now--not coincidentally--much less common.
"Why are criminal defendants allowed to remain silent, but not third-party witnesses like Risen"
Because corrupt governments do what corrupt governments want.
If only there were historical documents about the context in which the US Constitution and Amendments were created. Or encyclopedic collections of knowledge, providing references to such historical context.
Software sucks. Open Source sucks less.
Once again another story that should make it quite who the real traitor is: Barrack Obama. He's undermining Americans constitutional rights, destroying the USA, and trying to start WWIII in Syria.
There may well be a debate to be had about third party witnesses and the fifth amendment, but this entire issue in Risen's case is subordinate to the *first* amendment issue of freedom of the press, which should absolutely give him the right to protect a confidential source. I know that the government has tried to shove that aside for their own purposes, but Risen's right not to testify needs to be a first, not fifth, amendment issue.
My opinion isn't the official legal reasoning, but...
I consider the fifth amendment a protection for honest people. Today that may be considered a ridiculous concept, but there are people in the world who will, on principle, be offended to be asked to lie even if it is about a crime. Consider the following situation:
Some guy abuses your daughter. You find him and kill him.
Now that is perfectly illegal. What if a police officer is allowed to leverage "tell me if you killed the bastard or you are going to jail" against you? If you are honest then you will be silent and face jail time and a still trial; however, a liar can oblige and face no more serious consequences than a trial. Allowing police to force a person to answer questions against their own crime accomplishes nothing except for punishing a refusal to lie. The situation simply is not the same for a witness with no legal liability.
To think that or our cause or our performance
Did need an oath, when every drop of blood
That every Roman bears—and nobly bears—
Is guilty of a several bastardy
If he do break the smallest particle
Of any promise that hath passed from him.
--Marcus Brutus
Here's the basic paradox: Suppose Bob may have committed a crime, and Alice is known not to be an accomplice but appears to have been a witness. If the courts ask both Bob and Alice the same question -- "Did Bob do it?" -- and both of them refuse to answer, then Bob's right to remain silent is protected under the Fifth Amendment, but Alice can be sent to jail -- despite the fact that Bob may have been guilty, but Alice is innocent!
There's so much wrong with that quote. There's only one crime mentioned in this scenario--the one Bob is accused of. By saying Alice can be sent to jail, the implication is she will be convicted of the crime Bob may have committed.
Alice may be charged with obstruction of justice or contempt of court. The statement, "but Alice is innocent!" is too much to take seriously. Just because Bob, and not Alice, may have committed the initial crime, there's no reason to assume Alice cannot commit a different crime during the investigation of Bob.
But my main complaint is, where is the paradox? There is none. There may be injustice. There may be logical inconsistencies in the legal system. There may be historical anachronisms which do not make sense in the modern world. But none of these things are paradoxes. Something isn't a paradox just because it "sounds crazy."
I know it's cliché to complain about the declining standards of /. stories, but this is even worse than Bennett's last "article."
My best guess is "Bennett Haselton" is a computer program designed to write inane OpEd articles. Rather than the ravings of someone with the barest familiarity with the US Constitution and the English language, these articles are actually work of bleeding-edge artificial intelligence in the form of a troll bot.
If it is a crime for a witness to not testify, then the witness is now open to the possibility of incriminating his or herself depending on what he or she says or doesn't say. Since this person is now liable to being charged with a crime, this person can't be required to speak one way or another. Thus, even a witness should be protected from saying anything.
If it is not a crime for a witness to not testify, then there is no issue at all.
How is this not logical?
You can lead a horse to water, but you can't make it dissolve.
Rather like the "Am I under arrest? Am I free to leave?" which indicates that you KNOW that unless you're accused of something officially, the law machinery has no right to tell you where you can be or go.
So why does Alice have to agree to be a witness?
Unless there's a crime of "Being a witness", what does the court have hold over them for?
It's called a subpoena. When the court subpoenas you, you have to appear or be charged with contempt, failure to appear or a host of other things the court can throw at you for not obeying a court order. James Risen is a material witness as far as the government is concerned and once subpoenaed he cannot refuse to appear and testify without sanction. What Risen is most likely afraid of is that he will be charged with revealing state secrets or the like based on what he *might* be asked in court. Given that they seem to be after the whistle (Sterling) and not the blower (Risen), I'd say that unless Risen did something relative to Mr. Sterling's actions that might also be considered criminal Risen would not be charged with anything from this case, except contempt of court. Contempt charges can be held indefinitely and contemnors jailed indefinitely as well, though, so... Me, I'd go with testify and take my chances over contempt and a LONG time in prison.
You're looking for a digital answer in an analog world.
Any system of justice is going to be flawed. Period. That's a given, going in. It's even more certain than "The new MMO is going to have launch day bugs."
So, given that, we (all human societies) work to find the least flawed approach, defined as "the guilty get what's coming to them, and the innocent go free and suffer as little inconvenience as possible". (We're really screwing up that last part, with 2+ year waits for trials in many case, but that's another thread.)
We have the system we have because centuries of history, precedent, and experimentation have shown it works as well as anything else, and the risks of radically altering it outweigh the perceived gains. There's plenty of reasons -- people have historically been tortured into confessing, but not into witnessing. Intimidating witnesses is a lot easier if the witnesses have no legal pressure to *be* witnesses. (IOW, Big Vinnie is arrested. If his boys want to silence the mooks what seen him do it, they have to bribe them/threaten them. Obviously, this does happen, but the cost (the value of the bribe, the severity of the threat) increases when the witness knows he will be compelled to testify and can go to jail if he doesn't. Big Vinnie's boys have to overcome that resistance. Remove that, and it's a lot easier. They probably don't need to EITHER bribe (which saves them money) or directly threaten (which puts them at some risk if one of the mooks has a wire). The mere knowledge that they might not take kindly to someone ratting out Big Vinnie is sufficient for the witnesses to refuse to testify, if said witnesses cannot be pressured or compelled.)
Further, if witnesses must give testimony, it is easier to spot conflicting details that can show a witness to be unreliable (or simply human, as the fact is, most people are unreliable and conflicting eyewitness testimony is rarely as dramatic a proof of a cover-up or a lie as it is on TV). If every witness just says, "Nope, don't feel like answering.", then you have nothing.
Now, an argument can be made that if the justice system is weighted towards innocence, neither of these is overly bad; it will result in fewer convictions. However, this could tip the balance too hard against conviction, and when there is a perception that you can do anything and get away with it, there will be a mass movement to "tighten things up", and swing too hard in the other direction. I'm honestly not sure of the real effect on crime, at least not serious crime, because such crimes are rarely conducted on a rational basis. A study of NYC street criminals showed that, basically, they earn minimum wage in terms of hours worked (waiting for victims, etc.) vs. average "take" -- and faced extremely high occupational risks. Most murders are acts of passion that are unlikely to be repeated, and other than the very few professional hitmen out there, few consider a cost/beneft ratio. Murders committed in the course of other crimes (shooting a store clerk in a robbery) are insanely irrational -- you get a few hundred dollars, maybe, from the cash register, and risk life imprisonment or execution in exchange. The real function of the justice system is not to deter crime, but to remove from society, for a long period of time, those who are so irrational that they WILL risk years, decades, or their life in prison for a very small gain, or are so uncontrolled they will kill or beat someone in a fit of passion. If you accept this premise, then, compelling witnesses helps fulfill the goal of being sure this person is the one who should be removed from society.
It also serves as a protection from an overzealous state. If the only evidence is provided by the state, and the defense cannot compel witnesses, the jury will have no choice but to convict. With zero penalties for failing to speak, witnesses may simply not bother. Why show up at all? (And, in turn, this leads to a possibility of basically bribing witnesses to show up -- not to lie, which is a higher m
"What no one seemed to notice," said a colleague of mine, a philologist, "was the ever widening gap, after the 2000 Presidential election, between the government and the people. Just think how very wide this gap was to begin with, here in the United States. And it became always wider. You know, it doesn’t make people close to their government to be told that this is a people’s government, a true democracy, or to be enrolled in civilian defense, or even to vote. All this has little, really nothing, to do with knowing one is governing.
"What happened here was the gradual habituation of the people, little by little, to being governed by surprise; to receiving decisions deliberated in secret; to believing that the situation was so complicated that the government had to act on information which the people could not understand, or so dangerous that, even if the people could not understand it, it could not be released because of national security. And their sense of identification with the President, their trust in him, made it easier to widen this gap and reassured those who would otherwise have worried about it.
"This separation of government from people, this widening of the gap, took place so gradually and so insensibly, each step disguised (perhaps not even intentionally) as a temporary emergency measure or associated with true patriotic allegiance or with real social purposes. And all the crises and reforms (real reforms, too) so occupied the people that they did not see the slow motion underneath, of the whole process of government growing remoter and remoter.
"The dictatorship, and the whole process of its coming into being, was above all diverting. It provided an excuse not to think for people who did not want to think anyway. I do not speak of your ‘little men,’ your baker and so on; I speak of my colleagues and myself, learned men, mind you. Most of us did not want to think about fundamental things and never had. There was no need to. Super-power status gave us some dreadful, fundamental things to think about -- we were decent people -- and kept us so busy with continuous changes and ‘crises’ and so fascinated, yes, fascinated, by the machinations of the ‘national enemies,’ without and within, that we had no time to think about these dreadful things that were growing, little by little, all around us. Unconsciously, I suppose, we were grateful. Who wants to think?
"To live in this process is absolutely not to be able to notice it -- please try to believe me -- unless one has a much greater degree of political awareness, acuity, than most of us had ever had occasion to develop. Each step was so small, so inconsequential, so well explained or, on occasion, ‘regretted,’ that, unless one were detached from the whole process from the beginning, unless one understood what the whole thing was in principle, what all these ‘little measures’ that no ‘patriotic American’ could resent must some day lead to, one no more saw it developing from day to day than a farmer in his field sees the corn growing. One day it is over his head."
http://www.press.uchicago.edu/Misc/Chicago/511928.html
"Flyin' in just a sweet place,
Never been known to fail..."
Does not a witness to a crime become an accessory to that crime if it is not reported to the authorities. Therefore that witness is entitled to protection under the fith amendment to the constitution for being an an accessory to the crime.
Witnesses can be compelled to testify so that they cannot be intimidated into silence.
That may have been the theory, but it is a flawed one.
Any witness being intimidated into silence by threat of violence cannot be compelled to testify under threat of arrest. There is nothing the state ought to do that will outweigh what organized crime is willing to practice. The answer cannot be to compel a witness, but to convince them to testify.
I won't join Slashcott. OTOH, If Beta goes live, I just won't be back until it's fixed. Sorry Dice.
Why are criminal defendants allowed to remain silent, but not third-party witnesses like Risen?
The issue here is that Risen is trying to trump a subpoena with the 5th Amendment. A subpoena is a court order compelling a citizen to appear in court and give testimony as a witness to a crime or civil dispute. Failure to comply will get a bench warrant out on you and get you jailed for contempt. The 5th Amendment applies to testimony that may self-incriminate. Risen hasn't gotten to court and been on the stand in order to invoke the 5th Amendment, so he must appear or be held in contempt. Once he's in court and on the stand he can invoke the 5th Amendment, but not as a way to avoid appearing in court. If he were a defendant charged with a crime, different rules. You are covered by the 5th (and the rest of the Constitution) the instant you are arrested for a crime. But, Risen is a witness in this case--not a co-defendant--that is trying to duck out of a subpoena. Until he is in court the 5th Amendment is just there, not really able to do anything to keep him out of court. The dispute to date is Risen fighting a subpoena that the Fourth Circuit has already deemed lawful. The fact that Risen is trying not to go to court seems to indicate that he might actually be complicit in some way with the case against Mr. Sterling, or his lawyers are idiots. Either way he should hire some better lawyers and learn something about how the judicial system works before he appears in court or gets jailed for contempt. The 5th Amendment will apply to Risen once he is under questioning, never before.
these articles are actually work of bleeding-edge artificial intelligence in the form of a troll bot
There has to be some editor-bot, too, willing to post the stories about US law written by an non-lawyer who has spent most of his life outside the US, rather than, say, articles written by actual US lawyers.
This is an interesting argument, though it doesn't help the prosecution.
To poke it a bit, if you compelled someone to testify on behalf of the defense, you risk offending them and eliciting hostile (perjurious) testimony. Is it simply a risk that you take, or would you mitigate that somehow? It doesn't generally help a defense case to threaten a defense witness with perjury charges.
I won't join Slashcott. OTOH, If Beta goes live, I just won't be back until it's fixed. Sorry Dice.
The alternative seems like it goes down a road where anyone could refuse to testify at any time if they don't want to see someone convicted of something, which (at the risk of going slippery-slope) raises a lot of other questions in terms of what would be permissible in terms of refusing to testify.
How about in a hate crime murder trial where all the witnesses agree with the guy who did it? Can they then refuse to answer basic questions about the day in question that might allow the prosecution to find hard evidence? If they all just stay silent, does the whole mob get away and avoid any charges at all, since they can't be held liable for refusing to testify against the murderer?
In the reverse situation, what about in a case where someone has been falsely accused of a capital crime, and all the witnesses are friends with the actual culprit? Can they all just stay quiet when the defender tries to ask them questions about what happened and let the innocent man hang? If their deception is later uncovered, are they legally in the clear for letting an innocent man die rather than tell the truth about their buddy?
Conservatism is against freedom, is a hazard to our nation, and currently is so vile that it approaches treason. We have a severely under educated public that is frightened and due to those fears is willing to betray our Constitution.
If you can't figure out how liberalism is against freedom, is a hazard to our nation, and is currently approaching treason, then your critical thinking skills are way out of kilter.
Abuse of power based on any ideology it wrong. Implicitly excusing one side because of the sins of the other is vile. Get your head on straight.
I won't join Slashcott. OTOH, If Beta goes live, I just won't be back until it's fixed. Sorry Dice.
What if James Risen was friends with a prosecutor in a non-federal jurisdiction.
Soon, after he is put into jail for failing to testify, that other prosecutor charged Mr. Risen with a crime related to the case. Specifically, prosecuting Mr. Risen himself as the guilty party.
Would Mr. Risen then be suddenly be protected by the 5th amendment and let go?
Then later, "interested parties" go and "talk" some NSA sense into the other prosecuter to drop the charges. Would he be put back into a cell as the protection lifts again? Or does the "smear" of "self-incrimination" remain?
If you coerce a defendant into testifying, "I did it," that carries a much heavier weight than coercing some disconnected person into testifying, "He did it."
You can mount a defense against "He did it." There is no defense against "I did it"
One function of the Fifth Amendment is to reduce coersion of false testimony. Extending it to third-parties does not serve the same function so much.
If you're a reporter, is there a small victimless crime you can commit in the process of accepting information from a source, such that you would be unable to reveal the identity of the source without simultaneously confessing to your own crime?
$x='S24;r)>63/* h@<5+oZ)32"5cz';$me='phroggy'x$];
$x=~y+ -xz+\0-Tx+;print$_^chop$me for split'',$x;
In my opinion, it's reasonable for the court to be able to compel witnesses to testify.
However, remember that the First Amendment affirms freedom of the press separately from free speech in general. Since having anonymous sources is an important part of investigative journalism, I think that journalists have a right not to be forced to identify their source.
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
In the case mentioned in the article it appears that a reporter/journalist is being forced to reveal a source that has allegedly committed a crime.
IF there is the accusation of a crime, it can be legally presumed that the source is a suspect and therefore the source is protected under the Fifth Amendment and is not obligated to incrimiate himself.
Under the presumption of a crime, the reporter who recieved and passed on information related to that alleged crime could be held liable for "Aiding and Abetting" said crime. The reporter is therefore also protected under the Fifth Amendment and is not obligated to reveal anything that could be perceived as self-incriminating, and that includes naming the source.
Look at it this way, if you are accused of a crime and hire a lawyer to defend your case you DO NOT want the authorities to compromise attorney/client priveledge because your lawyer may have information that you provided him that is damaging to your case. Your lawyer could be forced to testify against you!
Your argument is nonsensical. Both of them have exactly the same rights.
There is no right to silence - there is a specific right not to incriminate yourself. In your example above they both enjoy this right. If Alice could show that her testimony could implicate her in a crime she would not be forced to speak. You appear to assume that her testimony would not incriminate her - "Alice is known not to be an accomplice" - so she would not be able to invoke her fifth amendment protection.
Without the fifth amendment protection Alice's refusal to testify is rightly punished under the law. This appears to be the part you're upset about - why not argue against this specifically instead of the superfluous bullshit you've posted?
you wanted a moral or a legal reason? here's the legal one:
the legal reason is that you have a constitutional right to not incriminate yourself.
you don't have a right to not incriminate others.
one possible exception is a suspect's spouse. if what i've seen on TV is accurate (american TV, so it's a very low reliability reference) a married couple can't be compelled to testify against each other, in at least some parts of the US
A witness could, by virtue of their statements, admit to committing some crime they may not even be aware they were committing. Before testifying to anything I would want to be granted immunity to any crimes I may have, unknowingly or not, been committing myself. (Even if it's something as arbitrary as trespassing.)
You have to plead guilty or not guilty. Does that not satisfy your lust for forcing someone to admit or deny their involvement in said crime?
You're confusing the right to refuse to answer with whether or not it really is society's business.Those are actually two different questions. Thus, if I committed a murder society has a legitimate interest in finding out. It does not follow that I have an obligation to tell them. My response to the question "Did you kill Bennett Haselton in response to his inane rhetorical questions and prescriptive masks and templates for answers that he would or wouldn't acccep," is not "It's none of your business." Rather my answer is "it IS your business to find out, but not my obligation to tell you." The reason that the right to remain silent does not extend to witnesses is more complicated. And there is room for some debate on the subject. But a key point to bear in mind is that witness testimony might also be exculpatory. Imagine the scenarrio in which an innocent person could be cleared but for the silence of a witness. Or do you subscribe to the viewpoint that it is better that a hundred innocent people be hanged than that one guilty person go free ;-)
When a trial commences, a defendant (or representative) MUST put in a plea of "Guilty" or "Not Guilty", which is effectively the same thing as answering whether or not you did the crime. At least one example where an innocent man would likely need the 5th amendment can be seen discussed 353 U.S. 391, page 421 - 424
Seriously, give us mod on the article itself.
The Fifth is about force, physical or otherwise.
If the forces of law and order are not permitted to beat or browbeat statements of guilt from the accused, why should they be allowed to attack third parties? Evidence not freely given should be considered tainted, no matter who gives it, no matter what subject.
Come on, where is an interventionist SCOTUS when we need one?
--
In the land of a million laws we are all criminals
Your words are concise, cogent, and compelling. Thank you.
Your argument seems to be why give the fifth to some and not to others. It is in the states best interest for all people to be compelled to testify. However, consider a case where the defendant is compelled to testify and the is no other witnesses and weak or no physical evidence. A good prosecutor would be able in some instances to get even an innocent person convicted through their own words. While the acusation of another person is strong evidence, ones own words are absolutely damning even if recanted or struck from the record. The fifth amendment and Miranda are reasonable exceptions from the general case that we are all to bear witness to a crime when called upon and to refuse is to do so is a punishable offence. The exemption exists because it is in the state's best interest to prevent innocent people from being imprisoned to the extent that it supercedes interest the conviction of guilty parties.
The reporter in question is innocent of the leak and bears no personal risk of prosecution by the state in providing testimony so is not extended the exemption. He is however guilty of failing to bear witness as required by law and in the prosecution of that offence cannot be compelled to testify against himself. The two offences are link causally but independent legally.
Yes, it all boils down to money. Cold hard cash!!! These reporters want to be shielded by an expanded 5th amendment so that they can't be prosecuted for not testifying against the criminal defendant. If they are forced to testify, then, these defendants will be less, if not completely, dissuaded from spilling the beans to a reporter. Oh my!, the reporter doesn't get the big scoop. He doesn't get the big promotion. He doesn't get the big bucks! As far as I'm concerned, a reporter, or anyone who refuses to testify for any reason such as; being a relative, being in love with the defendant, or even a reporter looking for that big break, becomes an accessory after the fact in the crime and should be prosecuted as such. Today, we see all these government leaks being printed in the next day's newspaper or broadcast on the news with no thought of how it harms our nation. I believe that reporters who receive secret, restricted information should be prosecuted for espionage, which is exactly what they're engaged in. When we were in the work up to the Iraq war, someone very, very high up in the government leaked to the press that Valerie Palme (spelling?) was a CIA agent. We were technically at war, so, that person was the worst kind of traitor! Eventually a government "flunkey" was found to take the heat and spent a short time in jail. He was eventually pardoned by the person, or his immediate supervisor, who was the actual traitor. Back in the 40s and WWII, this person would have been shot by a firing squad. Today, no one even seems to care. People need, once again, to be held accountable for their actions!!!
My karma is bad. Don't get too close!!!
Risen's source is accused of divulging information about a criminal activity, and the government wants to persecute that source for said speech. Surely you see that protecting Risen's right to protect his source is different than protecting someone's refusal to provide information about a real crime?
From wikipedia:
> The protection of sources, sometimes also referred to as the confidentiality of sources or in the U.S. as the reporter's privilege, is a right accorded to journalists under the laws of many countries, as well as under international law. Simply put, it means that the authorities, including the courts, cannot compel a journalist to reveal the identity of an anonymous source for a story. The right is based on a recognition that without a strong guarantee of anonymity, many people would be deterred from coming forward and sharing information of public interests with journalists. As a result, problems such as corruption or crime might go undetected and unchallenged, to the ultimate detriment of society as a whole. In spite of any such legal protections, the pervasive use of traceable electronic communications by journalists and their sources provides governments with a tool to determine the origin of information.[1] In the United States, the federal government legally contends that no such protection exists for journalists.[2][3]
http://en.wikipedia.org/wiki/Protection_of_sources
It's foolish to study the 5th Amendment in isolation without also considering the 1st. Running through both, after all, is the concept of freedom of speech, because coerced testimony is not free speech. You might as well study planetary movement and ignore gravity!
Yes but he gave us the classic answer in cases like this where you are being forced to say something.
"I'm sorry I don't recall."
To the author: I think you're looking at it from the wrong angle, or at least from the wrong context (today's that is).
A citizen has rights AND responsibilities, such as jury duty. Another responsibility is the full cooperation when subpoenaed by a court, as a witness or otherwise. A defendant is the exception to that rule as he finds himself in the "hot seat" and must not be 'compelled' to incriminate himself. We as a society have come a long way to conclude that that exception makes sense.
Now, in the case with Mr. Risen as witness, there are two conflicting points of view:
the Reporter's Privilege defense, http://en.wikipedia.org/wiki/Reporter's_privilege
against the court witness subpoena.
While Reporter's Privilege protects a journalist from being arrested or held liable for information knowledge,
it does not protect him from serving as a witness in court.
However, be it as it may, such a witness can still testify and answer any question but still ought to have the right to refuse to divulge information protected by Reporter's Privilege.
The author should go back and re-read the text of the Fifth Amendment as wisely adopted by the Framers and those who voted to ratify it, and which has never been amended. It protects a person from being "compelled in any criminal case to be a witness against himself." The Sixth Amendment guarantees a party, whether state or defendant, " . . . compulsory process for obtaining witnesses in his favor" in a criminal case. The broad guarantees of due process in the Fourth and Fourteenth, concerning also see the guarantee of jury trials in most civil cases in the Seventh, Amendments, with the have long been held to guarantee civil as well as criminal litigants the right to compulsory process to secure the testimony of witnesses with knowledge of relevant facts or of facts that might reasonably be expected to lead to discovery thereof. The state legislatures, in state cases, and Congress in federal cases, have enacted, and some courts have created, some reporter and other shields, but they were never intended to deny litigants their Constitutionally guaranteed rights to compulsory process for obtaining discovery of evidence, and the fact that Congress has been and is currently debating a broader reporter shield law (which the Wall Street Journal and others have demonstrated is a difficult if not impossible drafting job) demonstrates that the right the author claims simply does not exist. The author betrays historical and Constitutional ignorance by admitting that he does not understand why a guilty party should not be compelled to confess. That leads to indefinite coercive confinement not to mention other brutal coercive measures. See Arthur Miller's The Crucible for some examples of that in pre-Constitutional America, or see more recent examples in China, the Soviet Union, Iran, etc.