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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:
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"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?
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"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.
It's a right to not bear witness against yourself.
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)."
So what if revealing the source and answering questions about that source would incriminate yourself? Perhaps that source is your drug dealer, how is that handled? Can they then use this testimony to charge you with a crime?
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.
Witnesses can be compelled to testify so that they cannot be intimidated into silence.
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?
But... there's the problem.
Who's to say that in the summary's example... that the supposedly innocent Alice is actually innocent. Maybe she was an accomplice. Maybe she's afraid that something she says will get her in legal trouble because she unknowingly did something that was technically against the law. Maybe she's afraid that by saying "she sat there and did nothing" on the record she will be open to a civil case by the victim's family.
Perhaps the only way she would be found guilty of anything is if she opened her mouth and answered said question.
In which case by wanting to plead the fifth, she's protecting herself from possible criminal prosecution or civil liability.
I'm not saying I'm for or against the overall concept...
I was just poking the hole in this specific AC's logic that perhaps "Alice" felt she was protecting herself by wanting to plead the fifth.
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.
Because he's trolling. Again.
[Sir Garlon] is the marvellest knight that is now living, for he destroyeth many good knights, for he goeth invisible.
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
The Fifth Amendment should be extended to any party in any type of court.
Have you read 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.
There is nothing in there that relates at all to third-party testimony. There is zero foundation for the position that third-party testimony be protected by an amendment that has nothing to do with third-party testimony.
If you want to make the argument that all testimony should be voluntary, you're going to have to come up with a lot better reason.
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.
"So what if revealing the source and answering questions about that source would incriminate yourself?"
Then the Fifth would apply, but that's not the context of the discussion, an uninvolved witness is.
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.
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
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.
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.
The situation described in the article is one where the witness did not commit a crime.
If they had committed a crime and could face prosecution by revealing the information, then they are entitled to invoke the 5th. But, in cases where testifying does not incriminate the individual doing the testifying, they can be compelled by law to testify or face contempt of court charges.
The 5th is very clear about when it is applicable. And, it is why an individual is read their Miranda rights when arrested - to ensure they know their rights.
You don't face criminal charges for not testifying. You are held in contempt of court. Contempt of court does not require the state to press charges against you and an independent trial.
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!
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.
I know what the Fifth Amendment says. The question is whether there is a logical rationale for allowing defendants to remain silent, but not third-party witnesses. Other than, "That's just what it says!!", which is not a logical rationale.
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.
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.
Which leads me to my followup question, why not just commit a crime with your source if you are a reporter?
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.
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
The piece was not asking what the actual text says, but was arguing the justifications for why the 5th amendment was written to protect the accused but not 3rd parties. Simply leaving it 'because it says so' is not very interesting.
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.
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.
I suppose you could make the argument that a journalist would be committing a crime in terms of obstruction of justice and perjury, but most of the time when a judge gets upset by them refusing to name their sources, that's done under contempt of court. And that's not subject to judicial overview.
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.
So they can't ever take the fifth?
Because that is what it sounds like, since the judge could still charge them with contempt even if they claim it would incriminate them. In that case the 5th sounds pretty useless.
The reason why is that the party accused is the only one that truly knows all of the facts. Forcing them to testify against themselves is unique in that there's an advantage to them perjuring themselves wherever possible. And as a result, even if these people were forced to testify, very little of what they said could be taken seriously anyways as the penalty for perjury is often less than the penalty for the crime for which they're being tried.
Whereas people who do not qualify for 5th amendment protections have substantially less incentive to lie under oath.
What's more, the 5th amendment protects defendants from being forced to interpret evidence that might not normally lead directly to them.
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"
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.
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...
nor shall any person ... be compelled in any criminal case to be a witness against himself...
If I am giving testimony as to another's guilt or innocence and the defense asks me a direct question (to cast doubt to either my honesty, or if I have an issue with the defendant, for example) that would have me admitting to my own criminal behavior (connected or not to this case) or committing perjury, I may refuse to answer this question.
In this case I am providing "third-party" testimony and am covered by both the intent and the letter of the Fifth Amendment.
As a note, in many countries this protection is also included in civil cases, not just criminal ones.
If only we could fall into a woman's arms without falling into her hands
Well yes I agree that the defendant's testimony might be worth substantially less, because they'll almost always claim they're innocent. But surely the testimony is not worth *nothing*. If their testimony might be worth anything at all, we'd need some other argument for giving them an absolute right to refuse to testify (but not extending that right to third-party witnesses).
The problem is that the fifth amendment does apply to all participants in a trial. The problem with the parent post, as with the main article, is that it equates "the right to remain silent" with "the right against self-incrimination." The latter is from the text of the amendment, while the former is from Miranda v. Arizona, (which, to be fair, was based on the Fifth Amendment.)
Put simply, even a witness in a criminal trial has the right to refuse to testify on the grounds that he may be incriminated by his own testimony. Of course, this is a sure way to get the Prosecutor to start digging into your involvement with the crime in question, but such is the two-edged nature of most rights.
Not a lawyer, so I'm not sure of the legal precedent in regards to civil trial, but I would posit that since the Bill of Rights applies to Government actions, and in a civil case, the Government is simply acting as a referee in a dispute between two private parties, none of the Rights outlined in the Bill of Rights would apply.
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.
"Against himself" is the key term here.
What about witnessing against your spouse, parent, or child? Suppose the prosecution has built a fairly firm, but circumstantial case against your child (who, let's say, is not guilty of the crime in question). Suppose that the actions that you witnessed would serve to incriminate your child. Further suppose that the death penalty lies in wait. Should you be compelled testify against your child?
When our name is on the back of your car, we're behind you all the way!
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.
Read it again. You don't have to incriminate yourself if YOU are on trial. As a third party you are afforded no such protection.
You can plead the 5th at your trial, not at someone else's.
Persistent Volume manager for Kubernetes - https://github.com/dwimsey/openshift-pvmanager
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.
And, it is why an individual is read their Miranda rights when arrested - to ensure they know their rights.
You do realize that what you see on TV isn't reality right?
You don't get 'read your rights' when you get arrested. There is no law that requires it to be done.
Persistent Volume manager for Kubernetes - https://github.com/dwimsey/openshift-pvmanager
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.
I'm sorry, perhaps the quoting the actual wording of the amendment confused you.
You cannot be compelled to provide testimony that may incriminate yourself. It doesn't matter if its your trial or someone else's.
However, the premise of TFA is that a witness can be compelled to incriminate a third party. The 5th clearly places restrictions against self-incrimination, but does not offer any such restriction on the incrimination of others.
If only we could fall into a woman's arms without falling into her hands
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.
Refusing to turn over sources is criminal in many cases, but the fifth doesn't really apply as it's known that they aren't handing over their sources. There's no need for them to testify against themselves as a refusal to name the sources is self evident.
If you murder Susie and I witness it; am I not an accomplice to the murder if I refuse reveal who the murderer was. Morally, by not testifying to the truth, I am guilty of your crime. I allowed you to murder another person with no repercussions. I think the law here has been quite courteous to extenuating circumstances. As in, by refusing to testify, I'm only held in contempt and jailed briefly. Instead of being charged as an accomplice to the crime or worse.
There's no law that requires the wording of the Miranda Warning to be used, but the Supreme Court has upheld that any statement made by someone who was held in custody and not informed of this right is inadmissible in court.
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.
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
Defendants enter a plea of guilty or not guilty. Saying nothing is interpretted as "not guilty". There is no paradox.
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
Its not a circumstantial case if they have a good witness "you" who saw your child commit the crime. Prosecutions don't have the ability to hold your parents hostage and torture them and get false testimony out of them. If you don't want your kid to go to jail for the murder he commited you can lie to the jury about it.
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!
Sadly, I feel your pain.
Unfortunately, the law would compel Bob to testify, IF the law knew Bob was a witness. Such testimony would be to Bob's disadvantage.
Of course, the legal teams would need to learn about Bob's information. Bob is not required under any law to indicate that he was in possession of such information. However, once he admits that he was a witness he can be compelled to testify.
If only we could fall into a woman's arms without falling into her hands
Morally, by not testifying to the truth, I am guilty of your crime. I allowed you to murder another person with no repercussions.
Not guilty of, but complicit in (i.e. you share guilt, but not in the same way as the perpetrator), which is why the penalty is less. Other than that you're correct.
All citizens have a shared duty to promote justice, and testifying as a witness falls under that duty. So does serving on a jury. Just as refusing to testify against the perpetrator of a crime is unjust to the victim, so is refusing to testify to the innocence of the accused an injustice to the accused. Either way, if you have some knowledge that may serve the cause of justice, and you refuse to provide it, you're obstructing justice, an objectively Bad Thing (assuming you view "justice" as a good to be striven for).
This is presumably why witnesses don't get out of testifying, because there's no legitimate reason not to, if they're not suspected of being complicit in the crime, and thus don't risk incriminating themselves. The reasons for the fifth amendment, as repeated ad nauseum elsewhere, are 1) to prevent coerced confessions by the state, and 2) it's pointless except to pile on perjury charges if the accused denies guilt.
my, your, his/her/its, our, your, their
I'm, you're, he's/she's/it's, we're, you're, they're
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.
I think we basically agree here. But I want to note, I draw a distinction between moral and legal. Legal is practicality, moral is spirituality (to put it simply). A good example, it's not illegal to overcharge someone for an item (as long as you didn't deceive them). But it's morally wrong to charge someone more than what is needed. Overcharging someone is subjective, as the amount even required for subsistance is debatable.
Even spousal privilege
They can't convict a husband and wife for the same crime
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.
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..."
I take the fifth amendment on that.
If builders built buildings the way programmers wrote programs, then the first woodpecker would destroy civilization.
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.
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.
I'd say the smart thing to do in that case is just testify. Then, if they TRY to prosecute you, you just point out that you were compelled to give testimony which incriminates you, which violated your 5th amendment right, and therefor, the testimony is inadmissible as evidence.
Although, to rebut my own argument: it's often more complicated than that - because you might not want them to know you ever used drugs to begin with, because once they know that, they might start investigating you, and once they start investigating you, they might find evidence to convict you completely separately from the inadmissable testimony, and if you hadn't testified to begin with, maybe they wouldn't be looking.
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.
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?
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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
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'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
When detained/arrested, a person may invoke his/her right to remain silent, after which, ALL interrogation must cease. Under those circumstances, right to not incriminate yourself is the exact same thing as right to remain silent
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
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!!!
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.