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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)."
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.
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.
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.
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".
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".
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
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.
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?
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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.
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.
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.
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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.
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