The Reporter's Fifth Amendment Paradox

Bennett Haselton writes: "The ongoing case of New York Times reporter James Risen -- whom the U.S. Department of Justice wants to force to testify against one of his sources for leaking classified CIA information -- brings up a more general question about the Fifth Amendment: Why are criminal defendants allowed to remain silent, but not third-party witnesses like Risen?" You'll find the rest of Bennett's story below.

In my last article about the Fifth Amendment, I tentatively made the argument that I couldn't see a principled reason why defendants should be able to refuse to answer the question of whether they committed the crime or not. My argument was that you're perfectly entitled to keep information private that is none of anybody's business -- you ought to be able to say, "It's none of your beeswax where I was on the night of the murder" -- however the fact of whether you committed the murder or not, is everybody's business, and I didn't see why the state shouldn't be able to make you choose between saying "Yes, I committed the murder," or "No, I didn't." (If you think the state would then try to convict you of lying if they were determined to railroad you, then my answer would be: If the state is going to railroad you anyway, they can convict you of the murder regardless of whether or not you say you're innocent, so that's not an argument in favor of the right to remain silent. I addressed this and several other counter-arguments in the original article.)

However, the argument I'm making this time is different. I'm saying that regardless of how you feel about the Fifth Amendment granting criminal defendants the right to remain silent, there's no consistent argument that would support giving defendants the right to remain silent, that should not also apply to third-party witnesses.

Here's the basic paradox: Suppose Bob may have committed a crime, and Alice is known not to be an accomplice but appears to have been a witness. If the courts ask both Bob and Alice the same question -- "Did Bob do it?" -- and both of them refuse to answer, then Bob's right to remain silent is protected under the Fifth Amendment, but Alice can be sent to jail -- despite the fact that Bob may have been guilty, but Alice is innocent! To me, that sounds crazy. (As explained at Findlaw and elsewhere, generally third-party witnesses can be required to testify in a way that defendants cannot. Witnesses can only plead the Fifth Amendment right against self-incrimination if they believe that by answering they could incriminate themselves. If it's generally agreed that a person is a third-party witness who was not guilty of any wrongdoing themselves, they can be forced to answer.)

In my first article arguing that defendants should not have the right to refuse to answer "Yes" or "No" as to whether they committed a murder, I wasn't sure of the conclusion, and I invited readers to submit arguments as to why I was wrong (I called the article "Seeking Fifth Amendment Defenders", after all, not "Let's Abolish The Fifth Amendment"). I'm still weighing the arguments coming in, and haven't decided what I believe. However, I'm more sure about the point I'm making this time: that there's no principled, consistent reason to give defendants the right to remain silent but not third-party witnesses. This is after talking to multiple lawyers, law students, and law enforcement officers and asking for any argument to the contrary.

There are two counter-arguments that I've received multiple times, that deserve a response:

• "The defendant's rights as a presumed-innocent citizen have to be protected until they're actually convicted." This is absolutely an important principle in a free society, but generally those "rights" refer to rights that free people have as well, and that are preserved even if you've been arrested -- for example, the right to free speech and the right to be presumed innocent, are all rights that the general public enjoys as well. Insofar as the Fifth Amendment says you have the right to refuse to answer questions about the particular incident that got you arrested, that's a right that innocent third-party witnesses don't have. Even in the most progressive societies, generally speaking criminal defendants don't get more rights than the public. Why should they get that special right in this case? Maybe there's an argument why, but you'd have to at least make that argument.

  So all the talk about protecting the rights of a criminal defendant, is valid, but it misses the point: Why shouldn't we also give the same rights to a third-party witness who we know is innocent?

• "It would be very difficult to prosecute many cases without compelling testimony from third-party witnesses." This is true -- particularly in the cases of reporters like Risen, who refuse to divulge their sources' identities, so all you have is the option of compelling the reporter to testify, when you don't even know the defendant's identity yet.

  However, that's really an argument that if you had to choose between having the ability to force defendants to testify, and having the ability to force third-party witnesses to testify, you would choose the ability to question third-party witnesses, simply because there are often more of them and sometimes they're available even when the defendant isn't. But that's not an answer to my question, which is: Is there an argument from moral or legal principles as to why the defendant is allowed to remain silent but third-party witnesses are not? Obviously, we don't actually have to choose between requiring defendants to answer and requiring third-party witnesses to answer. If we place more importance on giving courts the power to gather information, we should empower them to question third-party witnesses -- but wouldn't that argument also apply to requiring answers from the defendant? On the other hand, if we place more importance on individual liberty, we could grant the right to remain silent to defendants who are presumed innocent -- but shouldn't we grant that same right to third-party witnesses that we know are innocent?

  The argument that "it would be too inconvenient to prosecute cases if we couldn't require answers from third-party witnesses", is a bit like saying that if we had to choose between the courts having the power to force Eskimos to testify, and having the power to force non-Eskimos to testify, we would choose having the power to force non-Eskimos to testify, just because there are more of them. But obviously that's not a principled argument as to why we should be able to require answers from non-Eskimos but not from Eskimos.

Of course, many people's sympathy for James Risen might stem not from the fact that he's a third-party witness (to the crime of leaking information), but from the fact that his supporters are sympathetic to the cause of the anonymous leaker, who was exposing what he believed was a corrupt government. (Risen's book is subtitled "The Explosive Book on the Abuse of Power of the Bush Administration", always a way to get fans.) If James Risen knew the identity of someone who had raped and killed a child, but had gone to jail for refusing to name the suspect, probably a lot fewer people would be hailing him as a hero. But that hypothetical just makes the argument from the opposite direction: If we instinctively feel that third-party witnesses to a murder can be forced to answer questions about what they saw, why can't we make a suspect (who is, after all, a special case of a "potential witness") answer questions about what they know as well?

Our courts' current stance on the "right to remain silent" -- that it can be claimed by criminal defendants, but not by innocent third-party witnesses -- seems so absurd to me that I'm going to go out on a limb and say that I think it's an example of groupthink, an assumption that we accept because we're immersed in it, but that few people would ever come up with on their own if they were working from first principles about balancing liberty vs. the rights of the state.

Here's what I mean by that: Suppose you had been raised in a world that was identical to our own, except that our rights under the Fifth Amendment were inverted, so that innocent third-party witnesses could refuse to answer questions, but criminal defendants could at least be required to answer "Yes" or "No" as to whether they committed the crime. My hunch is that that, instead, would seem natural and sensible. You wouldn't scratch your head and say, "Wait, that seems wrong -- it should be the defendants who should have the right to remain silent, not the innocent witnesses."

By contrast, suppose you had been raised in the world that was identical to ours, except that portions of the First Amendment were inverted -- so that we could write any political arguments that we wanted to, but the government demanded prior approval of any fictional stories that we wanted to publish. I would hope that to many people, this would seem like a nagging contradiction, and over time more and more people would point out this inherent hypocrisy and call for restrictions on political thought to be abolished. That's because I think the First Amendment guarantee of free speech is something that can be derived from first principles about individual liberty -- if you want to write something and someone else wants to read it, and neither of you is harming anyone else in the process, it should be nobody else's business, period, full stop. And I just don't see a compelling argument from first principles in support of our current interpretation of the Fifth Amendment -- that we can make third-party witnesses answer questions, but not require the same of a criminal defendant.

Regardless, a court has already ruled that James Risen can be made to testify, and barring a successful appeal, he may choose to go to jail rather than reveal his source. The judge writing the ruling against Risen made an interesting slip-up, though, when he wrote:

The reporter must appear and give testimony just as every other citizen must.

But of course "every other citizen" does not have to give testimony -- if the defendant is ever identified, they won't have to. And that's the inconsistency that I find hard to explain.

Comments

It's simple

[Anonymous Coward]

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.

Re:It's simple

[ackthpt]

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.

Until the Miranda Right was acknowledged it was common practice to give witnesses as well as suspects the third degree, which widely ignored the main focus of the 5th amendment.

We'll get a confession out of you if we have to beat it out of you.

Though as I see it, if the reporter says nothing to incriminate him/herself the Fifth is being respected in technical interpretation. If the reporter does say something which may lead to charges (such as conspiracy to commit espionage) the spirit of the Fifth is being denied.

Re:It's simple

[ShanghaiBill]

Which brings up the point of a soldier is bound to carry out orders, not question them.

I thought soldiers weren't required to follow illegal orders?

An American soldier is not required to follow an illegal order, or even an ambiguous order. When I was in the military, we were told that the proper response to an order like "Take these prisoners to headquarters twenty miles away, and be back in five minutes (wink wink)" is "Can you clarify exactly what you want me to do, and can you also put it in writing?"

Re:It's simple

[artfulshrapnel]

It actually isn't very logical or important for a major charge like murder, but it seems fairly important when dealing with a minor charge like say... trespassing. Typically trespassing would not be a serious offense, and it is often one that includes mitigating circumstances or enough nuance to justify a proper investigation before a person is punished for their crime.

If, however, you can stack a 5 year felony sentence for "perjury" or "obstruction of justice" onto minor charges unless the defendant admits to being guilty, then you have yourself a very easily abused power as a prosecutor. It's made even worse because the eventual determination of whether or not they've committed perjury is going to be entirely based on the outcome of the case itself. It's basically a way to add a felony to any minor misdemeanor unless the person is willing to confess outright, and it puts an innocent person in the unenviable position of risking a potentially huge charge for a far lesser crime unless they make a false confession to save themselves.

"Well you either confess and we give you 1 week of community service, or else we put you on trial. If you're found guilty, and we will try our hardest to make this circumstantial evidence stick, you'll not only get community service but you'll also face 5 years in prison and a felony charge for perjury. So I ask again: Did you vandalize that tree in the park or not?"

In a way it reminds me of the old witch trials. "You're guilty of perjury because we insist you're innocent of this other crime and we decided that you aren't."

Re:It's simple

[ShanghaiBill]

Back in my Dad's day, the top brass running Abu Ghraib would have been prosecuted and thrown in prison ...

Baloney. A generation ago, not a single person was punished for the My Lai Massacre, an atrocity orders of magnitude worse than Abu Ghraib. Likewise, no one was held accountable for No Gun Ri which was covered up for decades. There are numerous documented incidents of American soldiers murdering prisoners and civilians with impunity. Your assertion that the American Military was more accountable in the past is laughable. Soldiers are far more accountable today than ever before, and for a simple and obvious reason: cameras on cellphones.

Re:It's simple

[ShanghaiBill]

My Lai was bad, but they did investigate that.

Baloney. The "investigation" was conducted by a young major named Colin Powell who did a complete whitewash and concluded that there was no basis to the allegations. Yes, this is the same Colin Powell who, thirty five years later, presented the false justification for the war that lead to Abu Ghraib. The real investigation of My Lai was not done until hundreds of photos appeared in American newspapers and magazines, and it was clear the Army could no longer continue the lies.

In the case of Abu Ghraib, they still haven't done an appropriate investigation.

Yes they did. Just because you don't like the conclusion, doesn't mean it wasn't investigated.

Some General should have been shitcanned over that one

A general was shitcanned. But there was a limit to what the military could do because the commanding general in charge of Abu Ghraib was a woman.

Not exactly a right to remain silent...

[Anonymous Coward]

It's a right to not bear witness against yourself.

This isn't very complicated.

[Anonymous Coward]

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)."

Re:This isn't very complicated.

[Jane Q. Public]

"The reason that the defendants right to remain silent is protected is because his testimony is worthless anyhow."

Not even.

The purpose of the Fifth Amendment was to remove any motivation for government coercion of the accused.

WE KNOW what damage coercion can do. The result of coercion is invariably a huge increase in the number of innocents getting convicted. Historical records of this are very clear... even our own. The percentage of innocents convicted when confessions were coerced or forced by overzealous law enforcement is quite high.

We even see it in cases of prosecutorial overzealousness in the form of "plea bargains". Plea bargains have been used to jail more innocents than perhaps any other legal tool. (Which is why I say we need to dump the whole concept of plea bargains, altogether. It is a societal ill, not a good.)

---
""That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved." -- Benjamin Franklin, letter to Benjamin Vaughan, March 14, 1785.

This one's easy

[Millennium]

Witnesses can be compelled to testify so that they cannot be intimidated into silence.

Re:This one's easy

[DerekLyons]

This, seriously. Haselton's entire strawman arguement relies on being completely unaware of the history of and the philosophy behind the processes he questions. It's almost like he didn't even bother to read the answers to his last strawman.

Re:This one's easy

[westlake]

Witnesses can be compelled to testify so that they cannot be intimidated into silence.

---- and the defendant has the right to remain silent so he can't be intimidated or tortured into making a confession.

But to say these things on Slashdot risks being modded down as a Troll.

It's ok when they do it.

[7-Vodka]

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.

Defendants have the right to testimony

[perpenso]

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?

Because we know?

[PPH]

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.

Re:Fifth Amendment should be extended

[guytoronto]

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.

A thought...

[Antony T Curtis]

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.

Plea bargain

[dalias]

This practice still exits anyway; it just has a new name. It's called "plea bargain".