As the first comment pointed out, most of our users have censored web access so they cannot subscribe to an RSS feed or bookmark a site that lists new proxies all the time.
My users are on networks where web access is censored, so they typically can't "bookmark" a page where they can get new proxies.
If most people don't want to use email to receive content any more, fine. But for people who do, outfits like Spamhaus should not recklessly label people "spammers" when they know that their own classification system makes a lot of mistakes.
Actually, that's why I have my mailing list set up so that when someone joins the mailing list and replies to the confirmation message, the confirmation message reply goes to my personal email address (where a filter catches it and puts it in a mailbox so a script can mark those people's subscriptions as "confirmed"). My personal email address is also the address that I send the list messages from.
I was hoping this would mean that the user's mail client would see that they're already "communicating with" my email address, and would be less likely to block messages from me as spam. Unfortunately, it doesn't always work.
I never saw any evidence that the domain names got blacklisted because they were being used as redirector URLs by spammers. I've looked through a lot of spam and it's extremely rare to see a link in spam that goes through a web proxy (as opposed to a url shortener, which is more common).
For one thing, my domains got blacklisted almost immediately after they were mailed out. If it had been a spammer looking for a web proxy, they would have been far more likely to use one of the existing web proxies out there that was easily findable with Google. The fact that Spamhaus blacklisted them right away, is more consistent with the explanation that someone falsely reported the domain to them as "spam" and they blacklisted it without checking, or else that they subscribed an address to our list (going through the confirmed-opt-in process) and then blacklisted new domains sent to that address.
Regardless, if Spamhaus's system said "Mails containing this domain name are probably spam", then they made an error, and what they should have done afterwards is come clean about how the domain got incorrectly blacklisted, and whether they were doing anything to avoid the problem in the future.
Basically, I don't think the problems are unfixable. But part of the solution is to call out groups like Spamhaus that are making errors and refusing to acknowledge the errors as a matter of policy.
Indeed, if we removed it, then the rules, for defendants would essentially be the same as the rules for third-party witnesses, to wit:
- You cannot be compelled to give a particular answer, only to answer a question truthfully
- You cannot (obviously) be tortured into answering a question
- You cannot be compelled to answer an irrelevant question
- You can be compelled to answer a question that is relevant to the criminal case (where the punishment for refusing to answer is being charged with contempt, not torture)
And my question has been: What's so bad about that? If we can require third-party witnesses to answer relevant questions in court, why not the defendant too?
Perhaps part of the confusion is over the distinction between a suspect that has been arrested and a suspect that has not been arrested.
1) Would you agree that if a suspect has not been arrested, then their right to refuse to answer questions does not come from the Fifth Amendment? At that point they're not even legally distinct from a third-party witness. As you said, they're free to just leave.
So perhaps you might not only agree but think that's obvious. (However, James Duane did start his presentation by saying "Thank God for the Fifth Amendment" and went on to talk about the importance of staying quiet in situations where you haven't been arrested yet.)
2) Now, after you're arrested, consider the question of whether your right to refuse to answer questions comes from the Fifth Amendment.
First, the question doesn't have a well-defined answer, because we're asking, "What would happen in a bizarro version of our world that was identical except that we had no Fifth Amendment?", and nobody can possibly know that, because that world doesn't exist. You can only make a reasoned answer.
Here's my argument: Even after you're arrested and in custody, and assuming the Fifth Amendment did not exist, there is still no written rule that gives the cops the authority to ask you questions and punish you if you don't answer. They cannot make you do anything except comply with the arrest procedures. If they ask you a question and you just sit there and hum, they can't sentence you to extra jail time (much less torture you, which they are prohibited from doing to any detainee for any reason).
By contrast, there is a written rule that authorizes a court to subpoena a third-party witness to testify, on pain of being jailed for contempt -- but the Fifth Amendment specifically says this rule can't be applied to criminal defendants in their own trial, so that protection does come from the Fifth Amendment.
Basically, in order to say that the right to silence in a given situation comes from the Fifth, the Fifth would have to carve out an exception to some other rule which gives the state the power to ask you questions and punish you if you don't answer. There is no such rule if the police are asking you questions when you're under arrest, so I would argue the Fifth isn't technically what gives you the right to silence there.
If you disagree, let me ask: In bizarro world where everything is identical except we have no Fifth, then under what authority could the police "make" you ask you questions if you've been arrested? What could they do if you didn't? Or, do you think that's the wrong way to ask the question?
I addressed the "unjust law" issue in the first article: http://yro.slashdot.org/story/13/06/07/1439220/seeking-fifth-amendment-defenders
But, briefly: Of course the law might be unjust, but how are you going to create a rule that protects people who violated unjust laws, without also protecting people who violated the good ones? You'd have to have a list of which laws are just and unjust, and if people agreed on that, you might as well just throw the unjust laws out.
But you're just coming up with exceptions and qualifiers to #1 and #2. Some of those are valid, but they don't affect the main chain of reasoning:
1) Third-party witnesses, insofar as their testimony would not incriminate themselves, do not have a Fifth Amendment right to silence.
2) They still have the right to refuse to answer questions from the police.
3) Therefore their right to refuse to answer questions from the police, does not come from the Fifth Amendment.
Also, I don't know why you said, "And note that unlike a coerced suspect, compelling a witness to testify is not a compulsion to testify in a particular way." But compelling a suspect to testify is not a compulsion to testify in a particular way, either. You can tell a suspect that they have to answer without requiring them to give a particular answer.
You missed the point of my previous post:
1) Third-party witnesses do not generally have a Fifth Amendment right to remain silent. (As the Josh Wolf case shows for example -- they can be compelled to answer questions by a court subpoena.)
2) And yet, third-party witnesses do have the right to refuse to answer questions when questioned by the police (not the courts).
3) Therefore, wherever the right to remain silent when questioned by the police, comes from, it can't come from the Fifth Amendment.
If you don't think that is correct, then which of #1, #2, or #3 do you think is incorrect?
I'm just trying to distinguish between (1) saying that the state cannot compel you to give a particular answer, and (2) staying that the state cannot compel you to answer a question. (Regardless of what that question might be; it might be something other than "Are you guilty?".)
A lot of people seem to think the Fifth Amendment is #1 -- that the Fifth Amendment protects you against the state forcing you to say that you're guilty even if you're innocent -- and that if I'm questioning the Fifth, I must be saying that would be OK! No, of course not.
I'm saying that I don't see a problem with compelled to answer particular questions relevant to the crime. "Are you guilty?" would be one of them (although as you point out, you're already effectively required to answer that question). There might be others. The burden of proof should be on the state to show that the question is relevant. If you weren't at the scene of the crime because you were out at a gay strip club, you should be perfectly within your rights to say, "I wasn't at the murder scene, but I would prefer not to tell you where I was."
In other words, apply the same rules as we apply to third-party witnesses -- where there is proper oversight in what questions you can be required to answer (and obviously, you could never be compelled to give a particular answer, only to answer the question), however, at the same time you don't have the blanket right to refuse to answer any questions that might help solve the crime. I just don't see the big problem with that. That is how we treat third-party witnesses currently, and it doesn't seem to have led to widespread abuse (comparable to, say, the shameful problem of poor people getting treated worse in court than rich people because they can't afford $500/hour lawyers).
Third party witnesses can only be compelled to speak with a subpoena (in a court of law), otherwise retaining a right to remain silent. In court the attorneys and judge act as checks against each other so that improper questions can be dismissed (although it is not the person being questioned's decision on what is proper). So as for questioning by the police (as opposed to the courts), third-party witnesses have the same rights as a suspect.
That's a good point, I've been thinking that this whole time, one of the premises that both sides have been assuming in these threads, is probably wrong -- that the Fifth Amendment is what gives you the right to be silent if the police question you. But as you pointed out, third-party suspects are not protected by the Fifth Amendment, but they can stay silent when the police question them, so that right can't come from the Fifth.
Really, I think the reason the police can't force you to answer a question, is the same reason they can't make you hop one one foot: The police can't make you do anything except comply with the law, and even after you've been arrested, the police can't make you do anything that isn't relevant to the arrest procedures (like give your fingerprints). By that reasoning, the Fifth has nothing to do with it.
OK so I think what Professor Duane meant to say was "It can help to talk to the cops, but not any more than it would have helped to just wait for your lawyer and then communicate through your lawyer."
I still think there are exceptions to this (if the information you have is time-critical, by the time your lawyer shows up it might be too late), but generally I would have had less of a problem with this rule since it's not clearly contradicted by what Bruch was saying.
I think working in the legal system would be too aggravating because my usual methods for pointing out what I think are errors -- methods that are encouraged in the sciences and other fields that actually care about getting the best possible answer -- are not allowed in court. e.g. if a judge says something that I think is wrong, I'd be inclined to say, "If we poll ten law professors and ask them whether position A or B is correct, if 8 out of 10 of them say position A, will you change your mind from position B?" But you can't do that in a courtroom, even though that would be one of the strongest arguments for switching to position A.
I wrote about a case where a local judge ruled that IP addresses were not "Personally Identifiable Information" under Microsoft's definition because they were sometimes shared by multiple people: http://yro.slashdot.org/story/09/07/21/128215/pii-in-the-sky
I said that was ridiculous because phone numbers, addresses, and pretty much all other pieces of personal information except SSNs, were often shared between multiple people, so by that reasoning, everything would be disqualified. I think if you'd asked multiple law professors, "Which argument is correct? (1) IP addresses are not PII because they can be shared by multiple people. or (2) The fact that IP addresses are shared by multiple people is not a valid reason to exclude them as PII, because virtually all personal data attributes including addresses and phone numbers, can be shared by multiple people", you would get more votes for #2. (Of course they'd hedge their bets by saying that "PII" is a Microsoft definition, not a legal definition, but still, the judge had to decide one way or another.) But all people did was whine and moan that I wasn't a lawyer.
OK so what Professor Duane should have said was, "It can help you to talk to the police, but not any more than it would have helped you to just wait for a lawyer and then communicate with the police through your lawyer." I would have had less of a problem with that since it's not as clearly contradicted by the examples that Officer Bruch gave.
However, that statement might still not be true, in cases for example where the information you have is time-critical (might help prevent another crime, or catch the real perp before he gets away), and if you wait until your lawyer shows up, your information might not do any good any more.
Well just because the Fifth Amendment doesn't make any difference in those scenarios, doesn't mean there aren't other scenarios where the Fifth could make some difference. For example, in open court, we have to follow the rules, so if the prosecutor wants to ask the defendant, "Did you do it?" but the defendant doesn't want to answer at all, now the scenario is different depending on whether we have the Fifth Amendment or not.
At that point, you have to argue why the Fifth-Amendment-outcome is better. That's why I said in the original article that if I were innocent, I wouldn't consider it unduly burdensome to say, "No, I didn't do it. I don't feel like telling you where I was at the time, but I wasn't at the scene of the crime and I don't have to tell you anything else."
Sorry this wasn't clear: What I'm saying is that the Fifth Amendment is not the law that prevents the cops from beating you up in the interrogation room. (We know this, because there are other scenarios where the Fifth Amendment doesn't apply and you have to answer -- but even in those scenarios, the cops obviously can't beat you up. So wherever the right not to be beat up from the police, comes from, it doesn't come from the Fifth Amendment.)
I'm certainly not in favor of throwing out rules just because the cops might ignore them. I'm not in favor of throwing out the rule against beating up people in the interrogation room, for example. I'm just saying that that rule is not the Fifth Amendment, so it's irrelevant to the discussion.
Bruch said that he thought the person was guilty when he brought them in ("I try not to bring anyone in to the interview room who's innocent"), but the person managed to convince the police that he was innocent.
If you change the minds of the police from thinking you're guilty to thinking you're innocent, I'm counting that as helping. It definitely helps if they previously were so convinced of your guilt that they were about to arrest you. But even if they weren't about to arrest you, I'd consider it quite beneficial to no longer have the police thinking that you're guilty.
Word for word, what George Bruch says in the video is:
"If I get before the judge and tell him you were honest, straightforward, and willing
to take responsibility for your actions, that is gonna help you.
That's not a lie, in Virginia Beach courts it will help them."
I assumed he wasn't just making that up. If he's making it up, then of course you're right, that part of my argument falls apart.
They may interpret "client's best interest" to be limited to the outcome of legal cases. If the client thinks he can make his neighborhood safer by turning in a criminal, a lawyer might plausibly claim he wasn't obligated to consider that when calculating his "client's best interest".
Otherwise, what's to stop the lawyer from generalizing even further and telling his client to lose weight because he thinks that's in the "client's best interest"?
He said "You're going to lose, unless you're purely innocent. On the other side of it,
I don't want to put anyone who's innocent in jail. I try not to bring anyone in
to the interview room who's innocent. And there are a couple that I have let walk
away because they were innocent."
The statement "You're going to lose, unless you're purely innocent" sounds like a statement that if you're innocent, getting let go is the norm rather than the exception.
If you listen closely to both of the talks, Professor Duane seems to be saying that talking to the cops is a terrible idea even if you're innocent; Officer Bruch seems to be saying that talking to the cops is a terrible idea if you're guilty, but if you're innocent, it probably won't hurt and might help. Their messages are not as in sync as they seemed to think they are.
No what I'm saying is that the law against the police beating you up is not the Fifth Amendment. (We know that, because there are other scenarios where the Fifth Amendment does not apply, but even in those cases, the cops still can't beat you up. So wherever the right not to be beat up comes from, it doesn't come from the Fifth Amendment.) So the claim that without the Fifth Amendment, the cops could just beat you up until you confessed, is ridiculous.
To his credit, even James Duane did not make this claim, even though he pulled out all the stops talking about how great the Fifth Amendment was.
Requiring someone to answer a question is not the same as requiring them to self-incriminate.
If I'm innocent, then requiring me to answer the question just requires me to say, "I'm innocent." Requiring me to self-incriminate would mean forcing me to say, "I'm guilty."
"As I explained in the first article: If you take away the "right to remain silent", a suspect can still say, "No, I didn't do it," and the police options for "coercing" them are the same as they were before."
You imagine, that the way it works without a Fifth Amendment is that there is a particular crime, and police are only allowed to ask if you committed that crime or not. However, without a Fifth Amendment, you must answer all questions the police ask you. There are no more choices.
But that's what I'm saying -- you could, perfectly logically, have a middle ground between "You have the right to refuse to answer any question asked by the police" and "You have to answer any question asked by the police". You could just say, instead, "You have to answer any question about information you might have regarding the specific crime they're investigating, but you don't have to answer anything else that's irrelevant, and the burden of proof is on the police to show that something is relevant."
In other words, make the rule the same as it is for third-party witnesses now: you can't be coerced into a giving a *particular* answer (and, obviously, can't be tortured or anything else like that), but you do have to answer questions about the actual crime. (And if the state thinks you're lying, they have to prove it beyond a reasonable doubt just like any other crime, of course.)
Well I was just going by what George Bruch said, which was, word for word:
"If I get before the judge and tell him you were honest, straightforward, and willing
to take responsibility for your actions, that is gonna help you.
That's not a lie, in Virginia Beach courts it will help them."
I assume he wasn't just making it up. If Officer Bruch was just making things up out of whole cloth, then of course much of my argument cannot be supported.
I wouldn't normally think that pointing out just a simple error in someone else's video would be worth an entire article, either:)
I wrote this article about James Duane's video because it seems to be part of an extremely widespread set of bogus arguments about the Fifth Amendment. (Another one being "We need the Fifth Amendment to protect us from torture." Professor Duane doesn't make that argument, but a lot of people do, and it's ridiculous, because there are situations where the Fifth Amendment doesn't apply, but even in those cases, the government can't torture you.)
When a set of misconceptions like that is so widespread and ingrained in our national consciousness, it may be worth trying to get an article in front of people to get them to think about it.
Why is publishing the news a noble endeavor? Because it benefits people by informing them. Pointing out an extremely common misconception can be a worthy endeavor as well, if it benefits enough people by having them think more carefully about their own misconceptions.
I explained this in the very first article. If you say you're innocent of a crime and the government accuses you of perjury, to make the perjury charge stick, they would have to prove you guilty of the crime. And if they're able to "prove" you guilty of the crime (either because you really are guilty, or because the government is corrupt or incompetent), then you would be screwed anyway even if you had remained silent.
Slashdot Mirror
As the first comment pointed out, most of our users have censored web access so they cannot subscribe to an RSS feed or bookmark a site that lists new proxies all the time.
My users are on networks where web access is censored, so they typically can't "bookmark" a page where they can get new proxies.
If most people don't want to use email to receive content any more, fine. But for people who do, outfits like Spamhaus should not recklessly label people "spammers" when they know that their own classification system makes a lot of mistakes.
Actually, that's why I have my mailing list set up so that when someone joins the mailing list and replies to the confirmation message, the confirmation message reply goes to my personal email address (where a filter catches it and puts it in a mailbox so a script can mark those people's subscriptions as "confirmed"). My personal email address is also the address that I send the list messages from.
I was hoping this would mean that the user's mail client would see that they're already "communicating with" my email address, and would be less likely to block messages from me as spam. Unfortunately, it doesn't always work.
I never saw any evidence that the domain names got blacklisted because they were being used as redirector URLs by spammers. I've looked through a lot of spam and it's extremely rare to see a link in spam that goes through a web proxy (as opposed to a url shortener, which is more common).
For one thing, my domains got blacklisted almost immediately after they were mailed out. If it had been a spammer looking for a web proxy, they would have been far more likely to use one of the existing web proxies out there that was easily findable with Google. The fact that Spamhaus blacklisted them right away, is more consistent with the explanation that someone falsely reported the domain to them as "spam" and they blacklisted it without checking, or else that they subscribed an address to our list (going through the confirmed-opt-in process) and then blacklisted new domains sent to that address.
Regardless, if Spamhaus's system said "Mails containing this domain name are probably spam", then they made an error, and what they should have done afterwards is come clean about how the domain got incorrectly blacklisted, and whether they were doing anything to avoid the problem in the future.
Basically, I don't think the problems are unfixable. But part of the solution is to call out groups like Spamhaus that are making errors and refusing to acknowledge the errors as a matter of policy.
Indeed, if we removed it, then the rules, for defendants would essentially be the same as the rules for third-party witnesses, to wit:
- You cannot be compelled to give a particular answer, only to answer a question truthfully
- You cannot (obviously) be tortured into answering a question
- You cannot be compelled to answer an irrelevant question
- You can be compelled to answer a question that is relevant to the criminal case (where the punishment for refusing to answer is being charged with contempt, not torture)
And my question has been: What's so bad about that? If we can require third-party witnesses to answer relevant questions in court, why not the defendant too?
Perhaps part of the confusion is over the distinction between a suspect that has been arrested and a suspect that has not been arrested.
1) Would you agree that if a suspect has not been arrested, then their right to refuse to answer questions does not come from the Fifth Amendment? At that point they're not even legally distinct from a third-party witness. As you said, they're free to just leave.
So perhaps you might not only agree but think that's obvious. (However, James Duane did start his presentation by saying "Thank God for the Fifth Amendment" and went on to talk about the importance of staying quiet in situations where you haven't been arrested yet.)
2) Now, after you're arrested, consider the question of whether your right to refuse to answer questions comes from the Fifth Amendment.
First, the question doesn't have a well-defined answer, because we're asking, "What would happen in a bizarro version of our world that was identical except that we had no Fifth Amendment?", and nobody can possibly know that, because that world doesn't exist. You can only make a reasoned answer.
Here's my argument: Even after you're arrested and in custody, and assuming the Fifth Amendment did not exist, there is still no written rule that gives the cops the authority to ask you questions and punish you if you don't answer. They cannot make you do anything except comply with the arrest procedures. If they ask you a question and you just sit there and hum, they can't sentence you to extra jail time (much less torture you, which they are prohibited from doing to any detainee for any reason).
By contrast, there is a written rule that authorizes a court to subpoena a third-party witness to testify, on pain of being jailed for contempt -- but the Fifth Amendment specifically says this rule can't be applied to criminal defendants in their own trial, so that protection does come from the Fifth Amendment.
Basically, in order to say that the right to silence in a given situation comes from the Fifth, the Fifth would have to carve out an exception to some other rule which gives the state the power to ask you questions and punish you if you don't answer. There is no such rule if the police are asking you questions when you're under arrest, so I would argue the Fifth isn't technically what gives you the right to silence there.
If you disagree, let me ask: In bizarro world where everything is identical except we have no Fifth, then under what authority could the police "make" you ask you questions if you've been arrested? What could they do if you didn't? Or, do you think that's the wrong way to ask the question?
I addressed the "unjust law" issue in the first article:
http://yro.slashdot.org/story/13/06/07/1439220/seeking-fifth-amendment-defenders
But, briefly: Of course the law might be unjust, but how are you going to create a rule that protects people who violated unjust laws, without also protecting people who violated the good ones? You'd have to have a list of which laws are just and unjust, and if people agreed on that, you might as well just throw the unjust laws out.
But you're just coming up with exceptions and qualifiers to #1 and #2. Some of those are valid, but they don't affect the main chain of reasoning:
1) Third-party witnesses, insofar as their testimony would not incriminate themselves, do not have a Fifth Amendment right to silence.
2) They still have the right to refuse to answer questions from the police.
3) Therefore their right to refuse to answer questions from the police, does not come from the Fifth Amendment.
Also, I don't know why you said, "And note that unlike a coerced suspect, compelling a witness to testify is not a compulsion to testify in a particular way." But compelling a suspect to testify is not a compulsion to testify in a particular way, either. You can tell a suspect that they have to answer without requiring them to give a particular answer.
You missed the point of my previous post:
1) Third-party witnesses do not generally have a Fifth Amendment right to remain silent. (As the Josh Wolf case shows for example -- they can be compelled to answer questions by a court subpoena.)
2) And yet, third-party witnesses do have the right to refuse to answer questions when questioned by the police (not the courts).
3) Therefore, wherever the right to remain silent when questioned by the police, comes from, it can't come from the Fifth Amendment.
If you don't think that is correct, then which of #1, #2, or #3 do you think is incorrect?
I'm just trying to distinguish between (1) saying that the state cannot compel you to give a particular answer, and (2) staying that the state cannot compel you to answer a question. (Regardless of what that question might be; it might be something other than "Are you guilty?".)
A lot of people seem to think the Fifth Amendment is #1 -- that the Fifth Amendment protects you against the state forcing you to say that you're guilty even if you're innocent -- and that if I'm questioning the Fifth, I must be saying that would be OK! No, of course not.
I'm saying that I don't see a problem with compelled to answer particular questions relevant to the crime. "Are you guilty?" would be one of them (although as you point out, you're already effectively required to answer that question). There might be others. The burden of proof should be on the state to show that the question is relevant. If you weren't at the scene of the crime because you were out at a gay strip club, you should be perfectly within your rights to say, "I wasn't at the murder scene, but I would prefer not to tell you where I was."
In other words, apply the same rules as we apply to third-party witnesses -- where there is proper oversight in what questions you can be required to answer (and obviously, you could never be compelled to give a particular answer, only to answer the question), however, at the same time you don't have the blanket right to refuse to answer any questions that might help solve the crime. I just don't see the big problem with that. That is how we treat third-party witnesses currently, and it doesn't seem to have led to widespread abuse (comparable to, say, the shameful problem of poor people getting treated worse in court than rich people because they can't afford $500/hour lawyers).
Third party witnesses can only be compelled to speak with a subpoena (in a court of law), otherwise retaining a right to remain silent. In court the attorneys and judge act as checks against each other so that improper questions can be dismissed (although it is not the person being questioned's decision on what is proper). So as for questioning by the police (as opposed to the courts), third-party witnesses have the same rights as a suspect.
That's a good point, I've been thinking that this whole time, one of the premises that both sides have been assuming in these threads, is probably wrong -- that the Fifth Amendment is what gives you the right to be silent if the police question you. But as you pointed out, third-party suspects are not protected by the Fifth Amendment, but they can stay silent when the police question them, so that right can't come from the Fifth.
Really, I think the reason the police can't force you to answer a question, is the same reason they can't make you hop one one foot: The police can't make you do anything except comply with the law, and even after you've been arrested, the police can't make you do anything that isn't relevant to the arrest procedures (like give your fingerprints). By that reasoning, the Fifth has nothing to do with it.
OK so I think what Professor Duane meant to say was "It can help to talk to the cops, but not any more than it would have helped to just wait for your lawyer and then communicate through your lawyer."
I still think there are exceptions to this (if the information you have is time-critical, by the time your lawyer shows up it might be too late), but generally I would have had less of a problem with this rule since it's not clearly contradicted by what Bruch was saying.
I think working in the legal system would be too aggravating because my usual methods for pointing out what I think are errors -- methods that are encouraged in the sciences and other fields that actually care about getting the best possible answer -- are not allowed in court. e.g. if a judge says something that I think is wrong, I'd be inclined to say, "If we poll ten law professors and ask them whether position A or B is correct, if 8 out of 10 of them say position A, will you change your mind from position B?" But you can't do that in a courtroom, even though that would be one of the strongest arguments for switching to position A.
I wrote about a case where a local judge ruled that IP addresses were not "Personally Identifiable Information" under Microsoft's definition because they were sometimes shared by multiple people:
http://yro.slashdot.org/story/09/07/21/128215/pii-in-the-sky
I said that was ridiculous because phone numbers, addresses, and pretty much all other pieces of personal information except SSNs, were often shared between multiple people, so by that reasoning, everything would be disqualified. I think if you'd asked multiple law professors, "Which argument is correct? (1) IP addresses are not PII because they can be shared by multiple people. or (2) The fact that IP addresses are shared by multiple people is not a valid reason to exclude them as PII, because virtually all personal data attributes including addresses and phone numbers, can be shared by multiple people", you would get more votes for #2. (Of course they'd hedge their bets by saying that "PII" is a Microsoft definition, not a legal definition, but still, the judge had to decide one way or another.) But all people did was whine and moan that I wasn't a lawyer.
OK so what Professor Duane should have said was, "It can help you to talk to the police, but not any more than it would have helped you to just wait for a lawyer and then communicate with the police through your lawyer." I would have had less of a problem with that since it's not as clearly contradicted by the examples that Officer Bruch gave.
However, that statement might still not be true, in cases for example where the information you have is time-critical (might help prevent another crime, or catch the real perp before he gets away), and if you wait until your lawyer shows up, your information might not do any good any more.
Well just because the Fifth Amendment doesn't make any difference in those scenarios, doesn't mean there aren't other scenarios where the Fifth could make some difference. For example, in open court, we have to follow the rules, so if the prosecutor wants to ask the defendant, "Did you do it?" but the defendant doesn't want to answer at all, now the scenario is different depending on whether we have the Fifth Amendment or not.
At that point, you have to argue why the Fifth-Amendment-outcome is better. That's why I said in the original article that if I were innocent, I wouldn't consider it unduly burdensome to say, "No, I didn't do it. I don't feel like telling you where I was at the time, but I wasn't at the scene of the crime and I don't have to tell you anything else."
Sorry this wasn't clear: What I'm saying is that the Fifth Amendment is not the law that prevents the cops from beating you up in the interrogation room. (We know this, because there are other scenarios where the Fifth Amendment doesn't apply and you have to answer -- but even in those scenarios, the cops obviously can't beat you up. So wherever the right not to be beat up from the police, comes from, it doesn't come from the Fifth Amendment.)
I'm certainly not in favor of throwing out rules just because the cops might ignore them. I'm not in favor of throwing out the rule against beating up people in the interrogation room, for example. I'm just saying that that rule is not the Fifth Amendment, so it's irrelevant to the discussion.
Bruch said that he thought the person was guilty when he brought them in ("I try not to bring anyone in to the interview room who's innocent"), but the person managed to convince the police that he was innocent.
If you change the minds of the police from thinking you're guilty to thinking you're innocent, I'm counting that as helping. It definitely helps if they previously were so convinced of your guilt that they were about to arrest you. But even if they weren't about to arrest you, I'd consider it quite beneficial to no longer have the police thinking that you're guilty.
Word for word, what George Bruch says in the video is:
"If I get before the judge and tell him you were honest, straightforward, and willing to take responsibility for your actions, that is gonna help you. That's not a lie, in Virginia Beach courts it will help them."
I assumed he wasn't just making that up. If he's making it up, then of course you're right, that part of my argument falls apart.
They may interpret "client's best interest" to be limited to the outcome of legal cases. If the client thinks he can make his neighborhood safer by turning in a criminal, a lawyer might plausibly claim he wasn't obligated to consider that when calculating his "client's best interest".
Otherwise, what's to stop the lawyer from generalizing even further and telling his client to lose weight because he thinks that's in the "client's best interest"?
He said "You're going to lose, unless you're purely innocent. On the other side of it, I don't want to put anyone who's innocent in jail. I try not to bring anyone in to the interview room who's innocent. And there are a couple that I have let walk away because they were innocent."
The statement "You're going to lose, unless you're purely innocent" sounds like a statement that if you're innocent, getting let go is the norm rather than the exception.
If you listen closely to both of the talks, Professor Duane seems to be saying that talking to the cops is a terrible idea even if you're innocent; Officer Bruch seems to be saying that talking to the cops is a terrible idea if you're guilty, but if you're innocent, it probably won't hurt and might help. Their messages are not as in sync as they seemed to think they are.
No what I'm saying is that the law against the police beating you up is not the Fifth Amendment. (We know that, because there are other scenarios where the Fifth Amendment does not apply, but even in those cases, the cops still can't beat you up. So wherever the right not to be beat up comes from, it doesn't come from the Fifth Amendment.) So the claim that without the Fifth Amendment, the cops could just beat you up until you confessed, is ridiculous.
To his credit, even James Duane did not make this claim, even though he pulled out all the stops talking about how great the Fifth Amendment was.
Requiring someone to answer a question is not the same as requiring them to self-incriminate.
If I'm innocent, then requiring me to answer the question just requires me to say, "I'm innocent." Requiring me to self-incriminate would mean forcing me to say, "I'm guilty."
"As I explained in the first article: If you take away the "right to remain silent", a suspect can still say, "No, I didn't do it," and the police options for "coercing" them are the same as they were before."
You imagine, that the way it works without a Fifth Amendment is that there is a particular crime, and police are only allowed to ask if you committed that crime or not. However, without a Fifth Amendment, you must answer all questions the police ask you. There are no more choices.
But that's what I'm saying -- you could, perfectly logically, have a middle ground between "You have the right to refuse to answer any question asked by the police" and "You have to answer any question asked by the police". You could just say, instead, "You have to answer any question about information you might have regarding the specific crime they're investigating, but you don't have to answer anything else that's irrelevant, and the burden of proof is on the police to show that something is relevant."
In other words, make the rule the same as it is for third-party witnesses now: you can't be coerced into a giving a *particular* answer (and, obviously, can't be tortured or anything else like that), but you do have to answer questions about the actual crime. (And if the state thinks you're lying, they have to prove it beyond a reasonable doubt just like any other crime, of course.)
Well I was just going by what George Bruch said, which was, word for word:
"If I get before the judge and tell him you were honest, straightforward, and willing to take responsibility for your actions, that is gonna help you. That's not a lie, in Virginia Beach courts it will help them."
I assume he wasn't just making it up. If Officer Bruch was just making things up out of whole cloth, then of course much of my argument cannot be supported.
I wouldn't normally think that pointing out just a simple error in someone else's video would be worth an entire article, either :)
I wrote this article about James Duane's video because it seems to be part of an extremely widespread set of bogus arguments about the Fifth Amendment. (Another one being "We need the Fifth Amendment to protect us from torture." Professor Duane doesn't make that argument, but a lot of people do, and it's ridiculous, because there are situations where the Fifth Amendment doesn't apply, but even in those cases, the government can't torture you.)
When a set of misconceptions like that is so widespread and ingrained in our national consciousness, it may be worth trying to get an article in front of people to get them to think about it.
Why is publishing the news a noble endeavor? Because it benefits people by informing them. Pointing out an extremely common misconception can be a worthy endeavor as well, if it benefits enough people by having them think more carefully about their own misconceptions.
I explained this in the very first article. If you say you're innocent of a crime and the government accuses you of perjury, to make the perjury charge stick, they would have to prove you guilty of the crime. And if they're able to "prove" you guilty of the crime (either because you really are guilty, or because the government is corrupt or incompetent), then you would be screwed anyway even if you had remained silent.