Of course participants should contribute. Who ever said you shouldn't contribute? I volunteered multiple shifts with Charcadia, the village I was staying in, which set up Dance Dance Immolation and other games. When I wasn't doing that, I biked around and did street magic for some people, or just met people and made new friends. And the whole point is that I had more time to do those things, because I didn't spend time doing things like building a hexayurt.
The suggestions that I'm making are suggestions that only make things easier for yourself, and have no bearing on whether you're contributing to the community. When you're building housing for yourself, whether you build a hexayurt or just throw up a tent in two minutes, makes no difference to anyone else there.
I should add: the editors (for the millionth time) changed the title of the article to something that made a lot less sense than my originally submitted title. My original title was:
Burning Man Made (Slightly) Easier
They changed it to:
What I Did During My Summer Vacation: Burning Man Edition
Giving that title to the article, makes it sound like all I actually did at Burning Man was rent a bike and melt my own ice to make water, which indeed would have been a pretty boring experience. If I had been writing about what I did, I would have included more about the street magic and about volunteering for Charcadia.
You can see some amazing stuff there, all the more amazing when you realize that most of what you see was built by volunteers on their own budget in their own backyard (and then disassembled and trucked out and re-assembled in the desert).
I grew up on the Mad Max movies and never dreamed that I'd be hanging off of a real Thunderdome watching people fight inside. For you it might be something else.
The people in my camp were absolutely chil and trustworthy people. I ran into some of the kind of pretentious people that you're talking about, but it's not impossible to find people to go with who aren't like that.
I figured that the less time you spend building your living space and cooking your own food, the more time you can spend participating in other ways.
If building a kick-ass living space is how you participate, fine, that's one way. Or you can set up an unremarkable living space very quickly, so that you can use more time to explore and share music or art or whatever skill it is you brought with you.
I couldn't find a way to buy a bike and get it out to the playa and then get rid of it afterwards. I understand there are some charities that collect bikes from people as they're leaving, but the information about that option, was rather scattered. I couldn't find a single information source making it absolutely clear that I would be able to get rid of my bike that way, and I didn't want to be stuck on the last day without a way to ditch the bike.
Of course $200 is expensive, but I think the long-term solution to that is price competition between different bike rental camps. There are multiple bike rental camps right now that do compete on price, and all of them do still charge about $200, so maybe that does reflect the true cost to them of trucking in the bikes, trucking them out, and dealing with wear-and-tear issues resulting from a week of riding them at Burning Man.
Well, I had fun, and I didn't trip on any drugs except Benadryl. I like music and art. I also like sex, but the despite a pretty-even ratio of guys to girls at the event (only 53% male according to http://afterburn.burningman.com/11/census/ ), the ratio of unattached men to women (i.e. single, or poly, or otherwise available to have sex), is pretty high. So only the tallest and best-looking men (or, if you're an idiot, the "most confident") have much of a shot, so I didn't bother trying very hard. Besides, I didn't have a lot of space in my aforementioned single-occupancy tent.
You really can see a lot of mind-blowing things there without the sex and drugs. I grew up on the Mad Max movies and never dreamed that I'd be hanging off the side of a real-life Thunderdome watching a fight.
I met some people like that, but a lot of people who weren't. Part of why I wrote the article is that even for veterans who really do want to make it easy for newbies, the veterans may have been doing it the hard-core way for so long, that they don't even recognize the invisible assumptions that make it hard for newbies to follow their advice. (For example, they might give you packing advice based on the assumption that you're driving there; they might talk to you for five minutes about building a hexayurt without realizing that you can't do that because you're planning to fly in and you can't pack the materials on a plane.) Now a veteran could just send the newbie a link to this article, while appending their own suggestions and modifications to this advice.
I probably should have emphasized that I did spend most of the time actively participating; I did some magic for passers-by and for a few groups of people who invited me back to their camp after they saw me doing some street magic. (And I was living in Charcadia, the village that runs the Charcade, the fire-themed live-action video games, so I put in some volunteer shifts helping to keep those games running.)
I don't think I had a "solitary" experience. I didn't expect people to stop by my single-occupancy tent, which is why I went out to meet other people:) But I didn't talk about my own contributions in the article because I didn't think they were as relevant to what I was trying to tell people, which was, how to get there and survive there taking the path of least resistance.
However, my whole reason for taking the path of least resistance, was so that I could free up more time to volunteer or do my own performing or participate in other people's events. That's why I figured it was in keeping with the spirit of Burning Man.
If I had an afternoon off here in Bellevue with nothing else to do, it might be fun to go out and learn to build a hexayurt. I just didn't want to do it at Burning Man because it would have taken time away from something else.
As for water and the bikes -- (1) whether you bring in your own water or rely on the camp to bring it in for you, things *could* go wrong either way; letting an experienced campmate take care of it might actually be the safer option. On my camp organizer's advice, I did bring in a gallon of my own water in case there were problems at the beginning of the event. (I packed it empty, and then got it out and filled it up at Reno Airport.) (2) Having a unique look to your bike makes it hard to steal, but so does locking it. Cutting through a bike lock is probably a lot easier than scraping off someone's "unique" bike design to make it unrecognizable.
Of course if someone wants to truck in the materials for a hexayurt and build it, more power to them -- I just want people to know there is the option of doing it an easier way.
In my original article: http://yro.slashdot.org/story/13/06/07/1439220/seeking-fifth-amendment-defenders
I did say that they shouldn't be able to ask you about anything not relevant to the crime being tried -- even if you say "I didn't commit the murder", and they ask "Well then, where were you that night?", you should be able to say "None of your business."
What I thought was silly is that you can refuse to answer the question of whether you committed the murder at all. That is, and should be, "everybody's business".
So paying someone not to testify would be illegal. Now, if witnesses had the option of not testifying, you might be worried that they would illegally take cash under the table to refuse to testify. That's true, but we already have the equivalent problem in the existing system, where witnesses can be forced to testify but you could just as easily bribe them to lie on the stand.
Except that under the current plan, we're both committing a crime (one is bribing, the other is perjury). If a person can choose whether to testify or not, I don't see how that's bribery rather than just ol' fashioned lobbying. (And we haven't touched the more obvious underhanded "Hey, I'd like to hire you for $$$$ money for this job starting out of state" methods - if you aren't compelled to testify, it's a lot easier to just make it too inconvenient to bother coming back.)
That's interesting. What if we just said to the witness: You have to be present in court and be questioned, but you can invoke a right to remain silent. This eliminates the problem of witnesses playing hooky just for the convenience of it.
It doesn't solve the problem of witnesses being bribed or threatened, but we already have that problem anyway, as under our existing system witnesses can be bribed or threatened into lying, rather than remaining silent.
Well, here's a difference: there is a cost to the defendant if they're forced to testify (self-incrimination). What is the equivalent cost to the witness?
And a more interesting question - what happens if the witness is forced to the stand and declines to take the oath? Can the government force you to take the oath under duress?
Well yes if the defendant is guilty and they're forced to testify, they might get caught, but is that a bad thing? Unless a law is really unjust, dont' we want guilty people to get caught?
If you're worried that someone innocent will be put on the stand, declare their innocence, and then get railroaded anyway, I already responded to this in the original article -- if the court is corrupt or incompetent enough to railroad you without sufficient evidence, they can do that with or without your testimony.
I think you're sidestepping a couple points here. It's entirely possible that there are any number of reasons I don't want the guilty person to get caught. You mention "unjust law". Let's add "close friend/family member" and "I don't want to get involved" as the obvious reasons why a person may want an *accused* person to go free, but society at a whole doesn't.
Yes, these are all compelling reasons why we would want to be able compel a witness to testify.
My argument is that there are at least as many reasons for wanting to compel a defendant to testify. And I don't see the argument for why there should be a sacred right of the defendant not to answer questions, but not for third-party witnesses. (Some people on these boards keep saying things like "Because that's self-incrimination!", as if repeating the definition somehow amounts to an argument.)
1. "If witnesses are allowed the option of not testifying, all a criminal needs to do to avoid conviction is convince the witnesses not to testify. I'll leave it up to you to think of ways he could do that (many of which, if not testifying is an option, would be perfectly legal)." I don't think this makes sense. Just because it's legal to do X does not mean it's legal to intimidate someone into doing X. It's legal for Bob to give you his wallet but not legal for you to coerce him into doing it.
Sure it does. I'm Mr. Moneypants. I commit a crime in front of a witness (that doesn't directly affect you - you were just a bystander). I send my lawyer/accountant/flunky to the witness and say "hey, here's a check for ten million bucks in exchange for you not testifying." How many people in the US are going to turn that down, particularly if they're not emotionally attached to the crime?
Well of course most people would take it, but you asked if it would be legal. And I said that in general, just because it's legal to do X does not mean it's legal to bribe someone to do X. It's legal for a cop to let you off with a warning; does that make it legal for you to pay them to let you off? It's legal for you to vote for Obama; does that mean it's legal for his campaign to pay you to vote for him?
So paying someone not to testify would be illegal. Now, if witnesses had the option of not testifying, you might be worried that they would illegally take cash under the table to refuse to testify. That's true, but we already have the equivalent problem in the existing system, where witnesses can be forced to testify but you could just as easily bribe them to lie on the stand.
2. All your points about the difficulty of prosecuting a case without third-party witnesses, are correct, however I addressed this in the article -- this is basically an argument that if you had to choose between compelling testimony from a defendant and compelling testimony from third-party witnesses, you would choose testimony from third-party witnesses just because there are often more of them, and no hope of getting a conviction otherwise.
However, since you don't actually have to choose between the two, my question is: Is there a principled argument, from first principles about rights of the state vs. rights of the individual, as to why we should be allowed to require answers from third party witnesses but not defendants? If we require answers from third party witnesses because those answers are valuable, why can't we require answers from the defendant if they might be valuable too?
Well, here's a difference: there is a cost to the defendant if they're forced to testify (self-incrimination). What is the equivalent cost to the witness?
And a more interesting question - what happens if the witness is forced to the stand and declines to take the oath? Can the government force you to take the oath under duress?
Well yes if the defendant is guilty and they're forced to testify, they might get caught, but is that a bad thing? Unless a law is really unjust, dont' we want guilty people to get caught?
If you're worried that someone innocent will be put on the stand, declare their innocence, and then get railroaded anyway, I already responded to this in the original article -- if the court is corrupt or incompetent enough to railroad you without sufficient evidence, they can do that with or without your testimony.
Since you claim to have read the previous article, did you read the part explaining why the right not to be tortured by the police does not come from the Fifth Amendment?
I did not say courts only hear cases for guilty people, I said that if you're innocent, then the "damned if you do, damned if you don't" quandary does not apply, because you can truthfully say you're innocent.
I've seen the "Don't Talk to the Police" video, but the law professor makes a few logical errors that undercut his argument. For example he says that in every case where the suspect ends up going to trial, their lawyer ends up wishing that the suspect had not talked to the police when they were arrested. The two errors here are: (1) His sample is excluding people who talked to the police and ended up not getting subsequently arrested. (The cop who speaks after Professor Duane says that there are obviously cases where the police talk to people and do not end up arresting them.) And (2) his sample includes people who are guilty, who got tripped up by their own words; Professor Duane says those people would have been better off not talking to the police, which is obviously true, but would society be better off if the guilty people hadn't been caught?
Besides, he's obviously not literally telling the truth when he says he will "never, ever" talk to the police -- what if his house got broken into? Hey, he had to talk to that cop to get him to appear in the video, didn't he? So if he didn't mean it literally, then what did he mean? One problem with staking out an extreme position is that if your own description of your position can't possibly be literally true, people are left guessing as to what version of your extreme position you actually do believe in. I assume he means that he would never talk to the police if the police approached him to gather information about a crime. But again, do you think that's literally true? What if the cops wanted to ask him about a case where one of his own family members had been assaulted? OK, maybe in that case, if it would help catch the perp -- but not if the victim was someone outside his family? Their protection isn't important enough for him to break his "Don't talk to cops" rule?
But you still haven't said why you think requiring an answer from a defendant (a potentially self-incriminating one) is an "egregious abuse", but requiring an answer from a third-party witness (which might potentially incriminate someone else) is not.
You mention "forcing confessions through coercion". Every time someone says that the Fifth Amendment is what protects us against the police beating us up if we give an answer they don't like, I point out the same thing: Third-party witnesses don't have a Fifth Amendment right to remain silent, but they still have the right not to get beaten up by the police. So wherever that right comes from, it doesn't come from the Fifth Amendment right to remain silent.
We know what the Fifth Amendment says. My question, once again, is: Is there a logical argument, from first principles about rights of the state vs. rights of the individual, as to why we should grant defendants the right to remain silent, but not third-party witnesses? Is there a good reason that we enshrine the right against self-incrimination, but not the right against incrimination of others?
Right, a third-party witness can refuse to answer if they think they will incriminate themselves, but only if they think they will incriminate themselves. Josh Wolf went to jail because he wanted to keep his source materials secret to avoid incriminating third parties, but it was generally agreed that his source materials wouldn't incriminate himself (he didn't participate in the riots that he taped), so he was jailed for contempt.
I understand that "a witness can't just refuse to testify for any reason", but my original question is: Is there a logical argument, from first principles about rights of the state vs. rights of the individual, as to why we can't compel a defendant to testify but we can require a witness to answer?
Certainly a lot of witnesses would clam up, as you suggest, and we'd lose some testimony as a result. However, under our existing Fifth Amendment, a lot of defendants do clam up, and presumably we lose some valuable testimony as a result of that too. I want to know if there's a principled reason why we let the defendant remain silent -- even though it does "obstruct justice" in the literal sense of obscuring facts that are relevant to the case -- but don't do the same for witnesses.
But "damned if you do, damned if you don't" only applies if you're guilty. If you're innocent, you just tell them that.
If the court is corrupt or incompetent enough that they'll try and convict you anyway, then that's a separate problem, and that's something they could have done even if you had remained silent.
There is absolutely no point compelling an answer to your #2 question. None. The only possible reason for compelling an answer is that you hope you will trip the guy up an he will reveal something he did not want to (such as his guilt).
Isn't that a valid reason? Isn't convicting guilty people a good thing? Unless the law itself is unjust, which may often be the case -- but then that's a separate problem, and needs to be addressed on behalf of all the people who get caught where the Fifth Amendment doesn't help them (e.g. where the cop sees you with his own eyes smoking pot).
I didn't say 'coerce', I said 'convince'. If I say to Bob 'give me your wallet, and I'll give you $100', and he gives me his wallet and I give him $100, exactly what crime has been committed? That is not a bribe, as a bribe is payment for doing something illegal or wrong. If I have a choice as to whether or not to testify, then you can not possibly bribe me to not testify, as not testifying is neither illegal nor wrong. However, if it is not legal to testify, then indeed you could bribe me to not testify.
Similarly, just because it's legal to do X, doesn't mean it's legal to pay someone to do X. It's legal for a cop to let you off with a warning; is it legal for you to pay them to do so? It's legal for me to vote for Obama; should it be legal for his campaign to pay me to vote for him?
Or to take something more directly on point: Suppose Bob the defendant is innocent, and the case against him is so weak that he figures he'll probably get off even without testifying on his own behalf, but Bob is planning to ensure his acquittal by giving testimony that will lead to proof that his friend Alice did it. Alice realizes what Bob is planning on doing, so she pays Bob off to plead the Fifth instead. Surely that's not legal, even though it would have been legal for Bob to plead the Fifth without any outside influence.
Yes I know that "it would be self-incrimination", that's just repeating a definition. You haven't given a reason why that should be prohibited but "third-party incrimination" (i.e. requiring answers from third-party witnesses) should not be.
The difference is that the first can be used to ensnare everybody; the second can only be used to ensnare the guilty (which I would say is not a bad thing, unless the law itself is unjust, in which case that's a separate problem).
It is NOT separate from the principle of innocent until proven guilty. Back when the Constitution was written, pretty much the only chance of getting a conviction for a crime was by the testimony of witnesses. There was no forensics, no DNA analysis, no ballistics, etc. Therefore, the only way for the state to 'prove' guilt was by witness testimony. If witnesses are allowed the option of not testifying, all a criminal needs to do to avoid conviction is convince the witnesses not to testify. I'll leave it up to you to think of ways he could do that (many of which, if not testifying is an option, would be perfectly legal).
Two things:
1. "If witnesses are allowed the option of not testifying, all a criminal needs to do to avoid conviction is convince the witnesses not to testify. I'll leave it up to you to think of ways he could do that (many of which, if not testifying is an option, would be perfectly legal)." I don't think this makes sense. Just because it's legal to do X does not mean it's legal to intimidate someone into doing X. It's legal for Bob to give you his wallet but not legal for you to coerce him into doing it.
2. All your points about the difficulty of prosecuting a case without third-party witnesses, are correct, however I addressed this in the article -- this is basically an argument that if you had to choose between compelling testimony from a defendant and compelling testimony from third-party witnesses, you would choose testimony from third-party witnesses just because there are often more of them, and no hope of getting a conviction otherwise.
However, since you don't actually have to choose between the two, my question is: Is there a principled argument, from first principles about rights of the state vs. rights of the individual, as to why we should be allowed to require answers from third party witnesses but not defendants? If we require answers from third party witnesses because those answers are valuable, why can't we require answers from the defendant if they might be valuable too?
There's no reason you can't honor the principle of "A person is innocent until proven guilty beyond a reasonable doubt", and still require the defendant to answer questions about whether they're guilty. If you do require them to answer, and they say they're innocent, you'd still have to prove them guilty beyond a reasonable doubt in order to convict them.
You've offered a bunch of reasons why it's moral to require witnesses to testify, but you haven't explained why they shouldn't also apply to the defendant as well. (Again, using an argument from first principles, and not just saying "Because that's how our courts interpret the Fifth Amendment.") "It's not moral for a person to ignore a crime. It's not moral to allow a criminal to be free of punishment. It's not moral to allow an innocent man to be jailed. A witness' testimony only illuminates the facts of a case." All of those are valid reasons to compel a defendant to testify as well.
in your own case you're forced to harm yourself in some manner regardless of which option you choose, which is considered inhumane and unjust
Only if you're guilty -- otherwise, you have the option of just saying you're innocent. Now as I've been saying ever since I wrote the first article, if your courts are so corrupt and incompetent that they just go ahead and convict you anyway even if you say you're innocent, that's a separate problem, and they could have done that even if you remained silent.
However I'll note that being forced to witness is a fairly rare law which doesn't exist in many other countries such as my own.
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Of course participants should contribute. Who ever said you shouldn't contribute? I volunteered multiple shifts with Charcadia, the village I was staying in, which set up Dance Dance Immolation and other games. When I wasn't doing that, I biked around and did street magic for some people, or just met people and made new friends. And the whole point is that I had more time to do those things, because I didn't spend time doing things like building a hexayurt.
The suggestions that I'm making are suggestions that only make things easier for yourself, and have no bearing on whether you're contributing to the community. When you're building housing for yourself, whether you build a hexayurt or just throw up a tent in two minutes, makes no difference to anyone else there.
I should add: the editors (for the millionth time) changed the title of the article to something that made a lot less sense than my originally submitted title. My original title was:
Burning Man Made (Slightly) Easier
They changed it to:
What I Did During My Summer Vacation: Burning Man Edition
Giving that title to the article, makes it sound like all I actually did at Burning Man was rent a bike and melt my own ice to make water, which indeed would have been a pretty boring experience. If I had been writing about what I did, I would have included more about the street magic and about volunteering for Charcadia.
You can see some amazing stuff there, all the more amazing when you realize that most of what you see was built by volunteers on their own budget in their own backyard (and then disassembled and trucked out and re-assembled in the desert).
I grew up on the Mad Max movies and never dreamed that I'd be hanging off of a real Thunderdome watching people fight inside. For you it might be something else.
The people in my camp were absolutely chil and trustworthy people. I ran into some of the kind of pretentious people that you're talking about, but it's not impossible to find people to go with who aren't like that.
I figured that the less time you spend building your living space and cooking your own food, the more time you can spend participating in other ways.
If building a kick-ass living space is how you participate, fine, that's one way. Or you can set up an unremarkable living space very quickly, so that you can use more time to explore and share music or art or whatever skill it is you brought with you.
iPhone? Silly, you can't enjoy my latest masterpiece without a familiarity with my entire oeuvre:
http://mobile.slashdot.org/story/13/08/02/1333257/how-did-my-stratosphere-ever-get-shipped
However, after years of dealing with unbelievably aggravating bugs in Android phones, I'm ready to try an iPhone, so maybe you still get the zing point.
I couldn't find a way to buy a bike and get it out to the playa and then get rid of it afterwards. I understand there are some charities that collect bikes from people as they're leaving, but the information about that option, was rather scattered. I couldn't find a single information source making it absolutely clear that I would be able to get rid of my bike that way, and I didn't want to be stuck on the last day without a way to ditch the bike.
Of course $200 is expensive, but I think the long-term solution to that is price competition between different bike rental camps. There are multiple bike rental camps right now that do compete on price, and all of them do still charge about $200, so maybe that does reflect the true cost to them of trucking in the bikes, trucking them out, and dealing with wear-and-tear issues resulting from a week of riding them at Burning Man.
Well shoot I included the tl;dr version right at the top of the article. #cantwin
Well, I had fun, and I didn't trip on any drugs except Benadryl. I like music and art. I also like sex, but the despite a pretty-even ratio of guys to girls at the event (only 53% male according to http://afterburn.burningman.com/11/census/ ), the ratio of unattached men to women (i.e. single, or poly, or otherwise available to have sex), is pretty high. So only the tallest and best-looking men (or, if you're an idiot, the "most confident") have much of a shot, so I didn't bother trying very hard. Besides, I didn't have a lot of space in my aforementioned single-occupancy tent.
You really can see a lot of mind-blowing things there without the sex and drugs. I grew up on the Mad Max movies and never dreamed that I'd be hanging off the side of a real-life Thunderdome watching a fight.
I met some people like that, but a lot of people who weren't. Part of why I wrote the article is that even for veterans who really do want to make it easy for newbies, the veterans may have been doing it the hard-core way for so long, that they don't even recognize the invisible assumptions that make it hard for newbies to follow their advice. (For example, they might give you packing advice based on the assumption that you're driving there; they might talk to you for five minutes about building a hexayurt without realizing that you can't do that because you're planning to fly in and you can't pack the materials on a plane.) Now a veteran could just send the newbie a link to this article, while appending their own suggestions and modifications to this advice.
I probably should have emphasized that I did spend most of the time actively participating; I did some magic for passers-by and for a few groups of people who invited me back to their camp after they saw me doing some street magic. (And I was living in Charcadia, the village that runs the Charcade, the fire-themed live-action video games, so I put in some volunteer shifts helping to keep those games running.)
:) But I didn't talk about my own contributions in the article because I didn't think they were as relevant to what I was trying to tell people, which was, how to get there and survive there taking the path of least resistance.
I don't think I had a "solitary" experience. I didn't expect people to stop by my single-occupancy tent, which is why I went out to meet other people
However, my whole reason for taking the path of least resistance, was so that I could free up more time to volunteer or do my own performing or participate in other people's events. That's why I figured it was in keeping with the spirit of Burning Man.
If I had an afternoon off here in Bellevue with nothing else to do, it might be fun to go out and learn to build a hexayurt. I just didn't want to do it at Burning Man because it would have taken time away from something else.
As for water and the bikes -- (1) whether you bring in your own water or rely on the camp to bring it in for you, things *could* go wrong either way; letting an experienced campmate take care of it might actually be the safer option. On my camp organizer's advice, I did bring in a gallon of my own water in case there were problems at the beginning of the event. (I packed it empty, and then got it out and filled it up at Reno Airport.) (2) Having a unique look to your bike makes it hard to steal, but so does locking it. Cutting through a bike lock is probably a lot easier than scraping off someone's "unique" bike design to make it unrecognizable.
Of course if someone wants to truck in the materials for a hexayurt and build it, more power to them -- I just want people to know there is the option of doing it an easier way.
In my original article:
http://yro.slashdot.org/story/13/06/07/1439220/seeking-fifth-amendment-defenders
I did say that they shouldn't be able to ask you about anything not relevant to the crime being tried -- even if you say "I didn't commit the murder", and they ask "Well then, where were you that night?", you should be able to say "None of your business."
What I thought was silly is that you can refuse to answer the question of whether you committed the murder at all. That is, and should be, "everybody's business".
So paying someone not to testify would be illegal. Now, if witnesses had the option of not testifying, you might be worried that they would illegally take cash under the table to refuse to testify. That's true, but we already have the equivalent problem in the existing system, where witnesses can be forced to testify but you could just as easily bribe them to lie on the stand.
Except that under the current plan, we're both committing a crime (one is bribing, the other is perjury). If a person can choose whether to testify or not, I don't see how that's bribery rather than just ol' fashioned lobbying. (And we haven't touched the more obvious underhanded "Hey, I'd like to hire you for $$$$ money for this job starting out of state" methods - if you aren't compelled to testify, it's a lot easier to just make it too inconvenient to bother coming back.)
That's interesting. What if we just said to the witness: You have to be present in court and be questioned, but you can invoke a right to remain silent. This eliminates the problem of witnesses playing hooky just for the convenience of it.
It doesn't solve the problem of witnesses being bribed or threatened, but we already have that problem anyway, as under our existing system witnesses can be bribed or threatened into lying, rather than remaining silent.
Well, here's a difference: there is a cost to the defendant if they're forced to testify (self-incrimination). What is the equivalent cost to the witness?
And a more interesting question - what happens if the witness is forced to the stand and declines to take the oath? Can the government force you to take the oath under duress?
Well yes if the defendant is guilty and they're forced to testify, they might get caught, but is that a bad thing? Unless a law is really unjust, dont' we want guilty people to get caught? If you're worried that someone innocent will be put on the stand, declare their innocence, and then get railroaded anyway, I already responded to this in the original article -- if the court is corrupt or incompetent enough to railroad you without sufficient evidence, they can do that with or without your testimony.
I think you're sidestepping a couple points here. It's entirely possible that there are any number of reasons I don't want the guilty person to get caught. You mention "unjust law". Let's add "close friend/family member" and "I don't want to get involved" as the obvious reasons why a person may want an *accused* person to go free, but society at a whole doesn't.
Yes, these are all compelling reasons why we would want to be able compel a witness to testify.
My argument is that there are at least as many reasons for wanting to compel a defendant to testify. And I don't see the argument for why there should be a sacred right of the defendant not to answer questions, but not for third-party witnesses. (Some people on these boards keep saying things like "Because that's self-incrimination!", as if repeating the definition somehow amounts to an argument.)
1. "If witnesses are allowed the option of not testifying, all a criminal needs to do to avoid conviction is convince the witnesses not to testify. I'll leave it up to you to think of ways he could do that (many of which, if not testifying is an option, would be perfectly legal)." I don't think this makes sense. Just because it's legal to do X does not mean it's legal to intimidate someone into doing X. It's legal for Bob to give you his wallet but not legal for you to coerce him into doing it.
Sure it does. I'm Mr. Moneypants. I commit a crime in front of a witness (that doesn't directly affect you - you were just a bystander). I send my lawyer/accountant/flunky to the witness and say "hey, here's a check for ten million bucks in exchange for you not testifying." How many people in the US are going to turn that down, particularly if they're not emotionally attached to the crime?
Well of course most people would take it, but you asked if it would be legal. And I said that in general, just because it's legal to do X does not mean it's legal to bribe someone to do X. It's legal for a cop to let you off with a warning; does that make it legal for you to pay them to let you off? It's legal for you to vote for Obama; does that mean it's legal for his campaign to pay you to vote for him?
So paying someone not to testify would be illegal. Now, if witnesses had the option of not testifying, you might be worried that they would illegally take cash under the table to refuse to testify. That's true, but we already have the equivalent problem in the existing system, where witnesses can be forced to testify but you could just as easily bribe them to lie on the stand.
2. All your points about the difficulty of prosecuting a case without third-party witnesses, are correct, however I addressed this in the article -- this is basically an argument that if you had to choose between compelling testimony from a defendant and compelling testimony from third-party witnesses, you would choose testimony from third-party witnesses just because there are often more of them, and no hope of getting a conviction otherwise. However, since you don't actually have to choose between the two, my question is: Is there a principled argument, from first principles about rights of the state vs. rights of the individual, as to why we should be allowed to require answers from third party witnesses but not defendants? If we require answers from third party witnesses because those answers are valuable, why can't we require answers from the defendant if they might be valuable too?
Well, here's a difference: there is a cost to the defendant if they're forced to testify (self-incrimination). What is the equivalent cost to the witness?
And a more interesting question - what happens if the witness is forced to the stand and declines to take the oath? Can the government force you to take the oath under duress?
Well yes if the defendant is guilty and they're forced to testify, they might get caught, but is that a bad thing? Unless a law is really unjust, dont' we want guilty people to get caught?
If you're worried that someone innocent will be put on the stand, declare their innocence, and then get railroaded anyway, I already responded to this in the original article -- if the court is corrupt or incompetent enough to railroad you without sufficient evidence, they can do that with or without your testimony.
Since you claim to have read the previous article, did you read the part explaining why the right not to be tortured by the police does not come from the Fifth Amendment?
I did not say courts only hear cases for guilty people, I said that if you're innocent, then the "damned if you do, damned if you don't" quandary does not apply, because you can truthfully say you're innocent.
I've seen the "Don't Talk to the Police" video, but the law professor makes a few logical errors that undercut his argument. For example he says that in every case where the suspect ends up going to trial, their lawyer ends up wishing that the suspect had not talked to the police when they were arrested. The two errors here are: (1) His sample is excluding people who talked to the police and ended up not getting subsequently arrested. (The cop who speaks after Professor Duane says that there are obviously cases where the police talk to people and do not end up arresting them.) And (2) his sample includes people who are guilty, who got tripped up by their own words; Professor Duane says those people would have been better off not talking to the police, which is obviously true, but would society be better off if the guilty people hadn't been caught?
A good rebuttal to his argument can be found here:
http://www.weeklystandard.com/weblogs/TWSFP/2008/08/white_lawyer_says_dont_talk_to.asp
Besides, he's obviously not literally telling the truth when he says he will "never, ever" talk to the police -- what if his house got broken into? Hey, he had to talk to that cop to get him to appear in the video, didn't he? So if he didn't mean it literally, then what did he mean? One problem with staking out an extreme position is that if your own description of your position can't possibly be literally true, people are left guessing as to what version of your extreme position you actually do believe in. I assume he means that he would never talk to the police if the police approached him to gather information about a crime. But again, do you think that's literally true? What if the cops wanted to ask him about a case where one of his own family members had been assaulted? OK, maybe in that case, if it would help catch the perp -- but not if the victim was someone outside his family? Their protection isn't important enough for him to break his "Don't talk to cops" rule?
But you still haven't said why you think requiring an answer from a defendant (a potentially self-incriminating one) is an "egregious abuse", but requiring an answer from a third-party witness (which might potentially incriminate someone else) is not.
You mention "forcing confessions through coercion". Every time someone says that the Fifth Amendment is what protects us against the police beating us up if we give an answer they don't like, I point out the same thing: Third-party witnesses don't have a Fifth Amendment right to remain silent, but they still have the right not to get beaten up by the police. So wherever that right comes from, it doesn't come from the Fifth Amendment right to remain silent.
We know what the Fifth Amendment says. My question, once again, is: Is there a logical argument, from first principles about rights of the state vs. rights of the individual, as to why we should grant defendants the right to remain silent, but not third-party witnesses? Is there a good reason that we enshrine the right against self-incrimination, but not the right against incrimination of others?
Right, a third-party witness can refuse to answer if they think they will incriminate themselves, but only if they think they will incriminate themselves. Josh Wolf went to jail because he wanted to keep his source materials secret to avoid incriminating third parties, but it was generally agreed that his source materials wouldn't incriminate himself (he didn't participate in the riots that he taped), so he was jailed for contempt.
I understand that "a witness can't just refuse to testify for any reason", but my original question is: Is there a logical argument, from first principles about rights of the state vs. rights of the individual, as to why we can't compel a defendant to testify but we can require a witness to answer?
Certainly a lot of witnesses would clam up, as you suggest, and we'd lose some testimony as a result. However, under our existing Fifth Amendment, a lot of defendants do clam up, and presumably we lose some valuable testimony as a result of that too. I want to know if there's a principled reason why we let the defendant remain silent -- even though it does "obstruct justice" in the literal sense of obscuring facts that are relevant to the case -- but don't do the same for witnesses.
But "damned if you do, damned if you don't" only applies if you're guilty. If you're innocent, you just tell them that.
If the court is corrupt or incompetent enough that they'll try and convict you anyway, then that's a separate problem, and that's something they could have done even if you had remained silent.
There is absolutely no point compelling an answer to your #2 question. None. The only possible reason for compelling an answer is that you hope you will trip the guy up an he will reveal something he did not want to (such as his guilt).
Isn't that a valid reason? Isn't convicting guilty people a good thing? Unless the law itself is unjust, which may often be the case -- but then that's a separate problem, and needs to be addressed on behalf of all the people who get caught where the Fifth Amendment doesn't help them (e.g. where the cop sees you with his own eyes smoking pot).
I didn't say 'coerce', I said 'convince'. If I say to Bob 'give me your wallet, and I'll give you $100', and he gives me his wallet and I give him $100, exactly what crime has been committed? That is not a bribe, as a bribe is payment for doing something illegal or wrong. If I have a choice as to whether or not to testify, then you can not possibly bribe me to not testify, as not testifying is neither illegal nor wrong. However, if it is not legal to testify, then indeed you could bribe me to not testify.
Similarly, just because it's legal to do X, doesn't mean it's legal to pay someone to do X. It's legal for a cop to let you off with a warning; is it legal for you to pay them to do so? It's legal for me to vote for Obama; should it be legal for his campaign to pay me to vote for him?
Or to take something more directly on point: Suppose Bob the defendant is innocent, and the case against him is so weak that he figures he'll probably get off even without testifying on his own behalf, but Bob is planning to ensure his acquittal by giving testimony that will lead to proof that his friend Alice did it. Alice realizes what Bob is planning on doing, so she pays Bob off to plead the Fifth instead. Surely that's not legal, even though it would have been legal for Bob to plead the Fifth without any outside influence.
Yes I know that "it would be self-incrimination", that's just repeating a definition. You haven't given a reason why that should be prohibited but "third-party incrimination" (i.e. requiring answers from third-party witnesses) should not be.
The difference is that the first can be used to ensnare everybody; the second can only be used to ensnare the guilty (which I would say is not a bad thing, unless the law itself is unjust, in which case that's a separate problem).
It is NOT separate from the principle of innocent until proven guilty. Back when the Constitution was written, pretty much the only chance of getting a conviction for a crime was by the testimony of witnesses. There was no forensics, no DNA analysis, no ballistics, etc. Therefore, the only way for the state to 'prove' guilt was by witness testimony. If witnesses are allowed the option of not testifying, all a criminal needs to do to avoid conviction is convince the witnesses not to testify. I'll leave it up to you to think of ways he could do that (many of which, if not testifying is an option, would be perfectly legal).
Two things:
1. "If witnesses are allowed the option of not testifying, all a criminal needs to do to avoid conviction is convince the witnesses not to testify. I'll leave it up to you to think of ways he could do that (many of which, if not testifying is an option, would be perfectly legal)." I don't think this makes sense. Just because it's legal to do X does not mean it's legal to intimidate someone into doing X. It's legal for Bob to give you his wallet but not legal for you to coerce him into doing it.
2. All your points about the difficulty of prosecuting a case without third-party witnesses, are correct, however I addressed this in the article -- this is basically an argument that if you had to choose between compelling testimony from a defendant and compelling testimony from third-party witnesses, you would choose testimony from third-party witnesses just because there are often more of them, and no hope of getting a conviction otherwise.
However, since you don't actually have to choose between the two, my question is: Is there a principled argument, from first principles about rights of the state vs. rights of the individual, as to why we should be allowed to require answers from third party witnesses but not defendants? If we require answers from third party witnesses because those answers are valuable, why can't we require answers from the defendant if they might be valuable too?
There's no reason you can't honor the principle of "A person is innocent until proven guilty beyond a reasonable doubt", and still require the defendant to answer questions about whether they're guilty. If you do require them to answer, and they say they're innocent, you'd still have to prove them guilty beyond a reasonable doubt in order to convict them.
You've offered a bunch of reasons why it's moral to require witnesses to testify, but you haven't explained why they shouldn't also apply to the defendant as well. (Again, using an argument from first principles, and not just saying "Because that's how our courts interpret the Fifth Amendment.") "It's not moral for a person to ignore a crime. It's not moral to allow a criminal to be free of punishment. It's not moral to allow an innocent man to be jailed. A witness' testimony only illuminates the facts of a case." All of those are valid reasons to compel a defendant to testify as well.
in your own case you're forced to harm yourself in some manner regardless of which option you choose, which is considered inhumane and unjust
Only if you're guilty -- otherwise, you have the option of just saying you're innocent. Now as I've been saying ever since I wrote the first article, if your courts are so corrupt and incompetent that they just go ahead and convict you anyway even if you say you're innocent, that's a separate problem, and they could have done that even if you remained silent.
However I'll note that being forced to witness is a fairly rare law which doesn't exist in many other countries such as my own.
That's interesting, what country is that?