If a defendant can be forced to testify against himself then there is no need for a trial, or really even an investigation. The goverment would have all the power in any criminal case.
I think there's a difference between saying:
1. The government can force a defendant to declare that they're guilty.
2. The government can require a defendant to answer the question of whether they're guilty or not.
Some people have responded to my argument by saying that we need to protect against #1. Well, duh. You can throw the whole legal system out the window if we let the government force people to declare that they're guilty.
On the other hand, our courts' current interpretation of the Fifth Amendment is that it protects against #2 -- you can't even be required to answer the question -- and it's much less obvious why we need that. Requiring a defendant to answer the question of whether they're guilty or not, does not give the government "all the power" -- if the defendant says they're innocent, the government would still need to prove them guilty to convict them.
If not testiyfing is legal, than it couldn't be illegal to 'convince' someone to not testify.
I don't think that's logical. Just because it's legal to do X doesn't mean it's legal to bribe or coerce 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, is it?
What you will find if you open any history book is that the amount of religious and political prosecution is vastly lower in any country once the right to remain silent is established in law.
I knew that; my explanation is that when a right to remain silent is established in a country's laws, it's usually adopted along with a whole host of other protections, and my argument is that it's those protections that really matter, not the "right against self-incrimination". For example, we got the First Amendment at the same time as the Fifth Amendment, and it's the First Amendment that guarantees freedom of speech and freedom of religion.
Not to mention the Eighth Amendment guarantee against torture. I keep hearing people say that the Fifth Amendment right to remain silent is what protects us from being tortured by the state. That's clearly wrong, because third-party witnesses have no Fifth Amendment right to remain silent, but obviously they still have the right not to be tortured, so that can't come from the Fifth Amendment.
The Fifth Amendment is there to prevent the government from abusing its powers, by compelling you participate in your own prosecution. But if any witness is allowed to refuse testimony, for no good reason, then how would justice be done?
But this is the entire question: Why is it an "abuse of government power" for the government to make the defendant answer questions, but not for the government to require third-party witnesses to answer questions? What's an argument from first principles as to why you can't require answers from the defendant (who at least might be guilty), but you can require answers from third-party witnesses (who are known to be innocent)?
Well to bring it back to the question I asked in the article: Why do we have a right to remain silent for defendants, but not for witnesses?
To use your example, it's easy to imagine a prosecutor saying, "Either you testify against your friend and they get 1 week community service, or if you claim your friend is innocent and then your friend gets convicted, we'll seek a 5-year sentence against you as well for perjury. So I ask again: Did your friend vandalize that tree or not?"
Wouldn't your scenario also be an argument to extending the right to remain silent to third-party witnesses as well?
Unless you are on trial, you can not be incriminated by your own testimony at someone else's trial. You can not plead the 5th unless you are on trial yourself.
I'm pretty sure this is wrong. Findlaw says: http://criminal.findlaw.com/criminal-rights/fifth-amendment-right-against-self-incrimination.html
"At a criminal trial, it is not only the defendant who enjoys the Fifth Amendment right not to testify. Witnesses who are called to the witness stand can refuse to answer certain questions if answering would implicate them in any type of criminal activity (not limited to the case being tried)."
Well what's an example? Of a government that was persecuting a defendant for religious reasons, but the defendant claimed a right to remain silent that was recognized by the court, and they got off? (Where it's reasonable to argue that if they hadn't had a right to remain silent, they might have been convicted.)
But then to go back to the question I'm asking in the article: What is the rationale for compelling third-party witnesses to testify but not the defendant?
If the plaintiff's right to justice outweighs a third party's right to be silent, why doesn't it also outweigh the defendant's right to be silent?
What is a logical argument, from first principles about the rights of the individual vs. the rights of the state, for why we should be allowed to require third-party witnesses to answer questions, but not defendants?
1. First, the question I'm asking in this article, is: Why give defendants the right to remain silent but not third-party witnesses? The specter you're raising, of police and courts trying to trip people up with their own testimony, could just as well apply to third-parties as well. The police call someone in and ask them for information about a defendant they want to convict. If the witness gives answers that don't aid them in nailing the defendant, the police can implicitly or explicitly threaten to pick apart their testimony until they find a contradiction that they can use to charge them with perjury -- unless the witness starts giving them incriminating evidence against the defendant. So wouldn't your scenario be an argument for extending the right to remain silent, to third-party witnesses as well?
2. Second, going back to the question I asked in the previous article: http://yro.slashdot.org/story/13/06/07/1439220/seeking-fifth-amendment-defenders
which was, "What is the rationale for the Fifth Amendment at all?" And your argument seems to be essentially that it guards against the police railroading someone who was innocent but tripped themselves up by mis-remembering some facts.
What I said in the original article was: If the police and the courts are really that corrupt and incompetent, then you have a much deeper problem. And if you give defendants the right to remain silent, you've only applied a band-aid that fixes one small part of the problem -- you haven't solved the corrupt-and-incompetent-courts problem as it applies to circumstantial evidence, selective prosecution, untrustworthy eyewitness testimony, etc. And you also haven't solved the problem in the case of innocent people who are brought in for questioning and know they have the right to remain silent, but they talk to the police anyway because they figure it might help the police catch the right guy instead -- if the police are corrupt and determined to railroad the guy they've got sitting in the chair, by the time he figures that out it will be too late.
When a judge says that innocent defendants need the Fifth Amendment in order to avoid accidentally giving self-contradictory testimony that might be used to railroad them, then the judge is admitting that the system they work for is horribly broken -- shouldn't they work on fixing that problem instead?
All right, if they were technically "guilty" of religious and political crimes, then what good would it do them to remain silent? The Star Chamber can just take whatever evidence they already had (whatever caused the unlucky person to be hauled into court in the first place) and convict them anyway. Or they can compel third-party witnesses to testify against the person -- which brings it back to the question I asked in this article: If we allow defendants the right to refuse to answer questions, why not apply that to third-party witnesses as well?
Any system that hauls someone into court for reasons of religious or political persecution, is likely to convict the defendant anyway even without the defendant's own testimony.
Because there is a presumption that the accused is innocent. It is the prosecutions job to prove they are guilty. The accused does not have to prove they are innocent, nor do they have to cooperate with the prosecution. None of this applies to third parties.
But the entire question is, why should it not apply to third parties? In other words: What is a logical argument, from first principles about the rights of the state vs. the rights of the individual, why we should be able to compel third-party witnesses to testify, but not defendants?
This is entirely separate from the principle of innocent until proven guilty -- of course you are -- but in the course of trying to prove the defendant guilty, why can the government force third-party witnesses to answer questions, but not the defendant?
Well yes I agree that the defendant's testimony might be worth substantially less, because they'll almost always claim they're innocent. But surely the testimony is not worth *nothing*. If their testimony might be worth anything at all, we'd need some other argument for giving them an absolute right to refuse to testify (but not extending that right to third-party witnesses).
I'm not addressing whether a third-party witness should be fired or shunned for refusing to answer questions.
My question is, what is a logical argument, from first principles about the rights of the individual vs. the rights of the state, for why we should allow defendants to answer questions, but not third-party witnesses?
Yes, I know that's what courts have interpreted the Fifth Amendment to mean. My question is whether there is a good logical argument for giving defendants the right to remain silent, but not witnesses.
"Alice would only face contempt charges which rarely produce the levels of punishment as murder convictions do"
I understand that, but the question is, why don't we apply the same principle to the defendant themselves? Require them to answer questions about what happens and then charge them with contempt if they don't answer. (And then of course if evidence emerges elsewhere that they actually committed the original crime, charge them with that too.)
"The issue with being compelled to testify is that the courts don't wish people to be applying their own judgement standards instead of the court."
Yes but you could make the same argument about requiring the defendant to testify. Surely in many cases the defendant would like to refuse to testify due to their own belief that there was nothing wrong with what they did. Why do we accept that excuse from the defendant, but not from third-party witnesses?
"I don't know why there is a right to not self-incriminate. Apparently it comes from English common law, but I don't know the history of it. Maybe it's to discourage torture or other coercion?"
That was exactly the question I asked in the previous article: http://yro.slashdot.org/story/13/06/07/1439220/seeking-fifth-amendment-defenders
in which I said that many of the common rationales that people offered for the Fifth Amendment, didn't make much sense. Take the argument that it's to "discourage torture". Well the courts take the position that third-party witnesses have no Fifth Amendment right to refuse to testify. However, we still don't torture third-party witnesses, so the protection against torture obviously exists separately from the Fifth Amendment.
"How do we know anything about the crime scene? If we did, then the prosecution job would be done and no testimony would be needed. Given the Bob/Alice scenario, how do we know that Alice is an innocent bystander?"
Apparently this was what happened to Josh Wolf -- he videotaped protesters vandalizing a car, the government demanded his original source materials, he argued a Fifth Amendment right to refuse to testify, but it was generally agreed that he wasn't involved in any vandalism so the court said he didn't have a Fifth Amendment right against self-incrimination, so he went to jail.
"Our US legal system is adversarial by design. It's us (the public) against the government. So nobody should be compelled to assist them in any way."
Does that mean you're agreeing with me, that if defendants can't be forced to testify, then third-party witnesses shouldn't be forced to testify either?
"If she can be sent to jail, she's not an innocent third-party witness, and would be able to refuse to testify."
I'm talking about the case where it's generally agreed that Alice did not commit the original crime, but she refuses to answer questions anyway. Then she can be sent to jail for contempt of court.
I understand that the Fifth only protects against forced self-incrimination, and that if you're a third-party witness where your testimony would not incriminate yourself, the government doesn't let you plead the Fifth, and you can be jailed for contempt if you refuse to answer. The question is, why? i.e. what is a logical argument, from first principles about the rights of the state vs. the rights of the individual, for why we should let defendants refuse to answer questions but not third-party witnesses?
"If he is guilty then obviously he is going to lie and all that you achieve is the ability to stack perjury charges ontop of the normal charges, which just makes the entire procedure look awfully like a show trial rather then a proper trial."
Well this is something I addressed in the original article -- if your legal system is so corrupt or incompetent that they can convict you even if you're innocent and you say so, then they can also convict you even if you remain silent. If you're convicted of murder or robbery anyway, it won't make that much difference if they add a perjury charge.
On the other hand, if your legal system works reasonably well, and if someone really is guilty, and they claim in court that they're innocent but then incontrovertible proof comes out later showing that they did it, then they should be charged with perjury too, shouldn't they?
Incidentally, the logical flaw in the "cruel trilemma" cited in the Wikipedia article, is that it assumes that the person is guilty (because it assumes that if they tell the truth, that they'll be convicted). Now if the Star Chamber is deliberately railroading innocent people, or inventing new crimes in order to convict people who hadn't done anything illegal under existing law, or criminalizing everyday conduct, then those are separate problems, but the right to remain silent doesn't offer protection against those, since all three of those would give the courts a way to convict you even if you didn't answer.
Yes, I'm taking it as a given what the Fifth Amendment says, at least under the courts' current interpretation: that you cannot be compelled to be a witness against yourself, but you can be compelled to be a witness against someone else, although you can still plead the Fifth if you believe that your testimony would incriminate yourself. But if it's generally agreed that your testimony would not incriminate yourself (only someone else), then you cannot plead the Fifth.
My question is: Why? i.e., what is a logical argument, from first principles about the rights of the state vs. the rights of the individual, why we can force third-party witnesses to testify but not defendants?
I know what the Fifth Amendment says. The question is whether there is a logical rationale for allowing defendants to remain silent, but not third-party witnesses. Other than, "That's just what it says!!", which is not a logical rationale.
Some shield laws do recognize an exemption in the case where the reporter's testimony is likely to exonerate an innocent person: http://www.splc.org/knowyourrights/legalresearch.asp?id=56 (scroll down to the cite for "Hammarley v. Superior Court")
Why? Presumably the thought of an innocent person in jail feels intuitively like such an injustice, that the importance of fixing this wrong, overrides the importance of protecting source confidentiality.
The flaw in this logic, I think, is that an innocent person being set free from jail is just one particular case of "justice being done". When a guilty person is convicted, or when the right side wins in a lawsuit, those are all examples of justice being done as well. While I think it's generally true that it's more important to keep the innocent free than to convict the guilty, not every goal of exonerating an innocent person is more important than every goal of convicting a guilty one. Overturning the conviction of someone who was mistakenly sentenced to a week in jail, is not as important as getting a serial killer off the streets. If it had been up to me, I would have said that a court should decide on a case-by-case basis whether the importance of source confidentiality overrides the importance of the case being tried, regardless of what kind of case it was.
So as to the question I'm asking in the article: Why shouldn't this also apply to third-party witnesses? Otherwise, if a corrupt government subpoenas someone as a third-party witness and the witness gives them answers that they don't like (i.e., answers not aiding them in convicting the defendant they're trying to nail), the government could threaten to find some inconsistency in the witness's testimony and convict them too, unless the witness gives the government the answers they want.
Re:
"There was once a common practice of forcing defendants to testify, and adding more charges if they denied guilt and then were found guilty anyways. The Fifth Amendment protects against that practice, and only that practice."
Well if the court system is corrupt or sloppy enough that they can convict you even if you're innocent, then that's a problem with or without the Fifth Amendment. Suppose you remain silent instead of denying guilt, and they railroad you on a murder charge anyway. If you're already getting convicted of murder, an extra charge of lying under oath wouldn't have mattered very much.
On the other hand, if you really are guilty, and you testify that you didn't do it, but evidence comes out that proves beyond a shadow of a doubt that you did it (caught on high-quality tape, for example), then you should be charged with perjury as well as with the original crime, shouldn't you?
But regardless, this all goes back to the previous article I wrote, asking what was the real rationale for the Fifth Amendment. This article is arguing a different question -- what is the rationale for giving defendants the right to remain silent, but not third-party witnesses.
In the name of science, I just tried making a call holding the phone only with my thumb and forefinger around the edge of the phone where no light sensor could possibly be, and the screen still kept going black after about 1 second when I was trying to enter numbers on the keypad.
The screen shot feature was in a commercial? Well I fast-forward through commercials. But in any case that seems like an odd thing to feature in a commercial, since it wouldn't be the first feature that most users care about. Is one of these commercials on Youtube demonstrating the blade-of-the-hand trick?
This has the ring of plausibility, but isn't this an unfalsifiable statement? Because then no matter what crappy products are produced, it can be written off the free market in action.
My hypothesis is more falsifiable -- it was that for attributes that are easily quantifiable (size, weight, battery life), phones in the same price range will stay more or less competitive with each other, while for attributes that are harder for the user to perceive right away (aggravating bugs in the UI), there will be outliers that are much worse than the others.
You may be right about the screen shot; I'll try that if I get another Stratosphere II. But if there's no way for the user to discover it on their own, and Verizon tech support (who supports the phone) doesn't know how to do it, and all of the pages that come up on Google say to do it the old way (which doesn't work), and nobody knew how to do it in any of the forums that I posted in, then it doesn't do much good unfortunately.
Calendar -- I'm sure there *are* workarounds for a lot of these bugs, but the point is that the company should have tested their own product first.
I didn't know about group texts, thanks.
Canada -- well, my feeling is still that someone has to take responsibility for the entire product. I'm paying money to Verizon, and if they have a deal with a foreign carrier whose service fails silently when sending a long text, then Verizon's taking my money and not giving me a very good version of the service I'm paying for.
I understand why the screen should switch off when I'm holding it next to my cheek. Why would the screen switch off when I move the phone away from my cheek and I'm actively typing on the keypad? Usually it registers the first keypad press before the screen actually goes dark (so you can enter single digits, just not account numbers). If it knows I'm pressing the keypad, it should keep the screen lit up.
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If a defendant can be forced to testify against himself then there is no need for a trial, or really even an investigation. The goverment would have all the power in any criminal case.
I think there's a difference between saying:
1. The government can force a defendant to declare that they're guilty.
2. The government can require a defendant to answer the question of whether they're guilty or not.
Some people have responded to my argument by saying that we need to protect against #1. Well, duh. You can throw the whole legal system out the window if we let the government force people to declare that they're guilty.
On the other hand, our courts' current interpretation of the Fifth Amendment is that it protects against #2 -- you can't even be required to answer the question -- and it's much less obvious why we need that. Requiring a defendant to answer the question of whether they're guilty or not, does not give the government "all the power" -- if the defendant says they're innocent, the government would still need to prove them guilty to convict them.
If not testiyfing is legal, than it couldn't be illegal to 'convince' someone to not testify.
I don't think that's logical. Just because it's legal to do X doesn't mean it's legal to bribe or coerce 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, is it?
All right then, just replace "plaintiff" with "victim".
If the victim's right to justice outweighs a third party's right to be silent, why doesn't it also outweigh the defendant's right to be silent?
What you will find if you open any history book is that the amount of religious and political prosecution is vastly lower in any country once the right to remain silent is established in law.
I knew that; my explanation is that when a right to remain silent is established in a country's laws, it's usually adopted along with a whole host of other protections, and my argument is that it's those protections that really matter, not the "right against self-incrimination". For example, we got the First Amendment at the same time as the Fifth Amendment, and it's the First Amendment that guarantees freedom of speech and freedom of religion.
Not to mention the Eighth Amendment guarantee against torture. I keep hearing people say that the Fifth Amendment right to remain silent is what protects us from being tortured by the state. That's clearly wrong, because third-party witnesses have no Fifth Amendment right to remain silent, but obviously they still have the right not to be tortured, so that can't come from the Fifth Amendment.
The Fifth Amendment is there to prevent the government from abusing its powers, by compelling you participate in your own prosecution. But if any witness is allowed to refuse testimony, for no good reason, then how would justice be done?
But this is the entire question: Why is it an "abuse of government power" for the government to make the defendant answer questions, but not for the government to require third-party witnesses to answer questions? What's an argument from first principles as to why you can't require answers from the defendant (who at least might be guilty), but you can require answers from third-party witnesses (who are known to be innocent)?
Well to bring it back to the question I asked in the article: Why do we have a right to remain silent for defendants, but not for witnesses?
To use your example, it's easy to imagine a prosecutor saying, "Either you testify against your friend and they get 1 week community service, or if you claim your friend is innocent and then your friend gets convicted, we'll seek a 5-year sentence against you as well for perjury. So I ask again: Did your friend vandalize that tree or not?"
Wouldn't your scenario also be an argument to extending the right to remain silent to third-party witnesses as well?
Unless you are on trial, you can not be incriminated by your own testimony at someone else's trial. You can not plead the 5th unless you are on trial yourself.
I'm pretty sure this is wrong. Findlaw says:
http://criminal.findlaw.com/criminal-rights/fifth-amendment-right-against-self-incrimination.html
"At a criminal trial, it is not only the defendant who enjoys the Fifth Amendment right not to testify. Witnesses who are called to the witness stand can refuse to answer certain questions if answering would implicate them in any type of criminal activity (not limited to the case being tried)."
Well what's an example? Of a government that was persecuting a defendant for religious reasons, but the defendant claimed a right to remain silent that was recognized by the court, and they got off? (Where it's reasonable to argue that if they hadn't had a right to remain silent, they might have been convicted.)
But then to go back to the question I'm asking in the article: What is the rationale for compelling third-party witnesses to testify but not the defendant?
If the plaintiff's right to justice outweighs a third party's right to be silent, why doesn't it also outweigh the defendant's right to be silent?
What is a logical argument, from first principles about the rights of the individual vs. the rights of the state, for why we should be allowed to require third-party witnesses to answer questions, but not defendants?
Two things:
1. First, the question I'm asking in this article, is: Why give defendants the right to remain silent but not third-party witnesses? The specter you're raising, of police and courts trying to trip people up with their own testimony, could just as well apply to third-parties as well. The police call someone in and ask them for information about a defendant they want to convict. If the witness gives answers that don't aid them in nailing the defendant, the police can implicitly or explicitly threaten to pick apart their testimony until they find a contradiction that they can use to charge them with perjury -- unless the witness starts giving them incriminating evidence against the defendant. So wouldn't your scenario be an argument for extending the right to remain silent, to third-party witnesses as well?
2. Second, going back to the question I asked in the previous article:
http://yro.slashdot.org/story/13/06/07/1439220/seeking-fifth-amendment-defenders
which was, "What is the rationale for the Fifth Amendment at all?" And your argument seems to be essentially that it guards against the police railroading someone who was innocent but tripped themselves up by mis-remembering some facts.
What I said in the original article was: If the police and the courts are really that corrupt and incompetent, then you have a much deeper problem. And if you give defendants the right to remain silent, you've only applied a band-aid that fixes one small part of the problem -- you haven't solved the corrupt-and-incompetent-courts problem as it applies to circumstantial evidence, selective prosecution, untrustworthy eyewitness testimony, etc. And you also haven't solved the problem in the case of innocent people who are brought in for questioning and know they have the right to remain silent, but they talk to the police anyway because they figure it might help the police catch the right guy instead -- if the police are corrupt and determined to railroad the guy they've got sitting in the chair, by the time he figures that out it will be too late.
When a judge says that innocent defendants need the Fifth Amendment in order to avoid accidentally giving self-contradictory testimony that might be used to railroad them, then the judge is admitting that the system they work for is horribly broken -- shouldn't they work on fixing that problem instead?
All right, if they were technically "guilty" of religious and political crimes, then what good would it do them to remain silent? The Star Chamber can just take whatever evidence they already had (whatever caused the unlucky person to be hauled into court in the first place) and convict them anyway. Or they can compel third-party witnesses to testify against the person -- which brings it back to the question I asked in this article: If we allow defendants the right to refuse to answer questions, why not apply that to third-party witnesses as well?
Any system that hauls someone into court for reasons of religious or political persecution, is likely to convict the defendant anyway even without the defendant's own testimony.
Because there is a presumption that the accused is innocent. It is the prosecutions job to prove they are guilty. The accused does not have to prove they are innocent, nor do they have to cooperate with the prosecution. None of this applies to third parties.
But the entire question is, why should it not apply to third parties? In other words: What is a logical argument, from first principles about the rights of the state vs. the rights of the individual, why we should be able to compel third-party witnesses to testify, but not defendants?
This is entirely separate from the principle of innocent until proven guilty -- of course you are -- but in the course of trying to prove the defendant guilty, why can the government force third-party witnesses to answer questions, but not the defendant?
Well yes I agree that the defendant's testimony might be worth substantially less, because they'll almost always claim they're innocent. But surely the testimony is not worth *nothing*. If their testimony might be worth anything at all, we'd need some other argument for giving them an absolute right to refuse to testify (but not extending that right to third-party witnesses).
I'm not addressing whether a third-party witness should be fired or shunned for refusing to answer questions.
My question is, what is a logical argument, from first principles about the rights of the individual vs. the rights of the state, for why we should allow defendants to answer questions, but not third-party witnesses?
Yes, I know that's what courts have interpreted the Fifth Amendment to mean. My question is whether there is a good logical argument for giving defendants the right to remain silent, but not witnesses.
"Alice would only face contempt charges which rarely produce the levels of punishment as murder convictions do"
I understand that, but the question is, why don't we apply the same principle to the defendant themselves? Require them to answer questions about what happens and then charge them with contempt if they don't answer. (And then of course if evidence emerges elsewhere that they actually committed the original crime, charge them with that too.)
"The issue with being compelled to testify is that the courts don't wish people to be applying their own judgement standards instead of the court."
Yes but you could make the same argument about requiring the defendant to testify. Surely in many cases the defendant would like to refuse to testify due to their own belief that there was nothing wrong with what they did. Why do we accept that excuse from the defendant, but not from third-party witnesses?
"I don't know why there is a right to not self-incriminate. Apparently it comes from English common law, but I don't know the history of it. Maybe it's to discourage torture or other coercion?"
That was exactly the question I asked in the previous article:
http://yro.slashdot.org/story/13/06/07/1439220/seeking-fifth-amendment-defenders
in which I said that many of the common rationales that people offered for the Fifth Amendment, didn't make much sense. Take the argument that it's to "discourage torture". Well the courts take the position that third-party witnesses have no Fifth Amendment right to refuse to testify. However, we still don't torture third-party witnesses, so the protection against torture obviously exists separately from the Fifth Amendment.
"How do we know anything about the crime scene? If we did, then the prosecution job would be done and no testimony would be needed. Given the Bob/Alice scenario, how do we know that Alice is an innocent bystander?"
Apparently this was what happened to Josh Wolf -- he videotaped protesters vandalizing a car, the government demanded his original source materials, he argued a Fifth Amendment right to refuse to testify, but it was generally agreed that he wasn't involved in any vandalism so the court said he didn't have a Fifth Amendment right against self-incrimination, so he went to jail.
"Our US legal system is adversarial by design. It's us (the public) against the government. So nobody should be compelled to assist them in any way."
Does that mean you're agreeing with me, that if defendants can't be forced to testify, then third-party witnesses shouldn't be forced to testify either?
"If she can be sent to jail, she's not an innocent third-party witness, and would be able to refuse to testify."
I'm talking about the case where it's generally agreed that Alice did not commit the original crime, but she refuses to answer questions anyway. Then she can be sent to jail for contempt of court.
I understand that the Fifth only protects against forced self-incrimination, and that if you're a third-party witness where your testimony would not incriminate yourself, the government doesn't let you plead the Fifth, and you can be jailed for contempt if you refuse to answer. The question is, why? i.e. what is a logical argument, from first principles about the rights of the state vs. the rights of the individual, for why we should let defendants refuse to answer questions but not third-party witnesses?
"If he is guilty then obviously he is going to lie and all that you achieve is the ability to stack perjury charges ontop of the normal charges, which just makes the entire procedure look awfully like a show trial rather then a proper trial."
Well this is something I addressed in the original article -- if your legal system is so corrupt or incompetent that they can convict you even if you're innocent and you say so, then they can also convict you even if you remain silent. If you're convicted of murder or robbery anyway, it won't make that much difference if they add a perjury charge.
On the other hand, if your legal system works reasonably well, and if someone really is guilty, and they claim in court that they're innocent but then incontrovertible proof comes out later showing that they did it, then they should be charged with perjury too, shouldn't they?
Incidentally, the logical flaw in the "cruel trilemma" cited in the Wikipedia article, is that it assumes that the person is guilty (because it assumes that if they tell the truth, that they'll be convicted). Now if the Star Chamber is deliberately railroading innocent people, or inventing new crimes in order to convict people who hadn't done anything illegal under existing law, or criminalizing everyday conduct, then those are separate problems, but the right to remain silent doesn't offer protection against those, since all three of those would give the courts a way to convict you even if you didn't answer.
Yes, I'm taking it as a given what the Fifth Amendment says, at least under the courts' current interpretation: that you cannot be compelled to be a witness against yourself, but you can be compelled to be a witness against someone else, although you can still plead the Fifth if you believe that your testimony would incriminate yourself. But if it's generally agreed that your testimony would not incriminate yourself (only someone else), then you cannot plead the Fifth.
My question is: Why? i.e., what is a logical argument, from first principles about the rights of the state vs. the rights of the individual, why we can force third-party witnesses to testify but not defendants?
I know what the Fifth Amendment says. The question is whether there is a logical rationale for allowing defendants to remain silent, but not third-party witnesses. Other than, "That's just what it says!!", which is not a logical rationale.
Some shield laws do recognize an exemption in the case where the reporter's testimony is likely to exonerate an innocent person:
http://www.splc.org/knowyourrights/legalresearch.asp?id=56 (scroll down to the cite for "Hammarley v. Superior Court")
Why? Presumably the thought of an innocent person in jail feels intuitively like such an injustice, that the importance of fixing this wrong, overrides the importance of protecting source confidentiality.
The flaw in this logic, I think, is that an innocent person being set free from jail is just one particular case of "justice being done". When a guilty person is convicted, or when the right side wins in a lawsuit, those are all examples of justice being done as well. While I think it's generally true that it's more important to keep the innocent free than to convict the guilty, not every goal of exonerating an innocent person is more important than every goal of convicting a guilty one. Overturning the conviction of someone who was mistakenly sentenced to a week in jail, is not as important as getting a serial killer off the streets. If it had been up to me, I would have said that a court should decide on a case-by-case basis whether the importance of source confidentiality overrides the importance of the case being tried, regardless of what kind of case it was.
So as to the question I'm asking in the article: Why shouldn't this also apply to third-party witnesses? Otherwise, if a corrupt government subpoenas someone as a third-party witness and the witness gives them answers that they don't like (i.e., answers not aiding them in convicting the defendant they're trying to nail), the government could threaten to find some inconsistency in the witness's testimony and convict them too, unless the witness gives the government the answers they want.
Re:
"There was once a common practice of forcing defendants to testify, and adding more charges if they denied guilt and then were found guilty anyways. The Fifth Amendment protects against that practice, and only that practice."
Well if the court system is corrupt or sloppy enough that they can convict you even if you're innocent, then that's a problem with or without the Fifth Amendment. Suppose you remain silent instead of denying guilt, and they railroad you on a murder charge anyway. If you're already getting convicted of murder, an extra charge of lying under oath wouldn't have mattered very much.
On the other hand, if you really are guilty, and you testify that you didn't do it, but evidence comes out that proves beyond a shadow of a doubt that you did it (caught on high-quality tape, for example), then you should be charged with perjury as well as with the original crime, shouldn't you?
But regardless, this all goes back to the previous article I wrote, asking what was the real rationale for the Fifth Amendment. This article is arguing a different question -- what is the rationale for giving defendants the right to remain silent, but not third-party witnesses.
In the name of science, I just tried making a call holding the phone only with my thumb and forefinger around the edge of the phone where no light sensor could possibly be, and the screen still kept going black after about 1 second when I was trying to enter numbers on the keypad.
The screen shot feature was in a commercial? Well I fast-forward through commercials. But in any case that seems like an odd thing to feature in a commercial, since it wouldn't be the first feature that most users care about. Is one of these commercials on Youtube demonstrating the blade-of-the-hand trick?
This has the ring of plausibility, but isn't this an unfalsifiable statement? Because then no matter what crappy products are produced, it can be written off the free market in action.
My hypothesis is more falsifiable -- it was that for attributes that are easily quantifiable (size, weight, battery life), phones in the same price range will stay more or less competitive with each other, while for attributes that are harder for the user to perceive right away (aggravating bugs in the UI), there will be outliers that are much worse than the others.
You may be right about the screen shot; I'll try that if I get another Stratosphere II. But if there's no way for the user to discover it on their own, and Verizon tech support (who supports the phone) doesn't know how to do it, and all of the pages that come up on Google say to do it the old way (which doesn't work), and nobody knew how to do it in any of the forums that I posted in, then it doesn't do much good unfortunately.
Calendar -- I'm sure there *are* workarounds for a lot of these bugs, but the point is that the company should have tested their own product first.
I didn't know about group texts, thanks.
Canada -- well, my feeling is still that someone has to take responsibility for the entire product. I'm paying money to Verizon, and if they have a deal with a foreign carrier whose service fails silently when sending a long text, then Verizon's taking my money and not giving me a very good version of the service I'm paying for.
I understand why the screen should switch off when I'm holding it next to my cheek. Why would the screen switch off when I move the phone away from my cheek and I'm actively typing on the keypad? Usually it registers the first keypad press before the screen actually goes dark (so you can enter single digits, just not account numbers). If it knows I'm pressing the keypad, it should keep the screen lit up.