(1) Good theory, but I remember seeing the calendar tell me that "tomorrow" was "today" even if there were remaining tasks to do today. (3) All of the people I talked to who were using iPhones, said that they were able to see multiple recipients on texts and reply to the group. They must have been, because their replies were going to the group, including me. (4) Does that mean the phone would also brick if you happened to remove the battery while taking a picture? Then that's terrible design too. (5) I wasn't sure whether to "count" this one, but my feeling was that ultimately someone has to take responsibility for the whole product, regardless of where the fault lies. If it had been a more minor bug where I couldn't determine the underlying fault, I might not have included it, but claiming to have sent a message and then losing it is a really terrible bug, much worse than simply giving an error saying you couldn't send it. (6) I don't know why it would be useful to require the speakerphone to be on when typing in digits -- if the user *wants* to be able to hear the call, they can choose to turn the speakerphone on themselves, otherwise they can leave it off and then put the headset back up to their ear when they're done keying in account numbers (this is after all how every other phone works, including old land line phones).
Actually they did submit The Cuckoo's Calling to Goodreads and apparently it got very favorable reviews -- the problem was that there was no system like this one in place to promote highly-rated content to a wide audience.
I would argue that *within* the ecosystem I'm proposing, there would be no "luck" involved in becoming a success with the users of the system -- if your initial submission is highly rated by a representative random sample of the users, then it will be highly rated by the users as a whole.
Now even after becoming a "hit" within the system, there would still be a luck factor involved in becoming a hit outside the system. It's hard to advertise a piece of fiction to the general public as "highest rated on a modified version of the Harry Potter fanfic subreddit!" So the system itself just has to have enough users that it becomes worthwhile for a would-be author to become a hit within that system. For example, the site could split advertising revenue with the authors that submit the stories that get the highest ratings. Or some writers would submit stories to the system for free just for the feeling of having their writing read by lots of people, and getting feedback from them.
If the goal of the experiment is to measure the merit of a particular piece of work, then the "sample size" is not 1, it's the number of people rating that piece of work -- 20 people in my example, but it should be large enough that the average rating represents what you think would be the average rating given by the general population of the site's users.
If you're trying to measure the author's *overall* skill level, then yes looking at that one story would indeed be a sample size of 1, so you're correct that's not measuring the author's overall skill. You'd have to get ratings for several of their works.
But I think that when King for example said he was trying to answer the "talent vs. luck" question, it would certainly be a good *start* to measure whether other people can produce works that are rated the same or higher as his, by people who are rating the works without knowledge of who is writing them.
Sorry, I meant to say that my original summary block of text began with: "J.K. Rowling recently CONFIRMED that she was the author of a book she had published under a pseudonym, which spiked in sales after she was outed as the true author." (emphasis added just now, not in the original). The editors changed "confirmed" to "revealed".
The editors changed that. My original summary block of text began with: "J.K. Rowling recently revealed that she was the author of a book she had published under a pseudonym, which spiked in sales after she was outed as the true author..."
For some reason the editors changed "confirmed" to "revealed", which I agree is less accurate, since it implies some deliberate choice on her part. I have no idea why they did that.
And then in the first sentence of the actual body of the article, I used "confirmed" again, and that one the editors did not alter.
Well yes I did say in the article that the experiment would not measure true artistic merit, just appeal to the average reader.
However Stephen King specifically had said that his own experiment was an attempt to find out whether his popularity was due to luck or talent, without regard to "artistic merit", whatever that means. So the random-sample-voting system, to measure the appeal to the average reader, would be relevant.
Well this one *didn't* sell, so apparently even the influence of a smart publisher wasn't enough to break the "luck" barrier.
But back to the question of "Why would I read Stephen King over Richard Bachman?" -- this is actually quite an insightful point and highlights the difference between scenarios where the random-sample-voting algorithm would be beneficial and scenarios where it wouldn't. The key point is, do you already feel like you have enough good books in your life, more than you have time to read?
If the answer is Yes, then you might as well just stick with the authors you like, like Stephen King, if they collectively write more than enough books to fill your needs.
On the other hand, if you want more books to read, then the random-sample-voting algorithm can be useful for identifying more authors who have something good to contribute.
There is also a second-order effect: As long as luck dominates the publishing industry, then some potentially good authors might not even bother writing books because they know (correctly) that the odds of hitting it big are so slim. But if a process existed to take the arbitrariness out of it, then some of those authors might try their hand at it after all.
But my argument is that releasing a second book under a pseudonym is *not* a good test of whether your success was due to "the work itself", because there's so much luck involved either way. If your first book is a hit but your second book (under a pseudonym) is not, it could be that you're a bad writer who got really lucky the first time, or it could be that you're a good writer who got unlucky the second time.
The random-sample-voting algorithm takes the luck out of the equation and actually measures what the average reader thinks of your writing, when they're not biased by hype or expectations.
Sorry I didn't reply to this sooner, because I think this is actually quite an insightful point and deserves a reply, as to whether the "winners" from random-sample-voting would simply be whittled down to a smaller set of "winners" by another pseudo-random process.
I think my system works in cases where either of two conditions are true: (1) where we have room for more "winners" (i.e. there is a user base that is willing to consume more "good enough" content than is currently pushed to them), or (2) where it's extremely important to find and promote the very best content and not just that which is "good enough".
Take music as an example of the first case. I'm fairly picky about music, and I would be willing to spend far more money buying music, than I'm actually able to spend, because I'm not able to find enough stuff that's "good enough" by my standards. Meanwhile there are probably plenty of musicians producing stuff that I would enjoy, but the existing chaotic marketplace doesn't match us with each other. If I simply joined a community of people with similar tastes, and musicians producing that type of music all had their compositions rated by a random sample of users, so that the songs with the highest average ratings got pushed out to all users, then I would probably find more music that I wanted to buy. Musicians and consumers both win.
A good example of the second case -- where it's important to identify the very best content -- would be online tutorials. In many subjects, there are more written and video tutorials online than any one person could possibly watch or read, but many of them are not very good -- apparently written at typing speed by someone hoping to grab a little more search engine traffic. In that case we need *fewer* winners, not more. The random sample voting system should be used to identify the very, very best tutorials, and then steer as many people as possible toward those. Once you've read the top five tutorials in a subject, hopefully you'd understand it, and you wouldn't need to consume all the others. (Yes, different people have different learning styles, so not everyone would agree on what constituted the "best" tutorials, but the same point still holds; you could use the system to identify the best tutorials for visual learners, the best tutorials or audio learners, etc.)
I think my system would be unnecessary in cases where neither of the above two conditions are true -- i.e., situations where there's only room for a few possible winners, and it doesn't really matter whether they are actually the best at what they do. The Oscars would be a good example. I think it's absurd to think that the people who actually get the Oscars are really the "best actors" in any given year. If it were super important for society to identify the best actors, we should allow anyone who pays a fee to make an audition tape, and then have the audition tape reviewed by a random sample of reviewers (the fee would cover the cost of paying the reviewers), and pick the best actors based on their highest average score. But that would be a waste of time, because nobody cares who is literally the "best actor" on Earth.
There will always be *some* luck, but the point is that if only a minority of people in your user base are militant anti-feminists, you'd have to be extremely unlucky for them to make up a majority of your 20 randomly selected users. If aberrations in the random user subset still seemed to happen to frequently, you could (a) increase the subset size to something more than 20, or (b) have an "appeal" option where if you happened to get really unlucky in the first round, you could appeal to another group of 20 people. (To prevent the appeal option from being overused, perhaps make people fill out a bunch of captchas or pay some tiny amount in order to "appeal", refundable if their appeal wins.)
Yes, even in the Salganik studies or in the real world, you have to be "good enough" in order to get a "big break", but my concern is that with the chaotic luck-dominated process that we have now, the number of qualified people (or songs, or ideas) is vastly greater than the number that do get the "big break", and their potential is being wasted. (In the NFL, by contrast, even the losing teams get paid well and provide entertainment value to fans, unlike musicians who are not lucky enough to get discovered.)
Well even in that case, there are a number of alternatives to an absolute "right not to incriminate yourself", such as:
- Not allowing the police to force you to answer questions, but allowing a court to force you to answer. Thus a prosecutor could ask you "Did you kill the man?" and you would have to answer "Yes" or "No". But now the questioning happens in open court, under the supervision of a judge and your own lawyer, who can say "Already asked and answered" if the prosecutor keeps asking you the same question, or otherwise keeps harassing you.
- Requiring defendants to answer (even if questioned by the police), but allowing them to answer through their attorney, who can object if the police keep badgering you with the same question
However, I think you're generally right about the sorry state of court proceedings, and that was one of the implications I called out in my article -- if *that* is the real reason for the Fifth Amendment, then we urgently need to fix the larger problem. Thus if that's the best reason to support the Fifth Amendment, the paradox might be, how can anybody support the Fifth Amendment *and* simultaneously be proud of how our legal system conducts itself.
(And I don't think that judges, at least at the state level, are the members of the legal profession who "fought their way to the top"'; in most district court elections, there is only one candidate running, and the job pays less than most attorneys make.)
If the police break into your house without a warrant, then after the search, whatever they find would be inadmissible. So even without the Fifth Amendment, if the police beat you into confessing, shouldn't the confession also be inadmissible?
(Remember we're talking about a hypothetical world where the Fifth doesn't exist but you still have the right not to be beaten. That hypothetical world doesn't exist, so there is no "precedent", just common sense. But common sense would seem to say that if courts don't allow evidence that was obtained through an illegal search of your house, they shouldn't allow a confession that was obtained with an illegal beating.)
That's all true, but I'm not talking about searches; in fact I said in the article that I considered searches (including searches with a warrant) to be *more* invasive than being asked the question, "Did you do it?" For some of the same reasons that you laid out.
Yes, I know what it says. The question is, why is that a good thing. If I'm innocent, I don't consider it a huge burden to take the stand and say, "No, I didn't do it," since I'm already in court anyway.
I agree that it's better to let the guilty go free and to convict the innocent, and that the burden is on the state to prove guilt and not on the defendant to prove innocent. But those two points are orthogonal to the question of what investigative methods the state can use.
If a cop asks me, "Hey, you were in the building at the time of the murder, did you do it?", I don't consider it a huge burden to say, "No, I didn't kill them." Now if they want to hold me for 10 hours asking the same questions over and over, or try to beat me into confessing, or fabricate evidence so they can railroad me even though I said I was innocent, those are violations of my rights, but those rights exist *separately*.
Again, the challenge is to come up with a scenario where the outcome is different depending on whether we have a Fifth Amendment or not. The right not to be tortured and the right against indefinite detention are separate from the right against self-incrimination.
Yes, exactly. If you assume the police are willing to torture people and lie later on about how they obtained the confession, then they'll do it anyway even with the Fifth Amendment in place. The victim yelling "Fifth Amendment!" is not going to get them to stop. And if the victim "confesses", that can be used against them.
For that matter, since torturing suspects is not legal, the police would have to lie about how they obtained the confession, and if you assume the police are willing to lie anyway, they'll just lie and say you confessed whether you did or not.
That's why the challenge is to come up with a scenario where you hold all other assumptions constant.
As I said in the article, the right against torture is different from the right not to incriminate yourself. If the government grants you immunity, then you can't "incriminate yourself" so the right against self-incrimination does not apply and you can be held in contempt for not answer the court's questions. But, obviously, even in that case, they can't torture you.
On the other hand, if you assume that the police are going to engage in "extra-legal" torturing to get you to confess, they'll do that anyway even with the Fifth Amendment. As MetalliQaZ wrote below, your own words *can* be used to convict you.
That's why the challenge is to come up with a precisely defined scenario that has a different outcome depending on whether you have the Fifth Amendment or not. Otherwise it's too easy to confuse two different situations.
As I said in the article, if you assume the police are willing to torture suspects and then lie later in their official report about how the confession was obtained, then the Fifth Amendment doesn't help the suspect much, because the police can just say the suspect waived their Fifth Amendment rights and confessed anyway.
Consider the real-world cases where the police have beaten suspects; do you really think the suspect yelling "Fifth Amendment!" would have made them stop?
That's why I posed the problem as a challenge to come up with a specific, precisely defined scenario that illustrates the difference. Because sometimes the answer seems "obvious" but then if you try to come up with a defining scenario, it doesn't work as smoothly. (I.e. if you hold all other assumptions constant, the outcome is the same either way. If the cops are willing to torture people and sweep it under the rug later, they'll do that -- they *have* done that -- even with the Fifth Amendment.)
The right to be innocent until proven guilty is different from the right to refuse to answer the question "Did you do it?"
If the police ask me "Did you do it?" and I say "No", the burden is still on the state to prove that I'm guilty, not on me to prove that I'm innocent.
The easiest way to see this is to consider cases where the defendant like O.J. does waive their Fifth Amendment rights and say "I am absolutely 100% not guilty." That doesn't change the fact that the burden is still on the state to prove guilt.
Again, try to come up with a *scenario* that illustrates the difference, even when you hold all other assumptions constant. Often when an answer seems obvious, there are subtle problems that only arise when you try to come up with the scenario. That's why I phrased the problem that way.
I don't think this is analogous to demanding "proof of the theory of evolution". That demand is impossible because you can't "prove" a theory; you can only marshall overwhelming evidence in favor, which is what evolutionists have done.
On the other hand, if you want to show the benefit of a law or a constitutional right, I think the *only* way to demonstrate its benefits is to come up with a scenario where the outcome is different depending on whether you have that right or not. If the outcome in every hypothetical scenario is the same, then what is the point of that law or that right?
Well as I said in the article, consider the case where the government grants you immunity so your "right against self-incrimination" does not apply. The government still doesn't torture people in those cases. Apparently they do recognize that the right against torture exists separately.
As for the examples of black-site torturing that I assume "i kan reed" was referring to, it's highly unlikely that if the victims yelled "Fifth Amendment!" that would have gotten the torturers to stop.
I considered this case in the article; it's a real problem, but the reasons I didn't consider this illustrative of the value of the Fifth Amendment, were:
- The right to be detained indefinitely (by being asked the same questions over and over) is distinct from the right to refuse to answer the question of whether you did it at all. Again, consider the case where the government grants you immunity so you have no legal right to refuse to answer the questions. They still can't detain you indefinitely by asking the same questions over and over. So that right exists separately.
- If judges are really so incompetent that they don't understand how someone can become flustered and contradict themselves after being questioned for hours on end, then that incompetency is the real problem, and it applies to all other kinds of evidence as well (forensics, eyewitness testimony, etc.). The Fifth Amendment only addresses the competency problem as it applies to one type of evidence, and still leaves courts dealing incompetently with every other type of evidence.
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(1) Good theory, but I remember seeing the calendar tell me that "tomorrow" was "today" even if there were remaining tasks to do today. (3) All of the people I talked to who were using iPhones, said that they were able to see multiple recipients on texts and reply to the group. They must have been, because their replies were going to the group, including me. (4) Does that mean the phone would also brick if you happened to remove the battery while taking a picture? Then that's terrible design too. (5) I wasn't sure whether to "count" this one, but my feeling was that ultimately someone has to take responsibility for the whole product, regardless of where the fault lies. If it had been a more minor bug where I couldn't determine the underlying fault, I might not have included it, but claiming to have sent a message and then losing it is a really terrible bug, much worse than simply giving an error saying you couldn't send it. (6) I don't know why it would be useful to require the speakerphone to be on when typing in digits -- if the user *wants* to be able to hear the call, they can choose to turn the speakerphone on themselves, otherwise they can leave it off and then put the headset back up to their ear when they're done keying in account numbers (this is after all how every other phone works, including old land line phones).
Actually they did submit The Cuckoo's Calling to Goodreads and apparently it got very favorable reviews -- the problem was that there was no system like this one in place to promote highly-rated content to a wide audience.
I would argue that *within* the ecosystem I'm proposing, there would be no "luck" involved in becoming a success with the users of the system -- if your initial submission is highly rated by a representative random sample of the users, then it will be highly rated by the users as a whole.
Now even after becoming a "hit" within the system, there would still be a luck factor involved in becoming a hit outside the system. It's hard to advertise a piece of fiction to the general public as "highest rated on a modified version of the Harry Potter fanfic subreddit!" So the system itself just has to have enough users that it becomes worthwhile for a would-be author to become a hit within that system. For example, the site could split advertising revenue with the authors that submit the stories that get the highest ratings. Or some writers would submit stories to the system for free just for the feeling of having their writing read by lots of people, and getting feedback from them.
If the goal of the experiment is to measure the merit of a particular piece of work, then the "sample size" is not 1, it's the number of people rating that piece of work -- 20 people in my example, but it should be large enough that the average rating represents what you think would be the average rating given by the general population of the site's users.
If you're trying to measure the author's *overall* skill level, then yes looking at that one story would indeed be a sample size of 1, so you're correct that's not measuring the author's overall skill. You'd have to get ratings for several of their works.
But I think that when King for example said he was trying to answer the "talent vs. luck" question, it would certainly be a good *start* to measure whether other people can produce works that are rated the same or higher as his, by people who are rating the works without knowledge of who is writing them.
Sorry, I meant to say that my original summary block of text began with: "J.K. Rowling recently CONFIRMED that she was the author of a book she had published under a pseudonym, which spiked in sales after she was outed as the true author." (emphasis added just now, not in the original). The editors changed "confirmed" to "revealed".
The editors changed that. My original summary block of text began with: "J.K. Rowling recently revealed that she was the author of a book she had published under a pseudonym, which spiked in sales after she was outed as the true author..."
For some reason the editors changed "confirmed" to "revealed", which I agree is less accurate, since it implies some deliberate choice on her part. I have no idea why they did that.
And then in the first sentence of the actual body of the article, I used "confirmed" again, and that one the editors did not alter.
Well yes I did say in the article that the experiment would not measure true artistic merit, just appeal to the average reader.
However Stephen King specifically had said that his own experiment was an attempt to find out whether his popularity was due to luck or talent, without regard to "artistic merit", whatever that means. So the random-sample-voting system, to measure the appeal to the average reader, would be relevant.
Well this one *didn't* sell, so apparently even the influence of a smart publisher wasn't enough to break the "luck" barrier.
But back to the question of "Why would I read Stephen King over Richard Bachman?" -- this is actually quite an insightful point and highlights the difference between scenarios where the random-sample-voting algorithm would be beneficial and scenarios where it wouldn't. The key point is, do you already feel like you have enough good books in your life, more than you have time to read?
If the answer is Yes, then you might as well just stick with the authors you like, like Stephen King, if they collectively write more than enough books to fill your needs.
On the other hand, if you want more books to read, then the random-sample-voting algorithm can be useful for identifying more authors who have something good to contribute.
There is also a second-order effect: As long as luck dominates the publishing industry, then some potentially good authors might not even bother writing books because they know (correctly) that the odds of hitting it big are so slim. But if a process existed to take the arbitrariness out of it, then some of those authors might try their hand at it after all.
But my argument is that releasing a second book under a pseudonym is *not* a good test of whether your success was due to "the work itself", because there's so much luck involved either way. If your first book is a hit but your second book (under a pseudonym) is not, it could be that you're a bad writer who got really lucky the first time, or it could be that you're a good writer who got unlucky the second time.
The random-sample-voting algorithm takes the luck out of the equation and actually measures what the average reader thinks of your writing, when they're not biased by hype or expectations.
Sorry I didn't reply to this sooner, because I think this is actually quite an insightful point and deserves a reply, as to whether the "winners" from random-sample-voting would simply be whittled down to a smaller set of "winners" by another pseudo-random process.
I think my system works in cases where either of two conditions are true: (1) where we have room for more "winners" (i.e. there is a user base that is willing to consume more "good enough" content than is currently pushed to them), or (2) where it's extremely important to find and promote the very best content and not just that which is "good enough".
Take music as an example of the first case. I'm fairly picky about music, and I would be willing to spend far more money buying music, than I'm actually able to spend, because I'm not able to find enough stuff that's "good enough" by my standards. Meanwhile there are probably plenty of musicians producing stuff that I would enjoy, but the existing chaotic marketplace doesn't match us with each other. If I simply joined a community of people with similar tastes, and musicians producing that type of music all had their compositions rated by a random sample of users, so that the songs with the highest average ratings got pushed out to all users, then I would probably find more music that I wanted to buy. Musicians and consumers both win.
A good example of the second case -- where it's important to identify the very best content -- would be online tutorials. In many subjects, there are more written and video tutorials online than any one person could possibly watch or read, but many of them are not very good -- apparently written at typing speed by someone hoping to grab a little more search engine traffic. In that case we need *fewer* winners, not more. The random sample voting system should be used to identify the very, very best tutorials, and then steer as many people as possible toward those. Once you've read the top five tutorials in a subject, hopefully you'd understand it, and you wouldn't need to consume all the others. (Yes, different people have different learning styles, so not everyone would agree on what constituted the "best" tutorials, but the same point still holds; you could use the system to identify the best tutorials for visual learners, the best tutorials or audio learners, etc.)
I think my system would be unnecessary in cases where neither of the above two conditions are true -- i.e., situations where there's only room for a few possible winners, and it doesn't really matter whether they are actually the best at what they do. The Oscars would be a good example. I think it's absurd to think that the people who actually get the Oscars are really the "best actors" in any given year. If it were super important for society to identify the best actors, we should allow anyone who pays a fee to make an audition tape, and then have the audition tape reviewed by a random sample of reviewers (the fee would cover the cost of paying the reviewers), and pick the best actors based on their highest average score. But that would be a waste of time, because nobody cares who is literally the "best actor" on Earth.
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There will always be *some* luck, but the point is that if only a minority of people in your user base are militant anti-feminists, you'd have to be extremely unlucky for them to make up a majority of your 20 randomly selected users. If aberrations in the random user subset still seemed to happen to frequently, you could (a) increase the subset size to something more than 20, or (b) have an "appeal" option where if you happened to get really unlucky in the first round, you could appeal to another group of 20 people. (To prevent the appeal option from being overused, perhaps make people fill out a bunch of captchas or pay some tiny amount in order to "appeal", refundable if their appeal wins.)
Yes, even in the Salganik studies or in the real world, you have to be "good enough" in order to get a "big break", but my concern is that with the chaotic luck-dominated process that we have now, the number of qualified people (or songs, or ideas) is vastly greater than the number that do get the "big break", and their potential is being wasted. (In the NFL, by contrast, even the losing teams get paid well and provide entertainment value to fans, unlike musicians who are not lucky enough to get discovered.)
Well even in that case, there are a number of alternatives to an absolute "right not to incriminate yourself", such as:
- Not allowing the police to force you to answer questions, but allowing a court to force you to answer. Thus a prosecutor could ask you "Did you kill the man?" and you would have to answer "Yes" or "No". But now the questioning happens in open court, under the supervision of a judge and your own lawyer, who can say "Already asked and answered" if the prosecutor keeps asking you the same question, or otherwise keeps harassing you.
- Requiring defendants to answer (even if questioned by the police), but allowing them to answer through their attorney, who can object if the police keep badgering you with the same question
However, I think you're generally right about the sorry state of court proceedings, and that was one of the implications I called out in my article -- if *that* is the real reason for the Fifth Amendment, then we urgently need to fix the larger problem. Thus if that's the best reason to support the Fifth Amendment, the paradox might be, how can anybody support the Fifth Amendment *and* simultaneously be proud of how our legal system conducts itself.
(And I don't think that judges, at least at the state level, are the members of the legal profession who "fought their way to the top"'; in most district court elections, there is only one candidate running, and the job pays less than most attorneys make.)
If the police break into your house without a warrant, then after the search, whatever they find would be inadmissible. So even without the Fifth Amendment, if the police beat you into confessing, shouldn't the confession also be inadmissible?
(Remember we're talking about a hypothetical world where the Fifth doesn't exist but you still have the right not to be beaten. That hypothetical world doesn't exist, so there is no "precedent", just common sense. But common sense would seem to say that if courts don't allow evidence that was obtained through an illegal search of your house, they shouldn't allow a confession that was obtained with an illegal beating.)
FAIL0 - no scenario given. (Actually you even copied almost exactly the sentences that I used in some of my "FAIL0" examples.)
That's all true, but I'm not talking about searches; in fact I said in the article that I considered searches (including searches with a warrant) to be *more* invasive than being asked the question, "Did you do it?" For some of the same reasons that you laid out.
Yes, I know what it says. The question is, why is that a good thing. If I'm innocent, I don't consider it a huge burden to take the stand and say, "No, I didn't do it," since I'm already in court anyway.
I agree that it's better to let the guilty go free and to convict the innocent, and that the burden is on the state to prove guilt and not on the defendant to prove innocent. But those two points are orthogonal to the question of what investigative methods the state can use.
If a cop asks me, "Hey, you were in the building at the time of the murder, did you do it?", I don't consider it a huge burden to say, "No, I didn't kill them." Now if they want to hold me for 10 hours asking the same questions over and over, or try to beat me into confessing, or fabricate evidence so they can railroad me even though I said I was innocent, those are violations of my rights, but those rights exist *separately*.
Again, the challenge is to come up with a scenario where the outcome is different depending on whether we have a Fifth Amendment or not. The right not to be tortured and the right against indefinite detention are separate from the right against self-incrimination.
FAIL0, no scenario given.
Yes, exactly. If you assume the police are willing to torture people and lie later on about how they obtained the confession, then they'll do it anyway even with the Fifth Amendment in place. The victim yelling "Fifth Amendment!" is not going to get them to stop. And if the victim "confesses", that can be used against them.
For that matter, since torturing suspects is not legal, the police would have to lie about how they obtained the confession, and if you assume the police are willing to lie anyway, they'll just lie and say you confessed whether you did or not.
That's why the challenge is to come up with a scenario where you hold all other assumptions constant.
As I said in the article, the right against torture is different from the right not to incriminate yourself. If the government grants you immunity, then you can't "incriminate yourself" so the right against self-incrimination does not apply and you can be held in contempt for not answer the court's questions. But, obviously, even in that case, they can't torture you.
On the other hand, if you assume that the police are going to engage in "extra-legal" torturing to get you to confess, they'll do that anyway even with the Fifth Amendment. As MetalliQaZ wrote below, your own words *can* be used to convict you.
That's why the challenge is to come up with a precisely defined scenario that has a different outcome depending on whether you have the Fifth Amendment or not. Otherwise it's too easy to confuse two different situations.
As I said in the article, if you assume the police are willing to torture suspects and then lie later in their official report about how the confession was obtained, then the Fifth Amendment doesn't help the suspect much, because the police can just say the suspect waived their Fifth Amendment rights and confessed anyway.
Consider the real-world cases where the police have beaten suspects; do you really think the suspect yelling "Fifth Amendment!" would have made them stop?
That's why I posed the problem as a challenge to come up with a specific, precisely defined scenario that illustrates the difference. Because sometimes the answer seems "obvious" but then if you try to come up with a defining scenario, it doesn't work as smoothly. (I.e. if you hold all other assumptions constant, the outcome is the same either way. If the cops are willing to torture people and sweep it under the rug later, they'll do that -- they *have* done that -- even with the Fifth Amendment.)
The right to be innocent until proven guilty is different from the right to refuse to answer the question "Did you do it?"
If the police ask me "Did you do it?" and I say "No", the burden is still on the state to prove that I'm guilty, not on me to prove that I'm innocent.
The easiest way to see this is to consider cases where the defendant like O.J. does waive their Fifth Amendment rights and say "I am absolutely 100% not guilty." That doesn't change the fact that the burden is still on the state to prove guilt.
Again, try to come up with a *scenario* that illustrates the difference, even when you hold all other assumptions constant. Often when an answer seems obvious, there are subtle problems that only arise when you try to come up with the scenario. That's why I phrased the problem that way.
I don't think this is analogous to demanding "proof of the theory of evolution". That demand is impossible because you can't "prove" a theory; you can only marshall overwhelming evidence in favor, which is what evolutionists have done.
On the other hand, if you want to show the benefit of a law or a constitutional right, I think the *only* way to demonstrate its benefits is to come up with a scenario where the outcome is different depending on whether you have that right or not. If the outcome in every hypothetical scenario is the same, then what is the point of that law or that right?
Well as I said in the article, consider the case where the government grants you immunity so your "right against self-incrimination" does not apply. The government still doesn't torture people in those cases. Apparently they do recognize that the right against torture exists separately.
As for the examples of black-site torturing that I assume "i kan reed" was referring to, it's highly unlikely that if the victims yelled "Fifth Amendment!" that would have gotten the torturers to stop.
I considered this case in the article; it's a real problem, but the reasons I didn't consider this illustrative of the value of the Fifth Amendment, were:
- The right to be detained indefinitely (by being asked the same questions over and over) is distinct from the right to refuse to answer the question of whether you did it at all. Again, consider the case where the government grants you immunity so you have no legal right to refuse to answer the questions. They still can't detain you indefinitely by asking the same questions over and over. So that right exists separately.
- If judges are really so incompetent that they don't understand how someone can become flustered and contradict themselves after being questioned for hours on end, then that incompetency is the real problem, and it applies to all other kinds of evidence as well (forensics, eyewitness testimony, etc.). The Fifth Amendment only addresses the competency problem as it applies to one type of evidence, and still leaves courts dealing incompetently with every other type of evidence.