Fifth Amendment: why is it useful?

Great Debates
1

The usefulness of the Fifth Amendment’s protection against self-incrimination (“nor shall be compelled in any criminal case to be a witness against himself”) always perplexed me

From this thread,

[QUOTE=askeptic]

[QUOTE=Lust4Life]
Also I dont agree with the defendant having the right not to incriminate themself
[/QUOTE]

THat is the most basic protection. It prevents cops from beating a confesion out of you.
[/QUOTE]

This doesn’t make any sense.

If the Fifth Amendment said that you cannot testify at all in your own trial, then it would be a protection against a forcible confession.

But, since all it says is that the police cannot force you to confess, and you are still able to confess if you want to, why can’t the police beat you into saying you want to confess?

To put it simply

  • In a country with no equivalent of the Fifth, the police can beat a guy into confessing
  • In a country with an equivalent of the Fifth, the police can beat a guy into confessing (since one can still “voluntarily” confess, and the cops can threaten you with more beatings if you say that your confession was not voluntary)

If the police are corrupt and brutal, the Fifth provides no practical difference in outcome.

If the police are not corrupt and brutal, then the Fifth is not needed anyway.

So, overall, it seems useless.

That is, as long as the Constitution does not ban you from testifying at your own trial, “protection” from forcibly becoming a witness against yourself seems useless.

What am I missing here?

2

[QUOTE=Polerius]
But, since all it says is that the police cannot force you to confess, and you are still able to confess if you want to, why can’t the police beat you into saying you want to confess?
[/QUOTE]
Yes, it is still possible for the cops to beat a confession out of you, but that confession won’t see a courtroom, and there’s a good chance the cops will wind up in being charged.

Now, this does rely on being vigilant, and enforcing these rules, but if you don’t have the rule at all, then the police are more likely to become corrupt and brutal, because there’s no way to stop them.

3

They may not be allowed to beat you over the head per se, but they can coerce you all the same with trickery, lies, and deception — the types of things for which others are held to account under laws regarding con artisty, perjury, and fraud.

4

Polerius, with your simple question, you have put your finger on the reason why we are such miserable failures at exporting “democracy” to countries in the world which are not socially ready for it. Witness, as exhibit A today, Kenya, where the simple process of picking a new president has created an explosion of violent chaos, which, at its roots, is nothing more than a continuation of tribal warfare that has been going on in the area for centuries. In this country, when an election gets stolen from one presidential candidate, we don’t take to the streets and start hacking apart our political enemies (we do it in blogs instead). At least, we didn’t in 2000, and I’ll predict we won’t in 2008 if it happens again.

All our concepts of the Rule of Law and “freedom” hinge upon having a society that, from top to bottom, consistently values these concepts. Indeed, Guantanamo shows that we dont’ value them so consistently from side to side in our society. Every one of those prisoners is having both Fourth and Fifth Amendment violations happen daily, but our Government chooses to ignore this in the interests of “safety.” So your typical prisoner being held there might find your question quite apt, I suppose.

So what value does the Amendment’s clause regarding self-incrimination have? Well, only whatever value we imbue it with. IF you could be held by the corrupt police from the moment of being picked up for interrogation to the completion of trial, and IF you were not allowed access to an attorney with whom you were able to communicate in private, thus allowing you to get news of your treatment out to society as a whole, and IF the legal system wasn’t set up to “punish” the prosecution for violation of our rights (in our system, by eliminating the ability to use the fruits of those violations, such as coerced confessions), THEN the Amendment’s protection might be of little value. But we have the Amendment precisely because our government AND our citizens understand the importance of such protections to a truly free society. Therefore, while there may be individuals within our government who at times are not interested in your “rights” as an accused criminal, the system as a whole works to protect you, as best it can.

And, before I go, I should note that the purpose of the Fifth Amendment’s right not to be compelled to testify against yourself is not to avoid confessions by beatings. The pupose of the Fifth Amendment is to avoid the simple scenario of having to get on the stand in a criminal prosecution and decide “do I tell the truth, even though the truth has implications that could be used to convict me, or do I lie, and by doing so put myself in jeopardy of perjury (not to mention putting your soul in peril, if you believe the oath you are swearing)?” Torture to produce a confession is really more the subject of due process considerations.

5

[QUOTE=DSYoungEsq]
So what value does the Amendment’s clause regarding self-incrimination have? Well, only whatever value we imbue it with.
[/QUOTE]
Kinda like the dollar. :smiley:

6

Where I come from, the “fifth” not only includes you, but 4 generations of your “blood” family and 2 of your in-laws.

7

[QUOTE=DSYoungEsq]
And, before I go, I should note that the purpose of the Fifth Amendment’s right not to be compelled to testify against yourself is not to avoid confessions by beatings.
[/QUOTE]

Some people disagree.

[QUOTE=“The Bill of Rights”, page 84. Yale University, 1998.
]
Historically, the legal protection against self-incrimination is directly related to the question of torture for extracting information and confessions.
[/QUOTE]

8

I also thought that the main purpose was not so much to remove the threat of a corrupt and brutal police forcing a confession (which still happens occasionally even with the 5th) but to remove the threat of further legal punishment for refusing to testify against yourself.

A witness can be charged with contempt if they refuse to answer to what they know, but you cannot be jailed merely for refusing to confess on the stand. Also avoids the tricky “perjure myself or confess” dilemma.

ETA:
Although the previous post seems to indicate I’m wrong about that… which brings us back to the OP question. Without a prohibition against testifying, how is the 5th alone enough to stop tortured confessions? Surely one would waive their 5th amendment rights to stop being tortured?

9

[QUOTE=Jas09]
Surely one would waive their 5th amendment rights to stop being tortured?
[/QUOTE]

Wavers must be given knowingly( know what your rights are), intelligently(know the consequences and that you can refuse and the consequences of that) and voluntarily( They cannot be coerced. )

10

To me, and IANAL, the 5th is what puts the ‘burdon of proof’ on the State. The state also can not ask, “did you do this crime” and if you say “No” and they still convict you, you don’t get extra penalties for perjury.

No written law offers you physical protection from anything. It is only courts and really the society that organizes those courts that offer real protection.

11

Without the 5th you could be convicted of obstruction of justice for not answering questions about your alleged “crime”. Or juries could be told “he refused to tell us where he was the night of the fifth, so he must be guilty”.

12

[QUOTE=DSYoungEsq]
The pupose of the Fifth Amendment is to avoid the simple scenario of having to get on the stand in a criminal prosecution and decide “do I tell the truth, even though the truth has implications that could be used to convict me, or do I lie, and by doing so put myself in jeopardy of perjury (not to mention putting your soul in peril, if you believe the oath you are swearing)?”
[/QUOTE]

This is a bit aside from the main topic of the OP, but, why would it be a bad thing to put people in this dilemma?

That is, does it serve justice (i.e. higher success in convicting the guilty and exonerating the innocent) in any way if people are never put in this dilemma?

Or do we think it is just cruel to put people in this dilemma, and we’d rather avoid it, even if means we lower our success at justice (convicting the guilty and exonerating the innocent) ?

That’s what I was thinking. Even in a country without a Fifth, they can have a law against torturing the accused.

You could be tortured and forced to confess, but at trial you can say you only confessed due to being beaten, and the confession can be invalidated, not because of the Fifth’s right against self-incrimination, but because you were beaten.

13

[QUOTE=DanBlather]
Without the 5th you could be convicted of obstruction of justice for not answering questions about your alleged “crime”.
[/QUOTE]

What, precisely, is wrong with that?

As Jas09 says “A witness can be charged with contempt if they refuse to answer to what they know”

Why do we treat the accused differently in this regard?

The jury can be given this “argument” by the prosecution whether or not the Fifth exists.

14

[QUOTE=Polerius]
The jury can be given this “argument” by the prosecution whether or not the Fifth exists.
[/QUOTE]

Under American law, a jury is told it may not take refusal to testify as evidence of guilt.

15

[QUOTE=Polerius]
What, precisely, is wrong with that?
[/QUOTE]

My guess would be that it is really about the presumption of innocence. It is the task of the prosecutor to prove someone is guilty. If they can’t do that without forcing the accused to just confess out right (and punishing someone for not incriminating themselves would amount to that), then they just don’t have a good case.

16

[QUOTE=acsenray]
Under American law, a jury is told it may not take refusal to testify as evidence of guilt.
[/QUOTE]

Does this law necessarily require the Fifth to be valid?

That is, you can have country with no Fifth but with a law that says “a jury may not take refusal to testify as evidence of guilt.” ?

17

[QUOTE=Polerius]
That is, you can have country with no Fifth but with a law that says “a jury may not take refusal to testify as evidence of guilt.” ?
[/QUOTE]

In the Netherlands the accused has the right to be silent (more or less equivalent to the Miranda rights). As far as I could find out from a quick wikipedia search this right is in effect from the first contact with the police all the way up to and including any court case.

The Netherlands does not use a jury system, by the way.

18

[QUOTE=Superfluous Parentheses]
My guess would be that it is really about the presumption of innocence. It is the task of the prosecutor to prove someone is guilty. If they can’t do that without forcing the accused to just confess out right (and punishing someone for not incriminating themselves would amount to that), then they just don’t have a good case.
[/QUOTE]

You’re not punishing them “for not incriminating themselves”. You would be punishing them for not responding to questions on the witness stand, just like any other witness.

Only if the person is guilty does it pose a moral dilemma of what to say on the witness stand (“say the truth and incriminate myself, or lie and perjure myself?”)

Basically, if you and a friend were at the scene of a crime that you allegedly committed, your friend could be put on the witness stand and punished if he refuses to answer questions about what happened that night, while you wouldn’t have to. Why the difference?

[Legal question: If the friend is guilty, but the police don’t know it and haven’t charged him, can he refuse to answer questions at your trial based on his right against self-incrimination, and thus avoid contempt-of-court penalties for refusing to answer on the witness stand?]

19

[QUOTE=Polerius]
…That is, you can have country with no Fifth but with a law that says “a jury may not take refusal to testify as evidence of guilt.” ?
[/QUOTE]

Uh, without the Fifth, one wouldn’t be able to refuse to testify. The defendant could simply refuse to speak at all, but then your proposed law pretty much IS the Fifth. Am I missing something?

20

You may also find this page interesting regarding different countries: Right to silence - Wikipedia