[QUOTE=Polerius]
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.
[/QUOTE]
The basic notions that were the genesis of the Fifth Amendment’s quarantee against having to testify against yourself
came out of the procedures utilized by the crown in the religious strife of the 17th Century. Specifically, if you were a Protestant, you were brought in to the Star Chamber court and were given an oath to answer all questions put to you truthfully, regardless of subject. You didn’t know what the questions were going to be about. This lead to a famous case (described here in the Miranda holding), the outcry from whice lead the Parliament, once it had control of the country, to the abolition of the Star Chamber and reparations for the defendant in the case. Among the questions you might face would be ones about your own religious practices, as well as questions about who else might be Protestant, etc. Because you were not allowed to remain mute without potentially incriminating yourself for failure to do as you have taken an oath to do (answer all questions truthfully), you were forced to either give truthful answers that you did not know the legal consequences of giving, or give false answers which, if discovered to be false, would subject you to penalty for perjuring yourself.
We, in the English system, reject utterly the concept that the purpose of the government is to ferret out wrongdoing wherever it may be in our society. The inquisitorial method of discovering and punishing wrongs, so closely associated as it was with the Catholic church, has been rejected in favor of the accusitorial method. It is the government’s burden to establish that you are guilty, and they cannot count upon help from you to do it. This is not neccessarily a good thing; to some extent it puts the government against its citizens, whereas in a true inquisitorial system, the investigating judge can be considered a neutral party, who safeguards the rights of the suspect with the needs of the society. But we do not accept that government should have the badger and force us into becoming criminal. Thus, we limit its ability to search and seize, we force it to convict us without our help, and we insist that due process be used to deprive us of life or liberty.
So, to answer your questions, we guarantee this right because we consider it more important that the state have to obtain evidence against us without putting us in jeopardy of convicting ourselves out of our own mouths, even if that means that some guilty people are never convicted (the same is true of our current system of excluding evidence obtained in violation of the Fourth Amendment). Yes, we can always (and did in the past) use the Due Process clause, or even simple common law evidence rules, to exclude tortured confessions. But the Fifth goes way beyond that, as appears to have evaded the understanding of some commentators.
