[hijack]
In case anyone thinks Lib is going overboard, we had a recent scandal in San Jose. It seems that it is SOP for cops and prosecutors to fake DNA reports to show to suspects. One managed not to get marked as a fake, and was presented as evidence to the grand jury. it got exposed when a defense attorney asked for information on the person who did the test, and it was discovered that the name was made up. Oops.
[/hijack]
(Cite on request.)
But the accused is not a witness per se. In France at least, the accused is not regarded as a witness and is not even obligated to tell the truth at all. Which makes some kind of sense to me at least.
As I said, if the only thing the prosecutor has to go on is the word of the accused, why bother with a trial? As far as I’m concerned, it really is just about the presumption of innocence.
The difference is that my friend then isn’t accused of the crime. Which should make him a little bit more reliable as a witness anyway.
You’re right. I saw the above law as somewhat different from the Fifth, but obviously it depends on the Fifth existing.
I guess the question can be rephrased to: Can you have a Fifth-like law (“nor shall be compelled in any criminal case to be a witness against himself”) where you cannot be forced to testify, but if you do choose to not testify, the jury could take that into consideration (not as “solid proof of guilt”, but just as another piece of information)
Thinking about it though, the above seems unlikely.
Seems you can, under certain circumstances: Right to silence - Wikipedia - note that here (as in the French case) suspects are not heard under oath, so presumably can lie as much as they feel they can get away with.
It’s to prevent abuse of power. Even if actually innocent, one can be incriminated by one’s own testimony. If the case is at trial the defendant has already staded he or she in not guilty of the crime. Further statements could hurt the defence. The friend, not being on trial, is not risking life and liberty. And, upon preview other’s have said, a defendant forced to testify probably couldn’t be regarded as reliably truthful.
Yes he can, but it would probably open up an investigation into what he did. If the prosecution then detirmines he hasn’t done anything they want to prosecute, he would most likely be given an immunity agreement. Further refusals to testify would then be met with contempt (again, probably).
I’d like that cite, Voyager, only because it’s my own city, I hadn’t heard about it, and that crap ticks me off.
First of all, I’m not quite willing to accept an excerpted statement from an unknown publication which has no other support for it than that it is published by the Yale University Press. You might offer some more information, like authors, etc., as well as some more of the actual text involved, to put it in context.
I addressed this issue earlier here [post=8403552]at this post on the Fifth Amendment[/post]. You will note that this contains a link to the well-regarded CRS analysis of the Constitution and case law regarding it. I recommend reading that for some background on the subject.
Or, we might simply note that the amendment’s application to issues of admissibility of confession did not develop until the Supreme Court’s case of Bram v. U.S., 168 U.S. 532 (1897), and that subsequent commentary called into question the idea that admissibility of confessions was covered by that amendment, or by simple due process notions (an imlementation of the common law rule of evidence that an admission was not admissible unless voluntary). See, for background, Footnote 2 of the Dissenting Opinion of Justice Harlan in [url=http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=384&invol=436]Miranda v. Arizona, 384 U.S. 436 (1966). So, despite the fact that there had been adopted a common law rule regarding admissibility of confessions, which required that they be voluntary, this was not immediately incorporated into the Fifth Amendment, and, thus, I would question the statements you found in Wikipedia (yes, I found your source for your quote) on the issue, as well as any contrary conclusion made by “A. R. Amar”, whoever that may be.
I recall, but cannot put my finger on it today, a very cogent explanation of all this by one of the Supreme Court justices. I’ll see if I can’t manage to find it again. I thought I had quoted it before, but I can’t make the search engine here disgorge it. <sigh>
The Bill of Rights, By Akhil Reed Amar is Southmayd Professor of Law at Yale. He is the author of scores of articles on constitutional law and criminal procedure, as well as The Constitution and Criminal Procedure: First Principles, published by Yale University Press.
A selection of the History Book Club
Honorable Mention in the Legal category for 1998, Association of American Publishers, Professional/Scholarly Publishing Division (AAP/PSP) Annual Awards Competition
Honorable mention in the 1999 Scribes Book Award Competition
Selected to receive a Gavel Award Certificate of Merit in the Book Category in the 1999 Competition for the Media and the Arts, given by the American Bar Association
From here:http://yalepress.yale.edu/YUPBOOKS/book.asp?isbn=9780300082777
Pontificate and obfuscate all you want, all I said was some people disagree. I do and a Con Law Professor at Yale does. End of story. I can’t find the text online but if you are suggesting that I am lying about what it says then that is another issue. As for context it is a clear unambiguous statement not context needed.
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.
I am neither pontificating, nor obfuscating. I asked you for your source, which you supplied. And yes, context DOES matter; it’s important to know what he says that makes the statement valid, especially as it appears to fly in the face of the precedent that I’ve just cited, as well as in the face of certain statements made by Supreme Court justices over the years. And it certainly would have helped things had you made the source clear in the first place, n’est-ce pas?
People get so bent out of shape for such little things…
You haven’t heard of Akhil Amar, DSYoung? I’m genuinely surprised. Not that he is, or should be, the last word in contextual interpretation of constitutional text, but he’s pretty much been THE big name in that area over the last decade or so.
Here you go It was heavily covered for a day or two by the Murky News.
He may well be; I’ve long since given up being plugged into the academic aspect of Constitutional Law. However, if that one sentence is an accurate sample of his work, I’m going to have to read some substantial amount of much better analysis to agree with everyone’s read on him. 
Maybe it’s time to go swing by Amazon with my nifty Christmas Present Gift card…