This is where our basic disagreement as I am suggesting that the 5th was put there to ensure that the accused did not have to incriminate himself and has absolutley nothing to do w/ co-ercing a confession. As such the 5th would have to stand w/ this understanding and no truth serum could be forced on the accused.
I do see that the accused may choose to take the truth serumn, but that would be his choice, and I would be for choices like that.
Side issue, under what right can someone refuse a breath (or blood) test for DWI?
What does the right to avoid incriminating yourself have anything to do with whether you are or are not telling the truth? The premise of the OP seems quite flawed in that regard.
Now, if the amendment said “…nor shall be compelled in any criminal case to be a witness against himself, except if we are really really sure he’s telling the truth”, I guess there would be a point.
What would we do about due process and double jeopardy and all that other stuff in the 5th Amendment as well?
I will say it for the umpteenth time. The fictitious juice can only be used for a specific charge. This drug is so good (since I am inventing it) that you can shake it off (like Star Trek’s synthehol) in a short amount of time. Why would I ask you about running stop signs? What a waste. You’d only be in for questioning for some serious charge (rape/murder/theft/etc).
And I guess you’re some sort of doctor/biologist who knows all about truth sera.
In case you haven’t read, this is a fictitious drug that doesn’t behave like the junk you’re describing. Think of Jim Carey in that movie where he can’t lie, except it doesn’t last for a day, only 3 minutes.
So, you are assuming that your magic drug enables the user to summon up the will to resist telling the truth, if and only if his attorney indicates that a question has some subtle fishing expedition built into it?
I’ll ask again until someone with a deeper knowledge of history comes forward.
For what reason would they not want to compel a person to testify against themselves. The only reasonable explanation I come up with is that it may be coerced. If this drug existed, it would remove the need to use force (torture).
By “no slippery slope arguments welcome”, I mean I don’t want to hear about other scenarios like “what if the police just hauled you in, gave you the juice and asked if you committed any crimes”. They are not relevant to this discussion.
So let’s clarify BwanaBob. I’m suspected of murder. Is the ONLY question you can ask me is did I commit the crime? Or can you ask me what I know about the crime? If my answer is ambigous, do I get another dose until you can clarify my answer or do I leave after my 3 minutes are up? How many does can you give me? How focused can your questions be?
What if I confess to a DIFFERENT murder? Can I still be convicted of THAT crime, or is it now tainted, because that wasn’t the crime you were asking me about?
This drug could easily be used to violate someone’s privacy. I like how the 5th Imperium in one of David Weber’s books handled a similar situation ( perfect lie detector ); you had no right against self incrimination - but you could only be questioned with the detector in a courtroom. That way, the judge can shut down any inappropriate, irrelevant lines of questioning.
Also, what if the person is delusional or fanatical ? Someone like that could “lie” because they would believe it to be the truth. I recall a case where a guy was accidentally hypnotised by the police ( he was really vulnerable to it, and they were using relaxation techniques to calm him; no one realized what was happening until one cop noticed he was confessing to everything they asked him about ) and ended up convicted for lots of things he didn’t do, but believed he did. A drug like that could make it easier for unstable people to falsely confess and be believed.
Bottom line as I see it : The drug would be useful, but imperfect; you’d still need some kind of protection.
I have assumed that it is a perfect truth syrum. Why would you take away someones fifth amendment rights only because they were accused of a horrible crime? I am sure you realize that quit a few who are accused of such is actually innocent. How come their rights are taken away?
Due Process is not there just so someone doesn’t get tortured. The Fourth Amendment insures that even if the person is caught red handed, if the process is not followed, then for the sake of the people’s faith in the system the guilty should get away.
I like the idea of it only being useable in court with the judge “protecting” the accused from inappropriate, irrelevant lines of questioning.
The problem we’re having here is everyone wants to change my game.
My drug doesn’t make you babble incoherently, or want to talk about anything.
I just compels you answer any question truthfully.
You can be asked if you committed a specific crime.
You can be asked if you participated in the crime in any way.
This stuff about confessing to other crimes, blah, blah , is not in my scenario and I’m not interested in entertaining it.
The court is entitled to the truth through due process. The truth is compulsory under oath but an individual’s bodily privacy should not be impinged while he or she is on trial. And witnesses certainly ought not be compelled to surrender this privacy. It’d be a stepping stone to thought control.
Additionally, I am not sure what would make such a serum infallible when mining the brain of a fallible witness.
Noctolator makes my point for me. Such problems as false confessions/witnessing from mistaken/irrational subjects must be taken into account to answer your question.
The problem that you don’t want to face, is that there’s a natural flow to what you’re proposing to do. You want to create a “perfect” truth drug, yet ignore what some of the results of using that drug might be, especially after you’re removed the 5th Amendment protections.
Did you think it would be easy to just handwave away the 5th amendment?
This is an erroneous understanding of the Amendment. The purpose (at least the primary purpose) of the 5th Amendment is not to protect againts physically coerced confessions but to protect the presumption of innocence. The state has 100% of the burden to prove a citizen is guilty and the citizen has no burden whatever either to prove his innocence or to help the state meet its own burden. The “right to remain silent” is a basic civil right unto itself which does not hinge on the possibility of physical coercion.
Stop with the torture! Linking this debate to a misunderstanding of the 5th amendment is where it went off the rails. Your truth serum would itself be a violation of the 5th amendment.
Your debate should be in two parts:
Is the 5th Amendment protection against self-incrimination justified?
Without the 5th Amendment protections, what would be the ramifications of the use of a truth serum in legal proceedings?
Please read the text I linked you to earlier. I am no constitutional scholar, to say the least, but continuing to press an erroneous link between torture and the reasons for the 5th Amendment is just not helpful.
Aha Diogenes has come through. This is the arguement against that I was looking for.
But the amendment was crafted at a time when no such perfect truth serum existed or was even contemplated.
If it existed and I were accused and innocent, I’d clamor for the drug. So would
a million other innocent accused. Only the guilty would fear this drug.
Thank you Diogenes for cutting through everything.