If a real truth serum created should the 5th amendment go out the window?

Great Debates
81

Another off-the-point scenario. You don’t believe there can be an effective truth serum/technology. Fine. My mind is open on the topic … it does not seem outside the realm of possibility, given what we already know.

That’s why you ask him, “Did you hit your spouse? Did you smother her? Did you twist her arm until it fractured?” the actual substance of the crime, in short. I’m assuming that any truth serum worth its measure wouldn’t allow the user to legalistically rephrase the question until they can get a lie out of it. If you can do that kind of parsing, why wouldn’t you be able to lie outright?

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Plus, I don’t know all the ins and outs of the law. I may not know if I’m guilty or innocent. Did I commit murder or manslaughter? If I know that my actions caused the death of someone I might very well admit to murder and get a much stiffer penalty.
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Once again, that’s why you ask specifics, “Did you hit Professor Plumber over the head with the wrench in the study?” “Did you put your penis in her vagina?” etc.

It’s precious to me now because the state doesn’t have anything like a reliable truth serum. It’ll become considerably less valuable to me once it does, because really, most of the shit you see in a trial is designed to prevent liars from getting away with lying. You solve that lying thing, you simplify things a lot.

Why not force everyone to play Waltzing Matilda on the kazoo? I fail to see what your weird scenarios ahve to do with the case at hand.

82

Were you paying ANY attention to BwanaBob’s stipulation upthread that the accused’s lawyer must be present when the drug is administered and questions asked?

83

Really, since I said that a lawyer has to be present and the only questions allowed are "did you do it?"and “did you take part in any way?”, how is one to be railroaded? You either did it, took part, or had nothing to do with it. Everything else is irrelevant. Again, your implying that somehow this perfect drug can’t work.
The whole point of this thread isn’t to debate whether such a drug can work; I’m stating as a starting condition to the argument.

I think the trouble here is since there is no such drug, and you all have valid arguments against compulsory use of the drugs as they exist today, you don’t have any idea how to argue about/against one that would actually work. I hear repeatedly the same things that would be valid against today’s drugs.

Please, please, re-examine the issue and when you understand that this drug has no defects and is not allowed to be used in any gestapo like manner, then express views.

84

Taking away an innocent person’s rights just because they think a crime has been committed does not give me faith in the system. Just the opposite in fact.

85

By the way, thank you Evil Captor!

86

Regarding the OP’s frustration at the respondents’ unwillingness to get on board with this “perfect drug applied perfectly” scenario:

[ul][li]The idea of a perfect drug is unconvincing[/li][li]The idea that such a drug would only ever be used in strictly-defined circumstances is unconvincing[/ul][/li]
No amount of shifting the blame to respondents for not playing along is going to make either point convincing.

Assume for a moment that everyone bought into the ideas that the drug was perfect and it would only be used as you describe, forever, resisting all attempts to expand its use or abuse it (by going outside the defined scope). What did you expect to happen in this thread? Everyone saying wistfully how they wished such a drug existed and how the world would be a better place and how your wisdom was great and obvious?

87

That’s an absurd statement; you’re essentially asking 'If, magically, there were no problems, would there be any problems?"

Abuse by the institution is a very real risk and a very real and valid (potential)objection to your idea.

88

You wouldnt ask me about that, but in the telling of one crime, what if I talk about others? Or implicate others? That was the point I was making.

Now, if your implying this new drug of yours ONLY works on the single question asked, and wont allow me to divulage anything else, but whats asked; I submit, this whole discussion is silly.

89

Have you stopped beating your wife yet?

Even your truth serum as stated will not prevent innocent people being convicted of crimes they did not commit, or prevent the guilty from going free.

I can come up with lots of scenarios where a person may believe themselves guilty of a crime, but were in fact innocent, and where guilty people believe themselves innocent of a crime.

Yes I did. What crime has been committed in either case?

Was mine the blow that killed him?
Did you ask about how I had just wrestled it off him and was defending myself because he had gone beserk?

Yes I put my penis in her vagina, but she was asking for it. She didn’t say no until afterwards.

And so on and so on.

If this drug works so well for major crimes, why are we not allowed to used it at other times? The slippery slope is inherent in your description of the drug.

90

No one here wants to think outside of the box. Are you afraid such a drug may be crafted, or that it would be allowed to be used in a court of law. I have specifically crafted rules so that the drug would not be abused.

Evil Captor seemed to agree with me in that we hold the 5th precious today because of its protections, but that the drug may render those protections unnecessary. Again, it’s that “lying thing”.

Adding in these so-called external abuses of the drug have no bearing in my scenario. (Guns can be abused too in the wrong hands, yet we still use them because they’re a useful tool; and so this drug would be as well.)

I didn’t ask if there wouldn’t be problems. I asked if people would still feel compelled to keep the self-incrimination clause intact. And if so, would they feel differently about defendants who would refuse to use the drug.

These are reasonable questions. Sorry if you want to drag in things that I have precluded because you have snappy answers ready for those.

91

How I hate that expression; in debate, it most often means "Waaah! you don’t agree with me, so you must be less intelligent/thoughtful than me!

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Are you afraid such a drug may be crafted, or that it would be allowed to be used in a court of law. I have specifically crafted rules so that the drug would not be abused.
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And in doing so, you have rendered all discussion on the topic moot; as I said, you’re essentially asking “If there couldn’t be any problems, would there be any problems?”. Of course not, by definition.

If you want to have any kind of meaningful debate on a hypothetical issue, you can’t just wave away all the objections with “oh, well in the hypothetical scenario, that just won’t happen”, because you’re no longer describing a universe that has any connection with, or relevance to the one in which we actually live.

92

And to facilitate the compulsory use of truth serum you abolish the protection against self-incrimination. This causes problems.

BwanaBob, there’s a large assumption in the OP which nearly everybody has gone along with, and that is the defendant is already in custody, that you already know who the main suspect was. But how did you know? It’s not as if the crime scene came with a handy label telling you whom to arrest: “The primary suspect for this crime is Harold B. Decker, 1533 Ignatz Place, Katburg, Bolivia.”

Removing the protection against self-incrimination for everybody will make it very, very difficult to get willing witnesses to come forward and tell you whom to arrest, because they’ll be frightened for their own freedom.

You have two choices: arrest everybody you think might have information on the crime and arrest them for impeding an investigation in progress, juice 'em, and make 'em talk. Or, arrest everybody witnesses said might have had a motive, or might have been near the scene, or anybody who fits the physical evidence, and arrest and juice them all too until you find the criminal. This is the very dragnet technique you said you wouldn’t use.

Or hey, you might pick the alternative, which is to spend all that nice free court time in writing up special immunity deals to give back the right against non-self-incrimination that you took away previously, just so that you can have the eyewitness information to go after the criminal you wanted in the first place.

Without willing witnesses, how are you going to get your defendant in custody to use the serum on him?

93

Not at all. One need only redefine terms in one’s head (insert Clinton joke here) and give technically true but misleading replies.

94

I think the hypothetical is ridiculous and the OP’s handling of respondents is immature, but let’s run with it. I propose before the drugged interrogation can take place, the prosecuting attorney must submit a set of questions to the accused, his attorney, and the presiding judge. At that point, the accused can decline (assuming the idea of voluntary participation is still in play) to answer this set (and only this set) of questions while drugged. In any case, the judge can rule such questions unacceptable, as a safeguard in case the accused cannot afford an attorney.

95

That’s the basic problem with this thread – defining the question in such a way as to exclude one side of the argument in advance is trivial and frivolous.

96

It does? Can you name one drug that is used right now that is 100% effective in 100% of the population?

Not all crimes are so cut and dried.

What if I put my penis in her but I didn’t think I was raping her but having consensual sex? What answer do I give?

One, this idea is way too pie in the sky. It won’t work. There have been in the past, ‘perfect solutions’ that were not so perfect. Everyone knew that it worked but we know now that it didn’t. So even if doctors, lawyers, and everyone agrees that it works, that is still no gaurntee that it does work.

Making everyone take it all the time is not a weird scenario compared to your scenario. The only difference is that it would negativly affect you and not a criminal. People always try to ratchet up anything someone does to be ‘tough on crime’. It wouldn’t be hard to imagine going from, ‘Lose one of the Bill or Rights’ to ‘put it in the drinking water’.

There are even more reasons why the 5th won’t go away.
Politicians will still need to lie, they are sometimes criminals or accused of crimes and they won’t want to have to tell the truth.

97

I’ve just read the first two posts, but my answer on first thought is, yes. There probably is a deeper reason for the right to silence than stopping torture (which seems to me another issue, really), but whatever the ostensible just reason for the right to silence, it almost certainly must be outweighed by larger concerns for truth & justice.

98

Indeed. If you let the prosecution write the questions, the playing field is inevitably tilted – they have an incentive to frame them in such a way that technically true but misleading answers make the defendant look guilty. If you let both sides write questions, it comes down to a game of which side can play such semantic games most effectively. If each side can challenge questions from the other, it becomes a game of who can get the right questions excluded and the right ones introduced.

It’s not clear that this would be all that much of an improvement over the current adversarial system.

99

Let’s improve the truth serum a bit. It’s not a drug, but rather a hyperadvanced MRI type device built into the witness stand of every courtroom. The MRI scans the brains of witnesses, and emits a loud BZZZZZT noise whenever it detects deception. And let’s imagine that processes in the brain that indicate deception can be reliably detected in 99.999% cases.

The machine can’t tell whether the subject is telling the truth, it can only detect whether the subject believes they are telling the truth. So if you asked a grandmother if her grandchildren were the most beautiful children in the world it would not indicate deception if she answered “Yes”, even though there are in fact more beautiful children in existance. Note that given what we know about the brain I think such a machine is unlikely to be possible. But let’s stipulate it.

You still can’t be compelled to testify, however, you cannot testify in court except when being scanned. It isn’t an Orwellian invasion of privacy, because you cannot be questioned without an impartial judge and your attorney present. If you’re being questioned about a murder you can’t be asked if you’re boning the victim’s husband because your attorney will object and the judge will sustain the objection.

Does anyone object to this idea? I don’t see any problem with it, as long as this fantasy machine could be proven to work reliably. No one is compelled to testify against themselves, but everyone who chooses to testify is under scan. And witnesses are obligated to testify under scan as well. Any witness who refuses to testify under scan would be refusing to testify altogether, and would be treated like a witness today who refuses to testify. That is, they are charged with contempt of court and can be arrested until they agree to testify. If a witness believes the scanner is unreliable they can present scientific evidence that the scanner doesn’t work, however in our fantasy scenario all such claims have been shot down multiple times, objecting would be like asserting that there’s no such thing as DNA.

I don’t think this scenario raises any constitutional or ethical problems. It’s just a new technology that can be used to support or impeach testimony. Of course such a thing doesn’t exist and isn’t likely to exist, but that’s irrelevant.

Now we go one step further. What would be wrong with compelling the defendant to get on the witness stand and answer questions under scan? Of course the defendant could refuse to answer questions, just like every other witness can refuse to answer, but the judge is also free to cite the defendent for contempt of court just like any other witness who refuses to testify. The prosecutor can ask questions, but they would be the same sorts of questions a prosecutor can ask today of a defendant who chooses to testify. If you get up on the stand and testify that you didn’t commit the crime the prosecutor is entitled to cross-examine you, but he can’t ask you irrelevant questions, the judge and your lawyer prevent him from trying to force you to make embarrassing admissions under oath. So the prosecutor could only ask you if you were having a homosexual affair with the murder victim’s husband, but only if he could show to the judge that the question is relevant to the trial, just like today.

Yes, this would violate the US Constitution, in order for this to happen we’d have to amend the Constitution. The Constitution prohibits compelling someone to testify against themselves, and for good reason. But do those reasons still hold with our new scanners? Due process is there to protect the citizenry from the government. The Constitution establishes due process because humans are fallible, and it is easy to make mistakes. The Constitution is a balancing act between our need to be protected against the goverment, and our need to have the government protect us against our fellow citizens. We could completely eliminate the problem of innocent people going to jail for crimes they didn’t commit by prohibiting the government from trying or convicting anyone of any crime and opening the jails and letting everyone out. Except this would mean that murderers and robbers could act with impunity, and we’d all have to defend ourselves personally, and our personal acts of defense would be unreviewable. We accept giving the government certain powers because otherwise we’d be living in anarchy, but we limit the power of goverment because power corrupts.

But now we have a new technology that can scientifically determine whether someone is lying or telling the truth. Does this invention change the balance between the rights of the accused and the rights of society? It seems to me that asserting that the balance should remain unchanged is short-sighted. Our protections weren’t handed down on Mt Sinai, they are created by human beings and serve a human purpose. Change the equations and we change the need for certain rules. The rule against self-incrimination sometimes creates injustice, whenever a guilty person is set free. However, it protects us against an even greater injustice, a tyrannical government. Doesn’t this new technology change the balance?

100

No. It is the prosecutions job to prove that a crime has been committed and that the accused is the person responsible for committing that crime. Even if you could guarantee everybody was telling the truth. You will only get the truth as the witnesses see it, which may not be the same as the “truth” (an objective accounts of events).

It is not the defendant’s job to help the prosecution prove its case.