America generally allows the government to force people to testify in court against their will. The right to force people to testify against their will is even enshrined in the Sixth Amendment: the accused has the right to “compulsory process for obtaining witnesses in his favor.” Why do we have the right to force people to testify about or against anyone else, but not against themselves? Does it protect the innocent in some way? How?
I’ve heard two justifications for the right against self-incrimination.
It prevents us from torturing people to make them speak against themselves, as used to be done in England when heavy weights were placed on the accused’s chest to force him to plead. But somehow we have managed to avoid legalizing the torture of witnesses to make them testify against others, even though the Fifth Amendment doesn’t protect against torture for that purpose.
It removes the temptation for defendants to perjure themselves under oath, thus damning their immortal souls. As an atheist, I may be biased about this, but I think in a modern secular society the government shouldn’t be in the soul-saving business, particularly not at the expense of its law enforcement responsibilities.
I can see justification for the right not to talk to the police, or other agents of the executive. The police are not impartial agents, and there are certainly many cases of police manipulating people into making false confessions, and there would presumably be many more if the police had the power to coerce people to speak against their will. What I’m talking about, though, is the right not to talk even in open court in front of an impartial judge, with a competent lawyer representing you. What evil is avoided by making someone answer questions that could incriminate him or her in that situation?
Are there any advanced societies that do not have the right against self-incrimination in court? Do abuses result because of it?
I’m sure one of the more edumocated Dopers will jump in here with a litany of justifications, but let me just address your second justification. It’s not about saving souls, it’s about (a) preventing perjury and (b) securing Fourth Amendment rights.
Hypo: The police break in and illegally plant a wiretap in Fat Tony’s house. Through the wiretap, they record him admitting to the murder of Little Johnny. This evidence is clearly inadmissible in court because of the Fourth Amendment.
But say there is no Fifth Amendment right NOT to testify… the prosecutor puts Fat Tony on the stand against his will.
Prosecutor: “Fat Tony, did you kill Little Johnny?”
Fat Tony: “No.”
Prosecutor: “Your honor, we wish to submit this audiotape of Fat Tony saying he killed Little Johnny.”
Defense: “You can’t admit that! It was illegally obtained!”
Prosecutor: “We are not offering it to prove he killed Little Johnny. We are just offering it to impeach his testimony and show he just perjured himself. Also, we would like to add perjury charges too.”
I think you pretty much hit the nail on the head with the whole “It prevents forced confessions,” theory, which as you pointed out, were rather commonplace in the 18th century. I think this is still a fairly important right, since it limits the police’s and courts’ ability to harass you, by demanding you provide endless streams of alibis or details about your private life. It’s not systematic, but there are still plenty of incidences of American policing torturing or otherwise coercing confessions out of people.
I think you’re confusion stems from the fact that you are assuming that people must be guilty of the crime they are accused of in order to have something to hide. but the reality is different for at least two reasons.
Firstly, innocent people often have things to hide. Think of the McCarthy communism hearings. The “accused” were perfectly innocent in the sense that they had committed no actual crime. However if they could have been compelled to give evidence to the state they would nonetheless have faced social ruin. Now this may not be a perfect example, since “Pleading the Fifth” to Joe usually resulted in social ostracism anyway, but you can see how it often works in many other cases, where people in less public trials didn’t have to declare their sexual or religious affiliations for example. This is, to me anyway, absolutely essential in maintaining many other freedoms, such as freedom of religion, association or even firearm ownership. So long as a person can’t be compelled to testify about themselves then the state can’t effectively use the courtroom to rouse public shame and resentment against people who undertake legal but unpopular activities in private.
Secondly, guilty people usually aren’t just guilty of the crime they are charged with, Indeed most people who testify are never charged, they are witnesses. If the state could force anyone who they like to incriminate themselves, the cops and DAs would engage in the greatest fishing expedition ever. Think that Bill over there is smuggling pot into the country but can’t find evidence? Come up with any charges against Bill or *anyone * he is associated with, and then subpeona Bill. Once he’s on the stand grill him about his movements until he provides you with enough evidence for you to get a search warrant or even to charge him. This might not seem to bad, but what if you were Bill’s completely innocent Brother in Law? The cops trump up a charge against you. They know it will be dismissed, but it will let them get Bill on the stand, and that’s all they want. You of course are still jailed, have to pay a lawyer etc.
This is really not good. We don’t want the state to have a secondary interest in getting people onto the stand because they will immediately start using any excuse they can to get people onto the stand. So long as Bill can plead the Fifth to any questions they throw at him, you are safe because the state stands to gain nothing at all from framing you. It also serves to stop them from framing Bill for a liquor store robbery just as an excuse to grill him over his travels to Mexico. We really only want the state to prosecute cases they think they can win and to only put people on the stand because they have information relevant to the case being tried. If we force all subpeonaed witnesses to incriminate themselves then the state has a compelling reason to prosecute cases they know they will lose, because they can supeona people relevant to bigger cases, and they will put people on the stand even if they know they have little information relevant to this case, because their self-incrimination is are relevant to another case.
Now of course there are some protections against this, in that the judge isn’t going to look favourably on subpeonas for irrelevant witnesses, and questions are meant to be relevant, but any halfway clever prosecutor is going to find a dozen ways to game those rules. Far better if people can simply clam up when they feel like they are in danger of incriminating themselves.