Forgot your password?
typodupeerror
Privacy News

The Reporter's Fifth Amendment Paradox 452

Posted by samzenpus
from the no-information dept.
Bennett Haselton writes: "The ongoing case of New York Times reporter James Risen -- whom the U.S. Department of Justice wants to force to testify against one of his sources for leaking classified CIA information -- brings up a more general question about the Fifth Amendment: Why are criminal defendants allowed to remain silent, but not third-party witnesses like Risen?" You'll find the rest of Bennett's story below.

In my last article about the Fifth Amendment, I tentatively made the argument that I couldn't see a principled reason why defendants should be able to refuse to answer the question of whether they committed the crime or not. My argument was that you're perfectly entitled to keep information private that is none of anybody's business -- you ought to be able to say, "It's none of your beeswax where I was on the night of the murder" -- however the fact of whether you committed the murder or not, is everybody's business, and I didn't see why the state shouldn't be able to make you choose between saying "Yes, I committed the murder," or "No, I didn't." (If you think the state would then try to convict you of lying if they were determined to railroad you, then my answer would be: If the state is going to railroad you anyway, they can convict you of the murder regardless of whether or not you say you're innocent, so that's not an argument in favor of the right to remain silent. I addressed this and several other counter-arguments in the original article.)

However, the argument I'm making this time is different. I'm saying that regardless of how you feel about the Fifth Amendment granting criminal defendants the right to remain silent, there's no consistent argument that would support giving defendants the right to remain silent, that should not also apply to third-party witnesses.

Here's the basic paradox: Suppose Bob may have committed a crime, and Alice is known not to be an accomplice but appears to have been a witness. If the courts ask both Bob and Alice the same question -- "Did Bob do it?" -- and both of them refuse to answer, then Bob's right to remain silent is protected under the Fifth Amendment, but Alice can be sent to jail -- despite the fact that Bob may have been guilty, but Alice is innocent! To me, that sounds crazy. (As explained at Findlaw and elsewhere, generally third-party witnesses can be required to testify in a way that defendants cannot. Witnesses can only plead the Fifth Amendment right against self-incrimination if they believe that by answering they could incriminate themselves. If it's generally agreed that a person is a third-party witness who was not guilty of any wrongdoing themselves, they can be forced to answer.)

In my first article arguing that defendants should not have the right to refuse to answer "Yes" or "No" as to whether they committed a murder, I wasn't sure of the conclusion, and I invited readers to submit arguments as to why I was wrong (I called the article "Seeking Fifth Amendment Defenders", after all, not "Let's Abolish The Fifth Amendment"). I'm still weighing the arguments coming in, and haven't decided what I believe. However, I'm more sure about the point I'm making this time: that there's no principled, consistent reason to give defendants the right to remain silent but not third-party witnesses. This is after talking to multiple lawyers, law students, and law enforcement officers and asking for any argument to the contrary.

There are two counter-arguments that I've received multiple times, that deserve a response:

  • "The defendant's rights as a presumed-innocent citizen have to be protected until they're actually convicted." This is absolutely an important principle in a free society, but generally those "rights" refer to rights that free people have as well, and that are preserved even if you've been arrested -- for example, the right to free speech and the right to be presumed innocent, are all rights that the general public enjoys as well. Insofar as the Fifth Amendment says you have the right to refuse to answer questions about the particular incident that got you arrested, that's a right that innocent third-party witnesses don't have. Even in the most progressive societies, generally speaking criminal defendants don't get more rights than the public. Why should they get that special right in this case? Maybe there's an argument why, but you'd have to at least make that argument.

    So all the talk about protecting the rights of a criminal defendant, is valid, but it misses the point: Why shouldn't we also give the same rights to a third-party witness who we know is innocent?

  • "It would be very difficult to prosecute many cases without compelling testimony from third-party witnesses." This is true -- particularly in the cases of reporters like Risen, who refuse to divulge their sources' identities, so all you have is the option of compelling the reporter to testify, when you don't even know the defendant's identity yet.

    However, that's really an argument that if you had to choose between having the ability to force defendants to testify, and having the ability to force third-party witnesses to testify, you would choose the ability to question third-party witnesses, simply because there are often more of them and sometimes they're available even when the defendant isn't. But that's not an answer to my question, which is: Is there an argument from moral or legal principles as to why the defendant is allowed to remain silent but third-party witnesses are not? Obviously, we don't actually have to choose between requiring defendants to answer and requiring third-party witnesses to answer. If we place more importance on giving courts the power to gather information, we should empower them to question third-party witnesses -- but wouldn't that argument also apply to requiring answers from the defendant? On the other hand, if we place more importance on individual liberty, we could grant the right to remain silent to defendants who are presumed innocent -- but shouldn't we grant that same right to third-party witnesses that we know are innocent?

    The argument that "it would be too inconvenient to prosecute cases if we couldn't require answers from third-party witnesses", is a bit like saying that if we had to choose between the courts having the power to force Eskimos to testify, and having the power to force non-Eskimos to testify, we would choose having the power to force non-Eskimos to testify, just because there are more of them. But obviously that's not a principled argument as to why we should be able to require answers from non-Eskimos but not from Eskimos.

Of course, many people's sympathy for James Risen might stem not from the fact that he's a third-party witness (to the crime of leaking information), but from the fact that his supporters are sympathetic to the cause of the anonymous leaker, who was exposing what he believed was a corrupt government. (Risen's book is subtitled "The Explosive Book on the Abuse of Power of the Bush Administration", always a way to get fans.) If James Risen knew the identity of someone who had raped and killed a child, but had gone to jail for refusing to name the suspect, probably a lot fewer people would be hailing him as a hero. But that hypothetical just makes the argument from the opposite direction: If we instinctively feel that third-party witnesses to a murder can be forced to answer questions about what they saw, why can't we make a suspect (who is, after all, a special case of a "potential witness") answer questions about what they know as well?

Our courts' current stance on the "right to remain silent" -- that it can be claimed by criminal defendants, but not by innocent third-party witnesses -- seems so absurd to me that I'm going to go out on a limb and say that I think it's an example of groupthink, an assumption that we accept because we're immersed in it, but that few people would ever come up with on their own if they were working from first principles about balancing liberty vs. the rights of the state.

Here's what I mean by that: Suppose you had been raised in a world that was identical to our own, except that our rights under the Fifth Amendment were inverted, so that innocent third-party witnesses could refuse to answer questions, but criminal defendants could at least be required to answer "Yes" or "No" as to whether they committed the crime. My hunch is that that, instead, would seem natural and sensible. You wouldn't scratch your head and say, "Wait, that seems wrong -- it should be the defendants who should have the right to remain silent, not the innocent witnesses."

By contrast, suppose you had been raised in the world that was identical to ours, except that portions of the First Amendment were inverted -- so that we could write any political arguments that we wanted to, but the government demanded prior approval of any fictional stories that we wanted to publish. I would hope that to many people, this would seem like a nagging contradiction, and over time more and more people would point out this inherent hypocrisy and call for restrictions on political thought to be abolished. That's because I think the First Amendment guarantee of free speech is something that can be derived from first principles about individual liberty -- if you want to write something and someone else wants to read it, and neither of you is harming anyone else in the process, it should be nobody else's business, period, full stop. And I just don't see a compelling argument from first principles in support of our current interpretation of the Fifth Amendment -- that we can make third-party witnesses answer questions, but not require the same of a criminal defendant.

Regardless, a court has already ruled that James Risen can be made to testify, and barring a successful appeal, he may choose to go to jail rather than reveal his source. The judge writing the ruling against Risen made an interesting slip-up, though, when he wrote:

The reporter must appear and give testimony just as every other citizen must.

But of course "every other citizen" does not have to give testimony -- if the defendant is ever identified, they won't have to. And that's the inconsistency that I find hard to explain.

This discussion has been archived. No new comments can be posted.

The Reporter's Fifth Amendment Paradox

Comments Filter:
  • It's simple (Score:5, Informative)

    by Anonymous Coward on Monday September 09, 2013 @12:44PM (#44798971)

    There was once a common practice of forcing defendants to testify, and adding more charges if they denied guilt and then were found guilty anyways. The Fifth Amendment protects against that practice, and only that practice.

    • Re:It's simple (Score:5, Interesting)

      by ackthpt (218170) on Monday September 09, 2013 @12:52PM (#44799071) Homepage Journal

      There was once a common practice of forcing defendants to testify, and adding more charges if they denied guilt and then were found guilty anyways. The Fifth Amendment protects against that practice, and only that practice.

      Until the Miranda Right was acknowledged it was common practice to give witnesses as well as suspects the third degree [wikipedia.org], which widely ignored the main focus of the 5th amendment.

      We'll get a confession out of you if we have to beat it out of you.

      Though as I see it, if the reporter says nothing to incriminate him/herself the Fifth is being respected in technical interpretation. If the reporter does say something which may lead to charges (such as conspiracy to commit espionage) the spirit of the Fifth is being denied.

      • Re:It's simple (Score:4, Interesting)

        by bennetthaselton (1016233) on Monday September 09, 2013 @01:11PM (#44799383)
        Re:
        "There was once a common practice of forcing defendants to testify, and adding more charges if they denied guilt and then were found guilty anyways. The Fifth Amendment protects against that practice, and only that practice."

        Well if the court system is corrupt or sloppy enough that they can convict you even if you're innocent, then that's a problem with or without the Fifth Amendment. Suppose you remain silent instead of denying guilt, and they railroad you on a murder charge anyway. If you're already getting convicted of murder, an extra charge of lying under oath wouldn't have mattered very much.

        On the other hand, if you really are guilty, and you testify that you didn't do it, but evidence comes out that proves beyond a shadow of a doubt that you did it (caught on high-quality tape, for example), then you should be charged with perjury as well as with the original crime, shouldn't you?

        But regardless, this all goes back to the previous article I wrote, asking what was the real rationale for the Fifth Amendment. This article is arguing a different question -- what is the rationale for giving defendants the right to remain silent, but not third-party witnesses.
        • Re: (Score:2, Insightful)

          by Anonymous Coward

          All courts systems have the potential of being corrupt or sloppy. This acts as a check on that possibility.

        • Re:It's simple (Score:4, Interesting)

          by ackthpt (218170) on Monday September 09, 2013 @01:32PM (#44799745) Homepage Journal

          And my point is: There are at least two views of the Fifth Amendment, the technical wording and the spirit of the meaning.

          The technical interpretation of the first few words here "No person shall be held to answer for ..." addresses the defendant an no other. The witness is not on trial, so to speak. However, in the spirit of the amendment, it could (and you appear to be doing so) argued the witness may appear complicit in a criminal or socially unacceptable act in given testimony which damns the witness. I.e. Charges may be brought against the reporter or the reporter may be fired for professional ethics violations, neighbors may shun the reporter, etc.

          You make a fairly sound rational argument, but present view within the courts has been defined by precedent. Many reporters have found themselves cooling their heels in a cell while standing up for their 1st Amendment rights. Were this not acceptable by the Supreme Court of the United States, I think we would have seen an end to it by now. But we have not.

          • by Tanktalus (794810)

            If, by answering questions about some other crime, I were to move from "known not to be an accomplice" to "known to be an accomplice", having been forced to answer those questions would fail the fifth amendment. By forcing Risen to answer these questions, we may find out he was actually a co-conspirator or an accomplice (or perhaps even the source of the leak itself). And thus forcing him to answer now has trampled his fifth amendment rights.

            While it would be very dangerous, a very principled person (more

            • By forcing Risen to answer these questions, we may find out he was actually a co-conspirator or an accomplice (or perhaps even the source of the leak itself). And thus forcing him to answer now has trampled his fifth amendment rights.

              and we come full circle ... if risen is asked questions that may incriminate him, then he should plead the 5th.

              "To invoke the privilege, a witness need not be guilty of any offense; rather, the privilege is properly invoked whenever the witness's answers 'would furnish a link in the chain of evidence needed to prosecute' the witness for a criminal offense."

              http://www.avvo.com/legal-guides/ugc/california-law-when-can-a-witness-invoke-the-fifth-amendment-privilege-not-to-testify-1 [avvo.com]

        • by TheCarp (96830)

          Ahh but what if your honest testimony contradicts known facts? (memory can be wrong, people make mistakes, "facts" can be errors).

          If the prosecution believes that you saw something, which you deny, or the truth contradicts your own previous statements, then you could, in your testimony, be creating evidence against yourself for another crime: that of perjury, even by giving honest testimony.

          Sure you could give you immunity from any crimes evidenced by your testimony, including perjury, but, can you then sti

        • Re:It's simple (Score:5, Insightful)

          by artfulshrapnel (1893096) on Monday September 09, 2013 @02:01PM (#44800207)

          It actually isn't very logical or important for a major charge like murder, but it seems fairly important when dealing with a minor charge like say... trespassing. Typically trespassing would not be a serious offense, and it is often one that includes mitigating circumstances or enough nuance to justify a proper investigation before a person is punished for their crime.

          If, however, you can stack a 5 year felony sentence for "perjury" or "obstruction of justice" onto minor charges unless the defendant admits to being guilty, then you have yourself a very easily abused power as a prosecutor. It's made even worse because the eventual determination of whether or not they've committed perjury is going to be entirely based on the outcome of the case itself. It's basically a way to add a felony to any minor misdemeanor unless the person is willing to confess outright, and it puts an innocent person in the unenviable position of risking a potentially huge charge for a far lesser crime unless they make a false confession to save themselves.

          "Well you either confess and we give you 1 week of community service, or else we put you on trial. If you're found guilty, and we will try our hardest to make this circumstantial evidence stick, you'll not only get community service but you'll also face 5 years in prison and a felony charge for perjury. So I ask again: Did you vandalize that tree in the park or not?"

          In a way it reminds me of the old witch trials. "You're guilty of perjury because we insist you're innocent of this other crime and we decided that you aren't."

          • Re:It's simple (Score:4, Interesting)

            by bennetthaselton (1016233) on Monday September 09, 2013 @02:39PM (#44800723)
            Well to bring it back to the question I asked in the article: Why do we have a right to remain silent for defendants, but not for witnesses?

            To use your example, it's easy to imagine a prosecutor saying, "Either you testify against your friend and they get 1 week community service, or if you claim your friend is innocent and then your friend gets convicted, we'll seek a 5-year sentence against you as well for perjury. So I ask again: Did your friend vandalize that tree or not?"

            Wouldn't your scenario also be an argument to extending the right to remain silent to third-party witnesses as well?
    • Why do you think when people get in political trouble, they will use their 5th amendment rights. Because if they are found innocent of the crime they will, then find some inconsistency with their story and get them jailed for perjury. Normally this tends to happen to Middle managers working for the government. If they get caught doing something, they were often the last ones to execute the order, after getting orders from many layers down.

      • Re:It's simple (Score:4, Insightful)

        by ackthpt (218170) on Monday September 09, 2013 @01:12PM (#44799409) Homepage Journal

        Why do you think when people get in political trouble, they will use their 5th amendment rights. Because if they are found innocent of the crime they will, then find some inconsistency with their story and get them jailed for perjury. Normally this tends to happen to Middle managers working for the government. If they get caught doing something, they were often the last ones to execute the order, after getting orders from many layers down.

        You may be thinking of Col. Oliver North, who was quite the willing accomplice in the Iran-Contra affair. Which brings up the point of a soldier is bound to carry out orders, not question them. While many would feel he went about his task with a clear conscience, which few could fathom, his ultimate superior, Ronald Reagan had all sorts of convenient memory lapses, which left North hung out to dry.

        • Re:It's simple (Score:4, Insightful)

          by superdave80 (1226592) on Monday September 09, 2013 @01:22PM (#44799575)

          Which brings up the point of a soldier is bound to carry out orders, not question them.

          I thought soldiers weren't required to follow illegal orders?

          • Re:It's simple (Score:5, Informative)

            by ShanghaiBill (739463) on Monday September 09, 2013 @01:32PM (#44799741)

            Which brings up the point of a soldier is bound to carry out orders, not question them.

            I thought soldiers weren't required to follow illegal orders?

            An American soldier is not required to follow an illegal order, or even an ambiguous order. When I was in the military, we were told that the proper response to an order like "Take these prisoners to headquarters twenty miles away, and be back in five minutes (wink wink)" is "Can you clarify exactly what you want me to do, and can you also put it in writing?"

            • Re:It's simple (Score:4, Insightful)

              by hedwards (940851) on Monday September 09, 2013 @01:40PM (#44799873)

              That was back when the government mostly cared about the law. These days, the military brass don't seem to be particularly interested in investigating up the chain of command. Back in my Dad's day, the top brass running Abu Ghraib would have been prosecuted and thrown in prison for failing to make sure the law was being respected on their watch.

              Not to mention that all the people working at GITMO would have been prosecuted in the past, regardless of whether or not they were under orders to do so.

              It's a shame because such abuses of power and incompetence represent a very real threat to national security.

              • Re:It's simple (Score:5, Interesting)

                by ShanghaiBill (739463) on Monday September 09, 2013 @02:22PM (#44800455)

                Back in my Dad's day, the top brass running Abu Ghraib would have been prosecuted and thrown in prison ...

                Baloney. A generation ago, not a single person was punished for the My Lai Massacre [wikipedia.org], an atrocity orders of magnitude worse than Abu Ghraib. Likewise, no one was held accountable for No Gun Ri [wikipedia.org] which was covered up for decades. There are numerous documented incidents of American soldiers murdering prisoners and civilians with impunity. Your assertion that the American Military was more accountable in the past is laughable. Soldiers are far more accountable today than ever before, and for a simple and obvious reason: cameras on cellphones.

                • Re:It's simple (Score:4, Interesting)

                  by smugfunt (8972) on Monday September 09, 2013 @03:55PM (#44801823)

                  A generation ago, not a single person was punished for the My Lai Massacre

                  Nearly true. Wikipedia says:

                  Eventually, Calley was charged with several counts of premeditated murder in September 1969, and 25 other officers and enlisted men were later charged with related crimes.
                  ...
                  Calley was convicted on March 29, 1971, of premeditated murder not less than twenty people. He was initially sentenced to life in prison. Two days later, however, President Richard Nixon made the controversial decision to have Calley released, pending appeal of his sentence. In August 1971, Calley's sentence was reduced by the Convening Authority from life to twenty years. Further, Cally's conviction was upheld by the Army Court of Military Review in 1973 and by the U.S. Court of Military Appeals in 1974.[54] Despite that, Cally would eventually serve three and one-half years under house arrest at Fort Benning including three months in a disciplinary barracks in Fort Leavenworth, Kansas. In September 1974, he was paroled by the Secretary of the Army Howard Callaway.

                  Everyone else involved was either acquitted or never prosecuted.

      • So as to the question I'm asking in the article: Why shouldn't this also apply to third-party witnesses? Otherwise, if a corrupt government subpoenas someone as a third-party witness and the witness gives them answers that they don't like (i.e., answers not aiding them in convicting the defendant they're trying to nail), the government could threaten to find some inconsistency in the witness's testimony and convict them too, unless the witness gives the government the answers they want.
        • So as to the question I'm asking in the article: Why shouldn't this also apply to third-party witnesses?

          Because there is a presumption that the accused is innocent. It is the prosecutions job to prove they are guilty. The accused does not have to prove they are innocent, nor do they have to cooperate with the prosecution. None of this applies to third parties.

          Otherwise, if a corrupt government ...

          If you have a corrupt government willing to pervert justice, you are not going to fix the problem with some minor tweaks. You need to have an independent judiciary, informed jurors, and a free press that can report abuses.

    • Plea bargain (Score:5, Insightful)

      by dalias (1978986) on Monday September 09, 2013 @01:02PM (#44799231)
      This practice still exits anyway; it just has a new name. It's called "plea bargain".
    • by gl4ss (559668)

      forcing people to testify doesn't really work either...

      but what does that matter? YOU ALREADY FUCKED UP the 5th.

      how? by your stupid ass plea bargain shit system. it works _EXACTLY_ like a system where you're given more charges and harsher punishments if you don't confess... the right to not be punished for not confessing already went out the window a long time ago.

      anyhow, can't the guy refrain from testifying on the grounds that he might incriminate himself, because it is possible that he did something ill

  • by Anonymous Coward on Monday September 09, 2013 @12:49PM (#44799039)

    It's a right to not bear witness against yourself.

  • by Anonymous Coward on Monday September 09, 2013 @12:50PM (#44799055)

    The reason that the defendants right to remain silent is protected is because his testimony is worthless anyhow. If he is guilty then obviously he is going to lie and all that you achieve is the ability to stack perjury charges ontop of the normal charges, which just makes the entire procedure look awfully like a show trial rather then a proper trial.

    I'll also quote part of the Wikipedia history section why the right is important:
    " The Latin brocard nemo tenetur se ipsum accusare ('no man is bound to accuse himself') became a rallying cry for religious and political dissidents who were prosecuted in the Star Chamber and High Commission of 16th century England. People coming before these tribunals were forced to make the ex officio oath by which they swore to truthfully answer the questions to be put before them without knowing what they were being accused of. This created what has been termed the cruel trilemma whereby these accused were forced to choose between committing the mortal sin of perjury (if they lied under oath to protect themselves), harsh punishment for contempt of court (if they refused to answer), or betraying their "natural" duty of self-preservation (if they told the truth to honour their oath)."

    • by Jane Q. Public (1010737) on Monday September 09, 2013 @01:10PM (#44799361)

      "The reason that the defendants right to remain silent is protected is because his testimony is worthless anyhow."

      Not even.

      The purpose of the Fifth Amendment was to remove any motivation for government coercion of the accused.

      WE KNOW what damage coercion can do. The result of coercion is invariably a huge increase in the number of innocents getting convicted. Historical records of this are very clear... even our own. The percentage of innocents convicted when confessions were coerced or forced by overzealous law enforcement is quite high.

      We even see it in cases of prosecutorial overzealousness in the form of "plea bargains". Plea bargains have been used to jail more innocents than perhaps any other legal tool. (Which is why I say we need to dump the whole concept of plea bargains, altogether. It is a societal ill, not a good.)

      ---
      ""That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved." -- Benjamin Franklin, letter to Benjamin Vaughan, March 14, 1785.

      • by mdielmann (514750)

        And this is what it comes down to. For the defendant, the goal is to have there be no motivation for the government to abuse the accused in order to get a confession (as stated below, they still constantly look for ways to bend that rule). The premise for the witness is that there is no motivation for why they should remain silent. They've committed no crime, and presumably face no negative repercussions if they tell the truth in court. Therefore, they don't have a right to remain silent, and can be cha

    • "If he is guilty then obviously he is going to lie and all that you achieve is the ability to stack perjury charges ontop of the normal charges, which just makes the entire procedure look awfully like a show trial rather then a proper trial."

      Well this is something I addressed in the original article -- if your legal system is so corrupt or incompetent that they can convict you even if you're innocent and you say so, then they can also convict you even if you remain silent. If you're convicted of murder o
      • by Zironic (1112127)

        That's because they were guilty, what part of political and religious prosecution do you have problems understanding?

        The right to remain silent makes it a lot harder to prosecute people over political crimes.

  • by Quila (201335) on Monday September 09, 2013 @12:52PM (#44799083)

    If she can be sent to jail, she's not an innocent third-party witness, and would be able to refuse to testify.

    The Fifth is only to prevent forced self-incrimination. If the prosecution waives any ability to prosecute, then the Fifth simply has no application in that case anymore. The Fifth is not about the overall power of the government to compel you to talk, so anything along those lines is out of scope.

    • If she can be sent to jail, she's not an innocent third-party witness, and would be able to refuse to testify.

      Presumably the complaint is that she could be sent to jail for contempt of court, which is unrelated to the original crime being prosecuted, so she could be innocent UNTIL she refuses to testify. I believe that's the OP's contention.

      • by Quila (201335)

        so she could be innocent UNTIL she refuses to testify

        Then she is guilty of a crime (contempt) where she was not forced to testify against herself. Again, the Fifth does not apply. It is only about self-incrimination.

        We all have a duty to aid the justice system when called upon to do so. Refusal can have consequences, such as when one skips jury duty or refuses to testify when compelled.

    • "If she can be sent to jail, she's not an innocent third-party witness, and would be able to refuse to testify."

      I'm talking about the case where it's generally agreed that Alice did not commit the original crime, but she refuses to answer questions anyway. Then she can be sent to jail for contempt of court.

      I understand that the Fifth only protects against forced self-incrimination, and that if you're a third-party witness where your testimony would not incriminate yourself, the government doesn't let yo
  • than go through the time and expense of "innocent until proven guilty" burden of proof that one is indeed guilty. The whistleblowers have already made it clear that they're the ones who spoke, the criminals are more stealth (and protected) with their info.

  • This one's easy (Score:5, Interesting)

    by Millennium (2451) on Monday September 09, 2013 @12:54PM (#44799107) Homepage

    Witnesses can be compelled to testify so that they cannot be intimidated into silence.

  • by Nidi62 (1525137) on Monday September 09, 2013 @12:57PM (#44799153)
    If you are a third party witness, then you are not testifying against yourself, you are testifying against another person. The accused has a right not to testify against themselves or be forced to do so. The whole poiont of the amendment is to protect the accused, and no one else. Now, the only argument I can see for him claiming the 5th is if his testimony would reveal criminal actions on his part, which does not apply here because of protections to journalists.

    There is also the fact that the courts are supposed to be about determining the facts of a case and to mete out appropriate punishment (it could be argued that it has shifted, but that is their design). By not revealing his source, he is in fact hampering the function of the court which, to me, is equal to contempt. If a person in the gallery of a court started yelling and protesting and refused to be quiet and kept the court from continuing, one would expect that person to be arrested. He is essentially doing the same thing.

  • by 7-Vodka (195504) on Monday September 09, 2013 @12:57PM (#44799159) Journal

    When the executive decides that certain classified information is beneficial to them, they leak it and go unpunished. This happens on a weekly basis as a form of propaganda.

    When the executive wants to retaliate against someone, they leak classified information and go unpunished, e.g. dick cheney revealing valerie plame.

    If anyone else leaks classified information, the government goes after them with full force.

    Given that the government has taken to classifying just about everything it does, this results in a propaganda machine where only information beneficial to the government tends to be revealed.

    • Given that the government has taken to classifying just about everything it does...

      That's a clever way to try to get around the first amendment. Make everything classified, and then no one can criticize you without being prosecuted for espionage.

  • Because we know? (Score:5, Interesting)

    by PPH (736903) on Monday September 09, 2013 @12:58PM (#44799181)

    Why shouldn't we also give the same rights to a third-party witness who we know is innocent?

    How do we know anything about the crime scene? If we did, then the prosecution job would be done and no testimony would be needed. Given the Bob/Alice scenario, how do we know that Alice is an innocent bystander? If she is not, then she has the same fifth amendment rights as Bob does.

    Likewise, we don't know James Risen's role in the CIA information leak. Did he conspire with an insider to obtain the information? If so, it would seem that the Fifth Amendment applies to him as well. If the DoJ knows any different, then they can just present that to the court without the assistance of Risen's testimony. Yes, the DoJ can offer immunity and remove the self-incrimination hurdle. But immunity from what? We don't know what other illegal acts Risen may have committed in order to acquire the information and even the act of negotiating immunity may reveal other acts that the prosecution is not aware of.

    Our US legal system is adversarial by design. It's us (the public) against the government. So nobody should be compelled to assist them in any way.

    • "How do we know anything about the crime scene? If we did, then the prosecution job would be done and no testimony would be needed. Given the Bob/Alice scenario, how do we know that Alice is an innocent bystander?"

      Apparently this was what happened to Josh Wolf -- he videotaped protesters vandalizing a car, the government demanded his original source materials, he argued a Fifth Amendment right to refuse to testify, but it was generally agreed that he wasn't involved in any vandalism so the court said he d
  • Each person cannot be compelled to testify against himself in court.

    While the author may intentionally not make a distinction, the Alice would only face contempt charges which rarely produce the levels of punishment as murder convictions do.

    It's a poorly thought-out argument.

    The issue with being compelled to testify is that the courts don't wish people to be applying their own judgement standards instead of the court. What happens if a person is lynched and no one who saw it testifies because by their own b

    • "Alice would only face contempt charges which rarely produce the levels of punishment as murder convictions do"

      I understand that, but the question is, why don't we apply the same principle to the defendant themselves? Require them to answer questions about what happens and then charge them with contempt if they don't answer. (And then of course if evidence emerges elsewhere that they actually committed the original crime, charge them with that too.)

      "The issue with being compelled to testify is that
  • A thought... (Score:5, Interesting)

    by Antony T Curtis (89990) on Monday September 09, 2013 @01:02PM (#44799229) Homepage Journal

    Why not the reporter attend but when taken to the witness stand, every question asked should be answered with "I am under duress and I am not here under my free will". If I recall correctly, people who are under duress with threat on their person are permitted to commit perjury, which is why defendants, when found guilty, cannot be charged with perjury for claiming to be not guilty. So when asked a question, the reporter should state that he is under duress and then give an obviously nonsense answer. So when asked to name his source, he should give the name of the Judge's dog, for example.

    I may be very wrong but it would be interesting...

    Just my 2.

  • Pleading "Not Guilty" is the same as saying, "I didn't do it." Is there anything an innocent defendant needs to add? If they didn't do it, they probably don't know more than that.
  • Why are criminal defendants allowed to remain silent, but not third-party witnesses like Risen?

    Because the defendant's right to a fair trial trumps the third party's desire not to get involved. What if the information from the third party could exonerate the defendant?

  • A court does not exist to gather information. In essence the police gather information. The prosecution presents that information in relation to the law to the judge and jury. The judge and jury both act as finders of fact.
    The resources of the state in gathering information can be extensive as is their budget for detectives. By the time a case reaches trial there should be no new information. Yet there often is due to prosecutors and cops who are zeal

    • by GigsVT (208848)

      Branzburg v. Hayes which lead to one of the big supreme court rulings on this matter (striking down protections for press) was under Burger's court and was hardly a conservative bunch (the same court that gave us Roe v Wade).

      The world isn't black and white, and those who would oppress you aren't limited to one side of the aisle.

  • Self Incrimination (Score:4, Insightful)

    by PvtVoid (1252388) on Monday September 09, 2013 @01:06PM (#44799295)
    Here's the text of the Fifth Amendment:

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    The Fifth only protects against self-incrimination. There is no "paradox".
  • The defendant does not have to testify against himself, because you have a right not to testify against yourself.
    A third party witness, as long as they are not your legal life partner, does not have a similar right not to testify against some other person.

  • by cellocgw (617879) <cellocgw.gmail@com> on Monday September 09, 2013 @01:08PM (#44799335) Journal

    This isn't about 5th amendment issues, nor is it about whether or not a reporter is criminally involved.

    It's an issue of Freedom of the Press. For rather a long time, roughly since Lovejoy, the courts' position has been that an open and free press requires that the reporters be able to collect information free from any risk of reprisal (from the government). This is what has been getting ripped to shreds by the last 3 or 4 administrations.

  • One big point you miss is that to do otherwise basically assumes that silence=guilt. If you refuse to talk to the police, right now that's a protected right. If people didn't have 5th amendment protections, it would be a crime to refuse to be interviewed by the police about some crime you were suspected in, guilty or not. In the real world, people incriminate themselves all the time. It's the police's job to try to trick them into doing so. Confessions are the goal of police interviews with suspects. Giving

  • by Registered Coward v2 (447531) on Monday September 09, 2013 @01:15PM (#44799471)
    a First Amendment issue. The Fifth is pretty clear - no self incrimination. Does the right to free speech encompass the right not to speak? Should the government have a right to compel speech? We say "No" when it is speech we disagree with, such as allowing someone not to recite the Pledge of Allegiance; should that be extended to testimony in court? What if you refuse to speak because you want to avoid helping a defendant? If you are their only alibi is tehre a compleling interets in forcing testimony that overrides your right to free speech?
  • Why are criminal defendants allowed to remain silent, but not third-party witnesses like Risen?

    <semiserious>Maybe to provide you another cause to blurt out more outraged verbiage for?</semiserious>

    • by Bucc5062 (856482)

      maybe to provide you more outraged verbiage for yet another cause....ftfy.

      The English was twisting my brain and I am not even close to a grammer nazi.

  • How about protesting against unfair laws?

    Suppose Alice knows that Bob attended a protest. The police would like to arrest everyone at the protest because it wasn't sanctioned - the people didn't apply for a parade permit or permission to gather on public property. Alice believes that once arrested, the police will apply for search warrants to go through Bob's possessions. They won't find anything on the first round, but they will discover something that's both illegal and obscure, so they either argue inevi

  • Is US right now. The government became not trustable. Then it forced internet companies to not be trustable. Now is forcing your friends, colleages and other people you know to not be trustable. Probably "Trust no one" will be part of the next american anthem. You can jump out now, but the fire probably will reach you wherever you run.
  • If I am a third party witness, what is my motivation to testify? I'm sure lots of people would be willing to testify voluntarily, but I'm sure that anybody that thought there was even a chance of retaliation from the accused would refuse to testify. Since there will be no punishment from the government, the safest course of action would always be to not testify.

    And once the bad guys realized that witness could decline to testify with no penalty from the government, it would be open season on threatening

  • My understanding is that it's vestigial. There isn't a moral or legal argument. It's axiomatic and meant to prevent torturing confessions out of people.
  • The 5th amendment arose from the history of the accused being compelled to testify against themselves by torture, and the fact that such testimony is worthless.

    The reason it doesn't apply to 3rd parties is that the interest of the state being able to get the facts overrides the right to privacy in this instance.

  • It seems to me that those who protect the guilty are colluding to obstruct justice, and prevent the prosecution of a crime.

    How is refusing to testify, any different, than hiding a murderer or rapist in your basement? It would seem like you are attempting to shield them from justice. What am I missing?

    However, the catch-22 in that argument, is that if they haven't been convicted yet, how can we say you are protecting a criminal? We cant, so. . . I think someone should be able to refuse to testify, and not *i

    • I made a sort of incomplete statement of analogy above. I meant to write,

      "How is refusing to testify against a murder or rapist, for example, and different, than hiding. . ."

  • Bob is part of the Mafia, and some of Bobs friends have made it pretty clear that if Alice testifies against Bob, something unpleasant will happen to Mike, Alice's husband.

    The idea is that the 3rd party must testify, to prevent this sort of issue. Wont stop it I am sure, but there are other things that can be done to prevent it (sealing the records so nobody is sure what Alice said for example, vs some of the other witnessess, if early enough even preventing it from being known Alice is a witness.) Any ch

  • In a case like this, the key reason not to testify is that doing so will ruin your reputation and destroy your livelihood as a journalist.

    Alternatively, you could try to plead the 5th, saying that by answering the question fully, you'll implicate yourself in criminal activity. This may be untrue, but if they grant you full immunity, then you can say something outlandish, like plotting to do away with someone in the midst of this. This may make your testimony suspect, but also does the same thing as the fi

  • Suppose Bob may have committed a crime, and Alice is known not to be an accomplice but appears to have been a witness. If the courts ask both Bob and Alice the same question -- "Did Bob do it?" -- and both of them refuse to answer, then Bob's right to remain silent is protected under the Fifth Amendment, but Alice can be sent to jail -- despite the fact that Bob may have been guilty, but Alice is innocent!

    If the government thinks that Alice knows whether Bob did it or not, then she might very well also be

  • Grant them immunity. Then, you can compel them to testify.

  • In Canada you must answer all questions put to you in court. If you should incriminate yourself in the process, it can't be used against you.

    The 1980s courtroom drama Street Legal [imdb.com] had an episode where this happened: the cops were so certain of the guilt of a high school student who they thought was selling drugs that they got a friend of his to testify against him, without checking to see what he had to say first. When he said in open court that the drugs were in fact his the cops couldn't do anything abo

  • by mcmonkey (96054) on Monday September 09, 2013 @04:36PM (#44802301) Homepage

    Here's the basic paradox: Suppose Bob may have committed a crime, and Alice is known not to be an accomplice but appears to have been a witness. If the courts ask both Bob and Alice the same question -- "Did Bob do it?" -- and both of them refuse to answer, then Bob's right to remain silent is protected under the Fifth Amendment, but Alice can be sent to jail -- despite the fact that Bob may have been guilty, but Alice is innocent!

    There's so much wrong with that quote. There's only one crime mentioned in this scenario--the one Bob is accused of. By saying Alice can be sent to jail, the implication is she will be convicted of the crime Bob may have committed.

    Alice may be charged with obstruction of justice or contempt of court. The statement, "but Alice is innocent!" is too much to take seriously. Just because Bob, and not Alice, may have committed the initial crime, there's no reason to assume Alice cannot commit a different crime during the investigation of Bob.

    But my main complaint is, where is the paradox? There is none. There may be injustice. There may be logical inconsistencies in the legal system. There may be historical anachronisms which do not make sense in the modern world. But none of these things are paradoxes. Something isn't a paradox just because it "sounds crazy."

    I know it's cliché to complain about the declining standards of /. stories, but this is even worse than Bennett's last "article."

    My best guess is "Bennett Haselton" is a computer program designed to write inane OpEd articles. Rather than the ravings of someone with the barest familiarity with the US Constitution and the English language, these articles are actually work of bleeding-edge artificial intelligence in the form of a troll bot.

  • by MrLizard (95131) on Monday September 09, 2013 @04:50PM (#44802483)

    You're looking for a digital answer in an analog world.

    Any system of justice is going to be flawed. Period. That's a given, going in. It's even more certain than "The new MMO is going to have launch day bugs."

    So, given that, we (all human societies) work to find the least flawed approach, defined as "the guilty get what's coming to them, and the innocent go free and suffer as little inconvenience as possible". (We're really screwing up that last part, with 2+ year waits for trials in many case, but that's another thread.)

    We have the system we have because centuries of history, precedent, and experimentation have shown it works as well as anything else, and the risks of radically altering it outweigh the perceived gains. There's plenty of reasons -- people have historically been tortured into confessing, but not into witnessing. Intimidating witnesses is a lot easier if the witnesses have no legal pressure to *be* witnesses. (IOW, Big Vinnie is arrested. If his boys want to silence the mooks what seen him do it, they have to bribe them/threaten them. Obviously, this does happen, but the cost (the value of the bribe, the severity of the threat) increases when the witness knows he will be compelled to testify and can go to jail if he doesn't. Big Vinnie's boys have to overcome that resistance. Remove that, and it's a lot easier. They probably don't need to EITHER bribe (which saves them money) or directly threaten (which puts them at some risk if one of the mooks has a wire). The mere knowledge that they might not take kindly to someone ratting out Big Vinnie is sufficient for the witnesses to refuse to testify, if said witnesses cannot be pressured or compelled.)

    Further, if witnesses must give testimony, it is easier to spot conflicting details that can show a witness to be unreliable (or simply human, as the fact is, most people are unreliable and conflicting eyewitness testimony is rarely as dramatic a proof of a cover-up or a lie as it is on TV). If every witness just says, "Nope, don't feel like answering.", then you have nothing.

    Now, an argument can be made that if the justice system is weighted towards innocence, neither of these is overly bad; it will result in fewer convictions. However, this could tip the balance too hard against conviction, and when there is a perception that you can do anything and get away with it, there will be a mass movement to "tighten things up", and swing too hard in the other direction. I'm honestly not sure of the real effect on crime, at least not serious crime, because such crimes are rarely conducted on a rational basis. A study of NYC street criminals showed that, basically, they earn minimum wage in terms of hours worked (waiting for victims, etc.) vs. average "take" -- and faced extremely high occupational risks. Most murders are acts of passion that are unlikely to be repeated, and other than the very few professional hitmen out there, few consider a cost/beneft ratio. Murders committed in the course of other crimes (shooting a store clerk in a robbery) are insanely irrational -- you get a few hundred dollars, maybe, from the cash register, and risk life imprisonment or execution in exchange. The real function of the justice system is not to deter crime, but to remove from society, for a long period of time, those who are so irrational that they WILL risk years, decades, or their life in prison for a very small gain, or are so uncontrolled they will kill or beat someone in a fit of passion. If you accept this premise, then, compelling witnesses helps fulfill the goal of being sure this person is the one who should be removed from society.

    It also serves as a protection from an overzealous state. If the only evidence is provided by the state, and the defense cannot compel witnesses, the jury will have no choice but to convict. With zero penalties for failing to speak, witnesses may simply not bother. Why show up at all? (And, in turn, this leads to a possibility of basically bribing witnesses to show up -- not to lie, which is a higher m

I judge a religion as being good or bad based on whether its adherents become better people as a result of practicing it. - Joe Mullally, computer salesman

Working...