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Encryption The Courts United States Your Rights Online

Seeking Fifth Amendment Defenders 768

Bennett Haselton writes with his take on a case going back and forth in U.S. courts right now about whether a defendant can be ordered to decrypt his own hard drives when they may incriminate him. "A Wisconsin defendant in a criminal child-pornography case recently invoked his Fifth Amendment right to avoid giving the FBI the password to decrypt his hard drive. At the risk of alienating fellow civil-libertarians, I admit I've never seen the particular value of the Fifth Amendment right against self-incrimination. So I pose this logical puzzle: come up with a specific, precisely defined scenario, where the Fifth Amendment makes a positive difference." Read on for the rest of Bennett's thoughts.

Wisconsin computer scientist Jeffrey Feldman was arrested on child pornography charges and ordered to give his hard drive decryption password to the FBI. He refused, claiming a Fifth Amendment right to refuse to hand over his password. A magistrate agreed with Feldman, then later changed his mind, but then on June 4th a judge blocked the order demanding that Feldman decrypt the hard drive.

So I will give up some civil libertarian cred and admit that, compared to, say, the free speech guarantees in the First Amendment, I've never seen what's so great about the Fifth Amendment "right against self-incrimination" -- not just as it applies to computer passwords, but in general. (Hereinafter I'm just going to refer to the Fifth Amendment right to remain silent as the "Fifth Amendment", even though there are other rights encapsulated in the Fifth Amendment, such as the right against double jeopardy.) I'm not debating the legal technicalities of the judges' decisions, since they take the "right against self-incrimination" as a given; I'm questioning the value of that "right" in itself.

Before you read any further, this is a pseudo-contest in which I'm soliciting answers in the form of a specific, precisely defined scenario in which you think that the Fifth Amendment makes a positive difference (i.e. that the outcome in a world with the Fifth Amendment, is better than the outcome in a world without the Fifth Amendment, even if you hold all other assumptions constant). If you disagree with everything I say, then the way to show that is to post a scenario that follows all the rules of the contest.

Now, obviously, I am not saying that the police ought to be able to beat information out of you. (The right not to be tortured by the police exists separately from the right to remain silent -- more on that later.) But the "right against self-incrimination" says two things that never made sense to me. The first is that you can refuse to answer a point-blank question asking whether you committed a crime, even if the question elicits no other information that ought to remain private. The second is that if you refuse to answer, a court cannot even consider that as a factor in determining the likelihood of guilt. The first seems dubious as a moral principle; the second actually departs from reality, for no good reason that I can see.

Take first the "right" to refuse to answer. Now, I agree that if the government asks you, say, "What books are you reading these days?", the correct answer is "None of your damn business." Nobody else has the right to know what's on your reading list. However, if a murder is committed, pretty much everyone agrees that it is the state's legitimate business (that is, everyone's business) whether you committed the murder or not. What's the philosophical argument that you shouldn't have to answer "Yes" or "No" if the police ask if you committed the murder?

Compare that to the collateral damage caused by, for example, a search warrant. If you accept that the police have a "right" to know whether your house contains a bloody knife used in a recent murder, then a search could turn up the knife, but there's always the risk that a search of an innocent person's house would penalize them by exposing their private information and belongings. By contrast, the direct question "Did you do it?" is like a "search" that targets only the evidence that is relevant to the case, and nothing else. A physical analogy might be the police scanning a neighborhood with a Geiger counter that detects only illegal weapons-grade plutonium; I'd be kind of OK with that. (Actually, being asked a question is even less invasive, since you don't have the option of refusing the search or the Geiger counter, but you have the option of refusing to answer a question and facing the consequences.)

Now, you shouldn't have to answer questions that are none of anyone else's business; if your alibi for the night of the murder is that you were at a somewhere you're embarrassed to mention, you should be allowed to say, "I didn't commit the murder, but I would prefer not to tell you where I was." But Fifth Amendment absolutists would say that you don't even have to answer the question of whether you committed the murder at all. That, to me, seems absurd. Isn't society entitled to know whether you committed the murder or not?

Perhaps people's discomfort with this reasoning stems from a feeling that the government has no right to interfere with your life at all, unless you've been convicted of a crime. But, rightly or wrongly, the police are empowered to make arrests, search people's houses with a warrant, chase after people feeling the scene of a crime, and take other actions even against people who haven't been convicted of anything. Law enforcement wouldn't be able to function at all without most of these powers, and while those powers can be and have been grossly abused, the solution is to limit those powers, not abolish them entirely. (That might be an argument for giving people the right to remain silent when questioned or arrested by the police, but still empowering judges to issue warrants requiring a defendant to answer a question, even if the answer could be "self-incriminating".) Compared to the possibility of getting arrested or having your house searched, the possibility of simply being required to have the exchange -- "You were walking away from the apartment after the murder, did you do it?" "No" -- seems like a pretty minor inconvenience. (Yes, if the police keep badgering and harassing me with the same questions, or if courts refuse to believe me and try to railroad me anyway, then that's a problem, but it's a separate problem -- we'll get to that in a second.)

Moving on to the second implication, which is that courts cannot weigh your silence in determining the likelihood of your guilt. This goes against the common sense that you would use in your everyday life. If you had two roommates, you knew one of them stole your laptop, you asked both where they were at the time, and one of them immediately told you where they were (giving a story that their friends could corroborate), and other refused even to answer "Yes" or "No" to the question of whether they stole it, what would you think? I'm not saying that a person's silence should ever be considered proof of guilt, but the likelihood of guilt is a probability question, which can be assessed using multiple factors, each of which individually might not be enough to prove guilt by itself. Is the second roommate's silence relevant to your estimation of their guilt? Of course it is. If you would use that factor in your own reasoning, why shouldn't a court? (And in fact, your silence can be considered relevant in a civil lawsuit, just not in a criminal case.)

Now, there are times when the government's evidentiary standards should deviate from common sense. For example, if you find evidence of an affair by snooping in your spouse's email, you may feel guilty about snooping, but you're certainly not going to forget what you found, just because the "evidence" was obtained improperly. The state, on the other hand, is mandated to "forget" any evidence that's obtained in violation of a defendant's rights (for example, if the police break in and search a residence without a warrant) -- that evidence cannot be used in a trial. However, in that case the bar on improperly obtained evidence serves a clear purpose -- it removes any incentive for the police to obtain evidence by breaking and entering. There's no obvious similar reason why a person's refusal to answer a question shouldn't be considered relevant to the likelihood of their guilt.

For these two reasons, I can't think of a precisely defined scenario in which the Fifth Amendment makes a positive difference, i.e. the outcome in the case where the Fifth Amendment does exist, is better than the outcome in a hypothetical world where the Fifth Amendment does not exist, if you hold all other assumptions constant.

My own high school civics teacher gave the example of an overzealous prosecutor determined to convict an innocent defendant of murder, as an example of the importance of the Fifth Amendment. I asked why, even without Fifth Amendment rights, the defendant couldn't just say that they were innocent. "Aha!" said the teacher, mimicking the evil tone of a corrupt prosecutor, "We know you're lying, now we'll convict you of murder and for lying to the court!"

This was the first of many "scenarios" that I've heard supposedly illustrating the benefits of the Fifth Amendment, that didn't hold up under scrutiny. For the government to convict you of lying about not committing the murder, they would also have to convict you of the murder, and if they can convict you of murder, then you're already screwed anyway, regardless of whether they also convict you of lying about being innocent. Now, obviously we should stop corrupt prosecutors from being able to railroad people, but that's a separate problem. The right to remain silent doesn't do you much good if the government is going to forge enough "evidence" (or ignore the lack of evidence) to convict you of murder anyway.

So what I'm looking for (email me below, and also post in comments) is a precisely defined scenario that meets all of the following criteria:

  1. The outcome in the world where we do have the Fifth Amendment, is clearly different from the outcome in a hypothetical world where the Fifth Amendment does not exist, even while holding all other assumptions constant. (So the "corrupt overzealous prosecutor" scenario fails that test, because if you assume the government can convict an innocent person of murder without regard for facts or evidence, they can do that even if you refuse to testify.)

  2. The outcome in the "Fifth Amendment" world is better than the outcome in the "no Fifth Amendment" world. We can be very permissive about what is considered "better", but there are some limits -- one person, for example, gave me an example of a guilty person who used the Fifth Amendment to avoid giving testimony that might contradict evidence that is discovered later. I pointed out that giving a guilty person a chance to avoid tripping himself up was hardly a good thing, to which he replied, "Oh... right."

  3. The "benefit" can't be something that benefits all suspects equally, whether they're innocent, guilty of violating a just law, or guilty of violating an unjust law. Several people have brought up to me the example of the McCarthy hearings, when those being questioned cited the Fifth Amendment as the basis for refusing to answer red-hunt questions.

    Now, most people today remember the McCarthy hearings as an example of grotesque government overreach, and anything that hampers enforcement of an unjust law would be viewed positively in that light. The problem with this defense of the Fifth Amendment is that if it hampers all law enforcement efforts equally, then you might as well just roll a dice every time a suspect is arrested, and let them go if it comes up a 6. Clearly, this is a "limit on government power", which would benefit suspects who are innocent, as well as benefiting people who are guilty of violating an unjust law (however you define that). But since it would "help" all other criminal defendants, too, most people would consider it a silly idea. A defense of the Fifth Amendment along those lines would have to show how it disproportionately benefits people who are innocent, or who have violated an unjust law. (Your argument could depend on what you consider an "unjust law", but you would have to at least make the argument.)

  4. The "benefit" can't be something that exists separately from the Fifth Amendment right against self-incrimination. I've had it suggested to me that without the Fifth Amendment, the police would just beat people into confessing. But of course the right not to be beaten by the police is separate from the right to remain silent.

    The easiest way to see this is to consider cases where the Fifth Amendment right to silence does not apply. For example, if the government grants you immunity, then your answers cannot incriminate you, but since nothing you say will incriminate you, the government can then force you to answer the question or go to jail for contempt of court. (There is actually no literal "right to remain silent"; it's a "right against self-incrimination". So take away the possibility of self-incrimination, and you have to talk.) This is a controversial exception, but it's useful for this discussion because it demonstrates that certain rights exist separately from the right against self-incrimination. Obviously, even if the government grants you immunity so that you have to answer questions or go to jail, they still can't torture you for information.

    Similarly, someone suggested that without the Fifth Amendment, the police could just keep on questioning you as a means of detaining you without making an arrest. But, separately from the Fifth Amendment right to silence, there are limits (albeit fuzzy ones) on how long the police can detain you if they don't arrest you. (And then once you're arrested, limits on how long they can hold you without charging you.) As Flex Your Rights (with multiple lawyers on their board) says, "If you choose to challenge a detention, your lawyer will have to argue that police kept you longer than necessary under the circumstances." That's an important curb on police power, and that could be apply if the police keep asking you repetitive or irrelevant questions just as a means of holding you without arresting you.

    So again, even if the government grants you immunity so that you have to answer, they still can't keep asking you the same questions as a means of detaining you indefinitely. That means that right exists separately from the right against self-incrimination.

  5. If the argument has major implications for the competency of the courts generally, then address those implications. This is not really a "pass/fail" criterion, because implications can be open-ended.

    I'm thinking in particular of the following argument: Without the Fifth Amendment, the police might adopt a strategy of arresting a suspect and asking him questions in such a way to make him flustered and contradict himself, even if he's innocent. That testimony might then be used to convict him.

    Now, this scenario passes criterion #1 above (with the Fifth Amendment, suspects can clam up and avoid this trap). It also obviously passes criterion #2 - innocent suspects remaining free is better than innocent suspects going to jail. I do think it might fail criterion #3 -- if innocent suspects become flustered and contradict themselves, that should happen at least as often for guilty suspects, too, who are after all lying.

    But there's actually a bigger problem here. It's well known that innocent people can become flustered and contradict themselves under prolonged grilling. If the police, judges, and juries, are so incompetent at evaluating evidence that they would convict you because you contradicted yourself while being questioned about a murder, then that is the real problem -- that the state simply cannot evaluate evidence competently. By giving people a Fifth Amendment right to remain silent under questioning, you've just applied a band-aid by exempting one type of evidence from being used to railroad an innocent person. You haven't solved the competency problem as it applies to circumstantial evidence, unreliable eyewitness testimony, the Prosecutor's fallacy, compromised physical evidence, untrustworthy witnesses, and a host of other potential sources of error.

    So yes, this is a logically consistent defense of the Fifth Amendment -- but realize that it implies we're living under a criminal justice system that can't find its ass with both hands, and perhaps that's the larger problem that should be addressed.

So. I'm interested in whether there is a precisely defined scenario that passes all of the criteria above. You can email me at Bennett at peacefire dot org and put "Fifth Amendment" in the subject line, and also post your suggestion in the comments.

Since I might not be by my computer when the story runs, I'm deputizing our readers to call out FAIL codes for certain responses that are missing obvious points. If the poster is being a dick, then be a dick when calling FAIL codes on them; if the person is participating constructively in the discussion and at least trying to solve the posed problem, then still use the FAIL codes if they apply, but try not to be a dick. Your arsenal:

  • FAIL0 -- not specifying a scenario. This does not apply to informative comments; someone might have something useful to say even if it's not an answer to the challenge posed by the article. However if someone starts spouting off trashing the whole article and thinking that they have negated its conclusion, then unless they actually specify a scenario, call them out with a FAIL0. "If you ever bothered to read your American history, you would understand that the Fifth Amendment was adopted as an important bulwark agai--" FAIL0. "Bennett never went to law school so he clearly isn't qual--" FAIL0. "This article has so many errors that I scarcely know where to--" FAIL0. You need to pose a scenario or you haven't answered the question.

    Also, anything with "Go and read... [some third-party source]" without specifying a scenario is a FAIL0. It doesn't take more than a few sentences to summarize a scenario.

  • FAIL1 -- not explaining how the scenario gives different outcomes depending on whether we have a Fifth Amendment or not. (I keep hearing the example of the police beating a suspect to extract a confession; like I said, the right against torture whether you have the Fifth Amendment right to silence or not.)

    Or suppose you assume the police would lie and say, "We never laid a hand on him, but he signed the confession anyway." Well, even in a world with the Fifth Amendment, clearly if the police are going to beat you into submission and lie about it, they can still just beat you into submission and say, "He voluntarily waived his Fifth Amendment rights without us touching him, and confessed." For that matter, if the police are willing to lie, they can lie about your confession even if you don't confess at all. In either case, it's not clear that the Fifth Amendment would affect the outcome if you hold all other assumptions constant about whether the police are willing to lie, how much the suspect can hold out under coercion, etc.

  • FAIL2 -- not explaining why the outcome in the Fifth Amendment case is better. (So no, "It gives a guilty person time to come up with an alibi.")

  • FAIL3 -- the alleged "benefits" of the Fifth Amendment apply equally to the innocent and guilty, or disproportionately favor the guilty. Yes, it's harder for the state to get a conviction if you're allowed to remain silent and no inferences can be made from that, and yes, that will benefit some innocent people who refuse to speak to the government as a matter of deeply held principle, but it's going to benefit guilty people at least as often who just don't want to be caught in a lie. As I said, if you want to benefit all criminal defendants equally, you could just roll a dice and acquit whenever it comes up a 6. In terms of helping the innocent vs. helping the guilty, the right to silence scores even worse than that, since it disproportionately benefits the guilty (who might make a mistake while coming up with an alibi).

  • FAIL4 -- confusing a different "right" that is separate from the Fifth Amendment right against self-incrimination. An easy test is that if you still have certain rights even when your right against self-incrimination does not apply because you've been granted immunity, then those rights must exist separately. (e.g. the right not to be tortured, and the right not to be held indefinitely without a trial.)

In addition, feel free to call out SUPERFAIL for any comments along the lines of:

  • "This article has so many false premises that I scarcely know where to begin. I would have cited at least one example to support my point, but I was masturbating to the sound of my own superbly polished writing skills and I just came all over the keyboard."
  • "Dammit Bennett! I am a [Supreme Court justice / federal prosecutor / law professor / frequent TiVo'er of Law And Order: Mattress Tag Removal] and you are writing about things you know nothing about! There is a reason we don't do things the way you're suggesting! In fact there's a very good reason we don't do things that way, and I'm going to tell you what it is: It's because that's not the way we do things."
  • "I read as far as the second syllable of the fourth word and then stopped reading. The problem must be with the article, because the problem couldn't possibly be with my oh hey look a cloud."

So perhaps someone will email me a scenario illustrating the benefits of the Fifth Amendment that I haven't considered here. At least, I hope so. It would be disturbing to think that we've built a whole legal edifice in the United States (and many other countries) on a "right" that has no rational basis.

Unfortunately, even if such a rational defense of the Fifth Amendment does exist, I still believe that many of the defenses of the Fifth Amendment that people have been giving me, are flawed, for the reasons listed above. (If people ever thought about it for one minute, wouldn't they realize that the right not to be tortured by the police is logically distinct from the right to refuse to answer a question about whether you committed a crime?) If large numbers of people believe the Fifth Amendment is sacred without ever thinking about whether it makes sense, that's a broader problem. What other cherished beliefs that we hold, that we don't think carefully about?

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

Seeking Fifth Amendment Defenders

Comments Filter:
  • by Anonymous Coward on Friday June 07, 2013 @12:26PM (#43937483)

    You make the assumption that 5th amendment protects people from self-incriminating against just and constitutional laws, and as such it doesn't make a positive difference. The 5th amendment exists to protect people from self-incriminating against the unjust and unconstitutional laws which the ratifiers knew would probably be written.

  • by Anonymous Coward on Friday June 07, 2013 @12:27PM (#43937489)

    Do you want a society where the police focus on gathering evidence to convict an individual.
    Or should the police and judges place more emphasis on compelling people to testify in their own conviction?

  • by i kan reed ( 749298 ) on Friday June 07, 2013 @12:28PM (#43937501) Homepage Journal

    If torture was constitutional, we'd do it to obtain confessions. No question in my mind. Now, whether a password counts as a confession is an academic argument of some value, but the fifth amendment itself is incredibly important.

  • by MetalliQaZ ( 539913 ) on Friday June 07, 2013 @12:29PM (#43937531)

    These kinds of things always strike me as a little annoying, because the person asking usually has already made up their mind, and will structure the rules to ensure there is no possible way to answer their question. Much like the old (and foolish) "no proof of evolution" argument, you just can't win even if you should, so why play?

    I have a right to never be compelled to testify against myself. I would like to keep that right, thank you very much. I don't care if the cops have to work harder to find external proof of a crime. In fact, I like it that way.

  • by Anonymous Coward on Friday June 07, 2013 @12:30PM (#43937547)

    The author forgets the one important fundamental of the US's justice system:

    In a court of law, the accused is innocent until proven guilty.

    It is the state's job to prove guilt, not for the defendant to prove innocence. The fifth amendment is in place to ensure that the defendant does not prove his own guilt.

  • Pretty obvious (Score:5, Insightful)

    by Maxo-Texas ( 864189 ) on Friday June 07, 2013 @12:33PM (#43937601)

    If your own words can be used to convict you, then the police and government gain a huge incentive to torture you into confessing.

    In fact, this is probably a principle reason why the founding fathers put this protection into place. Torture by the authorities was common in the 1600's.

  • FAIL! (Score:5, Insightful)

    by TheCarp ( 96830 ) < minus pi> on Friday June 07, 2013 @12:33PM (#43937605) Homepage

    > Yes, it's harder for the state to get a conviction if you're allowed to remain silent and no inferences
    > can be made from that, and yes, that will benefit some innocent people who refuse to speak to the
    > government as a matter of deeply held principle, but it's going to benefit guilty people at least as
    > often who just don't want to be caught in a lie


    Perhaps you are not familiar with the idea that it is better to let many guilty men go free than to convict an innocent man. The guilty not being caught is really not that big a deal, if they are that bad they will offend again and you will get another shot....or they wont and, it wont matter anyway.

    However, convicting an innocent man destroys that mans life without question, there is no "it wont matter anyway", because it takes away his liberty and destroys the credibility of the entire system. Allowing a guilty man to go free because you didn't have the evidence increases the credibility of the system because it shows that the system plays by its own rules.

    It also leaves the field open for the law to be wrong. Nearly every advancement of civil rights came from people breaking laws. To make the law too powerful is to stifle progress and endangers us all as governments change over time, we have no garauntee of our freedom in the future, the best we have are a set of hurdles and hoops that they must jump over and through, and part of what tells us it is working is how well they respect jumping those hoops and hurdles.

    This issue is about a lot more than the very narrow, and secondary issue, of convicting the guilty. The Failure is in assuming that is the only goal.

  • by CanHasDIY ( 1672858 ) on Friday June 07, 2013 @12:35PM (#43937631) Homepage Journal

    Because FUCK YOU, that's why.

    FYI, no, we're not going to help you write your stupid fucking book about how we don't need civil liberties (what, you didn't think we'd be able to read between the lines? This is Slashdot, not Yahoo! News, fucktard).

    Go fuck yourself, troll.

  • by Anonymous Coward on Friday June 07, 2013 @12:36PM (#43937649)

    And all your boldface FAIL FAIL FAIL stuff, just goes to show what a smug, ivory tower fuckwhit you are.


  • Re:Pretty obvious (Score:5, Insightful)

    by snl2587 ( 1177409 ) on Friday June 07, 2013 @12:37PM (#43937661)
    This is the short (and correct) answer to the ridiculously long-winded submission. Beyond simple torture, the Fifth Amendment (via supremacy) also prevents states from passing laws which make it a crime to fail to confess to a crime.
  • by Anonymous Coward on Friday June 07, 2013 @12:38PM (#43937695)

    And all your boldface FAIL FAIL FAIL stuff, just goes to show what a smug, ivory tower fuckwhit you are.

    Pretty much, yeah. TL;DR. The fifth amendment protects innocent people from incriminating themselves. No "precisely defined" scenario needed, just the video link already posted here [].

    Incidentally, "precisely defined" scenarios like "what if the bomb is about to go off and you have the suspected culprit in custody" are the kinds of ridiculous bullshit used to defend torture.

  • by rk ( 6314 ) on Friday June 07, 2013 @12:40PM (#43937717) Journal

    When you play my game. We're going to flip a fair coin 10 time, and if it's heads, you pay me 50 dollars, and if it's tails, you pay me 100 dollars. If you refuse to play, you have lost.

  • by Hatta ( 162192 ) on Friday June 07, 2013 @12:42PM (#43937743) Journal

    If it weren't for the 5th, Congress could pass a law making it illegal to refuse to confess to a crime, even if you didn't commit it.

  • by Anonymous Coward on Friday June 07, 2013 @12:42PM (#43937749)

    Are you a troll on the front page? Along guaranteeing the right to refrain from testifying against yourself, the 5th Amendment requires that a grand jury is required to indict someone for a major crime except in cases involving the military during war, prohibits double jeopardy, requires due process for the state to take life, liberty, and property, and requires the government to to provide fair compensation for public domain. A not inconsequential list of rights that American's hold dear, and yet you repeatedly refer to the right to refrain from being your own hostile witness as the Fifth Amendment.

    As to the value of the right to refrain from testifying against yourself, it becomes much more obvious in contemplating a world where that right does not exist. Without that right you could be jailed for contempt of court for not testifying against yourself, if you were wrongly convicted then you could also be prosecuted for perjury and penalties added for claiming that you didn't do what you didn't do, and in a world where prosecutors have the whip handle and they do, then it would be just one more tool they could use to coerce people into accepting unfair deals.

  • by c0d3g33k ( 102699 ) on Friday June 07, 2013 @12:43PM (#43937773)

    ... also smells like "write my thesis for me".

    In particular, note the conspicuous absence of any historical examples explaining why the fifth amendment came about in the first place. There are plenty - the reasons for the fifth amendment date back to the Magna Carta. There are plenty of historical examples, but none are mentioned. I accuse the researcher of terminal laziness. The reason for the lack of modern examples should be obvious: The Fifth Amendment was doing it's job.

  • by TheCarp ( 96830 ) < minus pi> on Friday June 07, 2013 @12:43PM (#43937777) Homepage

    I got this example from a law professor, I forget where.

    Lets say Alice takes a trip to visit her mother. She drives up alone, forgetting her cell phone at home, and has a full tank so she never stops for gas. The next day, she drives home, also leaving no record.

    During the night, Bob is murdered. The police question Alice, she tells the truth. However, they also question Carol, who doesn't know Alice well, but knows her, and was in the area of Bobs murder. She claims she saw Alice there that night. She is mistaken of course, but its an honest mistake.

    Now Alice comes to be charged and in court, the police report that Alice was seen in the area, they have witnesses, but, when questioned she claimed to be out of town, but had no proof of this... now her statement, even thought true, is in fact, being used against her.

    In fact, this brings up a huge fail. "Anything you say can and will be used against you". Anything you say in court in your own defense is either a logical argument or its hearsay. "She said that" "I was here"...all hearsay. Can't help you, its not evidence. However, anything that can be yoused against you, is basically a confession, and can.

    So in reality, even an innocent person is in a very precarious position if they speak, even if they speak the truth. This is why lawyers tell you to remain silent, not lie, not tell the truth, not try to explain... just invoke that right to remain silent then do it.

  • Dear Bennett (Score:5, Insightful)

    by SirGarlon ( 845873 ) on Friday June 07, 2013 @12:44PM (#43937785)
    Dear Bennett, Putting a bunch of arbitrary conditions that make it difficult and time-consuming to argue against you does not make you right. To construe a lack of satisfactory response to your random ultimatum as vindication of your positions would be even more arrogant than the ultimatum itself. Thanks, Sir Garlon
  • Re:what's torture? (Score:5, Insightful)

    by berashith ( 222128 ) on Friday June 07, 2013 @12:44PM (#43937789)

    without the 5th amendment to eventually lean upon, there would be no need for rights to a lawyer, or Miranda warnings. The fifth ammendment is the reason that you dont have to immediately speak to the police. Without it, any delay in accurately responding to any question would be a crime.

  • Example (Score:4, Insightful)

    by Anonymous Coward on Friday June 07, 2013 @12:46PM (#43937809)

    Here's an example where the 5th amendment makes a positive difference.

    Prosecutor: Your honor, we don't have any evidence, but we're pretty sure he killed that man because he's all shifty looking.
    Judge: Tell us why you killed that man.
    Judge: Let the record show the defendant has refused to answer the question. This court is holding him in contempt. I order him confined in prison until such time as he consents to answer the question. Bailiff, take him away.

  • by spire3661 ( 1038968 ) on Friday June 07, 2013 @12:46PM (#43937825) Journal
    Please take your fail conditions somewhere else. Just because the submitter proposed it doesnt mean we have to follow his form.
  • Miranda (Score:5, Insightful)

    by StormyWeather ( 543593 ) on Friday June 07, 2013 @12:46PM (#43937831) Homepage []

    You have the right to remain silent.

    Why is this even an issue. He has the right to remain silent.

  • Sounds rigged (Score:4, Insightful)

    by kallisti ( 20737 ) <> on Friday June 07, 2013 @12:49PM (#43937887) Homepage

    The question is set up with a large number of criteria about what is and is not acceptable as an answer. It sounds a lot like one of those "prove me wrong" contests where a million dollars if offered, but the requirements are so strict (such as proving a negative or evading circular reasoning) that no one can answer. After which the questioner claims victory. By setting it up as a "prove me wrong", it makes a contest instead of a discussion.

    For example, there's the dismissal of the overzealous prosecutor, " if they can convict you of murder, then you're already screwed anyway, regardless of whether they also convict you of lying about being innocent". This focuses on the innocent, but guilty people do still have rights. There's also times when an innocent person is found guilty anyway. In this case, every single trial can ask if you did it. This forces to person to say YES or risk getting charged with TWO crimes, guilty or not. Possibly resulting in another trial with all the cost that involves.

    It's kind of like if I were to rob you, then come back an rob you again. Would you argue that the second one didn't matter? Being convicted twice is worse than once, it could happen in every single trial with a guilty verdict. That makes it a worse outcome that we currently have.

  • by dgatwood ( 11270 ) on Friday June 07, 2013 @12:49PM (#43937899) Homepage Journal

    Two points.

    First, the most commonly cited scenario is one in which you are guilty of a different crime. For example, if you are accused of murder and asked what you were doing on the night of May 5th, and the answer is "having sex with my under-age girlfriend who is a year younger than I am, in a state where doing so is illegal," the 5th amendment protects you from incriminating yourself on an unrelated charge that the government knows nothing about, and which could cause collateral damage to another person who has nothing whatsoever to do with the original charge. It is potentially a solid alibi, but one that has negative ramifications.

    Now the author of this paper might argue that this "disproportionately favors the guilty", but that makes the naïve assumption that all crimes are equal and that all crimes should be prosecuted. It is arguably not in the public's best interest to prosecute every possible crime, because under such circumstances, our current body of law leads to a world in which everyone is in prison. Therefore, there is no legitimate public need for you to be required to confess to a crime that the government does not know about. As a general rule, if no one has reported the crime, chances are good that no one was actually harmed by it, which means that prosecuting the offending person would be a waste of taxpayer resources that would detract from the ability to prosecute serious crime.

    Thus, it should be clear that the 5th amendment serves a useful purpose. It protects against noise in the legal system.

    Second, a refutation. The fifth amendment is one of several rights that collude to protect against a number of scenarios, such as coerced confessions. No, eliminating it would not, by itself, allow coerced confessions, but it would remove one defense against them. The whole point of our constitution is to provide a set of strong protections that work together to make it absolutely clear that certain actions by the government are not allowed. They're like support posts that hold up the roof of your house. When you walk around the house, you might look at a single post and say, "This support post isn't really necessary." And for each individual post, you might be right, but when you take too many of them out at the same time, the whole house comes tumbling down on top of you.

    That is why we must treat any erosion of our rights as unacceptable under any and all circumstances—not because removal of any single right will allow an abuse, but because each right interacts with the others to form a coherent structure, without which our entire system of rights comes crashing down like a house of cards.

  • by ndykman ( 659315 ) on Friday June 07, 2013 @12:53PM (#43937967)

    It's simple. The fifth aids in the prosecution of crimes by ensuring witnesses will never be endangered by prosecution for their testimony.

    A killer who is accused of murdering multiple people including prostitutes is caught and put on trial. Key witnesses have also engaged in prostitution, but the prosecution (rightly so), is not interested in pursuing those crimes compared to these heinous murders.

    No fifth amendment, the defense can try to get the witness to admit to committing a crime to discredit the witness. Convince a witness to testify in that environment. Difficult, no? So, without it, key evidence and facts are missing, and a guilty party may go free.

    With the fifth amendment, any attempt by the defense can be immediately objected to. It removes whole avenues of irrelevant questioning by the defense. And it goes the other way. Defense witnesses are also free from the risk of prosecution based on their testimony.

    This isn't TV, where somebody is being sweated by a lawyer and finally has to invoke their rights in a dramatic fashion. The reality is that those questions would be objected to and dismissed, and many a smart lawyer would not even try such lines of questioning, lest they raise the ire of the judge.

    TL; DR? It's a key part of the judicial process, which is obvious with just a bit of thought.

  • Re:Torture? (Score:5, Insightful)

    by TheCarp ( 96830 ) < minus pi> on Friday June 07, 2013 @12:57PM (#43938023) Homepage

    > The Fifth Amendment also protects an innocent person from being accused of unrelated crimes. If
    > you were forced to reveal the contents of your hard drive because you were being wrongly accused
    > of a crime, an unjust investigator may use such power to find you don't have a valid license for
    > some software, or you have unlicensed music, etc. The Fifth Amendment is of utmost importance
    > to the falsely accused as well as the accused. The Fifth Amendment is one more barrier to big
    > brother.

    Exactly. Or how about this.... Alice (I am really feeling these Alice/Bob/Carol scenarios right now) is a journalist who works on stories of international corruption. She keeps an encrypted volume to protect the very lives of her sources, and she recently got a doozy of a leak.

    Bob comes knocking at her door, arrests her, and charges her with a number of unrelated crimes, child porn for example. Claims its all in her encrypted partition. Since there is no 5th ammendment she now either goes to jail for refusing to "testify" or she decrypts the volume, "proves her innocence", and moves on.

    Meanwhile, Carol, the whistle-blower? Shes now being indicted on charges stemming from what was found on Alice's encrypted volume. Thanks Alice. Guess making people prove their innocence worked out right?

  • Re:LMGTFY (Score:5, Insightful)

    by SJHillman ( 1966756 ) on Friday June 07, 2013 @12:58PM (#43938039)

    Pretty much the entire Constitution and Bill of Rights was a result of the Founding Daddies correcting what they thought was wrong with existing governments at the time. So if you ever need to find out what it would be like without Amendment X, just crack open a history book.

  • Re:Miranda (Score:5, Insightful)

    by fractoid ( 1076465 ) on Friday June 07, 2013 @01:01PM (#43938099) Homepage
    What the poster is asking is *why* he has the right to remain silent and why the right to remain silent benefits society. As far as I can see, this constitutional right is, pure and simple, a defense against the general propensity of power to use force to extract confessions. Excluding any non-voluntary self-incrimination is the simplest, most foolproof way to exclude torture as an option for obtaining confessions.
  • Re:what's torture? (Score:4, Insightful)

    by i kan reed ( 749298 ) on Friday June 07, 2013 @01:02PM (#43938113) Homepage Journal

    Yes, I know that, see my other post in this discussion. 4+5+6+7+8+14, with any one of those missing, the potential abuse the government could engage in would render the rest essentially pointless.

    Without 4, they could go on fishing expeditions unrelated to the known crime, to find a way to send you to jail, regardless of guilt. The protections of the rest would do no good.
    Without 5, they could just force a confession. To jail with you.
    Without 6, they could use legal arcana to convict you without you understanding it.
    Without 7, they could just detain you forever, forget the trial
    Without 8, they could threaten so severe a punishment for a conviction, that any sane person would take the plea bargin
    Without 14, they could just let your state do any of the above, instead of the feds.

    We could probably survive without #3 though.

  • by sirsky ( 53613 ) on Friday June 07, 2013 @01:03PM (#43938127)


    I was about to post the same thing. The 5th Amendment is there as a protection to help enforce the burden of proof. By forcing someone to answer the question "Did you commit the crime?" removes the prosecutor's burden to prove beyond a reasonable doubt the defendant is guilty, and places it on the defendant to prove their innocence. The difference between the police finding a bloody knife in the house using a search warrant, and directly answering the question "Did you do it?" is that the defendant didn't escort the police and show them where the bloody knife was -- the police do not require any involvement from the defendant to get a search warrant and execute it to find a bloody knife in the suspect's home.

    The fact that this didn't even enter the OP's mind is not only worrisome, but then to devise a 'contest' so he can then say "No one was able to show me in my terms how my logic is flawed!" is even worse. Unfortunately, that also shows that he has precisely the required mindset to be a very successful politician in today's day and age.

  • Re:FAIL! (Score:5, Insightful)

    by Jim Hall ( 2985 ) on Friday June 07, 2013 @01:07PM (#43938193) Homepage

    The OP is an absurdly long and wordy essay/rant, and I didn't read all of it. Don't expect me to. (At 3,730 words after the "Read on," that's just into 5 pages if I load it into LibreOffice at 10pt Times New Roman.) But I can give Bennett one example where the 5th Amendment right against self-incrimination is a good idea:

    Q: "Where were you when you witnessed the murder?"

    In this case, let's say the witness happened to be hotwiring a Mercedes-Benz on a dark and empty street - and saw one person rush out from an alley, shoot the victim right in the head, and run off. The whole thing happened less than 10 feet from where he was sitting inside the car. A perfectly valid witness, he definitely saw the murder (and murderer) even though no one saw him. After witnessing the murder, he called 911 from a nearby pay phone, then drove off in the now-stolen MB.

    Without the 5th Amendment, the witness would be compelled to admit to committing an unrelated crime, so would self-incriminate himself.

  • by cervesaebraciator ( 2352888 ) on Friday June 07, 2013 @01:10PM (#43938249)

    fact is, if you judge the things from the perspective that a criminal might benefit from it while a law abiding citizen has nothing to worry.. well, fuck, you might just as well throw every fucking amendment and right out of the window.

    This is absolutely correct. The way the final problem of the summary is posed applies equally well to the fourth amendment.

    The traditional rights embedded in the U.S. Bill of Rights are not based on questions like, 'does the existence of this right make the world a better place?' Rather, they proceed from the assumption that certain rights are the natural possession of free men and that the burden of proof is on government and civil society that any infringement of these rights should occur.

    If a man asked to testify against himself, he is asked to do so when he is still presumed innocent of the crime for which he is asked to testify. (If he is already convicted of the crime, it is pointless to ask him to incriminate himself for one cannot be more guilty than guilty.) To try and compel a free and (presumed) innocent man to testify against himself is a disparagement of his freedom, an attempt to control his body as you would a criminal's, and denial of his innocence (for it assumes he no longer has rights over his body).

    Of course, my response, that his whole line of questioning proceeds from the wrong premises, qualifies for his "fail". Well, if these are the kinds of answers he gets then maybe he really should reevaluate his lines of thinking. But, perhaps he just makes this demand because he is more clever than those who respond to him.

    That's because you're a clever fellow, Thrasymachus. You knew very well that if you ask someone how much twelve is, and, as you ask, you warn him by saying "Don't tell me, man, that twelve is twice six, or three times four, or six times two, or four times three, for I won't accept such nonsense," then you'll see clearly, I think, that no one could answer a question framed like that. And if he said to you: "What you are saying, Thrasymachus, am I not to give any of the answers you mention, not even if twelve happens to be one of those things? I'm amazed do you want me to say something other than the truth? Or do you mean something else?" What answer would you give him?

    Apparently, "superfail."

  • Re:what's torture? (Score:5, Insightful)

    by darkmeridian ( 119044 ) <(moc.liamg) (ta) (gnauhc.mailliw)> on Friday June 07, 2013 @01:12PM (#43938283) Homepage

    The highest appellate court in New York just reversed a murder conviction because the defendant endured a 49.5 hour interrogation. If you don't have the Fifth Amendment right against self-incrimination, they can just keep asking you questions until you answer, and there's absolutely no way you can make them stop. Currently, you could at least find a lawyer to say, "He's not answering, he's taking the Fifth, leave him alone."

    OP is an ivory tower guy. He has no idea how abusive the police and the district attorneys can be in real life.

  • by bws111 ( 1216812 ) on Friday June 07, 2013 @01:14PM (#43938315)

    What??? There is no such thing as a 'Miranda right'. Where did you get that idea? The Miranda warning is just a statement of your already-existing constitutional rights, said in a way that is easy to understand. Thus "not shall be compelled in any criminal case to be a witness against himself" becomes "you have the right to remain silent", along with the caution that if you give up that right whatever you say can be used against you.

    Also note that the actual right is to not be compelled to be a witness against yourself. If you give up that right by testifying in your defense, then you can be compelled to answer questions, even if they incriminate you.

  • The OP is missing the point that under current law, if you take the Fifth, that fact CANNOT be used to draw a negative inference against you at a criminal trial. For instance, if you go to trial, and you refuse to testify, the DA cannot look at the jury and say, "Hey, he won't speak in his defense; he's gotta be guilty, right?" Whereas, if you got rid of the Fifth Amendment, you can still shut up, but then the judge can tell the jury that your silence is evidence of your guilt. Bottom line, the Fifth Amendment is crucial, and OP is a smug bucket of fail.

  • by Speare ( 84249 ) on Friday June 07, 2013 @01:17PM (#43938361) Homepage Journal


    Logic: The Fifth Amendment is the extension of the Fourth Amendment into the mind. You cannot be compelled to prosecute yourself, for two reasons: (1) it's unethical to compel a sentient being condemn themselves, and (2) you cannot trust any direct product of a person's mind, like you can trust objective verifiable evidence. This already exists, but I expect more and more encryption tools will support a duress or plausible deniability passcode: give the wrong key and a less-damning content is revealed.

  • Prosecution's job (Score:5, Insightful)

    by Todd Knarr ( 15451 ) on Friday June 07, 2013 @01:20PM (#43938417) Homepage

    Isn't society entitled to know whether you committed the murder or not?

    Yes, it is. But society has also decided that it's the prosecution's job to show a) that a murder was committed and b) that you committed it. It's not your job as the defendant to prove the prosecution's case for them. What that part of the 5th Amendment boils down to is that the prosecution can't compel you to confess to a crime.

    There's also the double-bind situation. Suppose you didn't in fact commit the crime. The prosecution demands that you confess to it. If you do, you go to jail. If you don't, the prosecution charges you with felonies starting with lying to a Federal agent in the course of an investigation and you go to jail. The only way out is for you to prove you didn't commit the crime, and as a society we've decided that it's not the job of the innocent person to prove their innocence, it's the job of the prosecution to prove their guilt.

  • Re:Miranda (Score:5, Insightful)

    by lgw ( 121541 ) on Friday June 07, 2013 @01:22PM (#43938427) Journal

    Excluding any non-voluntary self-incrimination is the simplest, most foolproof way to exclude torture as an option for obtaining confessions.

    The US was founded not all that long after the Inquisition ended. Let's not forget how profoundly important it is not to encourage governments to take the easy path of torture.

    The most fundamental benefit to society of the 5th is that it blocks using torture (or more modern interrogation techniques) to extract false confessions. We can debate about extreme circumstances in which extreme measures might be used to extract information from a terrorist or whatever, but false confessions are lose/lose. No one but the career of the prosecutor/DA benefits from a false confession, yet history shows that enough prosecutors care more about their careers than justice that it's worth ruling out torture under any circumstances, because the alternative is sending many innocents to prison and letting the guilty go free in each such case.

    Being forced to decrypt a hard drive sounds at first like it might be OK - after all, it can never lead to a false confession. The problem is: if you give someone a tool that makes his job easier, he'll use it even when he's not supposed to. If you tolerate forcing someone to reveal any information about himself for any reason, no matter how strictly defined, the excuses and rationalizations will grow over time.

    We have an adversarial system. A prosecutors job is to seek conviction, and abstract ideals easily take a back seat compared to ones career. If we start making excuses about in this case or that it's OK to force the defense to give information, if we give that tool to a prosecutor whose job is to use every possible tool to get convictions, we cannot depend on restraint. It will end badly.

  • Specific Scenario (Score:4, Insightful)

    by joe_frisch ( 1366229 ) on Friday June 07, 2013 @01:35PM (#43938609)

    Dear Mr. Bennette Haselton,
    Have you committed any infractions, misdemeanors, or felonies that are still withing the statue of limitations? Please note that a failure to answer correctly and completely may result in perjury charges.

    The reason this outcome is worse is that there are a number of common activities that are technically criminal. This would allow the state to coerce an individual into revealing all such activities, possibly resulting in large fines or prison sentences. Law enforcement could direct these questions a selected individuals for political, or personal reasons. Imagine asking that question of a political candidate?

    Example offenses: Speeding (most people are guilty of many counts). Statutory rape - in some jurisdictions when you were 18 and had sex with a 17 year old you committed a felony. Tax evasion - many people may be guilty of inadvertent tax fraud - but ignorance is not a legal excuse. Illegal dumping, trespassing, gambling, soliciting prostitutes, marijuana use, aiding and abetting underage drinking: these are all quite serious, but do we really want to imprison everyone who has done them?

  • by nebular ( 76369 ) on Friday June 07, 2013 @02:02PM (#43938915)

    What people seem to forget is that the man accused of having child pornography is innocent. Everyone is until proven guilty. An innocent man doesn't have to answer to anyone, he is innocent. The courts have already given the police and the DA free reign to do what they want to try and break the encryption, but they can't make him give the password because he's innocent, they don't have anything to say otherwise and if they did, they wouldn't need to get into the hard drives

  • by girlintraining ( 1395911 ) on Friday June 07, 2013 @02:13PM (#43939061)

    And all your boldface FAIL FAIL FAIL stuff, just goes to show what a smug, ivory tower fuckwhit you are.

    False or coerced confessions. Mistaken witnesses. Badly developed forensics. Prejudice. Public pressure to "nail the guy". Perception versus reality. Manufactured evidence. Corrupt police, judges, attorneys, witnesses. People trying to frame others.

    The right against self-incrimination, aka the 5th amendment, was intended primarily to protect innocent people who may simply have been in the wrong place, at the wrong time. Our founding fathers recognized that the Just world hypothesis was a thing even back then -- people are all but too happy to crucify someone based on appearances, and police can easily be motivated by public outrage to nail the wrong guys so as to appear to be responsive and competent to public needs.

    But even with the 4th and 5th amendment protections, far too many innocent people wind up in jail. The Innocence Project, which specifically helps people accused of rape, has been using DNA evidence to free people for decades. Something like over 15% of the number of people in jail right now for rape or murder have evidence that doesn't just prove them not guilty, but proves them completely innocent sitting on a shelf in a warehouse somewhere, but because they confessed or there was a mistaken witness, poor forensics, etc., they're now rotting in jail while the real criminal is still out there.

    This asshole is trying to solve a human behavior problem with logic. And yes, he's an asshole for trying to do it -- "smug, ivory tower fuckwhit" is spot on, because only someone as incepid and stupidly naive as to believe that only the criminals lie or make mistakes would try this line of thinking.

    What's wrong with the 5th amendment is that there isn't enough of it. What's wrong with the 4th amendment is there isn't enough of that either. These things are designed to protect innocent people -- reductions in them mean that more innocent people are going to jail, when there are already too many innocent people in jail. We have the highest incarceration rate of any country on the planet. Nicaragua? Podunk shit-hole African warlord country? China? Iraq? Iran? Countries that behead and chop off hands? We have them all beat. And whereas China only charges the family for the cost of the bullet... we're charging the families of those who are in prison their homes, livelihood, etc. -- the high cost of our prison system, which disproportionately targets minorities, is literally eating this country from the inside out.

    And then we got fuckwits like this wanting to pour gasoline on the fire and thinking they have an educated position on the matter. It's painful to watch stuff like this... he's obviously trying to think... he's just really, really bad at it.

  • Re:Miranda (Score:5, Insightful)

    by demonlapin ( 527802 ) on Friday June 07, 2013 @03:20PM (#43939799) Homepage Journal
    You have very arbitrarily defined a set of scenarios that basically eliminates all the reasons we have a Fifth Amendment.

    Look at your "FAIL3": of course it protects the guilty more than the innocent. That's the whole point of it! You can't generally make it harder to convict the innocent without making it harder to convict the guilty - so unless our legal system is so awful that it snaps up more people who are innocent than guilty (which, as bad as the American legal system is, it's nothing like that), nearly anything that makes it hard to get a conviction will benefit the guilty disproportionately.

    You seem to be upset that the US is a common law jurisdiction with an adversarial legal system instead of something more like the civil law systems prevalent in Europe.
  • by girlintraining ( 1395911 ) on Friday June 07, 2013 @03:46PM (#43940061)

    Ah, small footnote: When I say it's literally eating the country, I do mean that. We have tons of people with felonies on their record that can't find work. These are people who could be building bridges, infrastructure, holding real jobs, and making a real contribution. Instead, they're camped out in homeless shelters, under bridges, or dealing drugs. They're hungry, dying, or doing their best to survive at the expense of others. The country is rotting, physically, infrastructurally, architecturally, because of this problem. People are starving, physically, literally, because of this problem. And they're killing each other and themselves over it.

    When I say literally, I don't mean it to accent the problem, I mean it really, in reality, in physical actuality, is destroying this country -- both the land and everything physical that's build on it, and the people who live here.

  • by Qzukk ( 229616 ) on Friday June 07, 2013 @03:47PM (#43940085) Journal

    2) How does rolling a die and acquitting whenever it comes up 6 benefit all defendants equally? Assuming a 20-sided die, I'd say that system would benefit about 5% of defendants more than it benefits the rest.

    Ding ding ding. "Benefiting everyone" is not the same as giving everyone a random chance! One of many purposes of this rule is to make sure the government does their job correctly. If the only way you can prove someone is guilty is to get the person to say they're guilty, then perhaps just maybe you've got nothing and you're wasting everyone's time. Do the job right and EVERYONE benefits. And despite Bennett's insistence, everyone benefiting is not a bad thing.

  • by REALMAN ( 218538 ) <> on Friday June 07, 2013 @09:34PM (#43942943) Homepage

    The fifth amendment does substantially more than protect you from having to answer "did you do it".


    You are innocent of the crime you are accused of.

    Prosecutor: Were you at the scene of the crime?
    Accused: Yes.

    This statement can be used against you to find you guilty.

    Prosecutor: Did you have anything against the victim
    Accused: Yes.

    This statement can be used against you to find you guilty.

    Prosecutor: Do you have a gun?
    Accused: Yes.

    This statement can be used against you to find you guilty.

    Prosecutor: Were you having an affair with the victims wife?
    Accused: Yes.

    This statement can be used against you to find you guilty.

    I could go on and on and on. We know from the outset of this scenario that the accused is not guilty but each and every one of his statements can be used against him in court to find him guilty despite his innocence.

    This is why we have the fifth amendment.

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