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The Reporter's Fifth Amendment Paradox 452

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.

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The Reporter's Fifth Amendment Paradox

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  • 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.

  • 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 guytoronto ( 956941 ) on Monday September 09, 2013 @01:01PM (#44799217)
    The Fifth Amendment should be extended to any party in any type of court.

    Have you read 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.

    There is nothing in there that relates at all to third-party testimony. There is zero foundation for the position that third-party testimony be protected by an amendment that has nothing to do with third-party testimony.

    If you want to make the argument that all testimony should be voluntary, you're going to have to come up with a lot better reason.
  • 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?"

  • by bennetthaselton ( 1016233 ) on Monday September 09, 2013 @02:34PM (#44800619)

    Unless you are on trial, you can not be incriminated by your own testimony at someone else's trial. You can not plead the 5th unless you are on trial yourself.

    I'm pretty sure this is wrong. Findlaw says: []
    "At a criminal trial, it is not only the defendant who enjoys the Fifth Amendment right not to testify. Witnesses who are called to the witness stand can refuse to answer certain questions if answering would implicate them in any type of criminal activity (not limited to the case being tried)."

Sigmund Freud is alleged to have said that in the last analysis the entire field of psychology may reduce to biological electrochemistry.