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

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

  • 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.

  • by perpenso ( 1613749 ) on Monday September 09, 2013 @12:58PM (#44799175)

    The Fifth Amendment should be extended to any party in any type of court. Testimony should always be voluntary to all parties, unless there is an immediate danger to the life and safety of a third party. Even with this system, I could see this being paraded and manipulated in court and used to extract testimony.

    Our Constitution and our laws are supposed to strike a balance between your rights and the rights of others. The reason that an uninvolved third party should be compelled to testify is so that the defendant receives a fair trial by having all available information brought forward. What if that witness' information could exonerate an accused innocent but the witness would like to remain silent for personal revenge or personal gain?

  • 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".
  • 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".
  • 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.

  • 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:2, Insightful)

    by Anonymous Coward on Monday September 09, 2013 @01:22PM (#44799587)

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

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

    by westlake ( 615356 ) on Monday September 09, 2013 @01:27PM (#44799667)

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

    ---- and the defendant has the right to remain silent so he can't be intimidated or tortured into making a confession.

    But to say these things on Slashdot risks being modded down as a Troll.

  • 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, 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."

Today is a good day for information-gathering. Read someone else's mail file.