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Note: In this paper, I don't contend to have exhaustively studied the subject of constitutional history, and have no background in law. I am mostly using my limited net research and my logical reasoning skills in coming up with my opinions. Therefore, this isn't intended as a scholarly paper on the subject, but rather as a starting point to a more thorough discussion that will demand more research and expertise to be complete. Any thoughts or reference arguing one way or the other you may have will be appreciated; send them on to me.

Marc

The Outdated Fifth

I'm tired of people taking "The Fifth." Everybody knows about the right against self-incrimination, that one doesn't have to get on the witness stand at one's own trial due to this amendment to the constitution, but I've always not fully understood why this right exists. Other laws in the Bill of Rights and later amendments are intuitively just: freedom of speech, freedom of religion, slavery is wrong, women allowed to vote, beer is legal, etc. But I've never felt that the rights granted by the Fifth Amendment were an innate human right that people should have. So, I researched a bit.

Turns out, the Fifth Amendment was in response to the past inquisitional method of truth-seeking which involved basically holding a guy in prison and/or torturing him till he admitted he did the crime. It would be like someone was accused of a crime and if he didn't confessed, they'd torture him to death, and if he did confess, they'd hang him for doing the crime which he might not have done, but just said he did to stop the pain.

But, I think it's safe to say that the days of torturing the accused into admitting the did the crime are far gone. No matter how crooked someone thinks the police are, there is no way anyone believes they tell the guy to take the stand in his trial and say he did the crime or else they'll beat him during the night. Obviously, any confession given under duress by torture or threat of violence should be invalidated. But why, if there is no torture or duress placed upon the accused, should he not have to answer a question regarding the crime he is accused of? It seems simple to me: A guy is arrested and there is reasonable evidence to go to trial. The guy was found with a bloody knife in his hand over a dead body, but claims he didn't do it. OK, so why can't I ask him to explain why he was there with the knife? It just doesn't make sense that someone has a right to not have to answer a question that reasonable people think is a good question to ask given the situation.

Also, what if someone is falsely accused. Again, he takes the stand and answers the questions truthfully. How does that hurt him? Why would someone that was innocent not want to testify to what really happened?

Furthermore, this last thought brings up the issue of the fact that juries cannot use the fact that a defendant declines to testify as evidence in a trial, nor can a prosecutor use it in their arguments to the jury. How is that not evidence? There is all this mystery and the evidence strongly suggests the guy did it, yet he doesn't want to explain his side? How in the world is there any justification for one's right to not have to testify and then not have to face the consequences of how that reluctance to answer questions reflects on the jury's opinion of whether his is guilty or not?

I do understand the reasoning involved for why a jury can't consider a defendant exercising his Fifth Amendment right. It's similar to illegally obtained evidence. If the police enter a house illegally without a search warrant an obtain evidence, this evidence cannot be used in the trial. Everyone knows the evidence exists, but its inadmissibility really is a punitive action against the law enforcement officers. If the illegally obtained evidence is allowed into the trial, then there would be incentive to do more illegal searches in the future. Knowing that evidence obtained illegally won't be allowed into court, keeps the police from violating the law.

So, if a prosecutor was able to use the fact that a defendant did not want to testify against him, it would in effect be such that the defendant is being forced to testify. In essence, his lack of testimony IS testimony when the prosecution uses this fact in their arguments and the jury considers it. The prosecutor not being allowed to use this lack of testifying against the defendant is in effect a prevention of the prosecutor from "forcing" the defendant to "testify" against himself.

But the big difference between the illegal search resulting in disallowed evidence and being unable to use a defendant's unwillingness to testify against him is that in the latter, nothing illegal is being done! In both instances, we have facts that everyone knows, but in the former, the evidence must be disallowed to be used against the defendant to protect our future freedoms from being violated by the police, even at the expense of freeing an obviously guilty party. In the latter, nothing is served other than allowing the defendant the privilege to not be held accountable to explain his side of the story. There is no deterrent against illegal activity by the prosecutor or police because they didn't torture the guy or threaten him with violence. He still is innocent until proven guilty and the prosecution must prove his guilt, but why should this mean he doesn't have to answer questions related to the crime? What does it matter if I ask the defendant, "where were you the night of the murder?" or if I ask some random eye witness, "where was Joe the night of the murder?"?

Take a look at it this another way. If after a guy's wife is murdered and the guy does not seem sad, this is noted by a police officer at the scene and he can testify to this in court. In effect, the officer's testimony enables the prosecution to use the lack of emotion as evidence against the guy. Now, is this different from bringing to attention the fact that the defendant has a lack of willingness to testify and shed light on the mystery? I'm not a lawyer, but I'm pretty sure if the police officers asked the guy right there "Did you kill your wife" (after reading his rights) and he said "I take the Fifth", this cannot be brought up in the trial, yet the defendant's emotional state can be. To me, they are both the same thing, evidence showing the defendant's state of mind. Both the lack of crying and the lack of willingness to answer a question regarding the crime are, to me, valid pieces of evidence that should be allowed into a jury's decision.

The question to ask, with any law, is "what is the purpose of the law?" If the original purpose of the law no longer applies, then the law should be abolished or changed. Some say the right to bear arms is outdated. The Second Amendment states "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed", presumably in case the Redcoats tried to take back the colonies or something. I think there also was a question on whether the new country would have a standing army or use volunteer militias. Well, I think it can be argued that both these reasons for the amendment are long irrelevant. But gun advocates claims the Constitution guarantees their right to have a gun. And it does. But the question is whether or not the reason the amendment was created still exists. If it does not, then should the law still exist? In the case of the Second Amendment, it actually states in itself the original reason for the law which, in my mind, really gives an even stronger case for why the amendment should be abolished. In the case of the Fifth, we have to infer the original reasoning and that makes the issue a bit more difficult. (Note, I'm not taking sides on the gun issue, just that I don't believe the Constitution should be used as an argument for gun rights by the gun lobby, the same way the bible shouldn't be used as proof that the world was created in 6 days.)

Now, I admit I haven't researched a whole lot on the subject, but I have thought about it a lot. And I have read up a bit on the net. And I find two reasons for the Fifth Amendment: The torture reason we have discussed already and the protection of the presumption of innocence.

The MSN Encarta entry on the Fifth Amendment states as one of the reasons for it:

The Presumption of Innocence
Despite the excesses of early courts, English common law, like U.S. law that followed it, is based upon a presumption of innocence. The law says that a person is innocent until proven guilty; the Fifth Amendment is intended to safeguard that presumption. The accuser must demonstrate the guilt of the person accused; it's not the duty of the person accused to provide evidence in testimony.

This is where I have issue. I agree the accuser must demonstrate the guilt of the person accused, but why does this in turn mean it is not the duty of the accused to provide evidence? The accused doesn't have to prove he is innocent, but I don't see how this can be interpreted as not having to provide evidence. By asking the accused to testify, the prosecutor isn't making the accused prove his innocence, he's simply asking the accused questions to help the jury make a decision on whether he is guilty or not. The prosecutor is trying to prove the guy is guilty by asking the guy questions. He can be asked if he killed a guy and make some excuse that, to the jury, doesn't prove he is innocent. And the jury can still find him not guilty because his answers along with the other evidence doesn't prove he did it. On the other hand, if the guy does not testify but was found standing over the body with the knife, in the closing argument, the prosecutor will say "he was standing over the body with a knife! He had to do it" and the defense attorney may in his closing argument say "he just found the body and was holding the knife!" and the jury will use that circumstantial evidence with everything else to figure out the verdict. But why, must the decision not include asking the guy with the knife what was going on? Why must the jury not be able to hear from the one man that really knows what happens, especially when his defense is explaining a story as to what did happen? Intuitively, I can't see what purpose is served by the facts not coming out. Either the guy did the crime or not. Forcing him to testify does not imply that he is being forced to prove his innocence, rather just that he is being asked questions like any other witness the prosecution calls to prove it's case.

Then there is this little box adding a sort of third reason for the Fifth:

The Cruel Trilemma

The framers of the Constitution foresaw that without Fifth Amendment protection someone accused of a crime could face a cruel trilemma under questioning: a choice of self-incrimination, contempt of court, or perjury. Let's say the prosecution suspects you but has very little evidence and embarks on a "fishing expedition" in search of evidence. If you answer the prosecutor's questions, you may unwittingly incriminate yourself--or someone else. If you refuse to answer, you can be found in contempt of court and fined or imprisoned. Finally, if you answer untruthfully, you have perjured yourself and are guilty of that offense--even if you have done nothing else illegal.

1) What is this "you may unwittingly incriminate yourself"? Does this mean you accidentally say "yes" when they ask you if you killed the guy? Or you accidentally spill the beans that your friend did it when you promised him you wouldn't tell? Anyway, if there is such little evidence, the case can't go to trial because a judge has to see enough evidence for a case to do so. And if it's pre-trial in a police station, they can't make you talk anyway (assuming no torture). But still, why, if you are innocent, would you not answer the questions?

2) Being held in contempt for not answering seems fine. People are held in contempt for not answering questions in court all the time, so why should asking the individual on trial a question be any different?

3) If you lie, you have committed perjury. Why would you lie if you didn't do the crime? If you lied about something else illegal that you aren't on trial for, I can see this issue, but in that case, if you were on trial for murder and were asked a question such as "what were you doing that day of the murder" and you say "I was robbing a bank", then that answer could cause you to be accused of a new crime. Still, why is this a bad thing? The prosecution still can only ask questions relevant to the case, so I don't see problems of a "fishing expedition" in that the prosecution can't use get him to admit to some crime if not the one he is on trial for; judge will rule that the question is not relevant. And if it is relevant and results in him being found out to being involved in some other illegal activity, there's nothing wrong with that. It's just tough luck for him that his alibi happens to cause him to have to admit to another crime.

I'm reading a lot of stuff also on the McCarthy hearings in the 50's on whether people were communists or not and a ton of people took the Fifth and it's cited as a great example of why the Fifth is so important. But the issue there was the unjustness of the witch hunt and the violation of the freedom of someone to be of a particular political party. If being a communists in and of itself was illegal, then it's that law that is wrong and that should be the focus, not the Fifth Amendment, in the protection of justice on the individuals that testified in those hearings. In contrast, when the Enron executives took the Fifth, there was no witch hunt. There was a legitimate search for answers to find the reasons for the collapse of the company. I find it interesting that no reference material cites the Enron guys taking the Fifth as a demonstration of the greatness of the amendment. The problem with the McCarthy hearings was that the hearings themselves were unjust. And people took the Fifth really out of protest to this unjustness.

It seems to me that the Fifth Amendment was written in such a manner as to go overboard in preventing a repeat of the beating out of confessions common in Europe during the Inquisition. So they just said, no one can be made to testify, under any circumstance. This way, there can be no gray area. If no matter what, a guy can't be forced testify, then there definitely is no point in torturing out a confession out of him. However, this is like having a law saying a black person under no circumstance can be allowed to work in a field to prevent any chance of return of slavery. Why can't we just have the law say, "You can't threaten or beat a guy to testify"?

Again, what is the purpose of the law? It's safe to say we are well beyond the point in our country where there is a chance of people getting forced to admit to a crime and then hung for it. And I honestly believe this is the primary genesis of the law dating back hundreds of years. And now, this same law is used by Enron fat-cats and murderers to avoid having to answer tough questions about crimes they are accused of in total irrelevance to the original intention of the law.

And I've had personal experience with the Fifth. I was on a jury for a domestic violence case where I am pretty sure the guy did it, but we found him not guilty because the complaintant had a crazy story and evidence didn't show injuries she claimed. Still, when this guy pumped his fist at the verdict, we knew he did it and I knew probably he did before, but it was true, we couldn't convict. I wondered why we had to reach a verdict without knowing all the facts as to the events of the alleged incident. The defendant on trial didn't have to prove to us his innocence, but the prosecutor should have been able to ask him questions so the she could prove he was guilty. As it was, the defendant did not testify for himself since his lawyer probably told him he didn't need to do so to win the case. We sensed he was about to then they sent us out of the courtroom and then when we returned, but defense rested with no witnesses.

In more recently, the Scott Peterson case had his defense being that he was fishing and that's why he was out in his boat, not to dump his wife's body. But this excuse came in statements to police. He never testified to it in court. It just seems ludicrous that we can hear arguments by the defense that this is his story since it is in the police statement records, and yet the guy is sitting right there and the prosecution cannot cross-examine him on the story. Fortunately, this case ended how it should with a guilty verdict.

I sort of have a sense that people feel that taking away the Fifth Amendment's right against self-incrimination in the constitution is equivalent to some conservative group advocating a change in the freedom of speech part of the First Amendment so they can ban the Simpsons or other media they deem as immoral. People have to understand that the removal of an individual's right is not necessarily a move towards a more conservative social environment where an evil government can use it's power to subjugate the masses. It matters what that right is. I just want people to fully think about this issue and not have some knee-jerk reaction that advocating to end the ability to "take the Fifth" is some step towards the end of the free world. Because I have yet to read anything that convinces me that the right is innately good in our era.

We have many great freedoms as American citizens, but the freedom from self-incrimination granted by the Fifth Amendment is outdated and in reality inhibits the freedoms of all Americans today by not allowing justice to be served in many cases due to the facts not coming out in a trial. The threat of witch trials and inquisitions is long over. I think we are a mature enough society now to hold individuals accountable to answer questions for crimes they are accused of while respecting the accused's human rights and his right of being presumed innocent until proven guilty.

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