Why is forced self-incrimination unconstitutional?

When asked why the Fifth-Amendment protection against forced self incrimination was valid, Leonard peikoff said that the Founding Fathers weren't like God, they realized that a person's self regard is superior even if he knows he is in the wrong, and that people are not selfless agents of justice. Listen to him here about one third of the way into the podcast. Peikoff's argument seems bizarrely pragmatic, and strikes me as weak. Can anyone state a better argument?

Post 1

Tuesday, August 18, 2009 - 9:43pm

That is a rather odd argument. Although we aren't selfless agents of justice, the idea that being an willful agent of injustice certainly doesn't seem to be moral either. It seems to me that a clause against self incrimination is absolutely necessary if a gov't is to be based on reason and individual rights. Proof is a concept that requires logic and process be used to satisfy a standard that can be independently validated. Placing the burden of proof on the state places the burden of reason on the state.

Post 2

Tuesday, August 18, 2009 - 9:48pm

I was taught the purpose was to prevent the state from torturing citizens or threatening their families, etc., with harm. I like placing the burden of reason upon the state, but I'm not sure how that concretely translates into not compelling a man to testify to the self-incriminating truth upon threat of perjury if he is later found to have lied or contempt if he refuses altogether.

Post 3

Tuesday, August 18, 2009 - 9:59pm

A policy of the gov't seeking self-incrimination from defendants in legal matters is also inconsistent protection of individual rights, specifically that the state must treat citizens as innocent until proven otherwise. An investigatory method relying on soliciting or coercing self-incrimination is operating on the opposite premise. Punishing independently verified dishonesty or contempt for the legal process operates on a different premise than presumpive guilt.

Post 4

Tuesday, August 18, 2009 - 10:05pm

But innocent until proven otherwise doesn't prevent reasonable searches or even arrest and being held until trial.

"Punishing independently verified dishonesty or contempt for the legal process operates on a different premise than presumpive guilt." Exactly. Threatening to charge a man with contempt if he refuses to testify or with perjury if he testifies falsely neither harms him if he is innocent nor threatens him with punishment before the fact for his crimes if he is guilty. In other words, if one can use such mild threats, perjury and contempt, to self-incriminating testimony, and there is no need to resort to torture, then what's the problem?

(Edited by Ted Keer on 8/18, 10:10pm)

Post 5

Tuesday, August 18, 2009 - 10:16pm

I didn't like Dr. Peikoff's explanation.

Wikipedia has a good description of that part of the 5th amendment's historical context:

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"The fifth amendment protects witnesses from being forced to incriminate themselves. To 'plead the Fifth' is to refuse to answer a question because the response could provide self-incriminating evidence of an illegal conduct punished by fines, penalties or forfeiture.

Historically, the legal protection against self-incrimination is directly related to the question of torture for extracting information and confessions.

The legal shift from widespread use of torture and forced confession dates to turmoil of the late sixteenth and early seventeenth century in England. Anyone refusing to take the oath ex officio mero (confessions or swearing of innocence, usually before hearing any charges) was taken for guilty. Suspected Puritans were pressed to take the oath and then reveal names of other Puritans. Coercion and torture were commonly employed to compel 'cooperation.' Puritans, who were at the time fleeing to the New World, began a practice of refusing to cooperate with interrogations. In the most famous case John Lilburne refused to take the oath in 1637. His case and his call for 'freeborn rights' were rallying points for reforms against forced oaths, forced self-incrimination, and other kinds of coercion. Oliver Cromwell's revolution overturned the practice and incorporated protections, in response to a popular group of English citizens known as the Levellers. The Levellers presented The Humble Petition of Many Thousands to Parliament in 1647 with thirteen demands, of which the right against self-incrimination (in criminal cases only) was listed at number three. These protections were brought to the American shores by Puritans, and were later incorporated into the United States Constitution through the Bill of Rights.

In terms of Miranda rights, this is often referred to as the 'right to remain silent.' This amendment is also similar to Section 13 of the Canadian Charter of Rights and Freedoms. In other Commonwealth countries like Australia and New Zealand, the right to silence of the accused both during questioning and at trial is regarded as an important inherited common-law right, and is protected in the New Zealand Bill of Rights and in Australia through various federal and state Acts and Codes governing the criminal justice system."
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Government should only have those powers specifically given to it by the constitution, and the founders decided to be explicit about the government not having this power to compel self-incriminating testimony. In terms of individual rights, it is simple. We have the right to talk or not talk. That right remains ours until such time as sufficient evidence exists to show that we have violated the rights of another - that being the only way we can lose a right.

If he is guilty of a capital crime, and he knows it, then he he gave up his moral rights by choosing to commit the crime, but it doesn't follow that we want to state to act as if they know of his guilt before it has been established. His having or not having a right in a specific case, is not the same thing as us wanting a government to have a power for all cases.
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What about the state's legal right to compel a bystander to provide testimony? People should not be subject to contempt of court or any other charge for refusing to testimony. The same for jury duty. If these things were consistently refused then our system of justice would be threatened. But, like the military, I believe it would work better if it conformed to individual rights which is what we have with a volunteer army instead of a draft. So, there really is no basis to the pragmatic arguments.

If we can't morally compel some bystander to get on the stand and give testimony, how can we compel the accused to get on the stand and give testimony that might result in his rights being further violated, given that at this point he is presumed innocent.
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But if I wanted to play Devil's advocate, I'd ask, "What about our property right violation when, before we have been convicted of a crime, the police execute a search warrant?" Probable cause is a good check against unreasonable search, but where does the right to any search come from when there has been no conviction? I guess that there is a short time period where the state is required to go from no evidence to conviction... in stages. And the degree to which the defendants moral rights can be 'violated' increases as the evidence builds. And for historical reasons, the right to not talk was never put at risk during that process of moving along guided by probable cause or even after conviction.
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Historically, compelled oaths or testimony were the worst of moral violations. The initiation of force being used to get a person to make his mind speak lies turning him into a traitor to his own beliefs, his liberty and even his life. Early Modern Europe's witch hunts often resulted in tortures that forced confessions resulted in as many as 100,000 people 'choosing' to be burned alive rather than continue the torture.
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Edit: When I started writing this, there was only Ted's single post - hence all the repetition.

(Edited by Steve Wolfer on 8/18, 10:18pm)

Post 6

Tuesday, August 18, 2009 - 10:39pm

I personally would not repeal the fifth amendment. But I am going on gut feeling. Unless I hear a better argument, I think it is procedurally correct, but not based on some absolute right. I absolutely do not think it applies to non citizens outside the US.

Steve, I sanction you for the effort, but I disagree with the stance that there should be no compelled testimony by uncharged third parties. That is not current law. Also, assume the famous football player Plexiglass Bureau is accused of rape yet racist ex-detective Dark Vermin knows he is innocent and could provide an alibi, but refuses to testify on his behalf? Why should Bureau's lawyer not have Vermin compelled to testify, and Vermin not face contempt or perjury charges if he does not tell the truth?

Post 7

Tuesday, August 18, 2009 - 11:03pm

Thank's for the sanction, Ted.

I am not greatly concerned with current law which compels testimony of an uncharged witness being a violation of individual rights. Clearly it is in everyone's rational interest to submit the the minor inconvenience of testifying to serve the system that protects his rights. And if he opts out, then he pays for doing so with a fine or short jail stay. I don't know if it really is the right of the state to compel that testimony, but it isn't high on my list of concerns at all. (Unless it is abused, like some congressional committee harassing a witness with repeated demands to appear before them.)

Perjury is different. In spirit it resembles fraud and it is an assertive volitional act that damages the justice system as such. I have no problem with punishment there. I don't think it would be any problem showing perjury as a violation of individual rights in the example you gave.

Where you talk about the application of the 5th amendment to non-US citizens outside of the U.S. - that becomes a different set of issues. I still think that the state should never be allowed to compel self-incriminating testimony, but I disagree with Miranda (in or out of the US - citizen or not) - I've never seen the justification for a legal or moral right to be informed of ones rights.

Post 8

Wednesday, August 19, 2009 - 5:08pm

Ted,

Perhaps the Supreme Court's explanation from Murphy v. Waterfont Commission (1964) will satisfy you.

The privilege against self-incrimination �registers an important advance in the development of our liberty � 'one of the great landmarks in man�s struggle to make himself civilized.�� Ullmann v. United States, 350 U.S. 422, 426. n4 It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial [*7] rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates �a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,� 8 Wigmore, Evidence (McNaughton rev., 1961), 317; our respect for the inviolability of the human personality and of the right of each individual �to a private enclave where he may lead a private life,� United States v. Grunewald, 233 F.2d 556, 581-582 (Frank, J., dissenting), rev�d 353 U.S. 391; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes �a shelter to the guilty,� is often �a protection to the innocent.� Quinn v. United States, 349 U.S. 155, 162.

Jordan

Post 9

Wednesday, August 19, 2009 - 5:29pm

Thanks, Jordan. While I sympathize with the judges, I note their use of the word privilege. And that "private enclave" quote sounds as fishy as Peikoff's justification. I am reminded of the someone who argued that it is moral for a rapist to murder his victim to keep him silent. I think I will have to settle for this as a matter of procedure, rather than absolute principle.

Post 10

Wednesday, August 19, 2009 - 9:08pm

Ted,

If you are going to rip Bill at least do it accurately. He did not argue that it is moral for a rapist to murder his victim TO KEEP HER SILENT. Rather, it was to keep her from killing him.

If she kept herself composed and thus created no genuine emergency threat to him, I�m pretty sure he would say that killing her would be bad.

Post 11

Thursday, August 20, 2009 - 4:29pm

Hi Ted,

I wonder if, on a more basic level, you are simply wary of bottom-up law? The right against self-incrimination grew organically, little by little over time, in response to problems of the day. It was not top-down law derived from careful reasoning or empirical study.

Steve's wiki excerpt points to the unfortunate practice of torturing confessions out of Puritans, but the history is thicker than that. The Medieval advent of trial by legal proof, the judge became a powerful player. Sure enough, people bribed and threatened the hell out of him:

[T]o provide some means of prtecting judges from such pressures. . . .The rules governing the weight to be given to certain kinds of testimony were mechanical in operation. The court was required to give predetermined weight to testimony based on the number, status, age, and sex of the witnesses. To prove a fact, a given number of witnesses was required. The testimony of nobles, cleric, and property owners prevailed over that of commoners, laymen, and those without property. The testimony of an older man prevailed over that of a younger. The testiumony of women was either barred or given a faction of the weight of a man's testimony. John Merryman's The Civil Law Tradition (LexisNexis 1994, pages 1018-1019).

This a priori set of credibility measures reduced judicial corruption, but yielded some hard-nosed conclusions: If you testify under oath about a fact, then your testimony will be taken as conclusive proof of the fact. But if someone who is above you on the credibility latter testifies under oath to a contrary fact, then that is conclusive proof that you perjured yourself. You could refuse to testify, but then that is conclusive proof against the fact you are trying to prove. You are stuck in a dilemma of risking perjury or promulgating falsehood.

To spare you the dilemma -- and in keeping with rules protecting against judicial corruption -- the courts developed rules to automatically exclude certain testimony as untrustworthy:

[P]arties, relatives of the parties, and interested third persons. . .[were] considered basically untrustworthy, hence entirely excluded [from testifying at all]. This rule protected the party's conscience against perjury, which he might be tempted to commit to win his case. It may also have reduced the vulnerability of the judge to cocercion or bribery. (Id. at 1019.)

It was not a right to decline to testify against yourself or your interests, but rather a prohibition from doing so.

Eventually, along came another mechanism to protect against judicial corruption. The courts realized that it was harder to bribe and threaten an alternating body of multiple individuals, rather than mess with a permanent single judge. Hence the jury was born. Juries still had to work with credibility measures and exclusionary rules (and still do in some fashion), but there was a big push for "free evaluation of evidence," and since the judge was no longer the big target of corruption that he once was, the rules relaxed. Juries were more able to weigh evidence at their own discretion. Hence, the prohibition against testifying against oneself shifted back to being an option.

Here is where you queue the torturing of Puritans. Puritans were permitted to testify; they just chose not to. There was no legal recourse for the tortured Puritan. In legal-speak, some would say they had a privilege but not a right to testify or decline to testify. And Steve's wiki excerpt explains somewhat how the privilege became a right.

Jordan

Post 12

Thursday, August 20, 2009 - 5:00pm

No, I am not against law which has come in to being by proven usage rather than a priori rationalization. I am all for such limitations to property rights absolutism as easements and attractive nuisance law. I am not at all opposed to the prohibition against forced self-incrimination for citizens in criminal trials. Again, I would like to have a better justification than the fact that it makes torture less useful. After all, torture is already illegal, and the threat of contempt and perjury is not torture, and we do force witnesses to testify under those threats so long as it is not against themselves in criminal proceedings. And Peikoff's defense of the amendment is so bizarre as to remind me that the best way to defeat a principle is to defend it poorly.

I am familiar with the idea of inquisitional rather than adversarial trials. Interestingly we had to learn about that in my French and German language classes when we read courtroom dramas. Also, I oppose physician assisted suicide because the purpose of having a coroner is to perform inquests, not to refuse to perform inquests.

As for not being able to testify against interest, that is interesting, since the modern practice is often to assign more weight to evidence against interest.

I am all for bottom-up law, as I am for bottom-up cognition and bottom-up ethics. Just as a familiarity with Objectivism doesn't make you a qualified physician or a qualified physicist it certainly doesn't make you an expert at law or legal theory.

Post 13

Thursday, August 20, 2009 - 9:46pm

Hi Ted,

I didn't understand your coroner inquest bit, but the rest I think I understand.

To attempt an answer to your original post, even though the right against self-incrimination was formed bottom-up, it's reflective of the NIOF principle, is it not? I think this is somewhat redundant to Steve's posts, but don't we violate the NIOF principle when we coerce someone to testify? Shouldn't all testimony be voluntary under Objectivism?

Jordan

Post 14

Thursday, August 20, 2009 - 10:05pm

"I think this is somewhat redundant to Steve's posts, but don't we violate the NIOF principle when we coerce someone to testify? Shouldn't all testimony be voluntary under Objectivism?"

No. The defense should be able to compel witnesses in order to demonstrate its innocence. I am a black man accused of rape, and you are a racist bartender who could provide me with an alibi. My potential loss of life and freedom far outweighs any inconvenience to you of having to show up and make a statement in court. If you are forced to testify because I was charged in bad faith, then it is my accusers, not me, who have damaged you. That you must testify is simply one of the minimal costs of civilized government.

My opposition to assisted suicide (the doctor/executioner administers the drugs, rather than just prescribing them which you take yourself) is threefold. First, there is no right to death, per se. If you wish to kill yourself, no one has the right to stop you from owning the means to do so. Once you kill yourself, you are not subject to punishment. You do not need a right to die. Just a right to possess the means to kill yourself. Second, the law corrupts physicians. The purpose of medicine is to extend life. If you want to die, you do not need a doctor. A hit man or a garbage man can do it just as well. Third, it is the coroner's responsibility to determine the cause of death, and if it is homicide, to have the authorities investigate. Once a doctor can show he has your signed request for termination, he can murder you whether you actually want to go through with the procedure or not. The issuance of death warrants will just be a subornment to murder for some. Kevorkian types are a case in point. How do we know how many people he killed just because he enjoyed it? How many changed their minds, only to have him say he knew better? There is no way for the coroner to know. We don't need to create an entire state institution and put the acts of doctors and coroners under a cloud just because some people want other people to pull the trigger for them.

Post 15

Thursday, August 20, 2009 - 11:00pm

Hi Ted,

Weighing the defendant's risk of punishment against the witness's being inconvenienced sounds pragmatic. It's akin to reasoning for Good Samaritan laws, where an otherwise uninvolved bystander is compelled under the law to render aid to the injured because the bystander is in the best position to do so, irrespective of whether the bystander would otherwise choose to render that aid. And like the bystander, the witness didn't initiate force against anyone.

I'm going to leave your talk of physician assisted suicide alone.

Jordan

Post 16

Thursday, August 20, 2009 - 11:28pm

I don't have a problem with laws that require a person to make a reasonable effort to report a crime in progress to the proper authorities. But aid is something else, you'd have to provide a test case before I'd offer an opinion on that. We do provide council for the indigent defendant. That too comes at someone's expense. Being required to provide testimony in court is requiring that a person provide information, not a body part.

Yes, I am more concerned with a person's need to defend himself against untrue charges than I am with someone's right not to have to testify. I am willing to establish the flat out principle that a judge may compel a witness to testify on behalf of a defendant if the testimony is vital and probative. Establishing that principle should fend of the bugbear of pragmatism. I also have no problem with punishing those who cause someone to be compelled to testify in bad faith.

You haven't told me how the minority defends himself when the unwilling racist witness is his only alibi. Tell me how to address that without compelling testimony and I will concede the point.

As for assisted suicide, I was not arguing. I was just explaining it, since you asked.

Post 17

Friday, August 21, 2009 - 12:12pm

Hi Ted,

You haven't told me how the minority defends himself when the unwilling racist witness is his only alibi. Tell me how to address that without compelling testimony and I will concede the point.

Oh, didn't realize you wanted a response to that.

Without compelling the racist's testimony, the black man is screwed. I expect Objectivism would say wow that sucks, but too bad. The racist shouldn't be forced against his will to testify. He has no obligations to the stranger. He has not initiated force against the stranger. Maintaining autonomy, even the autonomy of a racist, is paramount. (I do not subscribe to this view.)

Do you find Objectivism consistent with your view that the law may (should?) require bystanders to make a reasonable effort to report crimes in progress? For specifics on aid, would you be okay with the law requiring bystanders of an accident or crime to make a reasonable effort, if it is safe for them and reasonably easy to do so, to. . . .call 9-1-1, make the situation safe (e.g., throw a heavy blanket on a fire), rescue a victim (e.g., remove debris to free someone or remove someone from a dangerous situation like an auto accident with leaking gas), render medical aid (e.g., cover someone's open wound with a cloth, put pressure on a wound to prevent extreme blood loss, render CPR), or stop a fleeing perpetrator (e.g., getting in his way, tripping him, attacking him)? All these might well be noble deeds when taken voluntarily, but may or ought the law require this of individuals? I expect Objectivism would say no.

I find compelling aid, but not providing council for the indigent, the proper analog to compelling testimony. The government (usually) isn't forcing the attorney to be the indigent's counsel.

It seems premature to address your suggested principle at this point, so I'll hold off.

As for assisted suicide, I was not arguing. I was just explaining it, since you asked.

Of course. Thank you for the explanation. I just wanted to end it there, not turn it into a discussion point.

Jordan

Post 18

Friday, August 21, 2009 - 2:24pm

I don't find an intrisic absolutist view of rights consistent with Objectivism. Civil rights exist within a context. Civil rights have a real and finite cost. Civil rights are not established by mere argument, one is required to exert some minimum physical effort in the real world to define and protect them. No one is required to defend your rights for you unpaid. Objectivism does not hold that since you have a right to self defense you have a right to vigilantism. It doesn't hold that since you have the right to consensual acts, that two men have the right to duel. It doesn't hold that since you own yourself you can sell yourself into slavery. Being required under certain rare circumstances to testify in court is not a violation of rights. It is a minimally costful means of protecting them.

Post 19

Friday, August 21, 2009 - 2:40pm