Why can't you be asked to testify against yourself?

[Sela]

Per US law, there's this idea that you cannot be asked to testify against yourself. I'm no juror or legalist, and have at best a passing understanding of the interpretation of law. Maybe I'm reading this wrong or something - but why is this a right? It would seem to me the most obvious question to ask a defendant is: "How do you plead?". If a defendant knowingly claims not to be guilty and is later found to actually be, why aren't they generally convicted for perjury as well as their original crime?

I'm sure it's a stupid question - so here's to hoping for an illuminating answer.

[Losonti Tokash]

The 5th Amendment guarantees you the right to not incriminate yourself, so as such you can't be compelled to testify against yourself. They can put you on the stand and you wouldn't be allowed to lie, but you're not required to say anything to the prosecutor, the police, or anyone at any point. Which is generally a good idea anyway, since while you can obviously be convicted without saying anything, talking to the police when they're investigating you never helps.

As for why you're not required to incriminate yourself, allowing police to force people to confess would not result in a particularly effective justice system, since they could just grab some random guy off the street and beat him until he confesses to every case they're working on.

[Sela]

Say - hypothetically - you could not arbitrarily refuse to give evidence against yourself. A confession "extracted under duress" would still be no more valid than it is right now. As far as not being required to answer the prosecutor, I guess I'm not seeing how this helps the cause of justice at all. If there's a reason not to answer a question that's different; I can think of quite a few questions that I'd be embarassed to have to answer in so public a venue as a trial.

What seems to me a decidedly INSUFFICIENT reason is that it might lead to one's own incrimination. I mean, say a person actually said all that out loud in court: "I can't answer the question of whether or not I owned that gun, since it might lead to my incrimination." How is that not tantamount to admission that he's guilty? If he did own the gun, and wasn't guilty - then him admitting ownership shouldn't lead to his conviction!

[Thanas]

Because if you can potentially force people to testify against themselves, they will just lie on the stand if guilty, which causes more work for the justice system as they have to verify those lies etc. Heck, even antiquity realized the inefficiency in that.

[Johonebesus]

The key point is that no-one may be compelled to confess to a crime. Since few people would willingly incriminate themselves, the authorities would normally have to hurt someone in order to get him to confess, even if the "hurt" is only imprisonment. How else can someone be made to testify against himself? The concern was that without this protection, innocent people might be punished for refusing to confess. That was a common practice in many places back then. Any educated person understood that coerced confessions were liable to be false, but that didn't stop authorities from using them, or juries from taking them seriously. Obviously it still happens, but at least it's illegal, and few judges will openly put a suspect in jail until he confesses.

[Akhlut]

Say - hypothetically - you could not arbitrarily refuse to give evidence against yourself. A confession "extracted under duress" would still be no more valid than it is right now. As far as not being required to answer the prosecutor, I guess I'm not seeing how this helps the cause of justice at all. If there's a reason not to answer a question that's different; I can think of quite a few questions that I'd be embarassed to have to answer in so public a venue as a trial.

What seems to me a decidedly INSUFFICIENT reason is that it might lead to one's own incrimination. I mean, say a person actually said all that out loud in court: "I can't answer the question of whether or not I owned that gun, since it might lead to my incrimination." How is that not tantamount to admission that he's guilty? If he did own the gun, and wasn't guilty - then him admitting ownership shouldn't lead to his conviction!

Incrimination also applies to more then just whatever you may currently be charged with. Perhaps the person being questioned is a felon and cannot legally own a firearm; to answer the question would incriminate him, even if he didn't shoot the other guy.

[DPDarkPrimus]

To give an example:

You testify that you were not at a certain location when the crime occurred, so you could not have done it. This is the truth.

However, they get someone who testifies that they did see you at that location at that time. The person is mistaken, but it doesn't matter. Now it looks like you're a lying scumbag.

[Kamakazie Sith]

The 5th Amendment guarantees you the right to not incriminate yourself, so as such you can't be compelled to testify against yourself. They can put you on the stand and you wouldn't be allowed to lie, but you're not required to say anything to the prosecutor, the police, or anyone at any point. Which is generally a good idea anyway, since while you can obviously be convicted without saying anything, talking to the police when they're investigating you never helps.

As for why you're not required to incriminate yourself, allowing police to force people to confess would not result in a particularly effective justice system, since they could just grab some random guy off the street and beat him until he confesses to every case they're working on.

Never is a strong word. Because talking to the police can and does help, but for the most part I agree that you should exercise your right to remain silent.

[PeZook]

Say - hypothetically - you could not arbitrarily refuse to give evidence against yourself. A confession "extracted under duress" would still be no more valid than it is right now. As far as not being required to answer the prosecutor, I guess I'm not seeing how this helps the cause of justice at all. If there's a reason not to answer a question that's different; I can think of quite a few questions that I'd be embarassed to have to answer in so public a venue as a trial.

That is terrible logic. How could the accused possibly not be under duress when he testifies against himself?

The state has him in its power. If the law demands he testifies, and he says something the state doesn't like (like oh I don't know "I am not a communist saboteur, your honor), he's going to face consequences in addition to being imprisoned and accused of a crime. Thus, even without beating or torture, innocent men are pressured into confessing to crimes the did not commit.

Much like adopting a rule that the accused is innocent until proven guilty, it's designed under the assumption that it's better to let a guilty man walk from time to time than to imprison an innocent man.

In theory, of course.

[TheFeniX]

The two justifications I've heard for it is:

1. To stop investigators or prosecutors from tripping you up, even if you're innocent. Interrogations and trials can take ages and being forced to answer the same questions or describe a series of events can wear on the strongest of people and have them add or omit information over the long haul. An accused in interrogation doesn't have the benefit of working in teams and with a script designed specifically to trip you up. Nor do most people have the resources of a prosecutor to record everything you've said and making you perjure yourself.

And to be honest, most people just can't recall where they were or what they were doing on any given day. Being forced to give an answer on the spot can put you in a world of shit if you turn out to have incorrectly recalled the day during the investigation.

2. To stop forced perjury, which is a pretty serious crime. Considering it's a felony, it would be pathetically easy to abuse the lack of a 5th amendment to nail someone for something big, even if their original crime is nothing but a parking ticket or petty theft. The example cited (in my government class years ago) was the Lewinski/Clinton scandal and how Clinton was called to the stand to testify specifically to perjure himself.

This also stops illegally obtained confessions and or evidence to make their way back into court. Basically, that the illegal evidence cannot be used to convict the accused of a murder he confessed to on tape, but can be used to perjure him (and let the evidence in anyway). This has a lot less justification (as it's likely the accused is guilty), but you could easily put someone away for 5+ years just for lying about stealing a candy bar.

[Losonti Tokash]

Never is a strong word. Because talking to the police can and does help, but for the most part I agree that you should exercise your right to remain silent.

Oh, yeah, of course. Not even in the sense that it helps the police or community to talk to them (I am obviously not advocating never helping them at all) but more from the angle of "If you get pulled over for speeding, shut the fuck up."

[Stofsk]

It really depends on the circumstances, but I definitely agree with Los that if you're under investigation, the smartest move is to keep your mouth shut. The problem is how clever cops can be, so if you're a suspect they're obligated to inform you you're under suspicion and advise you of your rights, but if you're a 'person of interest' then they don't. That's what it's like here, at any rate.

You might think you're a witness and talk to the police accordingly, while all the time they consider you to be a person of interest. It's a bit hard not to get cynical after that.

[Kamakazie Sith]

Never is a strong word. Because talking to the police can and does help, but for the most part I agree that you should exercise your right to remain silent.

Oh, yeah, of course. Not even in the sense that it helps the police or community to talk to them (I am obviously not advocating never helping them at all) but more from the angle of "If you get pulled over for speeding, shut the fuck up."

I'm saying in situations were you are on the suspect. I recently dealt with a situation where a person was accused of aggravated assault with a gun. That person had left in a vehicle but then came back. Thanks to his interview we were able to determine that the original complainant was lying. We had a feeling since she seemed pretty damn crazy.

Had he not returned it is not likely that the DA would have filed against him, but him returning and choosing to speak with us still helped him. However, your choice to do so should be considered on what you know about the local law enforcement. For example, knowing what I know about the New Orleans police department I wouldn't say a damn thing to those guys.

[Kamakazie Sith]

It really depends on the circumstances, but I definitely agree with Los that if you're under investigation, the smartest move is to keep your mouth shut. The problem is how clever cops can be, so if you're a suspect they're obligated to inform you you're under suspicion and advise you of your rights, but if you're a 'person of interest' then they don't. That's what it's like here, at any rate.

You might think you're a witness and talk to the police accordingly, while all the time they consider you to be a person of interest. It's a bit hard not to get cynical after that.

In the United States it comes down to if you're in custody and being questioned. If those two conditions are met that a police officer must advise you of your rights. However, yes I agree. I'm mostly just responding to the idea that talking to the police never helps...because sometimes it does.

[Alyrium Denryle]

It also helps get witnesses on the stand. Say you are accused of murder, and your alibi is... your coke dealer. The guarantee that neither him nor you can be forced to give testimony incriminating yourselves can help him get on the stand, because the prosecution cannot force him to admit selling you an eight ball that night. Now, the refusal to answer the question can look shady to a jury, but so long as the defense stipulates that he is a drug dealer, they can draw their own conclusions, but it is better to have that happen than to find yourself free on the murder charge, only to be slapped with a drug charge. For all anyone can prove, he is a drug dealer, and you are an actual friend who he was watching the football game with....

[Sela]

I think the problem I had stems from a fundamental misunderstanding of what "being asked to testify against yourself" entails. I'm lucky to be privileged. I've grown up in a society where I just *assumed* you're innocent till proven guilty. Where you could refuse to answer any question you want whenever you want without needing a reason for it, and could volunteer any information at any time.

In that context, it's silly to tell law enforcement "you can't even ask him if he's guilty." But it seems I was being too myopic about it. I still think that the first question should be "how do you plead?" - which effectively IS asking him to testify against himself. And if it's later shown that he knowingly pleaded not guilty when he was in fact, then tack on a perjury charge! But the right not to self-incriminate means about *everything*. You don't have to volunteer information about all your shady dealings just because you're on trial for one thing.

Whether or not a police state is a better place to live is another topic for another thread. Suffice it to say, I dont' need convincing of that.

[Simon_Jester]

I think the problem I had stems from a fundamental misunderstanding of what "being asked to testify against yourself" entails. I'm lucky to be privileged. I've grown up in a society where I just *assumed* you're innocent till proven guilty. Where you could refuse to answer any question you want whenever you want without needing a reason for it, and could volunteer any information at any time.

In that context, it's silly to tell law enforcement "you can't even ask him if he's guilty." But it seems I was being too myopic about it. I still think that the first question should be "how do you plead?" - which effectively IS asking him to testify against himself. And if it's later shown that he knowingly pleaded not guilty when he was in fact, then tack on a perjury charge!

This last is a very bad idea. I can think of two big reasons.

For one, the state can still intimidate people into pleading guilty; this happens all the time. It's called plea bargaining- plead guilty to manslaughter or be charged with murder. From the point of view of someone who is not confident of their ability to mount a legal defense (they may be innocent, mind, but they might be worried about paying legal bills, or about circumstantial evidence against them, or about jury bias), that's a tempting choice. If the defendant has to worry about additional perjury charges being brought against them if they take the case to court, the bias is even more in favor of a guilty plea to save themselves the pain and trouble.

In essence, Sela, you'd be saying that every time anyone is judged guilty in court (because guilty pleas don't go through the full court process), that person will additionally be judged guilty of perjury for wanting the case to go to court in the first place.

See the problem?


Another thing: sometimes a verdict of "guilty" is made incorrectly. Either because the crime was not committed by that person, or because some important step in the legalities was skipped and the whole process of charging and trying this person is a mistrial. In these cases, you would be additionally punishing the defendant for "perjury" in a situation where you shouldn't be punishing them for anything at all. This is a particularly serious issue for misdemeanors, because someone who's falsely accused of petty vandalism or misdemeanor assault can wind up convicted of a felony for (correctly) pleading "not guilty."

[Dalton]

Thread moved to SLAM.

[Sela]

Another thing: sometimes a verdict of "guilty" is made incorrectly.

I think the sad part is that the reality of this statement has never sunk in for me. I mean, when you say it it seems obvious - our justice isn't perfect and we get things wrong from time to time. I gotta admit - I feel kind of stupid for not realizing this was my underlying assumption . . . that a legal verdict need not actually be "the truth".

Its a part of reality I've never personally been exposed to I guess - that you can be innocent and still have something to fear from the law. But yes; given the reality that judges and juries can get things wrong, an innocent man with lots of circumstantial evidence against him and no proof of his innocence is in an unfortunate situation. I can see how it would be hard to hold onto an idealistic "I'm innocent- so do your worst!" attitude in that situation, and it makes sense to extend the "innocent till proven guilty" doctrine as much as possible.

Rather let ten go then put one away falsely.

[Simon_Jester]

If the judiciary were omniscient and perfect, then yes you could justify tacking a perjury charge onto someone who pleads not guilty and is found guilty. But then, if the judiciary were omniscient and perfect, there would be no need for testimony, and thus no need to make perjury a crime.

Think about it. The reason we make perjury a crime is to deter witnesses from deliberately misleading the judiciary; from there you can't escape the conclusion that the judiciary can be misled. If the judiciary were reliable enough that we could be sure that every person convicted after a "not guilty" plea was really guilty, we wouldn't need to worry about perjury in the first place, because the judiciary would be practically infallible. The only reason to punish people for lying to it when those lies would inevitably be ferreted out would be spite or vindictiveness- "How dare you lie to me? A felony conviction for you!"

That strikes me as disagreeable.