Refusing to testify/"taking the 5th" C/D

Are most Americans happy with the right of an accused to refuse to take the stand?

The whole 5th amendment thing baffles me:
"I refuse to tell you if I killed my wife as it would incriminate me in her killing"
"Okay, cheers, that doesn't make you look guilty AT ALL and we'll tell the jury that."

-- ONIMO

In the States, as a matter of law, juries are not permitted to infer ANYTHING from a defendant's failure to testify. There are also plenty of reasons for factually innocent people not to testify -- you might be a lousy witness (arrogant, nervous, nasty, whatever), or you might have done some other unsavory things that make you look really bad.

-- Colin Meeder

Yes but all the other innocent people (i.e. witnesses) are compelled to testify whether they are nervous, nasty, arrogant, whatever and might have done unsavoury things so why not the person actually accused of the crime?

-- ONIMO

because the worst that happens to a witness who comes off like a unsavoury dick is that they come off like an unsavoury dick?

-- mark s

A witness coming off as an unsavoury dick can have a huge effect on the outcome of the trial.

-- ONIMO feels teh NOIZE (gerry.wat...), Today 12:52 PM. (GerryNemo) (later)

e.g. mark fuhrman

-- ONIMO

Fuhrman's life and liberty weren't at stake.

-- Colin Meeder

No but someone else's were, and the unsavoury dick in question had an effect on the outcome. As did the other unsavoury dick not saying anything.

-- ONIMO feels teh NOIZE (gerry.wat...), Today 12:56 PM. (GerryNemo) (later)

I understand the reasons for the right to not testify. What I'm asking is whether people agree that this is a fair and just way of conducting a criminal trial.

Some cases (e.g. rape) come down to one person's word against another's. One person is crying rape but the other is legally entitled to sit and say nothing and the jury is instracuted to infer nothing from it. Is that right? Is it the best way to pursue the truth?

-- ONIMO

I don't know much about criminal law. I understand there are exceptions to the right to refuse to testify (e.g. fraud cases, I think). I just don't think it helps the justice system that people have an entitlement in law that allows them to (possibly) pervert or obstruct justice.

I accept that the burden of proof is on the accuser and that accused should not be compelled to "help" the prosecution.

I think in the OJ case his unwillingness to testify kept him out of jail.

Isn't there something else if you plead the 5th - like you can't be tried again if new evidence later comes to light, for the same crime?!

How do I know this?? I BLAME HORATIO CAINE.

(I know this because of a terrible film with Tommy Lee Jones and Ashley Judd)

There may be good reasons for eliminating the right and allowing the state to force defendants to testify, but they haven't popped up on this thread yet. IMHO, the right is an important component of holding the state to its burden of proof (beyond a reasonable doubt), which is an essential bar against government tyranny.

There've been a number of Mafia trials that have fallen over because to testify against a fellow Mafioso one would have to admit to being in the Mafia and one could therefore take the 5th.

I accept that (and pretty much said so "I accept that the burden of proof is on the accuser and that accused should not be compelled to "help" the prosecution.") and I think OJ's lawyers were right to advise him against testifying as was his right. I'm asking if that right should remain an absolute. As I said, I don't know enough about the nuances of criminal law to make a good argument here. That's why I'm throwing it open.

Can we have a US lawyer over here please!!

"Who was driving?"
"I refuse to say as it may incriminate me."
"So it was you?"
"I refuse to say as it may incriminate me."
"If it was anyone else but you then you have to tell us or you are obstructing justice!"
"I'm not obstructing justice."
"So it must have been you!"
"I refuse to say as it may incriminate me."

Now this added up to a bloke chancing his arm and getting away with speeding despite quite obviously being guilty. No-one was hurt and I'm sure Top Gear presenters had a wee chuckle. But it is right and just?

http://content.answers.com/main/content/wp/en/thumb/c/cb/180px-Fif.jpg

MARK ARE YOU SURE?

This suggests that you would either be fined for speeding or be fined for refusing to incriminate yourself.

"Hiibel's contention that his conviction violates the Fifth Amendment's prohibition on self-incrimination fails because disclosure of his name and identity presented no reasonable danger of incrimination. The Fifth Amendment prohibits only compelled testimony that is incriminating, see Brown v. Walker, 161 U. S. 591, 598, and protects only against disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used, Kastigar v. United States, 406 U. S. 441, 445. Hiibel's refusal to disclose was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it would furnish evidence needed to prosecute him. Hoffman v. United States, 341 U. S. 479, 486. It appears he refused to identify himself only because he thought his name was none of the officer's business. While the Court recognizes his strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature's judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him. Answering a request to disclose a name is likely to be so insignificant as to be incriminating only in unusual circumstances. See, e.g., Baltimore City Dept. of Social Servs. v. Bouknight, 493 U. S. 549, 555. If a case arises where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense, the court can then consider whether the Fifth Amendment privilege applies, whether it has been violated, and what remedy must follow. Those questions need not be resolved here. 10-13."

The actual text of the relevant portion of the Fifth Amendment states that "[No person] shall be compelled in any criminal case to be a witness against himself . . . ." The Miranda "right to remain silent" flows from that constitutional provision, not the other way around. In other words, wikiwiki has it exactly backwards.

The basic parameters of the 5A right against self-incrimination are as such:
- Applicable in any kind of case, criminal or civil
- May be invoked by anyone under oath
- Used to protect against compelled testimony (which the above UK traffic law could fairly be said to be causing)
- Right can be eliminated 3 ways
1. Grant of immunity
2. No possibility of incrimination (i.e., statute of limitations has run on the crime, etc.)
3. Person who COULD invoke the 5A waives it as to all potential subjects of cross examination

(I need to read up on 4th Amendment- it's not famous enough for us Britishes to know about)

xxxxposts

Translated: Fifth Amendment doesn't prevent the state from forcing you to talk outside of a courtroom about things that will not incriminate you (other people, other crimes you may have knowledge of but are not responsible for, information about yourself that can't be used against you in any way, etc.)

(gotcha, ONIMO)

I think you missed the point I was trying to make: the right to refrain from being forced to provide sworn testimony incriminating yourself in court is based in the text of the constitution, but the "right to remain silent" pursuant to Miranda warnings kinda isn't--it's an extrapolation, just as is the fact that U.S. criminal juries can draw *no* inference from the defendant's refusal to testify (in civil cases, by contrast, juries are permitted to draw inferences from silence).

Correct - BUT doesn't the 5A provide for the right to counsel across the board, regardless of the matter? As in, once you invoke the protection of the 5A, you can't be interrogated until you have the help of an attorney?

As a general principle, the Fifth Amendment portion of Miranda is the "right to remain silent" language. It's the Sixth Amendment that provides the basis for the "right to counsel" language. In practice, there are tons of exceptions to both--for example, if I was arrested and stated "I'm not talking to you until I talk to a lawyer," most U.S. jurisdictions would conclude that I haven't unambiguously invoked my right to counsel, and would allow any subsequent in-custody statement that I made to be admitted into court so long as it wasn't made in response to a question.

Anyway - the guy definitely 100% had a house full of all kinds of crime and walked free. He even had the cheek to talk to the local press about how much of a strain the entire episode had put on his poor family.

xpost

and once you invoke "spirit" rather than "letter" you slide (a) to the situation where the police break into 12 acacia crescent instead of 12 acacia avenue, and happen on something illegal and bust THAT, and then (b) random fishing expeditions

getting it precisely exactly right is a much easier line to patrol fairly than "yes we ignored the regs but our intentions were good"

was cleared because of a problem with the search warrant. I can't remember the exact error but it was something like it said "road" instead of "avenue" and this wsa corrected but the correction wasn't signed or the signature was outside the margin or some crap like that.

In the U.S., that'd be a Fourth Amendment issue--although I have to say that the "specificity" requirement of U.S. warrants may not be as broad as what you're describing, particularly in light of the "good faith" exception to the warrant requirement that has been developed by the U.S. Supreme Court. Essentially, if the cops reasonably thought the warrant was valid, they can rely upon it--usually it's got be a pretty major screwup in order to invalidate a search pursuant to a warrant.

xpost to mark s

As I understand it from people who know him it was stuff he was made to "look after" by some even scarier people he owed money too. The school of thought is that he was targetted by the police as a way to get at the bigger guys but they messed up.

Police procedure has to be followed scrupulously otherwise the law becomes an ass. My late uncle's police work involved VERY sensitive cases and every bit of paperwork had to be in order. Weirdly, his funeral was the day of the OJ verdict and if you can imagine 3000 cops silently motorcading his coffin while an entire city waits with baited breath...

In which case, he'll either be busted again if he's dumb and this time the cops will be sure to get everything right, or, if he's smart, his life of crime is over. So where's the harm to society?

The public need to be reassured that crime is actively being detected and prevented. Cops saying "Yeah he got off this time but we'll keep an eye on him in future" isn't going to cut it. Especially when the people keeping an eye on him are the same people who fucked up first time around.

What's the reasoning behind this particularly Daily Mail sentiment?

Also making any sort of performance goals for the police related to arrests/convictions etc... well, you can see where the problem is, right?

Therefore, the only time you or I should ever need to assert our 5th amendment rights is during an investigation or a hearing, rather than at a trial. If you ever sit on a jury and a prosecutor asks a question that prompts a witness to invoke their 5th amendment protections, that prosecutor is full of shit.

which is the job of the police and the elected/political officials who control them, not the courts

And more practically, I'd say these rights usually make our legal system a lot more rational and functional -- they do at least a little bit to keep trials focused on concrete evidence and factual analysis, more so than soap-opera spectacles and dramatic performances. (Again, it's "can we demonstrate this conclusively," not "look deep into his eyes and tell me that's not a murderer!")

I agree that it's open to abuse as a skillful lawyer could get a nervous, poor communicator (or indeed someone who is disturbed in lots of non-murderer ways) to say all kinds of shit on the stand but that's where you'd hope their lawyers and the judge would prevent a miscarriage.

Don't you think OJ should have been asked why his blood was at a crime scene rather than see a jury given the corrupt cop/conspiracy runaround? I think as a juror I'd have wanted to hear what OJ had to say, though after weeks of random "experts" arguing about how quickly a glove could shrink I'd probably have been as happy to accept reasonable doubt as the actual jury was.

I realise I'm fighting a losing battle here and that very few people would want to turn around something so enshrined in their constition but sometimes I just think someone should be made to account for their actions.

I also think that regardless of what a jury is instructed they will naturally take "he didn't testify" into account in their deliberations.

...i know we're just hashing things out here, but do you really think that the 5th Amendment is a net con? i mean, for every hypothetical you can come up with, i feel like there's heaps of better reasons to have it around

See this is where it falls over for me if I'm sitting there watching him.
Prosecution: "Why were you splattered with your dead wife's blood?"
Accused: "I refuse to answer that question on the grounds that it may incriminate me in her murder."
Judge: "Fine. The jury will disregard that question."
Jury (if I'm on it): "He fucking well killed her!"

but eyewitnesses' rights are not at stake in those trials. while the factfinder evaluates the credibility of all witnesses, he/she is also being called upon to judge the character/personality of the defendant, and their testimony will provide all sorts of extraneous material from which to make that determination that is unrelated to the facts of the case. and realistically speaking, it's far more likely that the defendant will be a poorer witness than most of the people who testify for the prosecution given that the latter may well include law enforcement personnel who have done this before, perhaps many times.

I agree that it's open to abuse as a skillful lawyer could get a nervous, poor communicator (or indeed someone who is disturbed in lots of non-murderer ways) to say all kinds of shit on the stand but that's where you'd hope their lawyers and the judge would prevent a miscarriage.

the lawyer need not be skilled, nor must the defnedant be nervous or incoherent. the defendant could turn the factfinder against him/her by being deferential to or fearful of authority, or by being rebellious against or indifferent to it. he/she could turn off the jury through demeanor, word choice, or accent. the defendant should be judged by objective his/her actions, not by his/her attitude towards the judicial system or aspects of his/her identity that are revealed through communication.

I realise I'm fighting a losing battle here and that very few people would want to turn around something so enshrined in their constition but sometimes I just think someone should be made to account for their actions.

right, our Constitution prefers that a guilty person go free than the procedural safeguards that our courts have determined are necessary to give effect to constitutional liberties be abridged. the latter is more dangerous to society than the former.

This is the crux, though: sometimes I just think someone should be made to account for their actions. One thing I think we all rely on about our country is that, apart from things like tax audits, this isn't the case. If the state can conclusively prove you did something, then they prove it and you're convicted. That's the extent of it. Anything else opens the door for the state to just plain accuse you, and then batter you with the force of that accusation, and demand that you offer a compelling argument for why you didn't do it. Not only does that screw up our entire system of presumption of innocence and burden of proof, but it allows for the abuse of citizens, basically. We don't have to "account" for anything, or convince anyone we haven't committed crimes, and I for one appreciate that immensely.

(Also, on a practical level, it turns out that people's ways of accounting for themselves turn out to be a really poor indicator of the truth! Trying to compel people to account for themselves to police already leads to so many bad convictions, false confessions, or just situations where normal fearful lies tangle investigations up and lead them farther from the truth. So I'd really really question whether compelled testimony from the accused actually would lead jurors any closer to the truth than the current system does -- I think it might actually achieve the opposite, because, like I said, it puts all sorts of performance issues way ahead of factual analysis.) (And that's assuming "truth" is the goal, which technically it isn't -- just a decision on whether guilt has been conclusively demonstrated. And someone's being a bad liar, or picking the wrong excuses -- whether or not they actually committed the crime! -- isn't a good way of "conclusively demonstrating" they did something.)

Juries are unpredictable. I served as the judge on a mock civil trial today, and I assumed that the jury would ignore my instructions and would consider the defendant's (admissible) prior criminal history as direct evidence of his responsibility for a particular act. They didn't, and he won the case!