Junk the Fifth Amendment
By Alec Rawls © 1991/1998 (1200 words) Published in The Stanford Review, 1/14/91.

The Fifth Amendment right not to bear witness against oneself in a criminal proceeding had its origins in protests against the religious and political persecutions perpetrated by the seventeenth century English ecclesiastical courts -- the Court of High Commission and Star Chamber.

This origin of the right not to incriminate oneself reveals that the purpose of the right is not to protect those who are innocent as charged, but to protect those who are guilty of breaking unjust laws. This is borne out by the logic of self-incrimination. How many people who are innocent as charged would not jump at the chance to tell their version of events, and speak with the full confidence of truth before the jury that will decide innocence or guilt?

Only the guilty person does not want the jury to know what he knows. True, most defendants choose not to testify, but then the vast majority of defendants are guilty, unless there are serious problems with the local prosecutors and police.

If unjust laws could be kept off the books, by providing enumerated protection for the full ideal of liberty, then all motivation to shield those who are guilty as charged would disappear and the right against self-incrimination could largely be dispensed with.


Would innocent people go to jail?

Absent a motivation to protect the guilty from prosecution, there are two kinds of errors the courts can make. They can find the guilty innocent, and they can find the innocent guilty. Any system of court procedure is going to lead to some mistakes of both kinds. The goal is to find procedures that eliminate a lot of one type of error without incurring much of the other.

A right not to incriminate oneself is extremely perverse in this respect. It is virtually worthless to an innocent person, whose problem is to clear himself, and it is extermely valuable to the guilty, who have every reason to fear incriminating themselves.

Having to answer questions is excellently designed for getting at the truth. Guilty parties who want to plead innocent will have to make up lies, and if there is substantial evidence against them, making up lies to account for that evidence will be treacherous.

To be guilty as charged is a decided disadvantage, and the guilty person's denials are prone to implicate him further in a way that the innocent person's denials are not. Our ratio of good convictions to bad would rise, perhaps dramatically, and that is a primary yardstick for any system of justice.

Excusing the accused from accounting as best as he can for the evidence against him deprives the court of crucial information. To retain this right, even after the threat of unjust laws has been eliminated, there would have to be some telling reason to think it will keep a lot of innocent people from being found guilty.

The strongest sounding argument is that if defendants could be forced to take the stand and answer questions then prosecutors would be able to get convictions by hurling accusations at any unattractive individual who lacks the alibi or the communications skills to make his innocence sound convincing.

But this abuse is already protected against by the Fifth Amendment requirement of indictment by a Grand Jury, whose job is to determine sufficient evidence for trial. (It is only the right not to incriminate oneself that I am suggesting could be dispensed with.)

If a suspect is not implicated by substantial evidence then, if the system is working at all, there should never be an indictment. A fortiori , then, an innocent person's denials should not be enough to satisfy the much more stringent standard of doubt necessary for conviction.

Juries can be capricious and the system will occasionally return gross miscarriages of justice. That is one reason we have an appeals process. The answer to this capriciousness is not to decry every procedure that enables this ordeal, but only those that are poorly designed to distinguish the innocent from the guilty. Having to account for oneself is excellently designed to distinguish the guilty from the innocent.

Questions should remain pertinent to the charges brought. The original protests against Star Chamber and the Court of High Commission were protests against the oath ex officio under which the accused was forced to answer all questions on any subject.

This and other limits on questioning -- no badgering, no leading, as Perry Mason used to object -- are already in place regarding a defendant's testimony. The only guarantee that still needs to be put in place before we can punt the Fifth is Mill's principle of liberty.


Limit lawyer-client confidentiality

It would also be a good thing to limit the confidentiality of the lawyer-client relationship. If a defendant wants to lie to the court, make him lie to his council as well, then defendants who want effective council in answering the charges against them would only be able to get it by deciding to come clean.

To achieve this, lawyers should be required inform the court of any incriminating evidence that comes to their attention regarding any activities that, according to precedent, are certainly not protected from prosecution by the full ideal of liberty. In particular, evidence of perjury by the defendant must be submitted to the court. If a defendant believes that the activity his is being prosecuted for is not properly criminalizable, he must make that case openly if he wants aid of counsel.

These changes would not upset the balance of our adversary system, but rectify it. Any rule that deprives the courts of relevant information is obviously counterproductive to the goal of discovering the truth. Both sides should have full information to work with, instead of the present arrangement where only the government must declare its evidence.

The only reason for helping defendants hide the truth is because our imperfect system of liberty is prone to criminalize activities that should be a matter of private conscience or free political activity. Regarding political activity, the authors of the Constitution could not be sure that their experiment in establishing a rule of law would work and that arbitrary power would not soon rule the New World as it did the old.

Over two hundred years, this concern has been laid to rest. As Watergate and subsequent prosecutions of political illegality have proved: the system works. Renegade executives can be as reckless with public policy as they want, but if they get caught breaking the law, they will fall into the gears of the law the same as any private citizen.

As for protecting private conscience, that is the remaining step we need to take. Once we no longer need to fear prosecution by unjust laws (eliminating our interest in protecting those who are guilty as charged), the right against self-incrimination and the extreme scope of attorney client privilege can be dispensed with.

(Alexander Rawls is pursuing a Ph.D. in economics.)


Next article in Reframing series: The Right to Privacy

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