Rah Self-Incrimination

The more I think about law, the more I see arbitrary historical accidents enshrined into unquestioned dogma. Consider: we require people to answer questions by police or courts investigating crimes, without privacy excuses and without compensation for lost time. We apparently estimate the value of investigating crime to outweigh such costs. Except, we exempt criminal suspects from answering questions! (We also exempt folks statusfully related to suspects.) Yet if anyone should give up time and privacy to help investigate a crime, it is the suspects.

Here is one account of this history of this rule:

The right was created in reaction to the excesses of the Courts of Star Chamber and High Commission … 1487-1641. These courts utilized the inquisitorial method of truth-seeking … sufficient “proof” came from browbeating confessions out of the accused. These courts required the accused to answer any question put to him, without advance notice of his accusers, the charges against him, or the evidence amassed. … By the 18th century, English law provided that neither confessions coerced during the trial nor pretrial confessions obtained through torture could be used. …. The U.S. Supreme Court has expanded the Fifth Amendment to apply … to “any other proceeding, civil or criminal, formal or informal, where his answers might incriminate him in future criminal proceedings.” (more)

Somehow, many think this history shows that today a right not to self-incriminate keeps police from torturing confessions out of suspects. But to prevent torture, we should just have rules against torture. A further rule against self-incrimination can’t prevent torture for the simple reason that we let people waive their right not to self-incriminate. If police can force confessions via undetected torture, then police can also use undetected torture to force people to waive their right against self-incrimination!

The following video argues that if suspects must answer police questions, then police can find enough mistakes in what most anyone says to make them seem guilty:

The detective in this video also says that if he follows most anyone long enough he can catch them breaking a law. But if true these seem grounds for raising standards of proof at trial, and for disclosing at trial the amount of questioning or following done.

We don’t want to protect people from being framed by the police merely by making police work generically harder. For example, requiring police to always hop on one foot, or to constantly sing the national anthem, would surely make it harder for police to frame folks, but simply by making it harder for them to do anything! The rule against self-incrimination seems yet another arbitrary handicap, making police work harder overall, without discouraging bad policing more than good policing.

Rather than giving arbitrary handicaps, we’d do better to just reduce the size of the police force and budget, and to restrict police in ways that more directly distinguishes good from bad policing. Having suspects answer police questions does not so distinguish, being just as much a part of good as bad policing.

For more academic critiques, see herehere and here.

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  • komponisto

    Such protections aren’t just to restrain police behavior, they are also to protect suspects from the prejudices of unsophisticated and credulous juries, who don’t understand how weak certain forms of “evidence” are.

    The real solution would be to have competent jurors with the appropriate level of skepticism about “confessions”.

  • As a matter of policy, the right against self-incrimination really is more about the refusal of the accused to testify at all. In fact, you never have to talk, from the moment you’re arrested to the end of the trial. We value the accused’s right to present his most effective defense, and that can mean not having to set himself up for being tricked or made to look guilty on cross-examination. We apparently value that right, as a matter of the presumption of innocence and the prevention of unfair prejudice.

    • In fact, you never have to talk, from the moment you’re arrested to the end of the trial.

      Exaggeration, much? You have to give your name to police, and you have to enter a plea and answer other questions from the judge. Go try remaining 100% silent when arrested and see what happens.

  • blink

    Perhaps the distinction between “criminal” and “civil” results from similar historical accidents. Would your concerns be assuaged if more criminal cases were instead treated as civil matters? Or is the problem primarily with respect to investigation tactics rather than court testimony?

  • Dale Sheldon-Hess

    Are people compelled to answer the questions of the police? Of the court, yes (you’ll be found in contempt) but is it a crime to refuse to talk with the police?

    As a separate point, a recent study found that, of the 200 persons exonerated by the Innocence Project, 49 (nearly 1 in 4!) had confessed to the crime they had been convicted of. So whatever we’re doing to avoid forced incrimination (of the innocent!) it isn’t working well enough.


    • Thanks for introducing some actual facts into this discussion.

      But to prevent torture, we should just have rules against torture.

      We do have rules against torture; they apparently don’t work very well. Rules are not always obeyed. This should not be a revelation to anyone not in the grip of academic fantasies.

      • Anonymous

        Having the rule still makes it at least slightly harder to break it though- it means you have to cover up the fact you broke it (in general).

  • Robert Koslover

    Hmmm. You point out that regarding non-suspects, “we require people to answer questions by police or courts investigating crimes, without privacy excuses and without compensation for lost time,” but that we do not demand such compliance from suspects. Then you suggest that suspects shouldn’t have more rights than non-suspects regarding the subject crime. Well, here is another way to achieve consistency: How about granting non-suspects the right to refuse to testify? And/or how about compensating them for their lost time? Personally, I rather like the idea of not being compelled to testify, whether I am a suspect or not. Guess that’s just my libertarian streak. 🙂

  • JJW

    Two points: the first about current practice, and the second about Robin’s alternative.

    First, the fifth amendment was not designed just to prevent torture. It was included in our constitution more than 100 years after the demise of the Star Chamber because it helps prevent false convictions. As one prior commentator noted even with the current rule against self incrimination, we have way too many false confessions. Then, as shown in the embedded clip, add in the ability of prosecutors to twist any contradiction by the defendant into evidence of guilt, and the willingness of juries to convict on that basis and our current protections against self incrimination seem if anything woefully inadequate.

    Second, if the fifth amendment vanished, do you really think hardened criminals would start admitting to their crimes? Let me suggest instead that you would have a situation similar to that which currently exists in civil litigation, i.e., a sociopath winds up questioning an amnesiac.
    To give an example, lets suppose Joe has been arrested for a bank robbery.
    Q: Joe did you rob the bank on July 2?
    A: No.
    Q: Where were you on July 2?
    A: I don’t recall.
    Q: Do you have a bad memory?
    A: Being arrested has made me too stressed to remember, and that’s all I can say about the events of the day.

    To me it seems much simpler just to let Joe take the Fifth.

  • Lord

    People do have the right to refuse to answer questions, all they have to do is request a lawyer. Most are more interested in justice. If you require an assumed criminal to do so, what can you expect but lies, and far from making an investigation more efficient, it makes it less so by creating a lot of misleading information that must be tracked down to the extent possible. If the guilty self confess that would be more efficient, but they can already do so. We are better off with truthful answers than lies.

    • The right to counsel (6th amendment) is a separate right from the privilege against compelled self-incrimination (5th amendment). Theoretically, you could excise the 5th amendment protection without getting rid of the 6th amendment protection – just having your lawyer present while you’re compelled to answer questions, like in a civil deposition. Currently, as you say, triggering the 6th automatically triggers the 5th (in part because once you get your required lawyer, that lawyer will enforce the hell out of your 5th amendment protections against self-incrimination).

      • Without the 5th this puts lawyers in a very touchy position.

        As lawyers are prohibited from suborning perjury they can’t advise an unsophisticated client to ‘not remember’ what happened or suggest you lie. So without the 5th really all counsel can do is try and calm you down especially since they will be unfamiliar with the evidence at that point.

        Given that many arrests occur after fairly intense situations (someone is shot, a robbery happens, police bust a drug deal etc..) and the person arrested is often intoxicated or otherwise compromised without the 5th you face the prospect of facing determined inquisition to get you to admit guilt or contradict yourself, including application of lies and tricks, while in a compromised state while the jury only receives the transcript.

  • The only purpose of these rules is to prevent the police from incriminating the wrong people, that would be those with high status unless people with still higher status want them to be incriminated.

    That is why the rules against torture only hold for the little people who actually do the torturing, not those who ordered them to do the torturing. If the person who is tortured is very low status, then torturing is not considered a crime worth investigating or prosecuting.

  • hf

    But if true these seem grounds for raising standards of proof at trial, and for disclosing at trial the amount of questioning or following done.

    That seems like a good idea for other reasons. Do you think we have any hope of accomplishing it without a long period of rationality training for our citizens? In grade school (U.S.A.) I learned that, at least officially, the courts would not convict you of speeding on a police officer’s word alone. This rule must have conflicted with public norms and/or the desires of court personnel, because now a high court has explicitly denied it.

    And as other people have pointed out, your first claim seems simply false.

  • Douglas Knight

    We have laws against torture, yet we still have detectable police torture. So we need other tools. Protection against self-incrimination is one such tool. Whether it works is an empirical question. Yes, it’s a historical accident, so it’s probably not the best tool, but the judgement of history is positive, so it is probably doing some good.

    Yes, police could torture people to get them to waive the fifth amendment. But there are lots of things they could do, but don’t. The video claims that if you talk to the police, they’ll make up things you said, but it claims that if you don’t talk to them, they won’t fabricate the interview.

  • The police officer suffers from a big variety of cognitive illusions (see video)…

  • Robert Wiblin

    “Rather than giving arbitrary handicaps, we’d do better to just reduce the size of the police force and budget, and to restrict police in ways that more directly distinguishes good from bad policing.”

    The former is a probably a bad idea as police seem to deliver good value overall. The latter is harder than you think. The point of enshrining rules in a constitution is to protect the public from abuse when the government is not functioning well. Though the Fifth Amendment may not be first best policy, I think it has some merits as a second best solution given the difficulty the public has keeping control over police, or even over their own mob instincts.

    What other rules would you be able to put in the *constitution* to avoid the incarceration of innocents when the public service is functioning badly?

  • I think you miss three important considerations here:

    1) In the US legal system the prosecution can bring up past behavior and other information about a testifying witness to impeach their honesty that would otherwise be inadmissible at trial. For instance past convictions for fraud or even perjury would generally be inadmissable at a murder trial but if the defendant could be forced to testify the prosecutor could pull in these charges to paint the defendant as a bad guy under the guise of impeaching his credibility.

    Also it’s well known by defense attorneys that if the defendant takes the stand and the jury doesn’t find his testimony convincing/believable they will usually convict even if the prosecutor’s evidence would otherwise be judged not to meet the standard of proof.

    2) We generally feel it’s cruel to impose additional punishments on someone for insisting on their innocence or that of a spouse. Furthermore, plea bargains are already far too easily used to coerce a guilty plea from an innocent suspect. Should the prosecutor have the additional power to force them or their spouse to testify and impose punishment for perjury if they insist on their innocence it would create even greater risk for false guilty pleas.

    3) People don’t appreciate the extent to which our recollections and beliefs are inferred from context and the assurances of others. Given the ability of the police to lie during interrogation without the right not to speak suspects could be put at a considerable disadvantage by police seeking to ellicit false statements of recollection (‘We have you on film at the grocery store at 10pm could you have gone out after drinking and forgotten it? Well I guess that’s possible. Used in court to show the suspect isn’t sure whether he was really home the whole time and suggest he was so drunk he forgot killing the victim.)

    However, it is true that we give undue protection against self-incrimination relative to the other protections we offer. Far more important IMO is restrictions on acceptable plea bargains to prevent false confessions for fear of being convicted by an unsympathetic justice system. Also restrictions on police lying to elicit statements.