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Peter Gerdes's avatar

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.

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Peter Gerdes's avatar

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.)

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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.

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