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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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.

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"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?

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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.

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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).

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

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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.

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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).

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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.

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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.

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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.

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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.

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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.

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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. :)

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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.


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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?

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