NationStates Jolt Archive

Came up briefly in another thread but I thought I'd re-ask the question.

What is the modern justification for the fifth amendment (or if it has multiple parts, the bit allowing witnesses to refuse to answer questions that might incriminate them) because I'm struggling to see any good reason for it.

Simple: if there is a very important witness who committed a minor crime, this amendment sees-to-it that he'll come to court. Otherwise, why would he offer a testimony?

Came up briefly in another thread but I thought I'd re-ask the question.

What is the modern justification for the fifth amendment (or if it has multiple parts, the bit allowing witnesses to refuse to answer questions that might incriminate them) because I'm struggling to see any good reason for it.

Simple. It's the government's job to put on its case, not the accused.

Came up briefly in another thread but I thought I'd re-ask the question.

What is the modern justification for the fifth amendment (or if it has multiple parts, the bit allowing witnesses to refuse to answer questions that might incriminate them) because I'm struggling to see any good reason for it.

because the state is powerful enough as it is

Simple. It's the government's job to put on its case, not the accused.

It's not necessarily the accused, can be witnesses etc. Besides there's no oversight, a person could claim they'd be incriminating themselves whether they are or not. It is in effect a guilty plea that doesn't count as one.

thats why they give plea deals and/or immunity to witnesses that have legal issues.

thats why they give plea deals and/or immunity to witnesses that have legal issues.

Which the witness is fully able not to take if he doesn't want the defendant convicted.

It's not necessarily the accused, can be witnesses etc.

Yes, it is "the accused", it just may not be the accused at THAT trial. If you're a witness and are forced to testify about crimes you committed, you are then arrested and put on trial, and your testimony admitted as evidence.

Besides there's no oversight, a person could claim they'd be incriminating themselves whether they are or not.

Yes and no. They can't claim it when there is no clear indication that their testimony has the potential to incriminate them in some way.

It is in effect a guilty plea that doesn't count as one.

Except that the entire point of it is that it's not.

Which the witness is fully able not to take if he doesn't want the defendant convicted.

um, no. A witness is not free to decline immunity. They don't have the choice in the matter. If the witness is granted immunity he must testify, he can not decline that immunity, and can not decline to testify once he is given immunity.

It's not necessarily the accused, can be witnesses etc. Besides there's no oversight, a person could claim they'd be incriminating themselves whether they are or not. It is in effect a guilty plea that doesn't count as one.

Saying "I take the Fifth" would almost certainly change the jury's perception for the worse, because they would believe you have something to hide. However, being allowed to not answer a question that will incriminate you keeps the burden of proof with the court. If a person is convicted of a criminal offense, the court should have enough evidence without a confession to say he did it, "beyond a reasonable doubt." If a confession is necessary, then the person really shouldn't be found guilty.

Saying "I take the Fifth" would almost certainly change the jury's perception for the worse, because they would believe you have something to hide
From what I've seen they effectively have to pretend that the question was never asked. It's a question of elimination, if a man is seen to go into a hypothetical room with a knife and when he comes out the one other person in the room was stabbed then he should at least have to explain his actions in a way (if he's pleading innocent) that would show him as innocent. (I realise this analogy is flawed but it's the best I could come up with on the spot)

I remain somewhat unconvinced, probably at least partially due to my lack of knowledge on the exact law regarding it. But I dislike the idea that even the fact that the defendant/witness refused to answer a question can't be taken into account, or that they can effectively commit obstruction of justice in court.

What is stronger though is my body wanting to sleep, may pick this up tomorrow, may forget. Night all.

Came up briefly in another thread but I thought I'd re-ask the question.

What is the modern justification for the fifth amendment (or if it has multiple parts, the bit allowing witnesses to refuse to answer questions that might incriminate them) because I'm struggling to see any good reason for it.

As I said in that thread it prevents the followng:

Prosecutor: "Have you STOPPED molesting children yet?"

You: "But I've NEVER . . "

Prosecutor: "Answer yes or no!"

he should at least have to explain his actions in a way (if he's pleading innocent)

nobody ever pleads innocent.

that would show him as innocent. (I realise this analogy is flawed but it's the best I could come up with on the spot)


Nobody ever has to show himself innocent, the government has to show him guilty. That's the point.

Without it, here is brief the synopsis of every trial:

Prosecuter: Have you ever committed a criminal act.
Defendant: No.
Prosecuter: <pulls out witness who saw you jaywalk once>

Congrats, you are now charged with purjory!


The police and the judiciary are required to make the state's case againt you. There is no requirement for you to help them, nor to be put into a positition where not helping them could result in other charges.

Came up briefly in another thread but I thought I'd re-ask the question.

What is the modern justification for the fifth amendment (or if it has multiple parts, the bit allowing witnesses to refuse to answer questions that might incriminate them) because I'm struggling to see any good reason for it.

Let's be clear. Here is the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Here is an explanation of everything it means: linky (http://supreme.lp.findlaw.com/constitution/amendment05/index.html)

The part you appear to have a problem with is the "No person ... shall be compelled in any criminal case to be a witness against himself."

Others have more than adequately answered your question, but I'll add my two cents (or more precisely, SCOTUS's two cents):

''It reflects many of our fundamental values and most noble aspirations; our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates 'a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load, . . .'; our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life,' . . . , our distrust of self- deprecatory statement; and our realization that the privilege, while sometimes 'a shelter to the guilty,' is often 'a protection to the innocent.''' Murphy v. Waterfront Comm'n (http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=378&invol=52#55), 378 U.S. 52, 55 (1954)

Our fifth amendment rights died when the Patriot Act was born

What is the modern justification for the fifth amendment?


Upon advice from The Cat-Tribe, I respectfully decline to answer.

5th amendment usage really only backfires when it's misused in an idiotic way. Long ago I saw a list of courtroom stupidity, and one of the entries went something like this:

Prosecutor: Did you have sex with her in New York?
Defendant: I refuse to answer the question.
Prosecutor: Did you have sex with her in Chicago?
Defendant: I refuse to answer the question.
Prosecutor: Did you have sex with her in Miami?
Defendsant: No.

As I said in that thread it prevents the followng:

Prosecutor: "Have you STOPPED molesting children yet?"

You: "But I've NEVER . . "

Prosecutor: "Answer yes or no!"
And as I said in that thread, no judge worth his bench would allow that question to be asked due to the assumptions it makes.

nobody ever pleads innocent.



Nobody ever has to show himself innocent, the government has to show him guilty. That's the point.
Yes, they plead not guilty, I used the vernacular. For example if person walks into a house carrying a knife and comes out with someone being stabbed in said house (again bad analogy) I fail to see why asking them the cause of their entry into the house, or even noting that they refused to answer the question (although given the nature of juries I doubt that that is carried through fully).

Without it, here is brief the synopsis of every trial:

Prosecuter: Have you ever committed a criminal act.
Defendant: No.
Prosecuter: <pulls out witness who saw you jaywalk once>

Congrats, you are now charged with purjory!

Beside the point, you could do that with any such question
"have you ever seen this person before?"
"No"
*witness proving you in fact passed her in the street once*
etc.


The police and the judiciary are required to make the state's case againt you. There is no requirement for you to help them, nor to be put into a positition where not helping them could result in other charges.
Obstruction of justice? You're already required to help them to some extent, if you are required to write it down then you can be required to produce it (notably with financial records etc) but couldn't be required to produce the same evidence verbally.




''It reflects many of our fundamental values and most noble aspirations; our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates 'a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load, . . .'; our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life,' . . . , our distrust of self- deprecatory statement; and our realization that the privilege, while sometimes 'a shelter to the guilty,' is often 'a protection to the innocent.''' Murphy v. Waterfront Comm'n (http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=378&invol=52#55), 378 U.S. 52, 55 (1954)

I'll admit to being convinced somewhat, but I stand by the idea that the refusal to answer should be at least noted. Once good cause has been shown for disturbing him he should be disturbed to some extent. And I believe that in practice it probably works like that anyway, given the average person's nature.

Yes, they plead not guilty, I used the vernacular. For example if person walks into a house carrying a knife

It would appear to me that proving he walked into the house carrying a knife would be the job of the government.


Obstruction of justice? You're already required to help them to some extent, if you are required to write it down then you can be required to produce it (notably with financial records etc) but couldn't be required to produce the same evidence verbally.

Quite incorrect. You can not be required to produce something for the police. If the police show up at my house with a warrant for my bank records, it is not my job to go gather them and give them to the police. They can go and look for them, or go to the bank and get them, or do what ever legal methods they have to gather them. But I don't have to go get them for the police. I don't have to produce anything. They may have the right to go get it, but I'm not obligated to go fetch it for them.

It would appear to me that proving he walked into the house carrying a knife would be the job of the government.

Assuming it was proved and was asked the reason for doing it is what I meant.



Quite incorrect. You can not be required to produce something for the police. If the police show up at my house with a warrant for my bank records, it is not my job to go gather them and give them to the police. They can go and look for them, or go to the bank and get them, or do what ever legal methods they have to gather them. But I don't have to go get them for the police. I don't have to produce anything. They may have the right to go get it, but I'm not obligated to go fetch it for them.
Reading Cat Tribes' links if the records are required to be kept by law you can be required to produce them. Most obviously, can't the police require you to produce your licence when they stop you?

And as I said in that thread, no judge worth his bench would allow that question to be asked due to the assumptions it makes.


The judge has no power to prevent it. Only if the defence objects to the question (I believe in this case, on the basis that the question assumes facts not in evidence) can he prevent it.

So, if you have an incompetent fool who passed the bench (and they do exist) as your lawyer, the only protection is the fifth amendment.

The judge has no power to prevent it. Only if the defence objects to the question (I believe in this case, on the basis that the question assumes facts not in evidence) can he prevent it.

So, if you have an incompetent fool who passed the bench (and they do exist) as your lawyer, the only protection is the fifth amendment.

The legal system assumes competent people, particularly with advocacy. There are innumerable situations where an incompetent advocate could cause things to go badly, the law makes the question objectionable and intends for it to be objected to and struck out. The fifth amendment is not supposed to be used for such scenarios.