I am going to use a comment I got from my previous post to continue my discussion on criminal justice.
I have been questioning the "right to remain silent" - arguing that where it is permissible to compel Person A to provide information relevant to Person B's guilt or innocence, I cannot seem to find a good reason not to compel Person A to give information relevant to Person A's guilt or innocence.
This drew the following response:
I enjoy your blog but this is totally without merit. The state must prove it's case in criminal court. Torture or threat to make someone make a claim, false or not, is not the american way or desirable.
The Presumption of Innocence
On the issue that the state must prove its case in criminal court, I have raised no objections. In fact, I have repeatedly defended the proposition that an aversion to harming the innocent (a malleable aversion we all have many and strong reasons to promote) implies a motivation to ensure that harm not be inflicted on people without good reason to believe it is justified. This implies a burden of proof on the part of those who would cause harm, not on the part of those who would be harmed.
Furthermore, it argues that such a case must be presented to an impartial jury not bound by their own desires to conclude the case one way or another. Those who would cause harm are too likely to see skew their interpretation of the evidence as justifying harm whenever it provides a benefit to them. Those who would be harmed too often see their punishment as unjustified regardless of the evidence.
We have many and strong reasons to hold in utter contempt those arrogant and violent individuals who think themselves fit to serve as judge, jury, and executioner over others.
On the issue of torture, I have repeatedly raised objection here as well. When Bush and company lowered the worldwide aversion to torture, they created a world culture that made torture psychologically easier. He effectively told every dictator and warlord - and those who support them, "Go ahead and torture. Other things you do may be wrong, but this is not one of them." He particularly gave the world permission to capture and torture Americans. "How can you object? We are merely doing what your own Justice Department said it is permissible to do."
Compelling People to Testify
Furthermore, I have demonstrated that the claim that a, "threat to make somebody make a claim, false or not, is not the American way," is false.
We do threaten people to make a claim. We compel them to come to court and tell "the truth, the whole truth, and nothing but the truth". Those who refuse are held in contempt of court, fined, imprisoned, and - if they choose to resist or to flee these punishments - pursued by people with guns and state permission to use.
In fact, we compel people not only to make statements in a court of law, but in some cases compel them in certain circumstances to make statements having a specific content. "If you refuse to testify against your partner, we are going to increase the charges against you and add years to your punishment. We may even kill you for refusing, as this will influence our decision to seek the death penalty." What is this if not a case of compelling a person to make a certain type of claim?
Under such a system, a person who has nothing useful to offer to the police - nothing they can bargain with - have an incentive to make stuff up. It is subject to the same type of objections that apply to compelling people to testify against themselves - the problem of people presenting false testimony because it provides them with a means for avoiding harm.
Compelling People to Testify Against Themselves
We even compel people to be a witness against themselves when we tell them that refusing to confess to a lesser crime means risking a public trial and a chance of being convicted of a greater crime. Plea bargaining is difficult to understand as anything other than threatening greater harm to those who refuse to be a witness against themselves.
In fact, any American arrested is foolish to think that the invoking the right to remain silent will not be punished by a judicial system that rewards "cooperative" prisoners and adds charges and increases punishment levels against those who are judged to be "uncooperative".
The question remains - is there a defense to be had for a moral right against self-incrimination that does not, at the same time, condemn plea-bargaining or the subpoena power of the courts?