Thursday, April 25, 2013

The "Right" to Remain Silent

I am having trouble coming up with a moral case for a "right to remain silent".

If Person A can be compelled to come to court and provide information relevant to the guilt or innocence of Person B, from where comes the moral objection to compelling Person A to provide information relevant to the guilt or innocence of Person A?

As I mentioned yesterday, when some people are given control over state violence, there is reason to take steps to avoid abuses of that power. History has shown that a common form of abuse is found where those who have control of state violence use it to extract confessions from rivals, critics, anybody who has something that the person in power wants, or anybody that those in power wants to harm for its own sake. Those (unreliable) confessions are then used as evidence in trial.

To help prevent these abuses, it may be wise to adopt a rule that says that coerced confessions are unreliable and often do not serve the interests of justice and are, for those reasons, inadmissible.

However, we are not basing this rule on a right against self-incrimination. We are basing it on the need to provide true and relevant information in a court of law - a need that gives us reason to dismiss "evidence" we hare reason to judge as potentially untrue and contributing to injustice.

I wish to digress for a moment and discuss "rights" in the context of desirism.

Desirism denies the existence of intrinsic values or natural rights and duties.

In the context of desirism, to say, "A has a right to X" (at least in this sense) is to say that others may not violently interfere with her obtaining X. Janet's right to freedom of speech means that people generally have many and strong reasons to promote a strong aversion to responding to Jane's words or expressions (including cartoons) with violence or threats of violence. And that we may use punishments such as condemnation to promote such an aversion and against those who respond to words and expressions with violence.

To say that a person who believes in flying horses should not be seen as a reliable journalist violates no right to freedom of speech. It advocates no violence and speaks only about private actions that fit within the free choices of all agents. On the other hand, rounding up and arresting atheist bloggers or threatening to kill or imprison anybody who insults a particular religion does violate this right to freedom of speech. We have many and strong reasons to respond to these threats of violence - let along the violence themselves - with moral condemnation. If any religious scripture calls for responding to words and expressions with violence, then that scripture gets the moral facts wrong and provides good evidence that the authors of that scripture had a limited understanding of moral facts.

Now, back to the "right" to remain silent.

A right against self-incrimination would exist if there were many and strong reasons to promote an aversion to responding to the decision to remain silent with punishment. However, we allow - and we have good reason to allow - a violent response if Person A remains silent about facts relevant to Person B's guilt. Person A is subpoenaed to show up in court and to give testimony where, if she does not obey, she is subject to arrest and imprisonment by people with guns who will escalate the level of violence even further if she resists these penalties. This is precisely a case of responding to a decision to remain silent with punishment. Why not allow prosecutors to subpoena and demand the testimony of the accused?

We still have reason to worry whether the information is reliable.

However, self-incrimination is not the only type of information that cannot be trusted.

In fact, it should be easier to coerce Person A into providing false information about Person B than it is to get Person A to provide false information about Person A. In the latter case, the person providing false information against oneself needs to be concerned with the effects that the false information will have on their own future. Whereas, when a person is coerced into giving false information about somebody else, it would take an extraordinary amounts of empathy to come up with the same level of concern.

This is particularly true where the State (or any official person with control of state violence) has the power to pay people to say what the State wants them to say, or to punish them for refusing to say what the State wants them to say. Taking years off of a prison sentence or adding years based on whether the "witness" says something the State likes or refuses to do is also an invitation to unreliable testimony.

We could respond to this concern in these types of cases by prohibiting people accused of a crime from testifying against each other, or by refusing to allow this fact to affect prison sentences or other rewards and punishments depending on the content of the testimony.

This might actually be a good idea. However, even if we were willing to go this far in cases of Person A testifying in the case of Person B, it would not justify an absolute prohibition on Person A testifying in the case of Person A.

From where can we get a prohibition on self-incrimination? Or, is this simply one of those cultural norms that we have adopted and passed on without thinking about it?


Randy said...

"Or, is this simply one of those cultural norms that we have adopted and passed on without thinking about it?"

The Fifth Amendment to the US Constitution: "... nor shall be compelled in any criminal case to be a witness against himself ..."

One of the historical reasons (in England) for this was that an absence of a claim of innocence was considered equivalent to a claim of guilt. Innocent people would be threatened with charges, but could get out by claiming innocence and naming names.

In the US, the Supreme Court has noted that the Fifth Amendment protects innocent people from having to provide testimony which may tend to incriminate them.

Witnesses can plead the fifth according to this page:

Anonymous said...

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.

Emu Sam said...

Apparently it must be repeated every time: this blog is concerned with what is ethical, not what is legal. Basically, Alonzo is critiquing the Fifth Amendment here, so the fact of the Fifth Amendment cannot be used as an argument against him.

Alonzo Fyfe said...


You apparently think that the right to remain silent can be defended.

That's great.

I would be pleased to see that defense.

As I said two days ago, I am not writing about something where I have an established conclusion. I am looking at issues where I have questions. So, I would like to see exactly how a "right to remain silent" can be defended.

Though, note, I have nowhere defended torture. I have only talked about applying the same rule that makes it permissible to force Person A to provide testimony relevant to the guilt or innocence of Person B to a case where Person A is providing testimony relevant to the guilt or innocence of Person A. That system does not involve torture. And I do think that a moral prohibition on torture can be defended.