3 ms·

> I didn't realize this about US law but if you've already been convicted of a crime OR they give you immunity you can be forced to testify. Yeah, and it's not

> I didn't realize this about US law but if you've already been convicted of a crime OR they give you immunity you can be forced to testify. Yeah, and it's not obvious why. The insight you're seeking here is that the right against self-incrimination was intended to be a solution to the problem of forced confessions (torture, etc.). It's not there because of some kind of belief that you really have some kind of fundamental human right to testify against yourself. In fact it's quite a bizarre thing to codify in a constitution otherwise.

mehrdadn 8y ago
Here's some reading since it seems many were interested in the topic: https://apps.americanbar.org/abastore/products/books/abstracts/5090120chap1_abs.pdf https://apps.americanbar.org/abastore/products/books/abstrac... > The Supreme Court traces the roots of our Fifth Amendment right against self-incrimination to the protections the English courts and Parliament granted to those religious dissenters who were compelled to take oaths when called before the ecclesiastical courts, as well as the Court of High Commission and the Star Chamber. These courts used the “oath ex officio” to force heretics from the Church of England to swear before God to truthfully answer all questions, even before the heretics even knew the nature of the accusations against them. By use of the oath in conducting their investigations of religious heresy, these courts left witnesses with the “cruel trilemma” of (1) refusing to take the oath, which constituted contempt and subjected the person to torture; (2) taking the oath and telling the truth about their religious beliefs, which, if heretical, was punishable by death; or (3) taking the oath and lying, which was also punishable by death. In other words, this inquisitorial system countenanced methods of interrogating persons designed to lead only to confessions. > [...] Parliament eventually abolished the Court of High Commission and the Star Chamber and, in 1662, passed a law providing that “no man shall administer to any person whatsoever the oath usually called ex officio or any other oath whereby such persons may be charged or compelled to confess to any criminal matter.” By the late eighteenth century, as the English common law courts began to recognize the presumption of innocence, trial judges in criminal cases began to afford defendants the right not to incriminate themselves, establishing the privilege against self-incrimination as a fundamental rule of evidence.
lixtra 8y ago
> In fact it's quite a bizarre thing to codify in a constitution otherwise. I don’t know about the US but in many jurisdictions you cannot be forced to testify against close family (spouse, children). It’s clearly about the state not creating a cruel situation.
- deleted 8y ago
  [deleted]
- mikro2nd 8y ago
  I'd suspect it's more about the state being pragmatic concerning the chances you or I would lie to protect a family member - assuming we have no axe to grind with said family member...
toomanybeersies 8y ago
How does spousal privilege play into all this?
- mehrdadn 8y ago
  I'm not sure I understand what you're asking exactly, but I guess you could say it doesn't. It's important to remember the "bill of rights" is really the "bill of government restrictions", not "bill of fundamental human rights". I guess that, unlike the right against self-incrimination, spousal privilege wasn't deemed fundamentally necessary for preventing the government from forcing testimony, so that's probably why it wasn't put there in the fifth amendment. I can only speculate as to the reasoning, but I imagine it might be as follows: With self-incrimination, if the government decides to force testimony from you (which inevitably implies a guilty confession), you'll get punished one way or another regardless of what you say (which apparently historically meant choosing between torture and death). This means two things: (1) innocent people will get punished either way (which is obviously the opposite of what you want), and (2) guilty people won't have any incentive to tell the truth either (which is also not what you want either)—they'll instead have incentive to say whatever will minimize their punishment, which is determined by the government, not by the truth. So it's pretty much entirely a lose-lose situation, and not something that'll make a justice system (whom you're charging with the task of finding the truth) achieve its goal. Spousal testimony, on the other hand, is entirely different in that respect: as far as the relationship between you and the government is concerned (which is, recall, what the goal of the bill of rights was—again, it wasn't written as a manifesto on human rights), you actually have a huge incentive to tell the truth here, because you don't get punished by the government for providing guilty testimony against your spouse. Same exactly thing happens when you're provided immunity: you don't get punished, and therefore society gets to extract the truth out of you, with decent confidence that it'll get what it's looking for. Therefore, as far as the constitution being concerned, spousal privilege probably didn't need to be written in there, because the right against self-incrimination already sufficiently achieved its restriction and goal.
- maxlybbert 8y ago
  My understanding of spousal privilege is that it was originally justified on the idea that a married couple were legally one person. Today it has the same basis as other privileges, such as the privileges covering therapists and pastors: that it would be bad to interfere with confidentiality in certain relationships.

mehrdadn 8y ago

Here's some reading since it seems many were interested in the topic: https://apps.americanbar.org/abastore/products/books/abstracts/5090120chap1_abs.pdf https://apps.americanbar.org/abastore/products/books/abstrac... > The Supreme Court traces the roots of our Fifth Amendment right against self-incrimination to the protections the English courts and Parliament granted to those religious dissenters who were compelled to take oaths when called before the ecclesiastical courts, as well as the Court of High Commission and the Star Chamber. These courts used the “oath ex officio” to force heretics from the Church of England to swear before God to truthfully answer all questions, even before the heretics even knew the nature of the accusations against them. By use of the oath in conducting their investigations of religious heresy, these courts left witnesses with the “cruel trilemma” of (1) refusing to take the oath, which constituted contempt and subjected the person to torture; (2) taking the oath and telling the truth about their religious beliefs, which, if heretical, was punishable by death; or (3) taking the oath and lying, which was also punishable by death. In other words, this inquisitorial system countenanced methods of interrogating persons designed to lead only to confessions. > [...] Parliament eventually abolished the Court of High Commission and the Star Chamber and, in 1662, passed a law providing that “no man shall administer to any person whatsoever the oath usually called ex officio or any other oath whereby such persons may be charged or compelled to confess to any criminal matter.” By the late eighteenth century, as the English common law courts began to recognize the presumption of innocence, trial judges in criminal cases began to afford defendants the right not to incriminate themselves, establishing the privilege against self-incrimination as a fundamental rule of evidence.

lixtra 8y ago

> In fact it's quite a bizarre thing to codify in a constitution otherwise. I don’t know about the US but in many jurisdictions you cannot be forced to testify against close family (spouse, children). It’s clearly about the state not creating a cruel situation.

deleted 8y ago
[deleted]
mikro2nd 8y ago
I'd suspect it's more about the state being pragmatic concerning the chances you or I would lie to protect a family member - assuming we have no axe to grind with said family member...

toomanybeersies 8y ago

How does spousal privilege play into all this?

mehrdadn 8y ago
I'm not sure I understand what you're asking exactly, but I guess you could say it doesn't. It's important to remember the "bill of rights" is really the "bill of government restrictions", not "bill of fundamental human rights". I guess that, unlike the right against self-incrimination, spousal privilege wasn't deemed fundamentally necessary for preventing the government from forcing testimony, so that's probably why it wasn't put there in the fifth amendment. I can only speculate as to the reasoning, but I imagine it might be as follows: With self-incrimination, if the government decides to force testimony from you (which inevitably implies a guilty confession), you'll get punished one way or another regardless of what you say (which apparently historically meant choosing between torture and death). This means two things: (1) innocent people will get punished either way (which is obviously the opposite of what you want), and (2) guilty people won't have any incentive to tell the truth either (which is also not what you want either)—they'll instead have incentive to say whatever will minimize their punishment, which is determined by the government, not by the truth. So it's pretty much entirely a lose-lose situation, and not something that'll make a justice system (whom you're charging with the task of finding the truth) achieve its goal. Spousal testimony, on the other hand, is entirely different in that respect: as far as the relationship between you and the government is concerned (which is, recall, what the goal of the bill of rights was—again, it wasn't written as a manifesto on human rights), you actually have a huge incentive to tell the truth here, because you don't get punished by the government for providing guilty testimony against your spouse. Same exactly thing happens when you're provided immunity: you don't get punished, and therefore society gets to extract the truth out of you, with decent confidence that it'll get what it's looking for. Therefore, as far as the constitution being concerned, spousal privilege probably didn't need to be written in there, because the right against self-incrimination already sufficiently achieved its restriction and goal.
maxlybbert 8y ago
My understanding of spousal privilege is that it was originally justified on the idea that a married couple were legally one person. Today it has the same basis as other privileges, such as the privileges covering therapists and pastors: that it would be bad to interfere with confidentiality in certain relationships.