4 ms·

The Fifth only applies during a trial? So the police can coerce a confession and it’s all above-board?

by mikeash 7y ago

oarabbus_ 7y ago
Coerced confessions will be inadmissible during the trial phase
- mikeash 7y ago
  But the police can still force you to confess and tell them where all the bodies are buried?
  - oarabbus_ 7y ago
    I'm not entirely sure I understand the question. No, they can't legally do that - but yes, a bad cop can put a gun to your head off-camera and coerce a confession.
    - mikeash 7y ago
      The comment I replied to claimed that the Fifth only protects you from testifying at trial. You said a coerced confession would be inadmissible, implying it’s still legal to do so, it just couldn’t be used as evidence.
      - Zak 7y ago
        The 5th amendment does not create any crimes, but every state has criminal laws that would apply to a police officer coercing a confession by threat, force, torture, etc....
rayiner 7y ago
"Being a witness" doesn't only apply during trial. Witnesses might participate in pre-trial proceedings and give testimony that may or may not be used later at trial. The Fifth Amendment protects that. But the act of granting access to a location where evidence might be found is not "being a witness." If it was a corporate phone, and the company IT guy gave the police the password, would you call the IT guy a "witness?" Generally, you wouldn't. The password is not evidence--it doesn't matter to the case whether it's "123" or "ABC." Neither does knowledge of the password tend to prove innocence or guilt. For the same reason, forcing someone to disclose their password is not compelling them to be a witness. Now, the IT guy might be a witness if, for example, there is a dispute about who owns a phone (say it was found at the scene of the crime), and the IT guy testifies that the company issued the accused that phone. That goes to the substance of the case--it links the crime scene to the accused. That is being a witness. In that circumstance, the Fifth Amendment should protect an accused from having to disclose that same information.
- mikeash 7y ago
  You said that “being a witness” means testifying at trial. Now you’re saying it’s not? Very confusing. Why wouldn’t I call the IT guy a witness if he’s providing access to information relevant to your prosecution?
  - rayiner 7y ago
    The word is not perfectly precise, but it’s meaning is anchored in trial testimony. A witness is someone who testifies at trial, based on their first hand knowledge of the facts of the case. Because there is generally an extended pre-trial phase, where prospective witnesses may be interviewed or deposed, those folks are generally also called witnesses in that context, and the Fifth Amendment extends to such pre-trial proceedings. But all of that is in connection with their possible testimony at trial. You would not call the IT guy a witness, because “providing access to information” is not “testifying.” A witness is someone who has facts relevant to the charges, and who testifies those facts to the jury based on her personal knowledge. The IT guy has no personal knowledge of the crime and won’t be called to tell the jury about it. A good litmus test is: would you possibly tell this information to the jury? You may need to know the accused’s office number to search it. But that office number isn’t relevant information to the case in and of itself. It wouldn’t be a point you’d tell the jury. And the receptionist that tells you it isn’t a witness.
    - mikeash 7y ago
      Do I understand this correctly that information about the crime is protected, but information about information about the crime is not? This doesn’t sound right. For example, what’s the difference between being compelled to give up your password and being compelled to reveal where you buried a murder victim?

The Fifth only applies during a trial? So the police can coerce a confession and it’s all above-board?

oarabbus_ 7y ago

Coerced confessions will be inadmissible during the trial phase

mikeash 7y ago
But the police can still force you to confess and tell them where all the bodies are buried?
- oarabbus_ 7y ago
  I'm not entirely sure I understand the question. No, they can't legally do that - but yes, a bad cop can put a gun to your head off-camera and coerce a confession.
  - mikeash 7y ago
    The comment I replied to claimed that the Fifth only protects you from testifying at trial. You said a coerced confession would be inadmissible, implying it’s still legal to do so, it just couldn’t be used as evidence.
    - Zak 7y ago
      The 5th amendment does not create any crimes, but every state has criminal laws that would apply to a police officer coercing a confession by threat, force, torture, etc....

rayiner 7y ago

"Being a witness" doesn't only apply during trial. Witnesses might participate in pre-trial proceedings and give testimony that may or may not be used later at trial. The Fifth Amendment protects that. But the act of granting access to a location where evidence might be found is not "being a witness." If it was a corporate phone, and the company IT guy gave the police the password, would you call the IT guy a "witness?" Generally, you wouldn't. The password is not evidence--it doesn't matter to the case whether it's "123" or "ABC." Neither does knowledge of the password tend to prove innocence or guilt. For the same reason, forcing someone to disclose their password is not compelling them to be a witness. Now, the IT guy might be a witness if, for example, there is a dispute about who owns a phone (say it was found at the scene of the crime), and the IT guy testifies that the company issued the accused that phone. That goes to the substance of the case--it links the crime scene to the accused. That is being a witness. In that circumstance, the Fifth Amendment should protect an accused from having to disclose that same information.

mikeash 7y ago
You said that “being a witness” means testifying at trial. Now you’re saying it’s not? Very confusing. Why wouldn’t I call the IT guy a witness if he’s providing access to information relevant to your prosecution?
- rayiner 7y ago
  The word is not perfectly precise, but it’s meaning is anchored in trial testimony. A witness is someone who testifies at trial, based on their first hand knowledge of the facts of the case. Because there is generally an extended pre-trial phase, where prospective witnesses may be interviewed or deposed, those folks are generally also called witnesses in that context, and the Fifth Amendment extends to such pre-trial proceedings. But all of that is in connection with their possible testimony at trial. You would not call the IT guy a witness, because “providing access to information” is not “testifying.” A witness is someone who has facts relevant to the charges, and who testifies those facts to the jury based on her personal knowledge. The IT guy has no personal knowledge of the crime and won’t be called to tell the jury about it. A good litmus test is: would you possibly tell this information to the jury? You may need to know the accused’s office number to search it. But that office number isn’t relevant information to the case in and of itself. It wouldn’t be a point you’d tell the jury. And the receptionist that tells you it isn’t a witness.
  - mikeash 7y ago
    Do I understand this correctly that information about the crime is protected, but information about information about the crime is not? This doesn’t sound right. For example, what’s the difference between being compelled to give up your password and being compelled to reveal where you buried a murder victim?