Fifth Amendment, Right or Privilege (V04)

8/3/2019 Fifth Amendment, Right or Privilege (V04)

1/31

THE FIFTH AMENDMENT: RIGHT OR PRIVILEGE?BY ALAN A. MICK

Table of ContentsTraditional Arguments.....................................................................................................................1

An Original Defense of the Right to Silence.................................................................................12Would Bentham Agree?.................................................................................................................22

Bibliography and References.........................................................................................................26

INTRODUCTION

No person...shall be compelled in any criminal case to be a witness against himself.

These words from the Fifth Amendment to the Constitution of the United States of America giveto all Americans the right to refuse to testify against themselves in a court of law. This right to

silence is the result of long and heroic struggles on the part of many people over the course of

hundreds of years.But despite the fact that this right is hard won, and despite the fact that it comes down to

us from such a long time ago, many excellent thinkers, such as Jeremy Bentham and John Stuart

Mill, have questioned its wisdom. Despite the fact that it is guaranteed by our Constitution, andis part of the Bill of Rights, it has been traditional since the beginning of this century to refer to it

as theprivilege against self-incrimination. Yet at the same time that the judiciary was referring to

the right to silence in this unprecedented manner, it consistently expanded the right to a positionof prominence in our justice system.

The right to silence also has a unique place in our language. To take the Fifth is a clichthat has become synonymous with guilty evasion. The Fifth Amendment is the only right wehave that has given rise to such a phrase, and it is one of most well known rights in the

Constitution, second only to the first. With the invocation of the Fifth Amendment goes a

presumption of guilt, and even where the law specifically requires jurors not to consider refusal

to testify as an indication of guilt, the vast majority who invoke the right are found guilty.During the 1950s when many communists, communist sympathizers, and others found it

convenient to invoke the Fifth Amendment during congressional hearings, the right to silence

became a popular political issue. Many people, mostly conservatives, argued against thelegitimacy of a right to silence, and those who argued for the right found that the traditional

arguments in its favor were not very strong. Generally, when an argument for a right to silence

was advanced in the case of self-incriminating testimony, it was found to apply equally well toall testimony.

The question has once again lost immediate political relevancy, but still remains: Is the

right to silence as guaranteed by our Constitution a legitimate right, or is it merely a privilege

granted to American citizens, but a liberty that we could do without? This paper will attempt toanswer that question by reviewing the traditional arguments for a right to silence and then

presenting an original argument for the right that seeks to avoid the problem of proving a

complete right to silence rather than just a right in the case of self-incriminating evidence.


2/31

The Fifth Amendment: Right or Privilege?

Traditional Arguments

In his truly monumental work, The Rational of Judicial Evidence, Jeremy Bentham, the

perennial reformer, sought to examine the law of evidence systematically and comprehensively,and to give it a systematic reformulation according to the dictates of utilitarianism, founding itupon reason and common sense. In this task Mr. Bentham left no stone unturned, no ground

unexamined; he left nothing to dogma or to traditions. No tenet was too sacred for the light of

reason, and indeed, it was the dark recesses of the sacred that he found most in need of

illumination. He is the first, if not the only, person to attempt a comprehensive examination of allarguments for and against a right to silence, and to classify them by type. In the right to silence

he found a dogma of the most insidious sort, a sacred tenet most in need of the treatment reason

often gives to the sacred: dethronement. The right to silence, in Mr. Benthams view, is nothingmore than a solace and a protection to the guilty, of no utility to the innocent or the man of

character, and a hindrance to those whose job it is to render justice to the citizens of a state.

The first class of arguments that Bentham found in favor of a right to silence werearguments that claimed little more than that such a right is self-evidently true [7]. This class

would include the many arguments made from some political document or another, such as the

Magna Charta, without some justification of the particular words or principles that the document

contains independent of the fact that it might have a political reality.Any argument that starts with a principle advocated in some document or on the basis of

some authority may be criticized in two ways. First the argument may not be valid, assuming the

truth of the principle upon which it is based, and second, the principle itself may be doubted asonly being substantiated on the basis of the authority of the person or document that asserts it.

Since the principle itself would have to be defended by one of the other arguments to be

discussed, arguments of this sort will stand or fall with the following arguments.

Not much needs to be said about this sort of argument except perhaps to note that undercertain conditions it can be legitimate. For the victims of religious and political persecution to

argue that they have some right according to, for example, Magna Charta, is acceptable. Theyare arguing for their case in a political context in which Magna Charta has actual political force.

For better or worse, if Magna Charta actually does give them such and such a right, and if it

constitutes the law of the land, then they do have that right and need not justify Magna Charta to

claim it. It is for their opponents to convince the citizenry to amend or nullify the politicalauthority of the document, and this is where arguments justifying the principle advocated by the

document come into play.

A similar argument for a right to silence is the argument from infamous authority, orwhat is better termed condemnation by historical association. Bentham gives the argument this

characterization: Whatever Titius did was wrong: but this is among the things that Titius did;therefore this is wrong [7].Such an argument would point to the evils of the Star Chamber and note that it was these

evils that gave rise to the notion of a right to silence and that a right to silence effectively would

put an end to them. Such an argument could only be successful if some necessary connection

were to be found between the non-recognition of the right to silence and the evil institutions thatare to be feared. If it were that the only thing that stands between us and such inhumanity was the

1


3/31


right to silence, then we could accept it as a necessary protection for our liberty and a right. The

problem with such an argument is that these evil institutions were evil above and beyond any evilthat might attach to the mere compulsion of testimony by virtue of the evil nature of the laws

that they enforced. To establish a right to silence, we must assume that we are dealing with a

system of just and humane laws that recognize all other rights of the individual and then showthat the compulsion of self-incriminating testimony would be wrong in and of itself. Only in this

way could we have claimed to prove a right to silence; otherwise what we may have proved, for

example, is right to freedom of speech and thus the right to resist attempts to deny it. The fallacyof these arguments is that they argue from the moral culpability of the state in one act, to the

moral culpability of the state in another act by pointing out that the prohibition of the other act

would effectively prohibit the morally culpable act.A variation on this argument is to argue from positive historical association. Erwin N.

Griswold in The Fifth Amendment Today[29] suggests both the positive and infamous historical

association argument when he states: It is an ever-present reminder of our belief in the

importance of the individual, a symbol of our highest aspirations... It would never be allowed bycommunists, and thus it may well be regarded as one of the signs which sets us off from

communism.

In this argument various historical associations are used to argue that the right to silencehas the utility of serving as a symbol of our freedom and the essential difference between our

political system and other less desirable or morally culpable political institutions. It is probably

true that the right to silence does have this symbolic value. It is also true that it has symbolicdisvalue, too, in that taking the fifth has become a way of indicating guilty evasion of just and

humane laws. In either case, an argument based on symbolic value cannot establish the right to

silence as an essential part of a just and humane system of government; such an argument can not

morally condemn a state that chose to deny a right to silence.The arguments that have been discussed so far involve fairly well-known sophisms and

are generally used whenever the status quo is in some way challenged. A class of arguments that

are more directly concerned with a right to silence and are not mere sophisms is the argumentfrom reliability. This argument claims that the right to silence promotes truth and excludes

falsehood and thus insures against misdecision, especially the most feared misdecision the

condemnation of the innocent.Arguments along this line are the oldest known explicitly defending a right to silence, and

come out of the tradition of Hebrew jurisprudence. The system of law that the Jewish sages

created from Biblical injunctions was strictly accusatory in all respects: The judges wereimpartial arbitrators and had no part in the prosecution; the defendant was assumed innocent

until proven guilty with the burden of proof placed upon his accuser. The judges had the

responsibility of cross-examining prosecution witnesses in order to break down their testimony

and the accused had the right to speak in his own behalf and call witnesses in his defense. Once

found innocent, the defendant was free from double jeopardy; a case could only be appealed foracquittal, not for condemnation. Most importantly, in criminal cases the defendant was not

required to make any self-incriminating statements; in fact, if he were to make a self-disservingstatement either in or out of court it would not be held against him by the judges. (In civil cases,

a self-disserving statement might be held against one.) Jewish jurisprudence held firmly to the

maxim, often repeated in the Talmud, that no one can make himself out guilty [37].

2


4/31


Along with the defendant, witnesses at the trial also had the right against self-accusation.

If a witness were to make a confession, his testimony might help the defendant, but it couldnever be used against him in any criminal prosecution. Surprisingly enough, the justification for

the right in the case of a witness at anothers trial was different from the justification used to

legitimize the right in the case of the defendant himself. It was the justification of the right forthe witness that most clearly is an example of the argument from reliability.

The Bible states, Put not thine hand with the wicked, to be an unrighteous witness, (Ex.

23:l) and also, The fathers shall not be put to death for the children, neither shall the children beput to death for the fathers. (Deut. 24:16). From the first of these passages it was reasoned that

witnesses could be excluded on the ground of impropriety and from the second, by means of a

very loose interpretation, that witnesses could be excluded on the grounds of interest, such asrelatives of the defendant or the prosecutor. The justification for these exclusions (above and

beyond their Biblical authority) is that they exclude testimony from court that is likely to be

untrustworthy, either because of the character of the witness or because of his self-interest in the

outcome of the trial.But because of the exclusion of witnesses on the grounds of impropriety, the courts ran

into a problem. If a witness was not inclined to testify, during the trial he could always confess

some impropriety and thus skirt his duty. An example of this bind is given in the Talmud(Nashim Yebarnoth 25a): If a man stated, So-and-so committed pederasty with me against my

will, he and any other witness may be combined to procure his execution; if, however, he said,

with my consent, he is a wicked man concerning whom the Torah said, Put not thy hand with

the wicked to be an unrighteous witness! In order to be able to accept testimony into court that

tended to exclude the witness on the ground of impropriety, the other exclusion, based on

interest, was used (Nashim Yebamoth 25b) : For Raba said, A man is his own relative and

consequently no man may declare himself wicked [43] Since a man is his own relative, he isexcluded from testifying about himself on the ground of interest, as any relative would be. Thus,

any part of his testimony that is self-inculpative has no force in court to exclude the rest of his

testimony on the grounds of impropriety.Bentham argues against any exclusion of evidence on the grounds of reliability. Neither

the testimony of the wicked nor the testimony of the interested should be excluded from court.

His reason for this is that it is not falsehood that should be feared in court, but misdecision. Theexclusion of evidence, even false evidence, is no security against misdecision [8]. If the evidence

to be excluded is necessary to the correct decision, and if it would have been true, its exclusion

produces misdecision. Admission of the evidence, even if false, as the argument for exclusionassumes, could never do worse. If the evidence is true, its admission will produce a correct

decision. There is nothing to lose by admitting the evidence and a good chance of gain. Even if

the evidence is false, deception and misdecision are not at all the inevitable result. Every day,

false testimony is delivered; every day, false testimony is detected.

If the evidence that would be excluded from the court were unnecessary, then the partyseeking to introduce it would have other means of proving the same point. In this case the

exclusion could make no difference to the courts decision and would only put one of the partiesto the expense that the substituted evidence would cost over the excluded evidence.

Benthams objections to exclusion on these grounds is all the more sensible since, as he

points out, no one class of human beings are universally liars. In light of this, the propertherapeutic to falsehood in the court room is the caution and the wisdom of the judge and jury.

3


5/31


All I contend for (but this I do contend for) is, that these twelve men,

whoever they are, that have heard him examined and cross-examined, andexamined him themselves as long as any of them thought proper, are more

likely to judge right as to whether he has spoken truth or no, than a judge,

who lived centuries ago, who never set eyes on the man, nor ever heard asyllable from or about him in his life, is likely to judge right on the question

whether the man would say true or no if he were to be heard [8].

The next argument for a right to silence is the argument from cruelty or hardship. It isargued that to force a person to testify against themselves is in some way cruel or a violation of

human dignity. Justice Stephen J. Field, dissenting in Brown vs. Walker, wrote, The essential

and inherent cruelty of compelling a man to expose his own guilt is obvious to every one, and

needs no illustration. It is plain to every person who gives the subject a moment's thought [18].Where exactly is this cruelty to be located? If a person is willing to admit some bad deed

that he has done on his own, he is generally to be praised for his admission whether he is to be

condemned for the bad deed or not. It might be quite painful for him to do, but one would hardly

say he is being cruel to himself in doing so. Generally, it would be in his self-interest to makesuch a confession if he himself thinks that what he has done actually was wrong. It is to be

admitted, however, that in the act of forcing someone to do something against his will, there issomething of cruelty. But if the cruelty of the act of forcing someone to testify against his self is

to be found in the act of forcing another to do something against their will, then it would be just

as cruel to force someone to testify against another.

Imagine the case of a woman who has been raped and is called upon to testify against herassailant. Through circumstantial evidence the defendant has been linked to sixty rapes in the

same area, but this one witness is the only victim to have gotten a good enough look at the

defendant to identify him. If she testifies, she will be making known what has happened to her.She could suffer humiliation and social scorn that would not just be cruel, but would be

undeserved and unjust. Her fianc might not be able to understand and might sever the

relationship. Yet she is the only one who can insure that justice is done, that a criminal bepunished and kept from hurting others. Not only is she (by the standards of our fifth amendment)

legally obliged to testify for the sake of her fellow citizens in general, but also for those who

have been injured by the defendant in particular and, assuming a humane penal system, even forthe sake of the defendant himself.

If the state has the right to force a witness to testify under these conditions, why should

the state not have the right to force the defendant to answer questions about the circumstances of

the crime and give truthful answers like any other witness? Not because it is inherently morecruel to do so to the defendant than it would be to force anyone else. If force is necessary, then

the act is perceived to be disadvantageous by both the witness and the defendant. In either case,

the act required would be laudatory, and the witness testifying against another does not deservethe disadvantage while the defendant is under reasonable suspicion of a crime, and stands a good

chance of actually being guilty. If it is cruel to compel one to testify against himself, then it must

be at least as cruel to compel others to testify against him, the cruelty being located in the forcerequired to coerce the testimony.

Bentham derides the argument from cruelty as the old womans reason, but finds he

must apologize to old women who would not find it cruel to force a child to take some

unpleasant cure for an illness he might have, Suppose in both cases, conviction to be the result,

4


6/31


he asks [7], does it matter to a man, would he give a pin to choose, whether it is out of his own

mouth that the evidence is to come, or out of anothers? If we answer as Bentham thinks wemust, that it does not matter, then it would be hard to say that there is anything more inherently

cruel in testifying against oneself than in being testified against by another. This is a different

denial from the one above; it does not claim that to make one testify against oneself is no morecruel to the defendant than to make one testify against another is to the one testifying. It claims

that to make one testify against oneself is no more cruel to the defendant than to make another

testify against him is to the defendant. Instead of reducing the claim of a right by this argumentto the claim that it is cruel to force anyone to testify, he reduces the argument to the claim that it

is cruel to be testified against by anyone, ones self or another. If the argument from inhumanity

is correct, it would be inhumane to produce any evidence against a suspected criminal at all.Closely related to the argument from inhumanity is the argument from torture, an

especially severe form of inhumanity. The assumption here is that the value of the right to silence

is as a prevention against torture. The argument, to be successful, must first argue against torture,

preferably on moral grounds, and then connect torture in some way to self-incriminatingtestimony. This connection is generally assumed or is based on historical association.

There is no instance of the use of torture to obtain the testimony of a witness or a

defendant in the Old Testament [20] and there is no article or mention that I have been able tofind of torture in The Jewish Encyclopedia [37]. Torture, however, was common to the ancient

Greeks and Romans, and I assume that it came into Christian civilization primarily through

Roman law. There are two fundamental arguments against the use of torture; the first is to befound in Aristotle.

In his Rhetoric, Aristotle distinguishes two separate modes of persuasion: those that

strictly belong to the art of rhetoric and those that are not supplied by the speaker himself but that

are existent at the outset. These non-technical or extrinsic modes include witnesses, evidencegiven under torture, written contracts, and so on [1]. When Aristotle discusses these means of

persuasion, he gives a list of arguments to be used for or against their acceptance by the jury. For

instance, when he discusses laws he tells us that if a law tells against our case, we should appealto the universal law as being superior and make our case out in terms of it; if the law tells for our

case, then we argue that the universal law is an absolute good, while the written law is an actual

good that is probably better for us than if it reached an abstract perfection [2].When Aristotle comes to the subject of torture, he gives the available grounds for

magnifying its value and for refuting it if it tells against us, but then adds a sentence that has

the effect of a personal endorsement of the arguments against torture. We must say thatevidence under torture is not trustworthy, the fact being that many men whether thick-witted,

tough-skinned, or stout of heart endure their ordeal nobly, while cowards and timid men are full

of boldness till they see the ordeal of these others; so that no trust can be placed in evidence

under torture [3].

In none of his other discussions of non-technical modes of persuasion laws, witnesses,contracts, or oaths does he make any statement at all that would suggest that he thought any

of the arguments for or against is better than the other. Aristotle seems to be personallyconvinced of the unreliability of testimony under torture, or at least he believes it to be no more

reliable than any other testimony.

Thus the first argument against torture is an argument against its reliability; this argumentdoes not necessarily morally condemn torture. The first argument to morally condemn torture is

5


7/31


that of Augustine of Hippo in The City of God. The reason, he notes, that a person is put to

torture is because the case against him is doubtful. The accused...is tortured to discover whetherhe is guilty, so that, though innocent, he suffers most undoubted punishment for crime... not

because it is proved that he committed it, but because it is not ascertained that he did not commit

it [6]. Thus, torture is to be condemned as the unjust punishment of a person without dueprocess of law or conviction for the crime which he is being punished. This would clearly be an

injustice. In modern times these are generally the two reasons given for the condemnation of

torture; around the turn of the century Michael Lega wrote: That torture is to be censured asfalse, since little trust can be placed in a confession thus extorted, and moreover as unjust, since

it punishes him who is not certainly guilty [38].

But both arguments may be objected to. First, even if testimony under torture isunreliable, it is the responsibility of the judge and the jury to decide in any one particular case

how unreliable it is and what weight to give it in coming to a decision. This is Benthams

argument against exclusion of evidence on the grounds of reliability applied to torture. In the

second case, we may object that while torture is indeed a punishment, it is not an undeservedpunishment for the crime to which the defendant will not confess. It is a deserved punishment for

the crime of not answering a valid question put to him in a court of law. Yet we think of torture

as being morally culpable; if these two arguments do not explain why, then where are we tolocate the injustice of torture? The answer is to be found in the nature of torture.

If we were to define torture as being the application of physical suffering, till some act is

done as does Jeremy Bentham [7], we will not be able to locate what it is about torture thatmakes it morally culpable. As our laws stand today in America, contempt of court allows the

application of physical suffering in the form of incarceration until a witness is willing to testify.

The Fifth Amendment does prohibit this in cases where the testimony may tend to incriminate

the witness, but it allows it in other cases. If this is a valid definition of torture, then torture is acommon practice here and now in North America, to say nothing of less liberal states. We do not

generally think that the American government makes torture a regular practice. This is what the

argument that we are considering holds the Fifth Amendment to prevent.Could the moral culpability of torture be found in the fact that torture is applied until

some act is done, that is, because it is not limited in time or intensity before it is applied? We

normally think of a punishment as having a set and limited duration, at least within a range thatis publicly decided on and is generally known. Could it be that torture is morally culpable

because it is a punishment that is not set in its extent before it is administered? If this were the

feature of torture that makes it morally culpable, then once again, the United States here and nowgenerally allows torture. A person charged with contempt of court may be kept incarcerated until

he is willing to abandon his contempt. One could theoretically be confined for the rest of ones

life for not answering a question in court if one was unwilling to ever answer it. Many fines, such

as those against polluting the atmosphere, are leveled perpetually, increasing until the behavior

being regulated is stopped. If this is what is wrong with torture, then many public libraries torturetheir borrowers with overdue fines.

What is wrong with torture, at least as far as testimony is concerned, is that it does notsimply stop when an answer is made. It is continued until the torturer receives the answer that he

wants or considers to be true. Torture is wrong and useless because it is not just a punishment

for contempt of court, it is an attempt to force a specific answer from a witness, regardless ofwhat may be the truth. Bentham recognizes this point:

6


8/31


Whatever he chooses to say, he is at full liberty to say; only under this

condition, properly but not essentially subjoined, viz. (as in the case of anextraneous witness), that, if any thing he says should be mendacious, he is

liable to be punished for it, as an extraneous witness would be punished [7].

Bentham does not even believe that punishment for perjury is needed in the case of a defendanttestifying against himself. Since the crime carries its own punishment, and since mendacious

testimony on the part of the suspect would tell so hard against his case as to ensure conviction, it

is not generally necessary to prosecute a perjury.It should be noted that mere punishment may be condemned as torture on the basis of

excessive, cruel or unusual Punishment. It might not be inherently wrong to charge a fee every

day until an overdue library book is returned, but it would be wrong to cut a finger off each day

until the borrower revealed its location and the authorities had seized it. The punishment must fitthe crime, and any of the punishments discussed above may be rendered unjust by being too

extensive or by being cruel and unusual. This is a matter of degree, and it is not always within

the power of philosophy to decide matters of degree. This is why we leave many penalties to the

discretion of the judge in a sentencing hearing, why penalties fixed by legislation must ultimatelyhave the approval of the governed, and why even such approved legislation may be struck down

by the court for violating the right to freedom from cruel and unusual punishment.Having established the nature of torture and its moral culpability, we must examine the

claim that the recognition of a right to silence is necessary or desirable as a way of preventing it.

Joseph P. Browne gives an argument in Moral Implications of the Privilege Against Self-

Incrimination that derives the injustice that is inherent in not respecting the right to silence fromour belief that torture is unjust.

If one accused of a crime has an obligation to confess his crime, then it

follows that the judicial body before which he is arraigned has a right to theinformation that he can provide concerning his guilt. And if the judiciary

has a strict right to this information (which would amount to a confession),then they may use all just means to secure their right. Now it cannot be

argued that physical torture or the use of narco-analysis are in themselvesunjust, for they may legitimately be used, the former as judicial punishment,

the latter as a means of treating and curing mental afflictions. If then their

use in judicial investigations is unjust, the injustice must come, not from theaction itself, but from the intention of the agent, that is... the discovery of

secrets from one accused of crime [21].

Thus, the belief or feeling that torture is bad and wrong, to which most of us admit, is the resultof the inherent evil of trying to discover the secrets of one accused of a crime. Torture is bad

because it is a means to an illicit end.

Assuming this argument to be valid and sound, we might ask what other conclusions maybe drawn from it. If it is true that it is evil to try and discover the secrets of one accused of acrime, it would be evil to do so by any means. It would be wrong to merely ask the person any

question at all without any compulsion. It would be wrong to inquire of another if they saw him

at such and such a place, let alone threaten such a witness with contempt of court for notanswering, because we are trying to discover the secrets of one accused of a crime. Further, the

argument holds for those not accused of a crime since we generally believe torture to be wrong

7


9/31


when applied to an extraneous witness, too. If one wants to keep it a secret that he saw a crime

committed, it would be wrong to require ones testimony not only because the guilty secret of thecriminal is to be protected, but also because anything that any witness might want to keep secret

is to be protected. This argument makes any means toward conviction of a suspect wrong and

grants a right to freedom from prosecutions. In Benthams words it is confounding interrogationwith torture [7]. It can also be applied with equal validity to testimony that is not self-

incriminating and so it would provide an absolute right for any witness to refuse any question.

When we use the term torture correctly, we mean one of two things. First, forcingsomeone to say something in particular, regardless of its truth, whether self-incriminating or not,

and pretending that this constitutes evidence against someone. This is clearly evil in and of itself

and casts no shadow on the legitimacy of trying to obtain a conviction against a suspect ingeneral, even by self-incriminating testimony. Second, we mean the excessive, cruel, or unusual

use of force in punishing someone whether or not they do deserve punishment, whether or not

our objective is right or wrong. This again casts no shadow on the end we are seeking through

such cruel means.The Fifth Amendment, while it could prevent torture in a limited number of cases were

torture generally to be allowed, is not a general remedy against torture. It is generally assumed

that torture is only applied against those accused, and only to obtain confession. This is not true;historically, when torture has been used, it has been used against those who will not testify

against others as well as those who will not testify against themselves. If the purpose of the right

to silence is to prevent torture, most of us are unprotected. Further, since the right to silence maybe waived and usually is, most defendants are also unprotected. The way to protect against

torture is to outlaw torture, not self-incrimination, and to recognize the right to freedom from

cruel and unusual punishment.

The last argument that Jeremy Bentham considers is the argument from fair play. He callsit the fox-hunters reason:

The fox is to have a fair chance for his life: he must have (so close is the

analogy) what is called law: leave to run a certain length of way, for theexpress purpose of giving him a chance for escape. While under pursuit, he

muse not be shot: it would be as unfairas convicting him of burglary on a

hen-roost, in five minutes time, in a court of conscience [7].

Bentham sees this argument as a gross and inappropriate analogy on a fox hunt; the criminal is tobe given a sporting chance to carry out his crime with impunity by exemption from self-

incriminating testimony. John Stuart Mill, Benthams editor, adds:

They speak and act, every now and then, as if they regarded a criminal trialas a sort of game, partly of chance, partly of skill, in which the proper end

to be aimed at is, not that the truth may be discovered, but that both parties

may have fair play: in a word, that whether a guilty person shall beacquitted or punished, may be, as nearly as possible, an even chance [9].

In this case both Bentham and Mill are attacking a straw man. Mill tells us that we should

look upon judicature as a means to an end, and that end the execution of the law. The argument

from fair play makes the courtroom battle an end in itself, a game that must be played accordingto sporting rules. But we must establish some rules, even regarding judicature as a means to an

end. What the fair play argument is really arguing for is the establishment of those rules that

8


10/31


create an accusatorial rather than an inquisitional system of justice. The argument that should be

dealt with is not analogies from fox-hunting but the claim that the accusatorial system is the bestmeans toward the end of justice and affords the best chance of punishing the guilty without

unduly risking the punishment of the innocent.

This argument would have to establish two points: First, the accusatorial system issuperior to the inquisitional system of justice, preferably on moral grounds, and second, that the

right to silence is an essential or, at least, important feature of the accusatorial system. It would

strengthen this argument also if it could be shown that the right to silence was incompatible withthe inquisitional system.

The superiority of the accusatorial system over the inquisitional system is not a settled

question. Bentham mentions that he has collected interesting criminal cases from variouscountries for years and has been amazed at now easily those cases that are tried with the

inquisitional method are cleared up and how much more complete the results are, the whole

matter being exposed and no important questions remaining [10]. France, Germany, and other

civil-law countries operate their justice systems under inquisitional procedure and they arecivilized members of the Western community of nations. In the United States, inquisitional

procedure is employed in many instances including grand jury and coroners inquests.

The importance of the right to silence to the accusatorial system may also be questioned.If the right to silence were to be abandoned in our court rooms, it could be done without

necessarily making any other changes in procedure or admission of evidence. Making just this

change would not be an abandonment of accusatorial procedure. More over, under inquisitionalprocedure the accused may be questioned, but he is not required to speak and if he does, he is not

under oath [42]. Thus the right to silence is not incompatible with inquisitional procedure and

thus our system could become inquisitioria1 despite the recognition of the right to silence.

Arguments from the accusatorial-inquisitional dichotomy, while they have beenmisrepresented by Bentham, are not able to prove a right to silence. Still, the advantages of one

system may be argued over the other (though not on moral grounds) and if the accusatorial

system were to be the choice of some people, and if it could be argued that the silence of theaccused helped to bring out the virtues of this system, then a case could be made for giving the

accused a privilege to silence. This argument could show that the right to silence was a good idea

and should be part of a citizens liberties without showing that it is a right that it would bemorally culpable to deny.

The arguments from authority, historical association, reliability, cruelty, torture, and fair

play are the traditional arguments that Bentham collected and refuted. But recently, otherarguments have been made in response to contemporary political situations that have brought the

right to silence under attack. The first of these is the argument from established rights, in which

the right to silence is derived from some other right or moral principle that is easier to argue for

or is more firmly established.

The best example of this sort of argument is the argument from a private enclave or aright to secrets. The right to secrets is of longstanding in Christian tradition. Thomas Aquinas

implies such a right when he argues for the virtue of veracity on the ground that truth keepssociety together and that one must avoid both an excess as well as a deficiency of truth for that

very reason: Quia homo est animal sociale, naturaliter unus homo debet alteri id sine quo

societas humana conservari non posset. Non autem possent homines ad invicem convivere nisisibi invicem crederent, tanquam sibi invicem veritatem manifestantibus and Superfluum autem

9


11/31


convenit illi qui importune ea quae sua sunt manifestat; defectus autem competit illi qui occultat,

quando manifestare oportet [4].Arguing for a private enclave from the needs of society will not advance the cause of a

right to silence, however, because one may reply that it is just when a crime is committed that

society needs revelation of the truth rather than its concealment. The most convincing argumentthat can be made along this line is that a person who secretly repented his crime, who has ceased

to commit crime, and has secretly made restitution for his crime, is under no obligation to reveal

his crime if apprehended by the authorities [22].This is perhaps true and probably should be recognized by the law, but a right to silence

is not the appropriate way to recognize it. A criminal system that assumed that all who are under

suspicion of crime had repented and restituted would not be able to deal with the reality of crimeand would not be able to properly function. If it is necessary to recognize the situation assumed

above in law, it would be best to create a special guilty plea that allowed one to be given special

consideration in sentencing and to have ones record kept from the public. Statute of limitation

laws also work to the advantage of those who have given up crime.The right to a private enclave is often argued on the basis of human nature; in Christian

tradition God created man in such a way that his conscience is impregnable, and human dignity

rests in the fact that a man is free to form his own mind with only God (and not even with theangels) able to know its content [23]. Hobbes gives support to such an enclave by his distinction

between sin, an evil thought that only God can punish, and crime, which is sin that can be

inferred from some action [31]. Without some action attached to an evil intention, the intention isof no concern to ones fellow man.

When one argues for the right to silence on the basis of a right to a private enclave or a

right to secrets, one is usually begging the question. If a right to secrets exists, what does this

right mean? Certainly it does not mean that one cannot ask a person what his secrets are hopingthat he will voluntarily reveal them. It does not mean that one cannot offer another some benefit

in exchange for those secrets and thus it does not mean that one cannot withhold some benefit if

those secrets are not forthcoming. What it means is that one cannot physically force another toreveal his secrets, and this is nothing more than what the right to silence is. Further, if no

exception is made to the right to secrets, then no one may be compelled to testify at any time for

any reason. When we say that human dignity is offended by violating ones private enclave, allwe are saying is that one has a right to silence. This is because a right means that some action by

another would offend human dignity and it is wrong to do so; therefore, we must explain why

human dignity is offended in any one case, not merely assert that it is so.Another argument from established right is the argument from the right not to assist in

ones own punishment. As long as it can be done without violence to others, one has a right to

escape even just punishment. Thomas Aquinas writes, Nullus ita condemnatur quod ipse sibi

inferat mortem, sed quod ipse mortem patiature. Et ideo non tenetur facere id unde mors

sequatur, quod est manere in loco unde ducatur ad mortem [5]. Aquinas is speaking only of thedeath penalty here and he derives the right from the fact that no one is ordered to kill his own

self. If one were justly ordered, for example, to walk the plank in shark-infested waters, he mightsay that one is obliged to do so even if it could be avoided without violence because not to do so

would be disobeying a superior. But in our more liberal times, let us assume that the right exists

and that it applies to all punishments. If one can escape a punishment by silence, so the argumentgoes [24], why should one not be allowed the privilege?

10


12/31


The reason one should not is that, even granting Aquinass argument, there is no right

involved at all. What the argument claims is that a person is not morally culpable for escapingpunishment without doing violence to others. This might be true; nonetheless, it is still legitimate

for the state to prevent one from so escaping, and it is even legitimate to extend ones sentence

for so doing. If it were wrong for the state to prevent one from escaping, or to recapture one whohad escaped, then there would be a right to freedom from punishment which would indeed give

one a right to silence as well as license to commit any and all crimes. If it were merely

illegitimate to increase ones punishment for attempting to escape, then there might be cause fornot being punished for contempt of court, but then anyone who found it hard upon themselves to

testify could remain silent. (See argument from cruelty.)

This argument is very similar to the argument that Hobbes gives for a right to silence inthe Leviathan [30]. The Leviathan was a very popular book in its own time and has had wide

influence on the Western political tradition. In one of the most widely circulated law dictionaries

in pre-revolutionary America, theLeviathan is cited as authority for the right to silence [36].

Hobbes derived the power that a sovereign has over his subjects from contractualagreement. Hobbes sets down one moral imperative; one must keep ones covenants that one is

able to obey the first part of the law of nature and seek peace. The first and foremost covenant a

man can make is to agree with his fellow man to transfer to some one authority all those rightsone has that by being retained hinder the peace of mankind. But not all rights are inalienable,

some cannot be transferred, This is true of any transfer which would in fact hinder the purpose

for which he was making the transfer. Since the end in the transfer of his rights to some oneauthority is to bring security to a mans person, he cannot mean by any such transfer to give up

the right of self-defense, and thus all men have the right to resist punishment even by violent

means. Since one has the right to resist punishment, one has the right to silence; no one can be

understood to have given this right up since self-accusation leads to punishment. What a mandoes transfer is the right to defend others and to be his own judge.

The fact that Hobbes is willing to give an even stronger right to resist punishment than

Aquinas, however, is not any deterrent to the sovereign right to punish. The right to punish is notgrounded on the basis of any concession or gift of the subjects to the sovereign. The sovereign,

before the commonwealth, had the right of nature to do whatsoever he thought necessary to his

own preservation; subduing, hurting, or killing any man at all. The subjects, in renouncing theirrights in covenant with one another do not in any way restrict or take away any of the sovereigns

rights. He is not even party to the deal and receives the sovereignty as a free gift. In laying down

their rights, they only strengthen his, and he may do as he pleases in order to preserve the peacein accordance with the law of nature. Thus he may punish; he may punish attempts to escape

punishment, and he may punish one for not giving true testimony in court even when it would be

self-detrimental. The witness has a right to resist, but what this means really means is no more

than that the witness is not morally culpable - that is, in resisting he does not violate any

covenants to the contrary. But the sovereign is not unjust in punishing his resistance, he, neither,is violating any covenants to the contrary.

The last argument to be considered is the argument made famous by Erwin Griswold inThe Fifth Amendment Today[28], the argument from innocence. This argument grew out of the

political situation of the 1950s in which many communists, communist sympathizers, and others

found it convenient to plead the Fifth before congressional investigating committees. It could becalled more of a call for tolerance than an argument for the right, and Griswold himself recanted

11


13/31


it [23]. The argument consists in creating hypothetical cases in which an innocent person might

invoke the right and inferring from these cases that the right protects the innocent and that nopresumption of guilt should attach itself to pleading the fifth.

Sidney Hook, in Common Sense and the Fifth Amendment, addresses both claims. If the

first were valid, we would be able to derive a right to be free from prosecution by pointing tothose who are innocent and have been convicted [34]. Freedom from prosecution would be the

ultimate protection to the innocent. As to the presumption of guilt that attached itself to the

invocation of the right, Hook writes:

Given what is known about people, guns, and the hunting season, every

time a gun is pointed at me, even in play, I am justified in inferring danger

to myself but I cannot therefore conclude that any particular gun is actually

dangerous without further inquiry. What Dean Griswold seems to imply isthat because by hypothesis we know that a particular gun has no shell in it,

therefore we are not justified in inferring danger when it is pointed at us.

But common sense tells us that, not knowing whether the gun has a shell in

it or not, we are justified in believing it dangerous, even though it may turnout in actual fact that it is not [35].

The traditional arguments for a right to silence all fall short of the goal of proving such a

right. In general, their defects are three in number. First, many do not prove any right at all, suchas arguments from authority. Second, they may establish that the right to silence is good policy,

but do not morally condemn the state that would deny the right; they show that the right to

silence is in reality a mere privilege. Third, they prove too much, giving even the extraneouswitness the right to withhold testimony that is not self-incriminating, or they prove that it is

wrong to prosecute the witness at all, running counter to the provision of the Fifth Amendment

and our intuitions about the value of prosecuting and punishing criminals. In the next section anoriginal defense of a right to silence that corresponds very closely to the provision of the Fifth

Amendment will be presented.

An Original Defense of the Right to Silence

As we have seen in the above discussion, arguments for a right to silence suffer from a

serious flaw that stems from the nature of the right to silence as a right only against self-

incriminating testimony. The status quo maintains that a witness may remain silent when askedquestions that might be self-incriminating to answer, but may not remain silent when asked

questions that are not self-incriminating. In most cases, when a reason legitimizing exclusion of

self-incriminating testimony is given, this same reasoning may be used just as successfully in the

case of testimony incriminating another. Such arguments do not support the right to silence as it

is generally accepted; they are arguments for the right to refuse to testify at all. It is generallybelieved that citizens are under an obligation to testify in court for or against a defendant as long

as doing so puts them under no risk of self-incrimination,In order to argue for or against such a right, we must have a good idea of what a right is

and how it differs from a privilege. A right is a moral principle, that, very broadly, defines the

proper relationship between the individual and the collective or society that he is part of. In thesense that is relevant to a right to silence, a right defines this relationship specifically by

12


14/31


protecting the individual from the actions of the collective. Thus a moral principle that would

require the collective to economically support the individual who is the victim of some terribleaccident that has made it impossible for him to support himself is not a right in the specific sense

that I am using the term, while a moral principle that would require just and fair economic

reimbursement and due process of law before any property may be confiscated by the collectivefrom the individual would be.

This distinction is roughly the distinction between the rights of man and and those

extensions to them that have come to be known as human rights. It is the rights of man whichprohibit or restrict those actions of the collective that would be detrimental to the self-interest of

the individual and define and establish the social condition that we know as freedom or liberty.

Speaking even more specifically, a right protects the individual from the actions of the state, andconstitutes the fundamental law of a just and humane government. This law does not directly

prohibit or require actions on the part of citizens; it prohibits actions on the part of the state, and

thus it is superior to the positive law of the land which must be drawn up in conformity with it.

How then does that, which in its most general formulation defines the relationship between the individual and the collective, eventually come to define, in its more specific

formulation, the relation between the individual and the state? This is brought about by the fact

that a right, as one of the rights of man, defines the social condition of freedom and does notconcern itself with purely voluntary relationships between one individual and another or between

the individual and the collective. It deals with those relations between the individual and the

collective that involve coercion, the actual or threatened use of physical force to either restrainthe movements of an individual, or inflict corporeal damage upon him or deprive him of his

rightful property.

The state is defined by Max Weber in terms of the specific means that it employs in

achieving its ends, those means that are peculiar to it, namely the use of physical force, His fullformulation, from Politics as a Vocation reads, A state is a human community that

(successfully) claims the monopoly of the legitimate use of physical force within a given territory

[45]. Since the state is precisely that community or collective that controls the use of force, it isthe relation between the state and the individual that forms the specific concern of the rights of

man.

If rights are legitimately concerned with the relationship between the individual and thestate, how is it that we may speak of one individual violating the rights of another? We speak in

this way, once again, because of the monopoly the state has on the use of force. The positive laws

of a just state must be inferior to the rights of man; they must not violate the rights of the individual. But at the same time, they must prohibit any individual from violating those same rights.

Since the state holds a monopoly on the use of force, any force used within its territory that is not

prohibited by it (or, it might be argued, prohibited but not generally and effectively enforced)

may be considered to occur by its fiat and under its blessing. Thus the rights of man do impose

upon the just government a sort of positive duty (rather than the negative duty to refrain fromcertain actions) to create and enforce a positive law that will prohibit its citizens from doing that

which it may not do.This analysis of rights may be put into the terms that Wesley N. Hohfeld developed in

order to systematize and rationalize the various uses of the term right. In his book, FundamentalLegal Conceptions[33], he identifies four specific meanings that the word right may have andhe gives them each a different name taken from common legal terminology in order to keep them

13


15/31


separate. These four terms are right, privilege, power, and immunity. A right in the

broad sense is some specific right, privilege, power or immunity. The four different sorts ofrights are divisible into two separate systems, the right-privilege system and the power-immunity

system. Rights and privileges interact with each other just as powers interact with immunities, as

in an analogy, thus, Right : Privilege = Power : Immunity.The right-privilege system deals with issues that we normally think of when we think of

rights: who may do what to whom, who may not do what to whom, who may demand what of

whom, who may not demand what of whom. It deals with actions and with tangible propertiesand values. The power-immunity system deals with a more esoteric form of right, the right to

effect changes in the legal relationships of oneself or others. It deals with such legal entities such

as trusts and such legal relationships as the power of attorney and the executorship of a will. It isprimarily the right-privilege system that we are interested it.

Each of the two right systems has two rights: one that might be called a permissive right,

the other a prohibitive right. The permissive right allows the holder to take some action or have

the use or disposal of some value or to receive some benefit from some other person. Theprohibitive right allows the holder to be free from some action of another or to have some value

or possession protected from being used or disposed of by another without consent. The best way

to state the difference is in Lockean terms: the one is license, the other, liberty. In the right-privilege system, the license is the right (called from now on a claim-right in order to avoid

confusion); the liberty is the privilege.

Each and every right is a relationship between the possessor of the right and some otherperson. In the case of the claim-right, the possessor has the legitimate power or the legitimate

ability to require some action or thing of another or to take some action upon another. The

permissive claim-right puts upon someone else some sort of positive obligation or duty and

always deprives him of something. This obligation or duty or deprivation is given the technicalterm, duty, in Hohfelds system. The prohibitive right, or liberty, in the right-privilege system

is the privilege. A privilege, like a claim-right, involves the possessor of the right and another; in

this case, the possessor of a privilege does not have a claim rightfully imposed on him by theother, He has a freedom from some action or requirement that someone might otherwise impose

upon him. The other (who before had a duty) in this case has what Hohfeld called a no-right, that

is, he holds no claim-rights over the possessor of the privilege. The no-right might better betermed a negative duty one must refrain from action rather than take action on behalf of the

holder of the right.

We are now ready to see how the claim-right and the privilege, the duty and the no-rightfunction together as the right-privilege system. The system involves two persons or parties that

the right in question brings into some relationship, the holder of the right and the person that

must behave in a certain way towards him. When the holder has a claim-right, the other has a

duty and is denied a privilege; when the holder has a privilege, the other has a no-right (or a

negative duty) and is denied a claim-right. The claim-right is correlative with the duty andopposed to the no-right; that is, when the claim-right exists, the no-right ceases to exist for the

holder and for the other a duty then exists and ~he privilege ceases to exist. The privilege iscorrelative with the no-right and opposed to the duty; that is, when the privilege exists, the duty

ceases to exist for the holder and for the other a no-right (a negative duty) then exists and the

claim-right ceases to exist. The correlative to some right is that which must then exist for theother; the opposite of a right is that which is denied to the other. The system of rights for the

14


16/31


right-privilege system is graphically presented in Table One. The analogous relationships exist

for the power-immunity system, but since these rights are of a different kind from what isrelevant to the right to silence, we will not deal with them here.

We are now ready to define in Hohfelds terminology the two classes of fundamental

rights that were analyzed above: the rights of man and human rights. A right which is one of therights of man is any privilege (i.e., liberty) that an individual has in relation with the state (or any

no-right i.e., negative duty that a state has in relation with the individual) that exists by

virtue of a valid and binding moral principle. A right which is one of the human rights is anyclaim-right (i.e., license) that an individual has in his relation with the state (or any duty that a

state has in its relation with the individual) that exists by virtue of a valid and binding moral

principle.It turns out that in Hohfelds system what we are accustomed to think of as rights, as the

most fundamental and important rights, the rights of man which protect our life and liberty, are

properly termed privileges. And yet the whole point of this paper is to decide whether the right to

silence is a right or a privilege, a privilege being thought of as something lesser than a right. Howthen are we to formulate the inferior sense of the term privilege? Hohfelds system, we shall see,

will help to do this.

Up until this point, when we have talked of a right, we nave been referring to the rightsthat an individual holds in his relation with the state. The state has always been in the position of

holding only no-rights or duties, never claim-rights or privileges. But we may consider the state

as the holder of rights in its relation with the individual and consider the individual as holdingduties and no-rights. There is something that seems dangerous and even repugnant in reversing

the relationship between the individual and the state in this way, and yet this is done commonly

enough. It is commonly believed that the state has the claim-right to such duties on the part of

the citizenry as military service during time of war and financial support through taxation. Thestate also is commonly believed to have the privilege of being free of attempts to overthrow it by

means of force and the privilege against treasonous acts. Obedience to the positive law of the

land by the citizenry may also be viewed as a privilege of the state. It is my belief, although itwould not be relevant to defend it here, that these rights of the state, to the extent that they exist,

are not of the fundamental nature that the rights of the individual are because they are in some

sense contractual or consensual in nature rather than existing by virtue of valid and bindingmoral principles. Governments are to derive their just powers from the consent of the governed.

This is at least the view of the great liberal Locke, and is the assumption underlying the political

system of the United States of America.Among the claim-rights that have been commonly given to the state is the right to truthful

testimony in a court of law or before Congress. If this is a valid claim-right held by the state,

then it would be that there is no right to silence, at least not in the fundamental sense that we

speak of the rights of man. But there may be good reasons why a government of the people, by

the people, and for the people should not always exercise a claim-right, though it legitimately hasit.

For instance, consider the case of military service. In this case we consider it is wrong forthe state to exercise its right over a conscientious objector. The claim-right of the state is believed

to conflict with the privilege of the individual to freedom of belief. Since under certain legally

defined conditions the assumed claim-right of the state conflicts with a privilege of theindividual, and since this privilege of the individual is based on a moral principle while the

15


17/31


claim-right of the state is based on a mere contractual or consensual foundation, the individuals

privilege prevails. Though the state does allegedly possess a claim-right, the conscientiousobjector still retains a privilege in the strong sense of the word. Whether it is agreed or not that a

fit citizen during time of war has a privilege against military service, it is generally agreed that

the conscientious objector has that privilege. If the state were to force such a person into militaryservice, we could condemn that state as morally evil. I call this sort of privilege a superior grant-

privilege. The superior grant-privilege, resting on a valid and binding moral principle, belongs to

the rights of man.But the conscientious objector is not the only sort of person that is, at least in the United

States, not subject to military servitude during time of war. Women are also exempt from this

duty. In the case of women, however, it is not at all certain that this privilege is derived from amoral principle. Indeed, many of our state constitutions explicitly state that rights are not to be

formulated on the basis of sex. The Federal Constitution uses only genderless terms such as The

People when referring to our fundamental rights. It is generally assumed that the male has no

right that does not belong also to the female, and even without the passage of the equal rightsamendment it was argued (albeit unsuccessfully) in court that the reinstatement of selective

service registration was unconstitutional because it did not require women to register. Certain

religious prejudices aside, it seems that most people would find it wrong to base moral principleson the distinction of sex. Moral principles are supposed to be general and they are supposed to

bind on the basis of ones human nature, not on the basis of ones nature as a human being of a

certain color, race, creed, sex, or nationality. The rights of man are, at root, moral principles.For these reasons we could not say drafting women into military service was morally

evil. Nonetheless, in the United States women have a privilege against military servitude and this

privilege is supposedly based on good reasons, stemming from the biological differences

between men and women and from views of what constitutes the proper relationship between thesexes. The state holds a claim-right against women for military service, but there exists very

good reasons for the state not to exercise this claim-right. To do so would be a mistake, but to do

so would not make the state morally evil. This then is what is meant by a privilege in the inferiorsense; an individual has an inferior privilege when the state allows it to him in the face of a valid

claim-right and duty. The individual is exempted from a duty that is imposed by a legitimate

claim-right on the part of the state. The individual is allowed, granted, or permitted an inferiorprivilege. I call this privilege an inferior grant-privilege.

The way is now clear for us to demonstrate the right to silence, The status of the right to

silence might be one of these four possibilities: First, the right may be a right in the strongestsense, a right of man; all individuals have the privilege of silence, no individual has the duty to

give testimony and the state has no claim-right (has a no-right) to such testimony. Second, its

status may be that of the status quo; the state has a claim-right to testimony but has no-right

where such testimony may be self-incriminating and the individual has a duty to give testimony

but a right (a superior grant-privilege) of refusing when it may be self-incriminating. This case isanalogous to the case of the conscientious objector; there is a right in the sense of a right of

mankind but it is valid in the face of a duty and only under certain legally defined conditions. Toviolate this privilege would make the state morally evil. Third, one may have the right to silence

in the sense of an inferior grant-privilege; the state has a claim-right to testimony and the

individual has a duty to provide it, but the state, for very good reason, does not exercise itsclaim-right in the case of testimony that may be self-incriminating and allows, grants or permits

16


18/31


the individual a privilege of exemption from the duty to testify. Fourth, it may be held that the

state has a claim-right to testimony, the individual has a duty to testify and that there is no goodreason to grant any privilege against duty in the case of testimony that may be self-incriminating.

The position that we are trying to defend is that of the right to silence as a superior grant-

privilege to refuse to testify if such testimony may be self-incriminating. The first requirementupon our argument is that it must be along some line such that when it is applied to someone

whose testimony may be self-incriminating, it will exempt him from testifying, but when the

same line of reasoning is applied to someone whose testimony could not be, it will not. As wehave seen, one of the persistent problems with reasons in favor of the right to silence is that they

can be just as well applied to those whose testimony is not self-incriminating as to those whose

testimony is self-incriminating. If it is allowed that they established anything at all, they establisha right to silence in the strongest sense, the first of the four possible positions above. The second

requirement is that the argument must proceed from some moral principle. Only if this is so

could it be claimed that the grant-privilege of silence in the face of a claim-right held by the state

to the duty of testimony is a superior grant-privilege like the grant-privilege of the conscientiousobjector, and thus one of the rights of man.

A third requirement would be that the principle advanced as a moral principle actually be

valid and binding, that is, that it really is a moral principle. This, of course, is a very problematicrequirement. Just how we should go about doing this is a much debated and hardly a settled

question, and it is a question that is beyond the scope of this paper. But there should at least be

good reasons for advancing the principle and it should have an intuitive appeal and some generalacceptance. If we argue from such a principle, and our argument is sound and valid in all other

respects, then at least those who are willing to accept the principle will be convinced, and

presumably there would be reason for one to accept the principle advanced and some acceptance

for it already. Such a principle should be general and have a wide range of application; it shouldnot be constructed ad hoc, just for the purpose of proving a right to silence, and in its wider

application it should not do violence to those other rights that are generally accepted as inherent

to mankind. Again, I am using such terms as generally accepted because of the problematicnature of just what constitutes valid and binding moral principles.

Since rights deal with the relationship of the individual to the state, and since the states

essential nature is found in its characteristic use of force, the principle that will be advancedconcerns the proper use of physical force in human affairs. This principle is derived from the

libertarian principle that claims that it is morally wrong to initiate the use of physical force in

human interaction. From this principle the libertarian derives the rights of man. The libertarianprinciple alone would lead to a complete right to silence, the first of the four alternatives we

delineated.

The libertarian principle certainly fits the loose standards set above. It has an intuitive

appeal and a general acceptance; even small children, when they cry out He hit me first! make

an appeal to it. The United Nations, while recognizing a right to self-defense, expects itsmembers to settle their differences without the use of force [44]. By the intuitive standard of the

Golden Rule (do unto others as you would have them do unto you), it is appropriate. Very fewpeople would grant others license to initiate force against themselves, no matter how greatly they

thought it was proper for themselves to initiate force against others. Using Stephen Toulmins

test [25], if everyone were to consistently act upon this principle, the results would certainly leadto very little suffering all the way around and would certainly vastly reduce the amount of

17


19/31


suffering that there now is.

But the libertarian principle alone is not enough, without carrying it further, to expressthe general repugnance that is usually held towards the use of force in human society. Further

principles are needed to limit the use of force and these principles can be derived from the

libertarian principle by consideration of a special case of the initiation of force: the use ofexcessive force.

The libertarian principle allows one to defend oneself if force is first used against oneself.

But the legitimization of this use of force is just that it is self-defense. It is counter to theinitiation of force and serves only to protect one from the use of force by another. To the extent

that a counter force exceeds that which is necessary to prevent harm and injury, that excess of

force is illegitimate. One can use enough force as is necessary to render an assailant harmless tooneself, but after subduing him and rendering him harmless, the fact that he struck first does not

give you the right to inflict further harm on him. After you have tied up the man who tried to

pick your pocket, you do not have the right to break his fingers or to blind him. Excessive force

is nothing more than a special case of initiation of force. Once one has rendered the offenderharmless, that which legitimatized the use of force is no longer present, and thus the force used

in excess is not legitimate.

This reasoning can be carried further. If a person is going to be attacked, he must exertsome effort in some way in order to protect himself. But that does not mean that that effort need

be the use of counter force. It could be that other means are available to him, for instance, flight.

If it is reasonably possible to keep oneself out of harms way without resorting to force, even justthat amount of force that is needed prevent attack, one should take the alternative. When one

human being initiates force against another, the other is going to suffer a loss, either because he

does not resist or because it costs him to use means other than force or because the proper use of

force itself is a cost to the person that must resort to it. The repugnance that should be felt towardthe harming of another human being, even when that harm is merely carried out in self-defense,

should certainly give the good man reason to prefer the non-violent means of self-defense in

those cases where the cost of using force is equal to or greater than the cost of non-violentmeans. Under a system of just and human laws that would require the offender to give the victim

restitution for the cost of his offense, one would have to choose non-violent means even if they

were more costly. The good man may even decide to take the more costly non-violent course justbecause he finds force repugnant, and some, the pacifists, say this is always the preferable course

over the use of force. Amazingly enough, many pacifists believe that there are legitimate reasons

for using force even though they deny its legitimacy in self-defense. The Quakers are very activein their protestation of the use of force in war, of the use of force in forcing citizens into military

service, and of the use of taxation to fund the military, but I have never heard them protest use of

force to compel attendance in state schools or the use of taxation to fund schools and other

welfare programs. While most people would accept the libertarian principle in a general way,

most people cannot accept it consistently, and they can point to at least one case in which it isgenerally accepted that the initiation of force is proper.

This is the case of a starving person, perhaps responsible for the well-being of severalother persons also starving, who steals merely in order to keep himself and his dependents alive.

If he has no other alternative and he goes about his thefts in a way so as not to do actual violence

to others, and to ensure the least suffering to others as is possible on account of his thefts, theneven the libertarian would be hard pressed to say that the man was acting morally wrong.

18


20/31


Locke in his Two Treatises of Government, mentions on several occasions that there

exists a duty to aid those whose lives are endangered and thus implies a claim-right for such persons to the property of others [40]. The very reason that Locke advances for respect of

property rights, the sanctity of life, is the reason he imposes this duty. Even the authoritarian

Hobbes, in his Leviathan [32], imposes the duty of welfare on the sovereign, though for thereason that it would be beneath the sovereigns dignity to allow anyone to starve in his realm.

Note the restrictions that are usually built into this case. It is claimed that starvation

provides a legitimizing end for the use of force, but that the condition must actually be present,that is, the force cannot be excessive in that the legitimizing condition does not actually exist or

did exist and has been eliminated. He cannot steal more than what he needs. The force must be

necessary; there must be no alternative to its use. The force must be efficient; although it is notusually stated, it is usually assumed that the thief would not break into someones house knowing

there is no food in the larder.

Thus the libertarian principle, as good as it is, is not generally accepted without

exceptions. The problem with the principle is not that most would disagree that self-defenselegitimizes force, but that most would disagree that only self-defense legitimized force. The

principles that were derived from the libertarian principle rely only on the precept that self-

defense is a legitimate use of force; they rely on the precept that the initiation of force is evilonly to the extent that it is not defensive. Thus the principles that were derived from the

libertarian principle will hold for any exceptions to that principle on the basis that self-defense is

not the only legitimizing end for the use of force. In the case of starvation, the most easily calledto mind exception to the libertarian principle, people are generally careful to call these further

principles to attention in that it is stressed that it is truly necessary that one steals in order to

survive and that one must take precautions to do so in a manner that will cause as little suffering

as possible. In fact, it is in cases that are exceptions to the libertarian principle that these furtherprinciples become most important. It is from these further principles that the right to silence will

be derived.

The libertarian principle itself is not strictly inconsistent with using force toward the endof justice. If an injustice has occurred, restitution and punishment as a means of prevention are

justified on the basis that the malefactor initiated the use of force and the force used against him

is merely defensive. But in practice, the malefactor is not proved to be a criminal before he isarrested; he is just under reasonable suspicion and must be assumed innocent until proven guilty.

Thus the end of justice is an end that by practical necessity requires us to initiate force against a

human being before it is sufficiently settled whether or not that person deserves to be punished orotherwise subjected to force. Thus it is commonly believed that the end of justice does justify the

initiation of force in some cases and so constitutes an exception to the libertarian principle at

least in this respect.

The end of justice legitimizes the initiation of force against someone who is reasonably

suspected of a crime, but does it legitimize the use of force against someone whose testimony isneeded to determine the guilt or innocence of a person who is reasonably suspected of a crime,

against either an extraneous witness or the suspect himself? This is the question of whether ornot the state has a valid claim-right to testimony in the pursuit of justice.

In the liberal tradition, the claim-rights of the state are derived from the consent of the

governed. A government is established by the people. It is directed and controlled and composedof the people, and it exists to serve them. Locke tells us that the purpose of a government is to

19


21/31


make up for three deficiencies or inconveniences that are found in mans natural state before

the establishment of government. The government is to establish a set of objective and publiclaws, provide an impartial system of judging matters of fact in the application of these laws, and

provide an executive to execute the laws in accordance with the established facts [41].

Whatever else one may want to add to Lockes list of reasons for establishinggovernment, the end of justice could hardly be thought to be left out. The end of justice is one of

the primary, if the not the primary purpose for which a state may be established. But the value of

justice, like any other good thing, does not exist without effort. It must be created through humaneffort and the people who enjoy the benefit of that effort, the citizens who establish the

government for just this end, must pay for the benefit they receive. This payment may be in the

way of taxes. It may be in the way of some service, such as military service. In the case ofjustice, it may be in the way of testifying when called upon to do so, whether it is convenient for

one to do so or not. When a government is established by a group of people for the end of justice,

it is reasonable to expect them to pay for that goal by giving testimony if it so happens that they

are called upon to do so. If a person, living in a country the government of which rests upon theconsent of the governed, is called upon to testify and refuses, this can be looked upon as

analogous to a breach of contract. If one desires the end of justice, one must be willing to pay for

it, and if one form of payment established by law in a country is the giving of testimony, one hasan obligation to give it.

Nonetheless, no state actually in existence is perfectly based on the explicit consent of the

governed. We may be able to say that it would be unreasonable for someone to refuse to givetestimony, but when we force someone to give testimony, we must remember that this is not an

action that is based on an explicit contract. This use of force is more like that of the starving thief

of whom we believe that his circumstances justify his action, but who does not have an explicit

contract with his fellow man to feed him which he is merely enforcing by his theft. Therefore,when we do proceed to force a witness to testify against his will, it is necessary to proceed in

accordance with the three strictures of excess, necessity, and of efficacy on the use of force that

we derived above.These principles require that any testimony compelled must be necessary to the end for

which it is compelled, the determination of guilt or innocence in a court of law. This means that

if the prosecutor (the state) can prove the guilt of the defendant without any compelledtestimony, he must forego that testimony. Likewise, if the defendant can prove his innocence

without compelled testimony, the state may not compel that testimony on his behalf.

Surprisingly enough, this exclusion of testimony is one of the exclusions that JeremyBentham allows in Rationale of Judicial Evidence [11]. He allows this exclusion on utilitarian

grounds rather than moral grounds as we have done, virtually the only ground he allows any

exclusion of evidence upon. All evidence has a cost either in terms of vexation, expense or delay.

No evidence, except that which is without relevance to the ends of justice, will be excluded if

someone is willing to bear the cost of introducing it. But when the person who is to bear the costobjects and asks for exclusion, the judge is to consider the problem by doing a cost-benefit

analysis. First he is to determine the amount of mischief that a misdecision would cause, more orless for crimes of greater or lesser seriousness and depending on the punishment of the

defendant. Then he is to decide what the probability of a misdecision would be without the

evidence in question. Against this lot of mischief is to be placed the vexation, expense and delay

20


22/31


that introduction of the evidence will cause. If this is greater than the mischief that could come

about without the evidence, the evidence is not admitted.In the case of evidence not necessary to the ends of justice, there is no mischief to be

done and there must be some cost, however small. As Bentham puts it: There is more or less to

put in one scale; there is nothing to put in the other. In the case o

Documents

Fifth Amendment, Right or Privilege (V04)