Wednesday, March 28, 2007

Time to modify the Fifth Amendment

With Bush Administration officials taking the Fifth Amendment, now may be a good time to bring out one of my most right-wing beliefs - that judges should have discretion to allow juries to draw inferences from a defendant's exercise of the right against self-incrimination. This would require a constitutional amendment, but it could be worth it.

The right was designed to protect against torture or other physical compulsion to testify, and that right would be preserved - no one has to testify against himself or herself. The right also potentially protects the innocent where circumstantial evidence that the innocent defendant would testify to could be incriminating. The defendant's attorney would be free to bring this possibility up to the jury. Besides being somewhat unlikely, the nature of circumstantial evidence is that it could be innocent-but-incriminating, yet we still allow it. I don't see the difference when the circumstantial evidence comes from the defendant, but I'd still give the defendant the right to withhold it, just at the risk of the jury drawing inferences from that fact.

The biggest drawback I can see is this will tend to make defendants testify, and prosecutors will then try as much as possible to get juries to learn about past criminal records of the defendants. That information is usally off-limits in a trial because it biases juries. Still, past convictions have to be relevant to the testimony - the prosecutor doesn't have a free pass to open up the record. The value of the defendant's testimony would generally outweigh this risk, so I think it's reasonable to allow this modification I'm suggesting. And it would be nice to see the Bush Administration officials squirm a bit more.

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