Incrimination Recriminations: Amend the Fifth, Don’t Plead it

First, what will become one variation of my mantra of choice: I’m not a lawyer, nor do I play one on TV. While opinions here are in fact the opinions of management, I’m a really small company. Your mileage may vary.

“…(N)or shall (any person) be compelled in any criminal case to be a witness against himself…”

Fifth Amendment to the United States Constitution.

A pretty simple sentence, that has been the cornerstone of a lot of criminal trials and some significant legislation, most famously in “Miranda v. Arizona, 384 U.S. 436 (1966)”, which says that upon arrest, you have the right to be told that anything you say can and will be used against you, and that you are entitled to legal representation before speaking. That got me to thinking: We’ve all seen accounts of, or heard of, drug busts, organized crime arrests, white and blue-collar crime alike, that have used wiretaps or other voice-gathering equipment to secure convictions of those arrested.

It’s probably safe to say that virtually none of those suspects had waived their fifth amendment rights, and, even when those wiretaps were legally authorized, all of the suspects had reasonable expectation of privacy (their own home, office, etc.). Can a judge authorize a warrant voiding a suspect’s Miranda rights (and no, I’m not referring to the Patriot Act, that’s a whole nother kettle of fish)? And yet, when a legally admissible wiretap shows the suspect agreeing to hire a hitman, or buy/sell drugs, or embezzle, said suspect is in fact incriminating him or herself. The right to avoid self-incrimination is pretty useless, until after the suspect is arrested and in custody. A whole branch of investigative criminology is based on trapping the suspect, or making him incriminate himself, or otherwise being a witness against himself, if only by violations of that expectation of privacy.

Along with the hypocrisy of this, we also treat the client/lawyer privilege differently as well. If the prosecutor presents a taped conversation of the accused confessing to his lawyer, he would be laughed out of court, if not disbarred. If he presents a taped conversation (with warrant), of the same confession to his private secretary, it is likely admissible – even when he had that same expectation of privacy.

A really important distinction for me in this though: I DO think that justice is justice, and people doing bad things should get locked up. I simply believe we shouldn’t pretend we’re providing “protections” that we aren’t. And, more importantly perhaps, that we should NOT be providing. I’ve never quite understood why we don’t treat confessions the way we treat wiretapped evidence: As long as it’s obtained legally (i.e. without the notoriously unreliably and illegal torture), there should be no protection against self-incrimination. Don’t want to get caught? Don’t do it. Amend the Fifth, get rid of the self-incrimination clause, and treat evidence as evidence.