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Absolute right to remain silent

In the February 2010 and March 2010 issues of Liberty Tree, the analyses of compelled testimony, the federal immunity statute (18 U.S.C. § 6002) and their relationship to the exercise of one’s Fifth Amendment right centered on the 1972 Supreme Court case Kastigar v. United States (406 U.S. 441). The question decided in that case was “whether the United States Government may compel testimony from an unwilling witness, who invokes the Fifth Amendment privilege against compulsory self-incrimination, by conferring on the witness immunity from use of the compelled testimony in subsequent criminal proceedings as well as immunity from use of evidence derived from the testimony.”

Notice that, as usual, the court refers to the privilege against self-incrimination, rather than the right not to be compelled to be a witness against oneself.1 This is a common occurrence, not only because that is often the phraseology used by the person claiming the protection, but also because many Fifth Amendment cases, like this one, are derived from grand jury proceedings, where the privilege exists, even if the right does not. In a nutshell, while the right prohibits the government from forcing you to take the witness stand in a criminal case against you, the privilege prohibits the government from forcing you to answer questions that might implicate you in a crime in situations (like a grand jury investigation into crimes of others) when they can force you to be a witness. It is this latter concept that I want to look at a little closer here.

 

Forced witnesses

 

Where does our government, one whose every power is derived from the people, get the power to compel anyone to be a witness in any situation whatsoever? The court in Kastigar cites Blair v. United States, 250 U.S. 273 (1919) for the proposition that “the power of government to compel persons to testify in court or before grand juries and other governmental agencies is firmly established in Anglo-American jurisprudence.” Note the reference to “Anglo-American,” because the idea of compelled testimony comes from England. You know, land of kings and such. Justice Pitney, for the Blair court, said:

Long before the separation of the American Colonies from the mother country, compulsion of witnesses to appear and testify had become established in England. ... When it was that grand juries first resorted to compulsory process for witnesses is not clear. But as early as 1612, in the Countess of Shrewsbury’s Case, Lord Bacon is reported to have declared that - ‘All subjects, without distinction of degrees, owe to the King tribute and service, not only of their deed and hand, but of their knowledge and discovery.’ (250 U.S., at 279) (emphasis added)

 So there we have it. Our government claims the power to compel the testimony of every person based on the historical claims of the kings of England! Since you owe the king your knowledge, what right do you have to welsh on your debt by refusing to give it to him?2 In other words, being jailed for contempt for refusing to testify is really just another version of debtor’s prison. Perhaps to try to soften the concept of a debt owed to the king, the rhetoric eventually evolves into a debt to society. Justice Pitney continues:

 [I]t is clearly recognized that the giving of testimony and attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the government is bound to perform upon being properly summoned, and for performance of which he is entitled to no further compensation than that which the statutes provide. The personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public. (250 U.S., at 281) (emphasis added)

 Further, in United States v. Bryan (339 U.S. 323, 331 (1950)), Supreme Court Chief Justice Vinson says, “For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man’s evidence.

 Yet, where did the public get this “right” to every man’s evidence? And by what principle does the public obtain the “right” to the sacrifice of the individual?

 

Every man a king

 

In 1793, Supreme Court Justice James Iredell rightly distinguished between the political situations here and in England:

 It will be sufficient to observe briefly, that the sovereignties in Europe, and particularly in England, exist on feudal principles. … No such ideas obtain here; at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects … and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty. Chisholm v. Georgia, 2 U.S. 419, 471 (1793) (emphasis added)

 Thus, even if a king has a right to the testimony of his subjects, in America, each of us are kings — but we have no subjects from whom to demand that right. And if none of us individually have the right to demand the testimony of any other person, then the government — which is merely our agent, possessing only those powers that have been delegated to it from us — can have no such right either. After all, we can’t possibly delegate powers that we don’t possess ourselves.3 Likewise, the public — which is merely the collection of all individuals — can possess no greater rights than the equal rights of each individual. Therefore, despite Justice Vinson’s declaration to the contrary, the public can have no right to any man’s testimony. Certainly the public might request someone’s testimony, but they cannot rightfully demand it; and just as certainly, they cannot rightfully punish anyone who declines such a request.

 

To speak or not

 

While the First Amendment guarantees our individual God-given right to freely speak our minds, it just as surely guarantees our right, if we be of that mind, not to speak. In that sense, the Fifth Amendment is just a subset of the First, explicitly enumerating a particular circumstance where that right not to speak must be honored. Yet, even there, the courts have decided that through legislative action, the right might be “supplanted.” (Kastigar, at 462.)

 Having shown that government’s power to compel testimony violates the rights of those so compelled, there is still a purpose to be served by immunity statutes. After all, the discussion so far has been about unwilling witnesses, but there may be times that a witness would be willing to testify against others if he is indemnified against his part in the crimes. In such cases, compulsion is not necessary, it is only an additional incentive. The bottom line is that victims would ordinarily be willing to testify against those who commit crimes against them — and if there are no victims, then there is no crime. Meanwhile, the incentive aspect of immunity would encourage the testimony of participants in some crimes which might otherwise go unpunished. What then, should be done in cases of crimes like political bribery or government misdeeds? Perhaps in conjunction with immunity statutes, legislation that makes a person’s acceptance of government office a simultaneous waiver of his or her right not to testify concerning actions taken under the auspices of that office would be sufficient to obtain the necessary testimony.

 But in the final analysis (that is, this one), we can never be free as long as we let government officials treat us as their subjects.

 


1. For a more complete treatment of the distinction between the two, see “Compelled Evidence” in issue #245 of Reasonable Action (Winter 2004).

2. Surely, it’s just a matter of time before they use good old Lord Bacon to justify mandatory government service, such as has been espoused by Obama and his chief of staff Rahm Emanuel.

3. For more on this issue, see “Government? Agents!” in issue #248 of Reasonable Action .


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