The 5th Amendment one shall be compelled in any criminal case to be a witness against himself…” “no History, Policy, and Rationales: 1. Judge Friendly’s Warning: Beware of phrasing that bypasses analytical thought” “eloquent It Generally hurts Only applies to those who have broken the law, typically Occasionally allows an innocent to be quiet avoiding bad performance It is natural that when a question is posed, people feel a moral obligation to respond This rule is contrary And prevents convictions, restitution to victim 2. Cruel Trilemma: The Rule was created to avoid one being placed in a position, if under oath: Argument: 1. themselves Incriminate 2. If lied, perjure themselves 3. If stayed silent, would be in contempt Note: Rationale is the strongest one Explains why brought to all proceedings, not just criminal…explains distinction with testimonial and non testimonial evidence, with the former trial ‘testimony’ and the person being a witness against himself subject to the cruelty of trillema while latter not But, premised largely on the Religious, supernatural effect of the oath…not really applicable anymore… Alschuler: Peculiar Privilege” “The At common law, religious damnation, and supernatural sanctions for falsely invoking God’s name, were risked as well as imprisonment if under oath and lied Damned your soul Oath was coercive by Conscience” and considered torture “Rack Just the same as physical torture, if not more! At Common Law then, there was no right to silence, but instead right to method information gathered In fact—they didn’t have counsel then, so they had to speak the by Conscience” by not putting them under oath, which is “Rack typically what happened Solution: This exists whenever a witness doesn’t want to testify, although perhaps not incriminating themselves, it incriminates someone Don’t put them oath, as CL did Avoid Perjury Europe:
The 5th Amendment “no one shall be compelled in any criminal case to be a witness against himself…” History, Policy, and Rationales: 1. Judge Friendly’s Warning: Beware of “eloquent phrasing that bypasses analytical thought” It Generally hurts Only applies to those who have broken the law, typically Occasionally allows an innocent to be quiet avoiding bad performance It is natural that when a question is posed, people feel a moral obligation to respond This rule is contrary And prevents convictions, restitution to victim 2. Cruel Trilemma: Argument: The Rule was created to avoid one being placed in a position, if under oath: 1. Incriminate themselves 2. If lied, perjure themselves 3. If stayed silent, would be in contempt Note: Rationale is the strongest one Explains why brought to all proceedings, not just criminal…explains distinction with testimonial and non testimonial evidence, with the former ‘testimony’ and the person being a witness against himself subject to the cruelty of trillema while latter not But, premised largely on the Religious, supernatural effect of the oath…not really applicable anymore… Alschuler: “The Peculiar Privilege” At common law, religious damnation, and supernatural sanctions for falsely invoking God’s name, were risked as well as imprisonment if under oath and lied Damned your soul Oath was coercive “Rack by Conscience” and considered torture Just the same as physical torture, if not more! At Common Law then, there was no right to silence, but instead right to method information gathered In fact—they didn’t have counsel then, so they had to speak the “Rack by Conscience” by not putting them under oath, which is typically what happened Solution: This exists whenever a witness doesn’t want to testify, although perhaps not incriminating themselves, it incriminates someone Don’t put them oath, as CL did Avoid Perjury Europe: trial
Criminal%20Procedure%20-%20Lerner%20-%20Fall%202010.docx