The Independent Variable - Matt Haugland

Sunday, January 18, 2009

5th Amendment

I wonder why the law does not require defendants to testify in their trial. This makes no sense to me. I understand that the 5th Amendment gives people the right to not testify against themselves. But if their testimony is incriminating, doesn't that mean they're guilty of something?

Maybe we should do away with the part of the 5th Amendment that says one should not be "compelled in any criminal case to be a witness against himself", but still keep the spirit of it -- force them to at least go up on the stand. If they don't want to answer any particular questions, they would still have the right to say "I don't want to answer that because it will incriminate me". The jury can decide how to interpret that.


At 3:40 PM, Blogger Norman said...

In practice I believe this is usually the way it works. It's true the prosecution can't subpoena the defendant, but since the defendant would always be able to skip over anything incriminating, I don't see what the prosecution would gain if they could. And the defendant frequently testifies for the defense, anyway.


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