Thursday, May 23, 2013

It's All Right

Big news yesterday--Lois Lerner, the IRS official who's bad at mathinvoked the Fifth Amendment while appearing before Congress. (Some claim she did it incorrectly by making a statement first--you can't testify on your behalf and then invoke the right against self-incrimination before cross-examination. I have no idea if there's any merit to this argument.)

Some have claimed that this suggests she's guilty of something.  Others have responded you shouldn't infer anything from her refusal to talk.  It is true that you can't make any inferences about guilt when a defendant is silent, but that's just a rule to use in a trial, not outside it.  I suppose there are a lot of reasons to invoke the Fifth Amendment, including just playing it safe, but it's hard to ignore someone refusing to testify, and I think most people make inferences based on that decision.  (Perhaps the Supreme Court ruling on inferences should be overturned, but that's another issue.)

The Fifth Amendment right against self-incrimination originates centuries ago, and was created to avoid the "trilemma." Let's say you're a guilty criminal defendant in England in the 1600s (and the crime can simply be that you're a member of a religion unpopular with the state). Without a right to remain silent, you didn't have any good choices:  1)  You can admit your guilt and be punished, probably killed. 2) You can deny the truth under oath and condemn your soul.  3)  You can say nothing and be tortured until you talk.  That's why the right--adopted by the Founders in the Bill Of Rights--was created.  But if Lois Lerner wants to invoke it, she shouldn't expect the public to think that means nothing.


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