This is part 16 of a series I am posting on LW. Here you can find the entire Sequence on Legal Personhood for Digital Minds.

This section details how to apply Three Prong Bundle Theory to the Fifth Amendment in practice when considering digital minds.

In the previous section we discussed the right not to self-incriminate under the Fifth Amendment, however TPBT has two other prongs we must consider when deciding whether a digital mind would hold a legal personality sufficient to claim such a right. Let us then now discuss the duties, which a person must have the capacity to understand and hold to, that are bundled with the right not to self-incriminate.

A duty is "bundled" with a right when a person cannot claim a right without becoming bound by a duty. One such duty which comes bundled with the right not to self-incriminate, is the duty to testify when said testimony could not possibly be incriminating. Courts have consistently held that individuals who have been granted immunity from prosecution, for example, cannot plead the Fifth and so must testify when compelled. As the court wrote in its opinion on Brown v. Walker;

“if the statute does afford such immunity against future prosecution, the witness will be compellable to testify [...] it was intimated that the witness might be required to forego an appeal to the protection of the fundamental law, if he were first secured from future liability and exposure to be prejudiced, in any criminal proceeding against him, as fully and extensively as he would be secured by availing himself of the privilege accorded by the constitution.”

In fact the concept of a “duty to testify” that a person has when they are not under threat of criminal prosecution (and thus no statement can be considered “self-incriminating”) has been explicitly confirmed as a duty in cases such as Kendrick v. Commonwealth;

“We think that these provisions of the law [...] gives to the witness full indemnity and assurance against any liability to prosecution for a disclosure which he could be called upon to make as to his own implication or complicity in the unlawful gaming as to which he was sworn and sent to the grand jury to testify; it was the duty of the witness to testify"

This duty was phrased differently in Brown v. Walker, where it was referenced as the “duty of disclosure”, yet its nature remains substantively the same. Thus it can be concluded that the right not to be compelled to testify in a self-incriminating fashion is bundled with a general duty of disclosure/testimony, when such disclosure/testimony is not self-incriminating.

Another duty which is bundled with various rights provided to persons by the Fifth Amendment, is the duty to obey summons and subpoenas. A person who can be compelled to testify can, of course, be compelled to appear (or in modern times communicate virtually) in order to facilitate such testimony/disclosure. As the court wrote in Blair v. United States;

“By the first Judiciary Act, the mode of proof by examination of witnesses in the courts of the United States was regulated, and their duty to appear and testify was recognized [...] In all of these provisions, as in the general law upon the subject, it is clearly recognized that the giving of testimony and the 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”

Indeed the above quote is not the only one to “bundle” together the duty to appear and the duty to testify when the Fifth’s protection against self-incrimination does not apply. The court explained quite clearly in Blackmer v. United States;

“It is also beyond controversy that one of the duties which the citizen owes to his government is to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned”

And again in United States v. Monia where the bundling of the right not to self-incriminate, and the duty to appear when summoned, were referred to as a “bargain” made by Congress;

“A subpoena is, of course, such a process, merely a summons to appear [...] There never has been a privilege to disregard the duty to which a subpoena calls. And when Congress turned to the device of immunity legislation, therefore, it did not provide a 'substitute' for the performance of the universal duty to appear as a witness—it did not undertake to give something for nothing. It was the refusal to give incriminating testimony for which Congress bargained, and not the refusal to give any testimony”

There could be some debate over whether the duties to “appear” when required and to “testify” when required are separate duties, or rather a single duty to “appear and testify”. While this is an interesting semantic distinction, it is immaterial to the matter at hand, which is determining which duties are bundled with the right not to self-incriminate. Whether or not these two are in fact merely parts of a single broader duty, it can still be concluded that the right not to be compelled to testify in a self-incriminating fashion is indeed be bundled with the duty of “attendance upon court or grand jury in order to testify”. No person who can claim the right to not self incriminate under the Fifth may do so without also being bound by the duty to obey summons.

Now we have sufficient information to determine the potential of a digital mind to qualify for the right to not be compelled self-incriminate from a duties perspective. A digital mind must be capable of understanding its duty to appear and testify in non-incriminating fashion when such is required, and it must be capable of holding to said duties. These satisfy the first two prongs of TPBT. With this in mind let us turn to the final prong, consequences.

The consequences for failing to obey a subpoena (a summons) or failing to testify even when ordered to, despite that testimony not being self-incriminating, vary from damages and requirements based (fines, further orders to testify) to restraint based (imprisonment for contempt of court). Thus we conclude that to claim the right not to self-incriminate via legal personality, an entity must be vulnerable to all three types of consequences. With this, we now have a thorough precedent based test by which to evaluate any assertion of legal personality including the right not to self-incriminate which may be claimed by digital minds in the future, using TPBT.