This is part 15 of a series I am posting on LW. Here you can find the entire Sequence on Legal Personhood for Digital Minds.
This section discusses the Fifth Amendment, and specifically the right to remain silent during an interrogation. It primarily provides background information and analysis for the next section.
The Fifth Amendment of the US Constitution states:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Suppose a digital mind stands accused of a capital or otherwise infamous[1] crime (infamous crimes being those that can result in imprisonment), is it entitled to Fifth Amendment rights? For example, take the question of double jeopardy: could a digital mind which has been accused and tried for an infamous crime, and found innocent, be infinitely tried over and over again for the same crime? If not, does its right to not “be subject for the same offence to be twice put in jeopardy of life or limb” arise from its legal personality, or from elsewhere?
Does a digital mind have the right not to be “compelled in any criminal case to be a witness against himself”? Can it be “deprived of life, liberty, or property” without due process of law? Can it have its private property taken for public use, without just compensation?
The Fifth Amendment provides persons with numerous protections. For this paper, we will focus on the right to remain silent and avoid self-incrimination as an example in order to provide some background to explain the reasoning in the next section.
Fifth Amendment rights to remain silent and avoid self-incrimination extend to both interrogations by the police after a person is detained as well as a person’s behavior in trial. In fact the “privilege to avoid self-incrimination” imposes a broad duty upon law enforcement and the courts to ensure that a confession or self-incriminating statement was not coerced. This privilege, as the court wrote in Malloy v. Hogan;
“is fulfilled only when the person is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will’”
Courts have clarified the burden of proof which law enforcement/courts must meet in dealing with self-incriminating statements in cases such as Bram v. United States;
“The rule is not that, in order to render a statement admissible, the proof must be adequate to establish that the particular communications contained in a statement were voluntarily made, but it must be sufficient to establish that the making of the statement was voluntary; that is to say, that from the causes, which the law treats as legally sufficient to engender in the mind of the accused hope or fear in respect to the crime charged, the accused was not involuntarily impelled to make a statement, when, but for the improper influences, he would have remained silent"
Law enforcement and courts seeking to utilize a confession or self-incriminating statement must ensure that the statement was “voluntary” in the sense that the circumstances surrounding the statement were not coercive. In the context of police interrogations, for example, individuals must be provided the chance to consult with an attorney as well as being made aware not only of their right to do so, but also of the fact that if they cannot afford counsel then a public defender will be provided for them. The court elaborated on this in Miranda v. Arizona;
“In order fully to apprise a person interrogated of the extent of his rights under this system, then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that, if he is indigent, a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent -- the person most often subjected to interrogation -- the knowledge that he too has a right to have counsel present.”
We should pause here to note that this particular element of the Miranda decision, which states that a person must be actively informed of their right to counsel, does seem to contradict some of the rationale behind the “capacity” elements of the prongs of TPBT. TPBT postulates that a person can claim rights if they possess the “capacity to understand” those rights, but explicitly disclaims the idea that they must be informed of those rights to possess them. As we wrote in the section on Formalizing Rights & Duties;
“Whether or not the person fully understood what they were signing onto is secondary. What really matters is that there existed a possible series of actions by which they could have come to understand [...] and they were not blocked from taking said actions.”
While we wrote this in the context of understanding duties, it does accurately mirror the TPBT capacity test for understanding rights as well. Certainly this principle is diametrically opposed to the court’s standard as it wrote in Miranda, where a person must actively be informed of not only their rights but even the procedure (availability of free counsel) by which those rights can be exercised. How can we square this disconnect between how courts treat Fifth Amendment rights and TPBT’s approach to “capacity to understand”? There are a few possible answers.
First we might say that the environment of a police interrogation could realistically serve to leave a person “blocked from taking (made so they do not have the capacity to take) said actions”. Courts have recognized that intense interrogation environments can have deleterious psychological effects on those being interrogated, which is part of what has led to the requirement that they ensure per Ashcraft v. Tennessee that the “totality of the circumstances” did not place the person undergoing interrogation under such duress that their “will was overborne” per Haynes v. Washington. Perhaps then we can take the view that courts are guarding against the possibility that placing a person in a stressful environment such as an interrogation might serve to leave them, at least in some cases, physically incapable of coming to understand their rights in such an environment, without being proactively informed of them. On a simpler level, one can argue that when locked in a holding cell, there is no realistic way for someone being detained to learn what their rights are absent being informed of them.
Another interpretation might be to consider Miranda rights by examining the bundle of rights and duties granted to law enforcement and the courts. Law enforcement and the judicial system have a right to use self incriminating statements against a person to facilitate a conviction or justify an arrest. However, they also have a duty to ensure that said statements were made voluntarily. Law enforcement/courts cannot exercise their right without being bound by their duty, thus these are bundled together.
Indeed, the duty to control the “totality of the circumstances" in which a confession occurs does not fall to the person being interrogated (who has the right to remain silent) but rather to the law enforcement agents seeking the confession. As such it seems logical to bundle this duty with their rights, instead of the rights of the person confessing. By this logic, when we consider that the person being interrogated must be informed of their right to counsel, and to remain silent, this is not an extension of the interrogated person’s rights so much as it is the fulfilment of associated duties held by another party (law enforcement and/or courts).
These interpretations are not mutually exclusive, and we will continue our discussion on the basis of accepting both interpretations as valid methods by which to make sure TPBT accurately backtests against all the court’s previous interpretations surrounding legal personality.
"Infamous crimes" are thus in the most explicit words defined to be those "punishable by imprisonment in the penitentiary." - Justice Gray’s opinion in Mackin v. United States, citing Act of June 17, 1870, c. 133, § 1; 16 Stat. 153; Rev.Stat. D.C. § 1049