Compelled Evidence

(or, Why don’t we just bring back the Inquisition?)

by Dick Greb

“No person … shall be compelled in any criminal case to be a witness against himself, …”

Article V, Bill of Rights, Constitution of the United States

 “In all criminal prosecutions, the accused shall enjoy the right … to have compulsory process for obtaining witnesses in his favor, …”

Article VI, Bill of Rights, Constitution of the United States

In a criminal case, there are two parties—the prosecutor, and the defendant. The two rights enumerated above frame two distinct classes of witnesses with respect to an accused defendant—those whom he has the right to obtain, by compulsory process, to testify for him, in his defense; and those whom the prosecution has the authority to obtain, by compulsory process, to testify against him. Or, more simply, witnesses for, and witnesses against, the defendant.

Comparing these two rights, it should be noted that the 5th Amendment right pertains to the witnesses against the defendant, or the prosecution’s witnesses, while the 6th Amendment right pertains to the witnesses for the defendant. Also, the 6th describes a positive right, while the 5th describes a right by prohibition. That is, you have the positive right to compel witnesses to testify for you (even against their will, if need be). On the other hand, the prosecutor has a nearly identical power, subject to the prohibition of the 5th Amendment, to obtain his witnesses against you. That prohibition is the difference between the two powers. The prosecutor can compel any person to testify against you, except YOU!

The Supreme Court, in its famous Miranda decision¹, characterized the 5th Amendment right not to be compelled to be a witness against oneself as the right to remain silent. It’s at the top of the list of “Miranda rights” the police are supposed to read to you before any questioning. Silence, of course, is the only way to guarantee that you are not providing testimonial evidence which the government will be able to use against you. Particularly today, when the laws being enacted are so voluminous and complicated that the legislators themselves can’t (or at least, don’t) even read or understand them, the smallest bit of information, no matter how innocuous it seems, has the potential of providing a link to evidence the prosecution can use. Thus, exercising your right to remain silent, particularly when in custody of the police, ensures that you will neither unwillingly nor unwittingly become a witness against yourself.

This right doesn’t just pertain when you are in custody, either. Any information which the government is authorized to use as evidence in prosecuting you, cannot be compelled from you. Now, it may be that the information they seek has little or no evidentiary value, and so has little or no chance of actually being used against you in a prosecution, but the issue is not whether or not it will be used, but only whether or not it could be used. In other words, it doesn’t matter if the information being compelled actually helps the prosecution, it is enough that the prosecutor has the authority to use it. An example might be your name or address. Although such information may seem completely devoid of legal danger, it should be quite evident that such information constitutes the testimony of a witness. The proof of this proposition is found in every courtroom, since the first testimony requested of every witness, once they have been sworn in, is to state their name for the record.

Witnesses—the sole route to evidence

The importance of witnesses is that there is no other way to introduce evidence into a trial except through their testimony. For example, if the prosecution wants to introduce a gun as evidence in a murder trial, it must first lay a foundation of identification. That is, it must show that said gun was the one used in the murder—perhaps by having a policeman testify that he recovered a gun from the suspect’s home and kept it in secure custody since that time; and then a technician who testifies that he tested the gun and found that it matches ballistic characteristics with the bullets removed from the victim. In other words, the former testifies as to obtaining and securing the gun, while the latter testifies as to the tests that link it to the crime. It is only by this method that the murder weapon can be introduced into the trial.

One key aspect of the foundational testimony is authentication—that is, testimony which establishes that the evidence submitted is really what it is alleged to be. In the example used above, this would be a major part of the policeman’s testimony—if the policeman could not verify that the gun given to the technician to test was the same one which he obtained from the suspect’s home, then the technician’s testimony is worthless. This is why the ‘chain of custody’² is so important. Maybe you have seen a prosecutor on some television courtroom drama asking a witness if they recognize some document or another; once they do this (and establish its relevance to the case), then said document can be offered into evidence. The Supreme Court has used this concept of authentication as a way to partially mitigate the complete gutting of our right not to be a witness against ourselves. They recognize that authentication of evidence can be incriminating (even if it cannot be considered testimonial), and so they have deigned to allow a 5th Amendment claim against being compelled to provide such authentication.

Parallel rights

One of the reasons some people might have a hard time really understanding the right not to be compelled to be a witness against themselves is because it has often been characterized as a right against self-incrimination. To be sure, they are closely related, both being derived from the same 5th Amendment clause quoted at the start of this article. But there is a critical difference between the two—the former applies only to the defendant, while the latter applies to ALL witnesses! That is, nobody can be forced to disclose information which could implicate them in a crime, even if they can be compelled to be a witness. And don’t forget, everybody except the defendant can be compelled to be a witness. So, if a witness, while testifying as to facts about a crime allegedly committed by you, is asked a question to which the answer would provide evidence of his own commission of a crime, that witness can assert his right against self-incrimination, which is nothing more than his right not to be compelled to be a witness against himself. In other words, a person can be compelled to be a witness against you, but in doing so, he cannot be alienated from his right not to be a witness against himself.

Since many criminal enterprises are undertaken by more than one person, this situation occurs fairly often, and so has been dealt with many times. The prosecution has the choice of granting immunity to witnesses who assert said right against self-incrimination. That is, they can officially alienate their authority to use the information provided by the witness (in any prosecution of him for his crime), in order to obtain the information for prosecution of the defendant. Of course, sometimes the government merely gives some sort of deal to the witness, whereby he is guaranteed lighter punishment for his part of the crime to testify against his partners, especially when the lesser participants have been caught.

One aspect of the right against self-incrimination is that the courts have asserted the authority to determine, in any case in which the witness asserts that right, whether or not he legitimately has any real apprehension of prosecution. This is done by an in camera³ review by the judge, which basically means that the judge inquires of the witness his reasons for claiming the right, and decides whether or not the claim is valid. If the judge decides the claim is invalid, then he orders the witness to answer the question put to him by the prosecutor. On the other hand, if he decides the witness has a valid claim, the witness is upheld in his refusal to answer, unless the prosecutor then grants him immunity for his answer. The important thing to remember is that the right against self-incrimination can only be claimed on a question-by-question basis, and only applies to one who is already a witness, while the right not to be compelled to be a witness against yourself prevents you from becoming a witness in the first place.

Part of the problem today stems from the fact that the courts no longer seem to explicitly recognize the distinction between these two rights. And since the latter right is less absolute—not to mention that the judge gets to decide whether you can assert it or not—it’s not surprising that the courts treat all claims of 5th Amendment rights as claims of the right against self-incrimination. The two circumstances which epitomize this situation for Patriots involve summonses and the filing of tax returns.

Summonses and tax returns

Let’s start with summonses. The Courts have pretty consistently ruled that a person who, in response to a summons, appears at the designated time and place and responds to each question with a claim of 5th Amendment right, has substantially complied with said summons. This is because they recognize that the information being requested by the IRS is incriminatory, and can most certainly be used to prosecute you for a crime. However, in so ruling, they ignore the more fundamental right not to be forced to testify at all. They pretend that the IRS has the power to force you to appear and to give testimony. Obviously, the testimony they want to extract from you concerns yourself, and can be used in any prosecution against you. And yet, time after time the courts fraudulently and unconstitutionally force people, by court order, to be a witness against themselves. The language used on the summons confirms that its intention is to force you to be a witness. I personally received a Form 6638, Summons: Income Tax Return, which states, “You are hereby summoned and required to appear before _________, an Internal Revenue Service (IRS) officer, to give testimony and to bring for examination the following information related to the tax liability of the person identified above...” Now, if the person identified in this particular situation was someone other than me, then this language would not necessarily make the summons fraudulent on its face. But, it wasn’t someone else—it identified me as both the person being summoned and the person to whom the information related. In fact, the first category of documents requested was “All documents and records you possess or control about income you received for the years...” (Emphasis added) It alleged that I was thereby required to be a witness against myself, yet this is exactly what the 5th Amendment prohibits. Thus, such a summons is unconstitutional on its face.

Form 6638 is not the only form of summons the IRS uses. There are also Forms 6637, Collection Information Statement, and 2039, Summons. While these forms may have a legitimate application as third-party summonses, whenever they are used as first-party summonses, they are also unconstitutional.

The second circumstance of special interest to Patriots is the filing of tax returns. The Supreme Court has said that one cannot “draw a conjurer’s circle around the whole matter” and refuse to file any return at all,⁴ while at the same time saying that the information given on a tax return is testimonial in nature. In other words, the Supreme Court Justices spoke out of both sides of their mouths—admitting that a tax return constitutes the testimony of a witness, and, in spite of the fact that the 5th Amendment prohibits the government from compelling a person to be a witness against himself, still upheld the conviction of a man for failing to file a tax return. Did you get that? The Supreme Court said that you can be imprisoned for FAILING TO BE A WITNESS AGAINST YOURSELF, and your inalienable rights be damned. They justified it by characterizing the return information as “routine financial data,” and then, by falsely rationalizing that such information wouldn’t be incriminatory, they concluded that you couldn’t legally refuse to file a tax return altogether on the basis of your 5th Amendment “privilege against self-incrimination.”

In an apparent attempt to give this decision some semblance of justice, the Court said that if you wanted to claim that some particular information would be incriminating, you could enter a statement to that effect in lieu of the required data. According to their policy with respect to taxes, you can be compelled to be a witness against yourself, and required to testify under oath with respect to highly personal financial activities and records, and all that is perfectly Constitutional. However, if the answer to some question would implicate you in a crime, then you could refuse to answer on Constitutional grounds; except naturally, the refusal itself indicates that you believe you are engaged in criminal activity. Not to mention that the Court shamelessly reserves to itself the authority to determine the validity of your claim of self-incrimination, based upon whether you can prove a realistic danger of being prosecuted. In other words, if you can show how a particular item of information will implicate you in a crime or lead to the discovery of evidence of a crime you committed, then you may be excused from giving them that particular item. Of course, after proving your claim, they’ll have all sorts of leads by which to secure that information “on their own.”

In this way, the Court twisted the protection of the 5th Amendment into a trap. And in that dereliction of their oaths to defend the Constitution, they advanced the virtual enslavement of the American people by income taxes. They had a great opportunity, rather early on in the history of the income tax (1927), to establish the limits of such taxes by preserving our rights not to be forced to provide the government any testimony, books, records, or any other evidence that can be used against us in criminal cases. Instead they trampled the Constitution by allowing Sullivan’s conviction to stand, clearly violating his right not to be a witness against himself.

Another way to look at this travesty is by comparing it to the corresponding situation in a criminal case. Everyone agrees that the defendant can’t be forced to take the stand—that choice is his alone to make. But, if the Supreme Court treated this the same as tax returns, then nothing prevents Congress from enacting a law which requires all criminal defendants to testify under oath about all manner of things, except when, in the judge’s opinion, the defendant could show he had a reasonable fear of prosecution because of his answer to a particular question. Or since non-criminals couldn’t, by definition, incriminate themselves, perhaps a law requiring every one of us to file monthly (or even daily) reports on our whereabouts, activities, and contacts. Following the seditious reasoning of the Sullivan decision to its logical conclusion, there is no reason to believe the Supreme Court wouldn’t give such an egregious law their blessing.

From Star Chamber to 5th Amendment

Historically, the right of an accused person not to be forced to testify against himself is closely related to the right of free exercise of one’s religious beliefs. When the kings and queens of England claimed that they were the ecclesiastical as well as the political sovereign, they enacted laws that prohibited anyone from attending worship services other than those of the official state religion. One consequence of this situation was that anyone who denied such ecclesiastical sovereignty was guilty of heresy. Jurisdiction of such ecclesiastical crimes was conferred on a court known as the High Commission, backed up by the Star Chamber court. While English common law was followed in the secular courts for the trial of felonies, the ecclesiastical courts were given virtually free rein to come up with the procedures by which they operated. The method they invariably chose was that of the inquisition, by way of the oath ex officio.

The way it worked was that a prisoner was brought before the court and forced to take an oath, swearing to tell the truth in all matters into which the court might inquire. Most of the time, he was not given any advance notice of such matters—that is, no indictment of any kind. (Of course, most people in those circumstances had a pretty good idea that it was related to their religious practices.) Once under oath, he was questioned incessantly, in an attempt to trip him up in details; ultimately, the questions were geared toward getting him to confess to his personal religious beliefs and actions—both of which were against the law. Thus, such prisoners were forced to not only accuse themselves, but to convict themselves as well. As time went on, nemo tenetur seipsum accusare⁵ and nemo tenetur seipsum produre⁶ became rallying cries in such prosecutions. Refusal to answer any question was considered an admission of guilt. Refusal to take the oath ex officio resulted in either indefinite imprisonment or torture—both designed to convince the prisoner to take the oath. The end result was that many of the pioneers in the battle for recognition of the right against such compelled testimony suffered horribly. This brief history does not do justice to that battle. For an in-depth examination of the history of this right we hold so dear, read Nobel prize-winner Leonard W. Levy’s book, Origin of the fifth amendment; the right against self-incrimination.

One of the principles involved was the preservation of the prosecutorial, as opposed to the inquisitorial, method of trial. The essential difference between the two is that in the former, the government must develop its case against the accused through interviews of victims and witnesses, and other forms of investigation; in the latter, the government develops its case by coercing (by torture if necessary) the suspect to provide the necessary evidence. Not only were coerced confessions seen to be extremely unreliable method of obtaining truth, they were also recognized to be cruel. Not just cruel in the torture often employed in obtaining them, but cruel in the sense that it violated his natural rights to force a guilty man into a position where he must choose between subjecting himself to earthly punishment by admitting guilt or subjecting himself to the punishment of God Almighty by falsely swearing to his innocence. This was especially true when the crime was refusal to recognize the king or queen of the time as the spiritual sovereign; swearing to your innocence was swearing that God was not Sovereign—a sure way to bring a fate worse than death.

One interesting aspect of the history of the right against compelled testimony that was brought out in Mr. Levy’s book was the continuous expansion of the right. In the early stage, it centered largely on the cruelty of the oath ex officio—forcing a man to answer questions under oath concerning matters of which he had been given no prior notice. That is, no formal accusatorial instrument such as a presentment or indictment was given to the accused; he was forced to accuse himself. Eventually though, especially in some of the more celebrated cases of the time, the defendants were given formal indictments; and then, the arguments shifted somewhat to encompass the right not to convict himself by his own words either. Through such expansion of the recognition of our natural rights, the 5th Amendment protected our right not to be compelled to produce evidence against ourselves.

What went wrong?

Shamefully, we have (by our inaction at the very least) allowed that trend to be reversed in just a few short generations. In 1966, the Supreme Court held that neither the 5th Amendment nor the 4th protects a person from having his blood forcibly extracted from his body (in spite of his explicit protest) to use as evidence against him for a “driving while intoxicated” charge. The Court, quoting from Miranda, states:

“All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government—state or federal—must accord to the dignity and integrity of its citizens. To maintain a fair state-individual balance, to require the government to shoulder the entire load, * * * to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.” ⁷

That sounds like the Court is heading in the right direction, but then they go on to say:

“Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.” ⁸

Thus, the highest court in the land makes a distinction between cruelly compelling evidence from an accused’s mouth and cruelly compelling evidence from his veins. The former is forbidden, while the latter is said to be perfectly fine. The absurdity of such a distinction is sickening.⁹ But the unethical black-robed liberty thieves continued to erode our rights in later cases too. January 22, 1973 was a banner day for all who desire the destruction of our Constitution. On that day, the Supreme Court handed down two separate opinions further violating our rights. In the first of these cases, the Court held that forcing potential suspects (20 of them!) to read into a recording device the transcript of intercepted conversations from an investigation into violations of federal gambling laws did not violate their 4th or 5th Amendment rights.¹⁰ They rationalized this travesty by claiming that the voice exemplar was to be used only to identify the person whose conversation was intercepted (as if that was not in itself a violation of their rights), but not for any testimonial or communicative evidence—although naturally, once they were so identified, the intercepted conversation would be communicative evidence. Of course, no mention is even made of the fact that the federal government was never granted any power to enact laws against gambling in the first place.

In its very next case, the Court made a similar ruling on handwriting exemplars demanded of one suspect in an investigation into theft of interstate shipments.¹¹ Again, since the exemplar was ostensibly only to identify the suspect as the author of certain writings, the Court claimed that such evidence was not testimonial or communicative, and thus, not violative of his rights. It is interesting to note that the above two cases were appeals of contempt convictions for refusing to give the demanded exemplars. Thus, the Supreme Court condones the imprisonment of suspects (and even potential suspects) for refusing to provide the government evidence with which they could be convicted of crimes—the exact injustice from which the 5th Amendment was designed to protect us. This “non-testimonial” compulsion which the Court allows also extends to fingerprinting, photographing, measurements, walking, assuming particular stances, making particular gestures, and even modeling a particular item of clothing. Even a blind man can see that the Judiciary is no longer the bulwark of our freedom from a tyrannical government—if it ever really was.

Where do we go from here?

So what can be done about the steady encroachment on this valuable fundamental right? One part of the answer is judicial accountability. The Judicial branch was supposed to work as a check against the usurpation of power by the Executive and Legislative branches; but it has utterly failed in this duty. It has not only accommodated the destruction of our rights and the limitations imposed on the government by the Constitution, it has willfully and knowingly swung the wrecking ball itself. When judges are not slapping gag orders on hapless victims of wrongful tax prosecutions, barring them from presenting any meaningful defense, they are busy legislating from their benches, attempting to interpose their own will for the will of the legislature (which theoretically is the will of the people, but is now nothing more than the legislators’ own wills). The lack of accountability for judges’ official actions has emboldened them to stoop to new lows of sedition and sophistry. It is long past time to bind them again by their oaths of office and make them accountable for their judicial decisions. One method designed to reverse this dangerous trend is the introduction of legislation which will provide for punishment of judges who fail to uphold the Constitution, or who otherwise violate the liberties of those who come before them. You can help in this effort by pressuring your legislators to sponsor and actively work to enact such legislation. Let them know that if they refuse, you will not only refuse to support them, you will actively work to replace them with someone who understands the necessity for judicial accountability, and will encourage everyone else to do likewise. Perhaps when their unlawful actions have tangible penalties, judges will start respecting the Law of the Land again. Only then will we be able to enjoy once more the Blessings of Liberty and Justice for all.

An even more important part of the answer is education—unless we can convince the general public of the importance of preserving our hard-won liberties, we will have nothing to leave our children and grandchildren except a legacy of socialism, slavery, and totalitarian tyranny. And all of the blood, sweat, and lives spent by generations of Americans from the founding of this great Republic until today will have been squandered by our apathy and ignorance. God forbid that we let that happen. Help educate your fellow Americans by joining with other freedom-loving individuals in supporting the Liberty Works Radio Network, an over-the-airwaves media outlet controlled by Patriots, not mega-corporations. You can become a member of the LWRN Fellowship for annual dues of $99, or if you prefer, monthly dues of $10. Each member will enable Liberty Works Radio Network to expand its broadcasting reach that much sooner, so encourage your family and friends to do the same. You’ll be hard-pressed to find a more effective means of educating the public for just 27¢ a day! But, of course, these are only suggestions—do whatever you can think of that will break the government-induced hypnosis of our fellow citizens. Do it as if the life of our Republic depends on it, because it surely does.