Conventional collectivist created authority is a deception in consciousness. You are your own Authority!

Thursday, March 14, 2013

Eroding the Fifth Amendment

If attorneys for James E. Holmes, the criminal defendant in the Aurora Colorado movie theater shootings recommend their client plead not-guilty by reason of insanity, his judge has said that he can be subjected to a “truth serum” injection and a polygraph examination as part of an evaluation to determine if he was legally insane at the time of the July 20 massacre.
Holmes will be administered a powerful drug to reduce his inhibitions in a procedure called a “narcoanalytic interview” while hooked up to a polygraph machine for the purpose of evaluating his credibility. Presumably, if he refuses to submit, he’ll not be allowed to claim insanity as a defense.
Obviously, anything he says while undergoing the interview will be taken down and used against him at his trial. In short, he must give up his right to remain silent, a fundamental constitutional right under the Fifth Amendment in the Bill of Rights. That could very well have disastrous consequences for his defense.
I was trained to apply the legal courtroom standard that in a criminal case the prosecutor has the burden to prove each and every element of the alleged crime beyond a reasonable doubt, including the fact that the accused exhibited the necessary intent and mental capacity to know what he was doing and that what he was doing was wrong. The defendant has no obligation to prove anything.
This boils down to a legal requirement that a potentially insane accused is assigned the burden of proving that he’s not insane. It’s akin to compelling a mentally incompetent defendant to prove his or her own mental incompetence, something that is not likely given that the person is probably retarded or insane in the first place – one would have to be competent to accomplish that task.
Naturally this prospect has his defense attorneys up in arms. They've filed motions objecting to it before their client’s plea hearing on to multiple counts of murder and attempted murder. He is charged with killing 12 people and wounding 70 at a midnight showing of batman film “The Dark Knight Rises.”
If he actually is insane or mentally incapacitated it would be easy for his inquisitors using skillful cross-examination to manipulate the interview in such a way as to make things appear that he was perfectly sane and mentally competent at the time of the crime. That’s precisely why our centuries old justice system permits defendants to remain silent and make their accusers prove the case.
What is next in the evolution of American criminal law after forcing defendants to take truth serums and undergo polygraph examinations if they wish to plead not guilty?
Can you imagine an Orwellian process like this in which defendants in every criminal case are required to prove it if they plead not guilty? The Fifth Amendment would evaporate completely right before our eyes.
This situation illustrates the problem with the insanity defense in American jurisprudence.
What possible difference does it make whether or not a person was insane when considering the question of whether or not he committed the acts forming the basis of the crime?
Insanity or mental incapacity should not even enter the picture until the trial is over and the accused is found guilty. The jury should determine only whether the accused is the person who committed the crime. They aren’t psychiatrists.
If the verdict is not-guilty then the question of mental state need not ever be considered. If guilty, it should affect only the disposition of the sentence.
Throughout the process the defendant should retain the right to remain silent and his Fifth Amendment rights should be respected. If he’s found guilty the trial is over and the question becomes what to do with him.
In that situation Fifth Amendment rights do not apply.
There is simply no good reason to erode the Fifth Amendment during the accusatory phase of the proceedings.
It’s unconstitutional.


  1. Insanity or mental incapacity should not even enter the picture until the trial is over and the accused is found guilty.

    I was itching to make this point until, most of the way through, you did! ;-)

    In either system (the one we have today and the one you propose) defendants should think twice about claiming insanity. Once in the clutches of the involuntary commitment industry, one will probably never escape, while an identical criminal who did not plead insanity might serve time and be paroled.

  2. i have been out of law school for over 20 years and never practiced, so i may be rusty on this, BUT...doesn't raising an affirmative defense like NGBRI or self-defense shift the burden of proof and production over to the defendant? can you raise an affirmative defense and raise self-incrimination issues at the same time?

    1. No, it does not shift the burden of proof which is always with the prosecution to prove every element of the crime, including state of mind, but affirmative defenses may be employed by the accused to rebut the prosecutions case by showing that there is a reasonable doubt. In civil cases affirmative defenses are proved by a perponderance of the evidence.

  3. i dont think what you are saying is true, are you talking about australian law? in the US raising an affirmative defense shifts the burden of proof of the defense asserted to the defendant albeit at usually a lower statndard of proof

    cf. 18 USC 17 (federal law)

    (a) Affirmative Defense.— It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.
    (b) Burden of Proof.— The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

    most us states follow this course though at least one keeps the burden on the prosecution