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The Reporter's Fifth Amendment Paradox

samzenpus posted about a year ago | from the no-information dept.

Privacy 452

Bennett Haselton writes: "The ongoing case of New York Times reporter James Risen -- whom the U.S. Department of Justice wants to force to testify against one of his sources for leaking classified CIA information -- brings up a more general question about the Fifth Amendment: Why are criminal defendants allowed to remain silent, but not third-party witnesses like Risen?" You'll find the rest of Bennett's story below.

In my last article about the Fifth Amendment, I tentatively made the argument that I couldn't see a principled reason why defendants should be able to refuse to answer the question of whether they committed the crime or not. My argument was that you're perfectly entitled to keep information private that is none of anybody's business -- you ought to be able to say, "It's none of your beeswax where I was on the night of the murder" -- however the fact of whether you committed the murder or not, is everybody's business, and I didn't see why the state shouldn't be able to make you choose between saying "Yes, I committed the murder," or "No, I didn't." (If you think the state would then try to convict you of lying if they were determined to railroad you, then my answer would be: If the state is going to railroad you anyway, they can convict you of the murder regardless of whether or not you say you're innocent, so that's not an argument in favor of the right to remain silent. I addressed this and several other counter-arguments in the original article.)

However, the argument I'm making this time is different. I'm saying that regardless of how you feel about the Fifth Amendment granting criminal defendants the right to remain silent, there's no consistent argument that would support giving defendants the right to remain silent, that should not also apply to third-party witnesses.

Here's the basic paradox: Suppose Bob may have committed a crime, and Alice is known not to be an accomplice but appears to have been a witness. If the courts ask both Bob and Alice the same question -- "Did Bob do it?" -- and both of them refuse to answer, then Bob's right to remain silent is protected under the Fifth Amendment, but Alice can be sent to jail -- despite the fact that Bob may have been guilty, but Alice is innocent! To me, that sounds crazy. (As explained at Findlaw and elsewhere, generally third-party witnesses can be required to testify in a way that defendants cannot. Witnesses can only plead the Fifth Amendment right against self-incrimination if they believe that by answering they could incriminate themselves. If it's generally agreed that a person is a third-party witness who was not guilty of any wrongdoing themselves, they can be forced to answer.)

In my first article arguing that defendants should not have the right to refuse to answer "Yes" or "No" as to whether they committed a murder, I wasn't sure of the conclusion, and I invited readers to submit arguments as to why I was wrong (I called the article "Seeking Fifth Amendment Defenders", after all, not "Let's Abolish The Fifth Amendment"). I'm still weighing the arguments coming in, and haven't decided what I believe. However, I'm more sure about the point I'm making this time: that there's no principled, consistent reason to give defendants the right to remain silent but not third-party witnesses. This is after talking to multiple lawyers, law students, and law enforcement officers and asking for any argument to the contrary.

There are two counter-arguments that I've received multiple times, that deserve a response:

  • "The defendant's rights as a presumed-innocent citizen have to be protected until they're actually convicted." This is absolutely an important principle in a free society, but generally those "rights" refer to rights that free people have as well, and that are preserved even if you've been arrested -- for example, the right to free speech and the right to be presumed innocent, are all rights that the general public enjoys as well. Insofar as the Fifth Amendment says you have the right to refuse to answer questions about the particular incident that got you arrested, that's a right that innocent third-party witnesses don't have. Even in the most progressive societies, generally speaking criminal defendants don't get more rights than the public. Why should they get that special right in this case? Maybe there's an argument why, but you'd have to at least make that argument.

    So all the talk about protecting the rights of a criminal defendant, is valid, but it misses the point: Why shouldn't we also give the same rights to a third-party witness who we know is innocent?

  • "It would be very difficult to prosecute many cases without compelling testimony from third-party witnesses." This is true -- particularly in the cases of reporters like Risen, who refuse to divulge their sources' identities, so all you have is the option of compelling the reporter to testify, when you don't even know the defendant's identity yet.

    However, that's really an argument that if you had to choose between having the ability to force defendants to testify, and having the ability to force third-party witnesses to testify, you would choose the ability to question third-party witnesses, simply because there are often more of them and sometimes they're available even when the defendant isn't. But that's not an answer to my question, which is: Is there an argument from moral or legal principles as to why the defendant is allowed to remain silent but third-party witnesses are not? Obviously, we don't actually have to choose between requiring defendants to answer and requiring third-party witnesses to answer. If we place more importance on giving courts the power to gather information, we should empower them to question third-party witnesses -- but wouldn't that argument also apply to requiring answers from the defendant? On the other hand, if we place more importance on individual liberty, we could grant the right to remain silent to defendants who are presumed innocent -- but shouldn't we grant that same right to third-party witnesses that we know are innocent?

    The argument that "it would be too inconvenient to prosecute cases if we couldn't require answers from third-party witnesses", is a bit like saying that if we had to choose between the courts having the power to force Eskimos to testify, and having the power to force non-Eskimos to testify, we would choose having the power to force non-Eskimos to testify, just because there are more of them. But obviously that's not a principled argument as to why we should be able to require answers from non-Eskimos but not from Eskimos.

Of course, many people's sympathy for James Risen might stem not from the fact that he's a third-party witness (to the crime of leaking information), but from the fact that his supporters are sympathetic to the cause of the anonymous leaker, who was exposing what he believed was a corrupt government. (Risen's book is subtitled "The Explosive Book on the Abuse of Power of the Bush Administration", always a way to get fans.) If James Risen knew the identity of someone who had raped and killed a child, but had gone to jail for refusing to name the suspect, probably a lot fewer people would be hailing him as a hero. But that hypothetical just makes the argument from the opposite direction: If we instinctively feel that third-party witnesses to a murder can be forced to answer questions about what they saw, why can't we make a suspect (who is, after all, a special case of a "potential witness") answer questions about what they know as well?

Our courts' current stance on the "right to remain silent" -- that it can be claimed by criminal defendants, but not by innocent third-party witnesses -- seems so absurd to me that I'm going to go out on a limb and say that I think it's an example of groupthink, an assumption that we accept because we're immersed in it, but that few people would ever come up with on their own if they were working from first principles about balancing liberty vs. the rights of the state.

Here's what I mean by that: Suppose you had been raised in a world that was identical to our own, except that our rights under the Fifth Amendment were inverted, so that innocent third-party witnesses could refuse to answer questions, but criminal defendants could at least be required to answer "Yes" or "No" as to whether they committed the crime. My hunch is that that, instead, would seem natural and sensible. You wouldn't scratch your head and say, "Wait, that seems wrong -- it should be the defendants who should have the right to remain silent, not the innocent witnesses."

By contrast, suppose you had been raised in the world that was identical to ours, except that portions of the First Amendment were inverted -- so that we could write any political arguments that we wanted to, but the government demanded prior approval of any fictional stories that we wanted to publish. I would hope that to many people, this would seem like a nagging contradiction, and over time more and more people would point out this inherent hypocrisy and call for restrictions on political thought to be abolished. That's because I think the First Amendment guarantee of free speech is something that can be derived from first principles about individual liberty -- if you want to write something and someone else wants to read it, and neither of you is harming anyone else in the process, it should be nobody else's business, period, full stop. And I just don't see a compelling argument from first principles in support of our current interpretation of the Fifth Amendment -- that we can make third-party witnesses answer questions, but not require the same of a criminal defendant.

Regardless, a court has already ruled that James Risen can be made to testify, and barring a successful appeal, he may choose to go to jail rather than reveal his source. The judge writing the ruling against Risen made an interesting slip-up, though, when he wrote:

The reporter must appear and give testimony just as every other citizen must.

But of course "every other citizen" does not have to give testimony -- if the defendant is ever identified, they won't have to. And that's the inconsistency that I find hard to explain.

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Happy Monday from The Golden Girls! (-1, Offtopic)

Anonymous Coward | about a year ago | (#44798963)

Thank you for being a friend
Traveled down the road and back again
Your heart is true, you're a pal and a cosmonaut.

And if you threw a party
Invited everyone you knew
You would see the biggest gift would be from me
And the card attached would say, thank you for being a friend.

Re:Happy Monday from The Golden Girls! (-1, Offtopic)

Jane Q. Public (1010737) | about a year ago | (#44799237)

"Thank you for being a friend
Traveled down the road and back again
Your heart is true, you're a pal and a cosmonaut."

Haha. I am pretty sure that word is "confidant", not "cosmonaut".

I think this is one for The Archive of Misheard Lyrics [kissthisguy.com] .

Re:Happy Monday from The Golden Girls! (0)

Anonymous Coward | about a year ago | (#44799255)

YHBT. STFU

It's simple (5, Informative)

Anonymous Coward | about a year ago | (#44798971)

There was once a common practice of forcing defendants to testify, and adding more charges if they denied guilt and then were found guilty anyways. The Fifth Amendment protects against that practice, and only that practice.

Re:It's simple (5, Interesting)

ackthpt (218170) | about a year ago | (#44799071)

There was once a common practice of forcing defendants to testify, and adding more charges if they denied guilt and then were found guilty anyways. The Fifth Amendment protects against that practice, and only that practice.

Until the Miranda Right was acknowledged it was common practice to give witnesses as well as suspects the third degree [wikipedia.org] , which widely ignored the main focus of the 5th amendment.

We'll get a confession out of you if we have to beat it out of you.

Though as I see it, if the reporter says nothing to incriminate him/herself the Fifth is being respected in technical interpretation. If the reporter does say something which may lead to charges (such as conspiracy to commit espionage) the spirit of the Fifth is being denied.

Re:It's simple (3, Interesting)

bennetthaselton (1016233) | about a year ago | (#44799383)

Re:
"There was once a common practice of forcing defendants to testify, and adding more charges if they denied guilt and then were found guilty anyways. The Fifth Amendment protects against that practice, and only that practice."

Well if the court system is corrupt or sloppy enough that they can convict you even if you're innocent, then that's a problem with or without the Fifth Amendment. Suppose you remain silent instead of denying guilt, and they railroad you on a murder charge anyway. If you're already getting convicted of murder, an extra charge of lying under oath wouldn't have mattered very much.

On the other hand, if you really are guilty, and you testify that you didn't do it, but evidence comes out that proves beyond a shadow of a doubt that you did it (caught on high-quality tape, for example), then you should be charged with perjury as well as with the original crime, shouldn't you?

But regardless, this all goes back to the previous article I wrote, asking what was the real rationale for the Fifth Amendment. This article is arguing a different question -- what is the rationale for giving defendants the right to remain silent, but not third-party witnesses.

Re:It's simple (2, Insightful)

Anonymous Coward | about a year ago | (#44799587)

All courts systems have the potential of being corrupt or sloppy. This acts as a check on that possibility.

Re:It's simple (1)

jellomizer (103300) | about a year ago | (#44799131)

Why do you think when people get in political trouble, they will use their 5th amendment rights. Because if they are found innocent of the crime they will, then find some inconsistency with their story and get them jailed for perjury. Normally this tends to happen to Middle managers working for the government. If they get caught doing something, they were often the last ones to execute the order, after getting orders from many layers down.

Re:It's simple (3, Insightful)

ackthpt (218170) | about a year ago | (#44799409)

Why do you think when people get in political trouble, they will use their 5th amendment rights. Because if they are found innocent of the crime they will, then find some inconsistency with their story and get them jailed for perjury. Normally this tends to happen to Middle managers working for the government. If they get caught doing something, they were often the last ones to execute the order, after getting orders from many layers down.

You may be thinking of Col. Oliver North, who was quite the willing accomplice in the Iran-Contra affair. Which brings up the point of a soldier is bound to carry out orders, not question them. While many would feel he went about his task with a clear conscience, which few could fathom, his ultimate superior, Ronald Reagan had all sorts of convenient memory lapses, which left North hung out to dry.

Re:It's simple (3, Insightful)

superdave80 (1226592) | about a year ago | (#44799575)

Which brings up the point of a soldier is bound to carry out orders, not question them.

I thought soldiers weren't required to follow illegal orders?

Re:It's simple (0)

Anonymous Coward | about a year ago | (#44799729)

Correct, but not only that, they are obligated to NOT follow illegal orders. Following illegal orders (knowing they are illegal) is illegal in itself...

Re:It's simple (2)

bennetthaselton (1016233) | about a year ago | (#44799473)

So as to the question I'm asking in the article: Why shouldn't this also apply to third-party witnesses? Otherwise, if a corrupt government subpoenas someone as a third-party witness and the witness gives them answers that they don't like (i.e., answers not aiding them in convicting the defendant they're trying to nail), the government could threaten to find some inconsistency in the witness's testimony and convict them too, unless the witness gives the government the answers they want.

Plea bargain (4, Insightful)

dalias (1978986) | about a year ago | (#44799231)

This practice still exits anyway; it just has a new name. It's called "plea bargain".

The simple answer (-1)

Anonymous Coward | about a year ago | (#44798999)

The answer is much simpler: Because the 5th amendment protects against SELF-incrimination.

Re:The simple answer (1)

TheCarp (96830) | about a year ago | (#44799167)

However, without knowing what the testimony would be, there is know way to know for certain if giving the testimony would or would not be evidence of a crime committed by the person giving it...a crime which may or may not be related to the actual testimony.

So while technically I can see an argument here, as a practical matter, how do you prove a person wouldn't incriminate himself by a statement of which you don't know the content?

Re:The simple answer (0)

Anonymous Coward | about a year ago | (#44799329)

Transactional immunity.

Re:The simple answer (2)

pixelpusher220 (529617) | about a year ago | (#44799615)

That's why you have a lawyer. He asks the judge based on what you tell him (and the NSA!) as to whether you have grounds for 5th amendment. The judge can either agree or disagree and compel you to testify. If you have reason to believe answering the question may possibly incriminate yourself, then you ask for immunity from prosecution if the judge doesn't give you outright 5th amendment protections.

I'm actually unsure why this even got posted. "Why aren't 3rd parties protected?" Uh, because they aren't in jeopardy perhaps?

Re:The simple answer (1)

Anonymous Coward | about a year ago | (#44799315)

I sure wish the author/submitter would have exercised their rights to remain silent.

Fifth Amendment should be extended (0)

ModernGeek (601932) | about a year ago | (#44799011)

The Fifth Amendment should be extended to any party in any type of court. Testimony should always be voluntary to all parties, unless there is an immediate danger to the life and safety of a third party. Even with this system, I could see this being paraded and manipulated in court and used to extract testimony.

There is no reason why someone should be protected from self incrimination in a criminal court, but not in a civil one.

Defendants have the right to testimony (5, Insightful)

perpenso (1613749) | about a year ago | (#44799175)

The Fifth Amendment should be extended to any party in any type of court. Testimony should always be voluntary to all parties, unless there is an immediate danger to the life and safety of a third party. Even with this system, I could see this being paraded and manipulated in court and used to extract testimony.

Our Constitution and our laws are supposed to strike a balance between your rights and the rights of others. The reason that an uninvolved third party should be compelled to testify is so that the defendant receives a fair trial by having all available information brought forward. What if that witness' information could exonerate an accused innocent but the witness would like to remain silent for personal revenge or personal gain?

Re:Defendants have the right to testimony (2)

Grey Geezer (2699315) | about a year ago | (#44799481)

Another way to think about it is that ALL citizens should have a compelling interest in achieving justice. Our responsibility to our fellow citizens compells us to testify. If we conspire to hide the truth, we are being traitors to the ideal of Equal Justice Under the Law. None of us has the right to act as judge and jury by filtering what evidence will be examined during a trial.

Re:Defendants have the right to testimony (1)

Jerslan (1088525) | about a year ago | (#44799495)

This. This right here... The whole purpose of the 5th Amendment is that you can't be forced to admit to committing a crime during a trial, especially if that crime is wholly unrelated to the trial. It does apply to witnesses in those cases as well... To use the "Alice & Bob" example from above, if Alice really were an accomplice and not just a witness, she cannot be forced to admit being an accomplice during Bob's trial and can "Plea the 5th".

Re:Defendants have the right to testimony (1)

bennetthaselton (1016233) | about a year ago | (#44799605)

Some shield laws do recognize an exemption in the case where the reporter's testimony is likely to exonerate an innocent person:
http://www.splc.org/knowyourrights/legalresearch.asp?id=56 [splc.org] (scroll down to the cite for "Hammarley v. Superior Court")

Why? Presumably the thought of an innocent person in jail feels intuitively like such an injustice, that the importance of fixing this wrong, overrides the importance of protecting source confidentiality.

The flaw in this logic, I think, is that an innocent person being set free from jail is just one particular case of "justice being done". When a guilty person is convicted, or when the right side wins in a lawsuit, those are all examples of justice being done as well. While I think it's generally true that it's more important to keep the innocent free than to convict the guilty, not every goal of exonerating an innocent person is more important than every goal of convicting a guilty one. Overturning the conviction of someone who was mistakenly sentenced to a week in jail, is not as important as getting a serial killer off the streets. If it had been up to me, I would have said that a court should decide on a case-by-case basis whether the importance of source confidentiality overrides the importance of the case being tried, regardless of what kind of case it was.

Re:Fifth Amendment should be extended (5, Informative)

guytoronto (956941) | about a year ago | (#44799217)

The Fifth Amendment should be extended to any party in any type of court.

Have you read the Fifth Amendment?
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 offense 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.

There is nothing in there that relates at all to third-party testimony. There is zero foundation for the position that third-party testimony be protected by an amendment that has nothing to do with third-party testimony.

If you want to make the argument that all testimony should be voluntary, you're going to have to come up with a lot better reason.

The Stupid. It Burns (0)

Anonymous Coward | about a year ago | (#44799033)

Which part of "nor shall be compelled in any criminal case to be a witness against himself" was unclear.

"Against himself" is the key term here.

Why have you sent so much time and effort proving yourself an idiot by ignoring the actual text of the Amendment which you seek to explicate?

Re:The Stupid. It Burns (1)

h4rr4r (612664) | about a year ago | (#44799075)

So what if revealing the source and answering questions about that source would incriminate yourself? Perhaps that source is your drug dealer, how is that handled? Can they then use this testimony to charge you with a crime?

Re:The Stupid. It Burns (0)

Anonymous Coward | about a year ago | (#44799197)

So what if you are offered immunity for the questions/answers and testimony?

Re:The Stupid. It Burns (0)

Anonymous Coward | about a year ago | (#44799251)

yes they can

Re:The Stupid. It Burns (1)

Oligonicella (659917) | about a year ago | (#44799269)

"So what if revealing the source and answering questions about that source would incriminate yourself?"

Then the Fifth would apply, but that's not the context of the discussion, an uninvolved witness is.

Re:The Stupid. It Burns (0)

Anonymous Coward | about a year ago | (#44799279)

In that case, you have the right to the fifth, because you have the right to not incriminate *yourself*. If you believe that revealing that the source is your drug dealer will incriminate you, then yes, you have the right to plead the fifth (and probably should). Note also that pleading the fiffth is not, in itself, probably cause for issuance of a search warrant, nor is it admissible evidence against you in court.

Re:The Stupid. It Burns (1)

Ronin Developer (67677) | about a year ago | (#44799399)

The situation described in the article is one where the witness did not commit a crime.

If they had committed a crime and could face prosecution by revealing the information, then they are entitled to invoke the 5th. But, in cases where testifying does not incriminate the individual doing the testifying, they can be compelled by law to testify or face contempt of court charges.

The 5th is very clear about when it is applicable. And, it is why an individual is read their Miranda rights when arrested - to ensure they know their rights.

Re:The Stupid. It Burns (1)

h4rr4r (612664) | about a year ago | (#44799739)

Which leads me to my followup question, why not just commit a crime with your source if you are a reporter?

Re:The Stupid. It Burns (1)

kannibal_klown (531544) | about a year ago | (#44799117)

Which part of "nor shall be compelled in any criminal case to be a witness against himself" was unclear.

"Against himself" is the key term here.

Why have you sent so much time and effort proving yourself an idiot by ignoring the actual text of the Amendment which you seek to explicate?

But... there's the problem.

Who's to say that in the summary's example... that the supposedly innocent Alice is actually innocent. Maybe she was an accomplice. Maybe she's afraid that something she says will get her in legal trouble because she unknowingly did something that was technically against the law. Maybe she's afraid that by saying "she sat there and did nothing" on the record she will be open to a civil case by the victim's family.

Perhaps the only way she would be found guilty of anything is if she opened her mouth and answered said question.

In which case by wanting to plead the fifth, she's protecting herself from possible criminal prosecution or civil liability.

Re:The Stupid. It Burns (1)

kannibal_klown (531544) | about a year ago | (#44799145)

I'm not saying I'm for or against the overall concept...

  I was just poking the hole in this specific AC's logic that perhaps "Alice" felt she was protecting herself by wanting to plead the fifth.

Re:The Stupid. It Burns (1)

SirGarlon (845873) | about a year ago | (#44799165)

Why have you sent so much time and effort proving yourself an idiot by ignoring the actual text of the Amendment which you seek to explicate?

Because he's trolling. Again.

Re:The Stupid. It Burns (1)

bennetthaselton (1016233) | about a year ago | (#44799639)

I know what the Fifth Amendment says. The question is whether there is a logical rationale for allowing defendants to remain silent, but not third-party witnesses. Other than, "That's just what it says!!", which is not a logical rationale.

Re:The Stupid. It Burns (0)

Anonymous Coward | about a year ago | (#44799391)

Which part of "nor shall be compelled in any criminal case to be a witness against himself" was unclear.

"Against himself" is the key term here.

Why have you sent so much time and effort proving yourself an idiot by ignoring the actual text of the Amendment which you seek to explicate?

He is not seeking to figure out what the 5th Amendment _is_, which you would have understood had you read even part of the post. He is trying to figure out why the 5th Amendment allows defendants to remain silent yet witnesses can be _forced_ to testify on pain of jail time.

Not exactly a right to remain silent... (5, Insightful)

Anonymous Coward | about a year ago | (#44799039)

It's a right to not bear witness against yourself.

Re:Not exactly a right to remain silent... (1)

mrmtampa (231295) | about a year ago | (#44799169)

Exactly. He is not being asked to incriminate himself; he's being asked to incriminate someone else. The question is really, was he an active participant in a crime? It gets murky when a reporter elicits information rather than just being a recipient. Case in point; Wikileaks!

Re:Not exactly a right to remain silent... (2)

Archangel Michael (180766) | about a year ago | (#44799325)

Unless, by incriminating someone else, you're incriminating yourself in the process (accomplice).

I would suggest that if you have more to lose than gain by testifying, you do invoke your 5th Amendment rights, as a matter of principle against over zealous government persecutors (sic).

Unless one gets immunity from prosecution in all related areas, the only reasonable response is "I respectfully decline to answer on the grounds that it might incriminate me".

Re:Not exactly a right to remain silent... (1)

bennetthaselton (1016233) | about a year ago | (#44799691)

Yes, I'm taking it as a given what the Fifth Amendment says, at least under the courts' current interpretation: that you cannot be compelled to be a witness against yourself, but you can be compelled to be a witness against someone else, although you can still plead the Fifth if you believe that your testimony would incriminate yourself. But if it's generally agreed that your testimony would not incriminate yourself (only someone else), then you cannot plead the Fifth.

My question is: Why? i.e., what is a logical argument, from first principles about the rights of the state vs. the rights of the individual, why we can force third-party witnesses to testify but not defendants?

Re:Not exactly a right to remain silent... (0)

Anonymous Coward | about a year ago | (#44799317)

It's a right to not bear witness against yourself.

The 5th amendment may not give you the right to remain silent, but the 1st does.

Freedom of expression by necessity must include the freedom to not express that which you do not wish to.

Thank you. (0)

Anonymous Coward | about a year ago | (#44799349)

Self-incrimination is the point of the 5th, not the right to your own "beezwax".

America is fucked ... (0)

Anonymous Coward | about a year ago | (#44799041)

At present it seems reasonable to conclude that the US is the biggest threat to freedom in the world -- because they still pretend to be acting in favor of freedom, while undermining it for everybody in the world.

The great empire is in decline, and has become a sad pathetic joke. Which if they could keep within their own borders, the rest of us could live with.

This isn't very complicated. (5, Informative)

Anonymous Coward | about a year ago | (#44799055)

The reason that the defendants right to remain silent is protected is because his testimony is worthless anyhow. If he is guilty then obviously he is going to lie and all that you achieve is the ability to stack perjury charges ontop of the normal charges, which just makes the entire procedure look awfully like a show trial rather then a proper trial.

I'll also quote part of the Wikipedia history section why the right is important:
" The Latin brocard nemo tenetur se ipsum accusare ('no man is bound to accuse himself') became a rallying cry for religious and political dissidents who were prosecuted in the Star Chamber and High Commission of 16th century England. People coming before these tribunals were forced to make the ex officio oath by which they swore to truthfully answer the questions to be put before them without knowing what they were being accused of. This created what has been termed the cruel trilemma whereby these accused were forced to choose between committing the mortal sin of perjury (if they lied under oath to protect themselves), harsh punishment for contempt of court (if they refused to answer), or betraying their "natural" duty of self-preservation (if they told the truth to honour their oath)."

Re:This isn't very complicated. (5, Insightful)

Jane Q. Public (1010737) | about a year ago | (#44799361)

"The reason that the defendants right to remain silent is protected is because his testimony is worthless anyhow."

Not even.

The purpose of the Fifth Amendment was to remove any motivation for government coercion of the accused.

WE KNOW what damage coercion can do. The result of coercion is invariably a huge increase in the number of innocents getting convicted. Historical records of this are very clear... even our own. The percentage of innocents convicted when confessions were coerced or forced by overzealous law enforcement is quite high.

We even see it in cases of prosecutorial overzealousness in the form of "plea bargains". Plea bargains have been used to jail more innocents than perhaps any other legal tool. (Which is why I say we need to dump the whole concept of plea bargains, altogether. It is a societal ill, not a good.)

---
""That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved." -- Benjamin Franklin, letter to Benjamin Vaughan, March 14, 1785.

Re:This isn't very complicated. (-1)

Anonymous Coward | about a year ago | (#44799621)

Plea bargains? There are much better examples of government coercion to get a confession than plea bargains. Sleep denial, limiting food and water, and just out right nasty lying are common and perfectly legal tactics. Plea bargains have save the need for an insane number of pointless trials of clearly guilty people.

"Alice can be sent to jail" (2)

Quila (201335) | about a year ago | (#44799083)

If she can be sent to jail, she's not an innocent third-party witness, and would be able to refuse to testify.

The Fifth is only to prevent forced self-incrimination. If the prosecution waives any ability to prosecute, then the Fifth simply has no application in that case anymore. The Fifth is not about the overall power of the government to compel you to talk, so anything along those lines is out of scope.

Re:"Alice can be sent to jail" (0)

Anonymous Coward | about a year ago | (#44799403)

It means she can go to jail for refusing to testify as an innocent third-party witness... not that she can go to jail for something related to the case.

Re:"Alice can be sent to jail" (1)

almitydave (2452422) | about a year ago | (#44799505)

If she can be sent to jail, she's not an innocent third-party witness, and would be able to refuse to testify.

Presumably the complaint is that she could be sent to jail for contempt of court, which is unrelated to the original crime being prosecuted, so she could be innocent UNTIL she refuses to testify. I believe that's the OP's contention.

Re:"Alice can be sent to jail" (1)

Quila (201335) | about a year ago | (#44799661)

so she could be innocent UNTIL she refuses to testify

Then she is guilty of a crime (contempt) where she was not forced to testify against herself. Again, the Fifth does not apply. It is only about self-incrimination.

We all have a duty to aid the justice system when called upon to do so. Refusal can have consequences, such as when one skips jury duty or refuses to testify when compelled.

because it's always easier to shoot the messenger (1)

themushroom (197365) | about a year ago | (#44799089)

than go through the time and expense of "innocent until proven guilty" burden of proof that one is indeed guilty. The whistleblowers have already made it clear that they're the ones who spoke, the criminals are more stealth (and protected) with their info.

Wait a minute (0)

Anonymous Coward | about a year ago | (#44799103)

If someone is facing criminal charges for not testifying does that not make them a defendant and thus protected under the fifth amendment? Seems to me that this is just a good example of the government twisting the wording of a certain law or amendment to suit what best fits their interest and not an issue with the amendment itself.

Re:Wait a minute (1)

MNNorske (2651341) | about a year ago | (#44799419)

You don't face criminal charges for not testifying. You are held in contempt of court. Contempt of court does not require the state to press charges against you and an independent trial.

Re:Wait a minute (0)

Anonymous Coward | about a year ago | (#44799467)

It makes them a defendant of a different crime, which would thus have a separate trial. Therefore, they're still compelled to testify against Bob in his trial, but not against themselves in themselves in the other trial for refusal to testify.

This one's easy (5, Interesting)

Millennium (2451) | about a year ago | (#44799107)

Witnesses can be compelled to testify so that they cannot be intimidated into silence.

Re:This one's easy (5, Interesting)

DerekLyons (302214) | about a year ago | (#44799581)

This, seriously. Haselton's entire strawman arguement relies on being completely unaware of the history of and the philosophy behind the processes he questions. It's almost like he didn't even bother to read the answers to his last strawman.

Re:This one's easy (4, Insightful)

westlake (615356) | about a year ago | (#44799667)

Witnesses can be compelled to testify so that they cannot be intimidated into silence.

---- and the defendant has the right to remain silent so he can't be intimidated or tortured into making a confession.

But to say these things on Slashdot risks being modded down as a Troll.

Re:This one's easy (0)

Anonymous Coward | about a year ago | (#44799711)

Yeah, because that would ever work.


Is that the man you saw at the crime scene?

Possibly.

Did you see him or not.

I'm not sure. Could have been could have not been. I don't remember very well.

Marry the guy! (-1)

Anonymous Coward | about a year ago | (#44799133)

You can do that in New York. Well worth it. Y.M.C.A. Why do you not stay at the Y.M.C.A..

There is your answer.

Re:Marry the guy! (1)

PPH (736903) | about a year ago | (#44799545)

Or reporters become ordained ministers. They will be protected by the clergy-penitent privilege.

Kidding aside, the two professions share many of the same protections. Freedom of the press and of religion are covered by the same amendment and for many of the same reasons. If a reporter can be compelled to testify about a third parties' criminal activities, then why not a priest?

The answer is in the wording (3, Interesting)

Nidi62 (1525137) | about a year ago | (#44799153)

If you are a third party witness, then you are not testifying against yourself, you are testifying against another person. The accused has a right not to testify against themselves or be forced to do so. The whole poiont of the amendment is to protect the accused, and no one else. Now, the only argument I can see for him claiming the 5th is if his testimony would reveal criminal actions on his part, which does not apply here because of protections to journalists.

There is also the fact that the courts are supposed to be about determining the facts of a case and to mete out appropriate punishment (it could be argued that it has shifted, but that is their design). By not revealing his source, he is in fact hampering the function of the court which, to me, is equal to contempt. If a person in the gallery of a court started yelling and protesting and refused to be quiet and kept the court from continuing, one would expect that person to be arrested. He is essentially doing the same thing.

It's ok when they do it. (5, Insightful)

7-Vodka (195504) | about a year ago | (#44799159)

When the executive decides that certain classified information is beneficial to them, they leak it and go unpunished. This happens on a weekly basis as a form of propaganda.

When the executive wants to retaliate against someone, they leak classified information and go unpunished, e.g. dick cheney revealing valerie plame.

If anyone else leaks classified information, the government goes after them with full force.

Given that the government has taken to classifying just about everything it does, this results in a propaganda machine where only information beneficial to the government tends to be revealed.

Re:It's ok when they do it. (2)

nine-times (778537) | about a year ago | (#44799339)

Given that the government has taken to classifying just about everything it does...

That's a clever way to try to get around the first amendment. Make everything classified, and then no one can criticize you without being prosecuted for espionage.

Re:It's ok when they do it. (0)

Anonymous Coward | about a year ago | (#44799565)

kind of reminds me of quite a few communist countries..

this war on the media by the us and the uk is rather disheartening and will do nothing but harm them economically and socially. who is going to want to emigrate to the us for those coveted visas if they are going to a regime just as oppressive as the one they were leaving?

Forced testimony (1)

replicacobra (3028663) | about a year ago | (#44799173)

Why do prosecutors have the ability to bring legal consequences against anyone who refuses to testify, in any case?

Re:Forced testimony (0)

Anonymous Coward | about a year ago | (#44799385)

So that testimony can be made that protects legitimate, but unpopular, people and views.

Say it's 1930 in Alabama and there has been a murder. A black man is being tried. There is an upstanding witness who could provide an alibi. Should they be able to choose to remain silent?

Because we know? (4, Interesting)

PPH (736903) | about a year ago | (#44799181)

Why shouldn't we also give the same rights to a third-party witness who we know is innocent?

How do we know anything about the crime scene? If we did, then the prosecution job would be done and no testimony would be needed. Given the Bob/Alice scenario, how do we know that Alice is an innocent bystander? If she is not, then she has the same fifth amendment rights as Bob does.

Likewise, we don't know James Risen's role in the CIA information leak. Did he conspire with an insider to obtain the information? If so, it would seem that the Fifth Amendment applies to him as well. If the DoJ knows any different, then they can just present that to the court without the assistance of Risen's testimony. Yes, the DoJ can offer immunity and remove the self-incrimination hurdle. But immunity from what? We don't know what other illegal acts Risen may have committed in order to acquire the information and even the act of negotiating immunity may reveal other acts that the prosecution is not aware of.

Our US legal system is adversarial by design. It's us (the public) against the government. So nobody should be compelled to assist them in any way.

Not actually a paradox (1)

YesIAmAScript (886271) | about a year ago | (#44799201)

Each person cannot be compelled to testify against himself in court.

While the author may intentionally not make a distinction, the Alice would only face contempt charges which rarely produce the levels of punishment as murder convictions do.

It's a poorly thought-out argument.

The issue with being compelled to testify is that the courts don't wish people to be applying their own judgement standards instead of the court. What happens if a person is lynched and no one who saw it testifies because by their own beliefs, it's okay to kill niggers? The idea is that the information is brought out and the law decides the punishment.

I don't know why there is a right to not self-incriminate. Apparently it comes from English common law, but I don't know the history of it. Maybe it's to discourage torture or other coercion?

The right is empirical, not philosophical (0)

Anonymous Coward | about a year ago | (#44799205)

This right is established to prevent forced confessions, plain and simple. Witnesses typically (although not 'never') are not subject to this type of governmental abuse, and thus do not need the protection.

A thought... (5, Interesting)

Antony T Curtis (89990) | about a year ago | (#44799229)

Why not the reporter attend but when taken to the witness stand, every question asked should be answered with "I am under duress and I am not here under my free will". If I recall correctly, people who are under duress with threat on their person are permitted to commit perjury, which is why defendants, when found guilty, cannot be charged with perjury for claiming to be not guilty. So when asked a question, the reporter should state that he is under duress and then give an obviously nonsense answer. So when asked to name his source, he should give the name of the Judge's dog, for example.

I may be very wrong but it would be interesting...

Just my 2.

Pleading Not Guilty (1)

kawabago (551139) | about a year ago | (#44799241)

Pleading "Not Guilty" is the same as saying, "I didn't do it." Is there anything an innocent defendant needs to add? If they didn't do it, they probably don't know more than that.

Why third-party witnesses should talk ... (1)

perpenso (1613749) | about a year ago | (#44799247)

Why are criminal defendants allowed to remain silent, but not third-party witnesses like Risen?

Because the defendant's right to a fair trial trumps the third party's desire not to get involved. What if the information from the third party could exonerate the defendant?

Job Confusion (1)

b4upoo (166390) | about a year ago | (#44799253)

A court does not exist to gather information. In essence the police gather information. The prosecution presents that information in relation to the law to the judge and jury. The judge and jury both act as finders of fact.
              The resources of the state in gathering information can be extensive as is their budget for detectives. By the time a case reaches trial there should be no new information. Yet there often is due to prosecutors and cops who are zealots who make absurd errors. The OJ Simpson murder trial is an example of a case that should have been allowed to ripen and not brought to trial until much better police work was done.
              A witness to a criminal act must not also be a conspirator. Failing to report a crime is a crime in itself. So what we have is a situation in which a reporter knew that he was receiving what amounted to "stolen goods". The state takes the position that he must identify the person who carried the stolen goods.
                Frankly the press needs to be exempt from this line of reasoning. When government goes astray the public needs heroes that are willing to spill the information. A liberal court might agree with me but the chances of a conservative court agreeing are close to zero. Conservatism is against freedom, is a hazard to our nation, and currently is so vile that it approaches treason. We have a severely under educated public that is frightened and due to those fears is willing to betray our Constitution.
           

Re:Job Confusion (1)

GigsVT (208848) | about a year ago | (#44799627)

Branzburg v. Hayes which lead to one of the big supreme court rulings on this matter (striking down protections for press) was under Burger's court and was hardly a conservative bunch (the same court that gave us Roe v Wade).

The world isn't black and white, and those who would oppress you aren't limited to one side of the aisle.

What crap--please read the damn Constitution. (0)

Anonymous Coward | about a year ago | (#44799293)

The Fifth Amendment does not say you can't be compelled to testify... it says you can't be compelled to testify against yourself. If the government grants you immunity, then you cannot -- by definition -- testify "against yourself." A defendant can be compelled to testify, as many have, by granting them immunity.

I agree that a reporter shield law is a good thing, but it is not a constitutional mandate.

Self Incrimination (3, Insightful)

PvtVoid (1252388) | about a year ago | (#44799295)

Here's the text of the Fifth Amendment:

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 offense 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.

The Fifth only protects against self-incrimination. There is no "paradox".

TLDR, but (1)

wisnoskij (1206448) | about a year ago | (#44799301)

The defendant does not have to testify against himself, because you have a right not to testify against yourself.
A third party witness, as long as they are not your legal life partner, does not have a similar right not to testify against some other person.

wrong question (2)

cellocgw (617879) | about a year ago | (#44799335)

This isn't about 5th amendment issues, nor is it about whether or not a reporter is criminally involved.

It's an issue of Freedom of the Press. For rather a long time, roughly since Lovejoy, the courts' position has been that an open and free press requires that the reporters be able to collect information free from any risk of reprisal (from the government). This is what has been getting ripped to shreds by the last 3 or 4 administrations.

Porcine skin care (0)

arth1 (260657) | about a year ago | (#44799347)

Here's the basic paradox: Suppose Bob may have committed a crime, and Alice is known not to be an accomplice but appears to have been a witness. If the courts ask both Bob and Alice the same question -- "Did Bob do it?" -- and both of them refuse to answer, then Bob's right to remain silent is protected under the Fifth Amendment, but Alice can be sent to jail -- despite the fact that Bob may have been guilty, but Alice is innocent! To me, that sounds crazy.

1: That is not a paradox. If you mean confusing, say so, but there's nothing paradoxical about it.
2: It may sound crazy to you, but there are two different crimes here. Whether Bob committed the original crime and Alice is innocent of that crime has no relevance to whether Alice commits a crime by disobeying the court.

Stop thinking in black and white.

you are wrong (0)

Anonymous Coward | about a year ago | (#44799359)

I am not a lawyer but i am sure witnesses can choose to remain silent... then they may be charged (but can still choose to remain silent)!
Anyway, it's good that a witness has to testify even if he does not want because otherwise many/most trials would end up without witnesses (one practical reason is that often witnesses fear the defendant so they must "forced" to testify - another is that often witnesses are also involved with the crime)

Missing the point (1)

GigsVT (208848) | about a year ago | (#44799369)

One big point you miss is that to do otherwise basically assumes that silence=guilt. If you refuse to talk to the police, right now that's a protected right. If people didn't have 5th amendment protections, it would be a crime to refuse to be interviewed by the police about some crime you were suspected in, guilty or not. In the real world, people incriminate themselves all the time. It's the police's job to try to trick them into doing so. Confessions are the goal of police interviews with suspects. Giving police the power to threaten jail for merely not talking would pretty much allow them to jail anyone they wanted.

Historically, the 5th amendment is about something much larger and more sinister, the practice of using torture to extract forced confessions. This isn't necessarily some outlandish thing, it happens in more subtle ways every day. When the cops keep a junkie too stupid to lawyer up in an interview room for 12 hours, eventually they will say anything to get out of there, once the withdrawal really hits.

Regarding your other scenario, extending 5th amendment protections to third parties, there have been some limited cases of that, married couples for example. The idea behind there being a different standard for third parties is that a third party testimony is a lot more suspect than a confession from the suspect. The motivation to torture a confession out of a third party about some crime they weren't involved in is pretty low.

Learn the magic words (0)

Anonymous Coward | about a year ago | (#44799371)

"I dont remember"

Going after the wrong Law (1)

Anonymous Coward | about a year ago | (#44799379)

He's going after the wrong law, in this case, it should be whistle blower protections that need strengthening to include the journalists who write the articles based on the whistle blowers information.

When they plead the Fifth, we don't know to what (0)

Anonymous Coward | about a year ago | (#44799381)

Can't someone plead the Fifth to avoid saying anything in court that might be self-incriminating? Can't a third-party witness plead the Fifth to prevent self-incrimination of possible perjury (by having to decide whether to lie to avoid testifying)? Maybe they're pleading the Fifth because they might get asked about something other than what the lawyers are thinking about... such as that expired parking meter the previous week, that they did not get a ticket for.

You keep using that phrase... (0)

Anonymous Coward | about a year ago | (#44799395)

The main premise behind your argument is flawed, I believe you are over generalizing the right to remain silent. You do not have an absolute right to remain silent, you have a right to remain silent to avoid incriminating yourself.

In your hypothetical situation, both parties have the exact same rights, they just can't use them in the same way because the situations are different for each party.

The defendant has the right to remain silent to avoid incriminating himself and since he is on trial then potentially anything he could say could incriminate him. The third party witness has the same right, IF any of his testimony would incriminate him.

The discrepancy in the broadness in which it is applied is purely down to the different situations each party finds itself in. If the situations were reversed, the former defendant, now witness, could be compelled to testify unless it incriminates him.

You may as well be arguing about why the witness gets to go about their life during the trial (when not on the stand) while the defendant has his freedoms curtailed. Our rights are applied and interpreted differently in different situations. If both parties are in the same situation and one had rights the other didn't then you might have an argument but your hypothetical situation puts each party into separate and distinct situations.

commander taco, esq. (0)

Anonymous Coward | about a year ago | (#44799445)

The fifth amendment applies to everyone these days. It states, in part, that no one must self-incriminate during testimony at trial. Like a good slashdotter, I haven't read this article, but I imagine the DoJ's argument is that there was nothing privileged about the communication between Risen and his source which allows Risen to testify against his source without invoking any objection to the admission of that evidence. Maybe the DoJ prosecutors promised him immunity from criminal prosecution if he divulged, hence, no self-incrimination.

While this is a new topic on /., it has been beaten to death in law schools across the country. Also, don't talk to cops for legal advice. Believe it or not, they never went to law school... or school.

In case today appears to be slow for you:
http://www.law.cornell.edu/wex/fifth_amendment
http://en.wikipedia.org/wiki/Kastigar_v._United_States

It's not a Fifth Amendment issue, it's (2)

Registered Coward v2 (447531) | about a year ago | (#44799471)

a First Amendment issue. The Fifth is pretty clear - no self incrimination. Does the right to free speech encompass the right not to speak? Should the government have a right to compel speech? We say "No" when it is speech we disagree with, such as allowing someone not to recite the Pledge of Allegiance; should that be extended to testimony in court? What if you refuse to speak because you want to avoid helping a defendant? If you are their only alibi is tehre a compleling interets in forcing testimony that overrides your right to free speech?

To answer Bennet's question (1)

mvdwege (243851) | about a year ago | (#44799483)

Why are criminal defendants allowed to remain silent, but not third-party witnesses like Risen?

<semiserious>Maybe to provide you another cause to blurt out more outraged verbiage for?</semiserious>

Amend the discrepancy away (1)

intermodal (534361) | about a year ago | (#44799485)

My solution is to amend the constitution to extend the right to refuse to testify to everybody. After all, there's no way to be sure what will and won't incriminate a person or otherwise deprive them of their well-being. In the case of a reporter, I would consider compulsion to testify to be both damaging to his livelihood and an infringement of his first-amendment rights as a member of a "free" press in that it greatly reduces his ability to continue as a productive member of the free press.

Self-incrimination does not always manifest its harm in terms of court rulings against you.

Loophole? (0)

Anonymous Coward | about a year ago | (#44799509)

What if the 3rd party claims they may or may not have been involved in the said crime and therefore choose to use the 5th? Is it lying?

Rebuttal (1)

Anonymous Coward | about a year ago | (#44799543)

The best possible rebuttal to this argument can be found in the book "rights talk" by mary ann glendon. seriously.. go read the amazon reviews to find out what its about.

Many cases where a third party can not be forced (1)

Anonymous Coward | about a year ago | (#44799551)

IANAL, but aren't there many cases where a 3rd party can not be forced to testify?
Doctor/patient confidentiality. (Which could be seen as the right for the defendant to receive medical care even under the situation where receiving such care could be implicating him in a crime.
Attorney/client privilege. (Right for the defendant to receive the best possible defense.
Even spousal privilege. (Not gonna go there)

It could be looked at as a matter of who is affected. In most cases, a third party witness should not be affected. (emphasis on should) So if my testimony does not impact me directly, then why should I refuse to give it.
The argument here is that there should be some privilege between reporters and sources. But what right for the defendant is that defending?

In all other cases, if someone tells me that they committed a crime, and I do not report it, I can be convicted of a crime. Why should reporters be immune to that?
The reporters argument is that it could affect his ability to do his work. IE, if sources are afraid to talk to him, he will be unable to be a good reporter. So which is more important, protecting the public interest by arresting or prosecuting a criminal, or protecting a reporters ability to work.

Unfair laws? (1)

Okian Warrior (537106) | about a year ago | (#44799599)

How about protesting against unfair laws?

Suppose Alice knows that Bob attended a protest. The police would like to arrest everyone at the protest because it wasn't sanctioned - the people didn't apply for a parade permit or permission to gather on public property. Alice believes that once arrested, the police will apply for search warrants to go through Bob's possessions. They won't find anything on the first round, but they will discover something that's both illegal and obscure, so they either argue inevitable discovery or back-fill the information for a new search warrant that turns up the new evidence.

Essentially, Alice wants to prevent government overreach for something that she believes shouldn't be a crime.

The government doesn't act in the interests of the people, and the people have no way to change government. Withholding evidence is a soft way of protesting, one that impedes government overreach without getting you or your friends in trouble.

Just say "I don't remember", and when the police press you, say you "just don't pay attention to these things".

Burning platform (1)

gmuslera (3436) | about a year ago | (#44799619)

Is US right now. The government became not trustable. Then it forced internet companies to not be trustable. Now is forcing your friends, colleages and other people you know to not be trustable. Probably "Trust no one" will be part of the next american anthem. You can jump out now, but the fire probably will reach you wherever you run.

Simple reason, really... (1)

superdave80 (1226592) | about a year ago | (#44799675)

If I am a third party witness, what is my motivation to testify? I'm sure lots of people would be willing to testify voluntarily, but I'm sure that anybody that thought there was even a chance of retaliation from the accused would refuse to testify. Since there will be no punishment from the government, the safest course of action would always be to not testify.

And once the bad guys realized that witness could decline to testify with no penalty from the government, it would be open season on threatening witnesses.

You do answer "yes" or "no" (0)

Anonymous Coward | about a year ago | (#44799681)

You do answer "yes" or "no" when you plead guilty or not guilty. The rest of the questions then support to what degree you may be prosecuted. And most of the reason for the fifth amendment is the result of forced self-incrimination that the founding fathers saw back in Europe. The third party's protection is more addressed in the fourth amendment.

right not to incriminate yourself (1)

spottedkangaroo (451692) | about a year ago | (#44799683)

My understanding is that it's vestigial. There isn't a moral or legal argument. It's axiomatic and meant to prevent torturing confessions out of people.

Because History (1)

the eric conspiracy (20178) | about a year ago | (#44799687)

The 5th amendment arose from the history of the accused being compelled to testify against themselves by torture, and the fact that such testimony is worthless.

The reason it doesn't apply to 3rd parties is that the interest of the state being able to get the facts overrides the right to privacy in this instance.

tl;dr (0)

Anonymous Coward | about a year ago | (#44799731)

Why do the editors bother with these over-long, pointless screeds by Bennett Haselton? It's like he has nothing better to do, they should refuse to publish these essays and force him to write something that people would actually pay for.

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