MCViewPoint

Opinion from a Libertarian ViewPoint

The Right Not To Testify – LewRockwell

Posted by M. C. on March 11, 2019

https://www.lewrockwell.com/2019/03/murray-n-rothbard/the-right-not-to-testify/

By

This originally appeared in Libertarian Review in November 1978

Libertarians surely favor freedom of speech, that is, the right to speak without being hampered by the government. But the right to speak implies the right not to speak, the right to remain silent. Yet libertarians have themselves been strangely silent on the many instances of compulsory speech in our society.

The most flagrant example of continuing compulsory speech takes place in every courtroom in our land: the compulsory bearing of witness. Now surely each person is the absolute owner of his or her own body; as the owner of his own body, only the individual should decide on whether or not to speak in any given situation, and there should be no compulsion upon him to talk or not to talk. And yet in every court, witnesses are dragged in by force (the subpoena power) and compelled to bear witness for or against other people.

The Fifth Amendment, as we all know, prohibits the government from forcing a person to testify against himself: “nor shall any person … be compelled in any criminal case to be a witness against himself.” Excellent. But why should an accused criminal possess a right not also granted to admittedly innocent persons? In short, by what right does a government compel someone to testify against another? Here is a flagrant invasion of liberty, a flagrant abuse against the rights of the individual, and an initiation of force and violence against an innocent person. Yet where are the libertarians to raise their voices against this practice?

There is also something peculiarly monstrous and anti-libertarian about the way in which courts, i.e. judges, move against such “crimes” as non-testimony. In every other criminal case, whether real or victimless, the defendant is duly charged, indicted, and prosecuted, and is allowed to plead his case before third parties: judges or juries who are not involved in the dispute. Yet with the “crime” of failing to testify, all such procedures and safeguards go by the board. The judge is the prosecutor – charging the defendant with “contempt of court” – and also the decider of the defendant’s guilt (in this “crime” against himself). The judge is the plaintiff, prosecutor, judge, and jury all wrapped into one…

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