The Great Change: Turning Cathy into a Lawyer

There's a concept in the law about the "reasonable man." It's used as a benchmark to compare the behavior in question at trial with the behavior a reasonable person would be reasonably expected to exhibit. It's often criticized as an elusive standard, because no person ever could attain such consistently normalized behavior. All people, even the most conventional, predictable, and rational, stray into their own eccentricities from time to time. To say nothing for the fact that reasonable behavior derives its inherent reasonableness from context. Lighting a match in a dark cave may be reasonable. Not so in a dynamite factory.

But still, the notion can be helpful when courts are trying to decide if a person acted in a way unique to himself, or in a manner that many people might reasonably behave. In torts this test is big, particularly in cases of negligence. Is it reasonable to presume that a person who knew there were vicious, hungry dogs in the yard would have double-checked that the gate was locked? Yes? Then why didn't you?

The U.S. Supreme Court just heard a case, Hiibel v. Sixth Judicial District Court, involving a man who was arrested in Nevada for refusing to give his name when asked by the police. In the case the State conceded that the police didn't have probable cause, a high level of suspicion, to justify arresting the man when they first came upon him and asked him his name. The standard here was "reasonable suspicion" that might have entitled the police to frisk him. The court is considering whether the police could also ask him his name, and if he could be compelled to answer under penalty of law.

What caught my eye in the New York Times report about the oral arguments was a comment made by Justice Scalia. On being asked to identify oneself, he said, "I would think any reasonable citizen would answer."

I don't think the State has any right to know who I am, where I am, or what I'm doing without a very good reason, a reason that would qualify as probable cause to believe I was guilty of a crime. Period. Scalia's comment on that subject also parallels the frequent unenlightened argument that doesn't understand why people refuse to testify "if they've got nothing to hide."

First of all, I can't see from reading the Constitution where the State gets the authority to be able to identify and locate its citizens at any time it demands. Even the most innocent person has the right to refuse to identify himself if he wishes, no matter how capriciously he decides to refuse the request, a right that clearly outweighs any capricious inquiries by the State.

Secondly, it's a fallacy to believe that criminal justice metes itself out perfectly. Innocent people can easily be railroaded into unjust convictions. Fifth amendment protections against self-incrimination give citizens a starting measure of protection to keep the criminal justice system from running roughshod over them erroneously. Nothing is too innocuous that, uttered at the behest of the State, couldn't precipitate a jurisprudence trainwreck. Even one's name. With the name the State gets a toehold in surveillance and scrutiny, which it may now feasibly pursue even without justification. Without the name the State is much more easily relegated to keeping its proverbial nose out of the private business of its citizens.

Thirdly, even guilty people have the Constitutional right against self-incrimination as well. In a judicial economy where confessions have become bargaining chips against extreme punishments, the accused need to be able to retain their testimonial currency as long as they can so as to preserve their right to due process. Furthermore, a seeming admission to a crime might not constitute an actual confession to the presumptive crime. "I crossed the street against the light," might seem to be an admission of jaywalking, but if the unstated fact was that it was "because a viscious dog was chasing me," it would preclude criminal liability. Though exoneration at trial might happen, without having said anything in the first place the accused would never have had to go through the ordeal. Though the preceding example deals with testimony, self-identification falls under the same analysis as divulging it can easily compromise similar self-interests as other comments that are constitutionally not required to be uttered.

So Scalia is mistaken. There are plenty of reasons why a reasonable person would not want to answer a question on their identity. Prudent, pragmatic reasons. And most importantly, because the Fifth Amendment says he doesn't have to.

Edit 06/21/04: This didn't go well at all... But it seems that Kennedy is the one most confused. He seems to think it's no big deal to give up your name to the police. This is untrue. But it also raises another issue: what if you are better known by an alias? What if you are just starting to use an alias? If the police ask you your name, WHICH name are you required to give?

Edit 1/21/05: I just stumbled upon this article on the subject.