You have the right to remain silent.

  Thanks to a United States Supreme Court decision affectionately known as Miranda, and the consequent repetition of the prescribed litany on uncounted police dramas, these words may be the best known fragments of American law both among Americans and around the world.  They recount very simply a protection afforded by the Constitution of the United States of America, and duplicated now in the laws of most countries:  the right against self incrimination, the power to refuse to say anything that might implicate you in a crime.

  This has become such a prominent feature of law today, it’s easy to overlook the fact that it has not been so all that long.

  We’re moving away from our discussion of ideas from other games and turning to a more serious subject.  It has to do with law, obviously.  I’ve already written elsewhere quite a bit about law, a three-part series for the wonderfully named and wonderfully edited Australian e-zine Places to Go, People to Be.  The Source of Law (which is reprinted here at Gaming Outpost) discusses how laws and governments come to be, justify their existence, and are changed.  The Course of Law is a brief discussion of civil and criminal procedure and how it can be different in different places or circumstances.  The Force of Law addresses primarily penal systems, what to do with those convicted of a crime.  Between them there’s enough information to build your own legal system for just about any imaginary world, and keep it interesting and internally consistent.  So, having referred you to those, I don’t need to cover all that ground again.

  There is one point, however, that these words, the right to remain silent, raise.  Do the characters in your worlds have that right?  If there are legal entanglements (and surely you don’t have a world in which there’s no law at all), can the characters refuse to say anything, keep their secrets secret, whether they are guilty or not?

  I’m old enough to remember when Miranda was not the law of the land; police shows such as Dragnet, made in the nineteen fifties, weren’t peppered with those words.  People did have the right to remain silent; what they didn’t have was the guarantee that the police would either remind them of that right or respect it.  Police routinely attempted to get suspects to talk, by incentive, trickery, coercion, and whatever other means they could find.  Even since Miranda such tactics have been used at times, attempting to get information from someone who doesn’t want to give it.  In one specific case, the officers transporting the suspect held a discussion in front of him about how terrible it would be if some child found the gun that had been used in this crime and apparently hidden somewhere in the neighborhood, solely to lure the man into telling them where it was; when he did, they built the case from that gun–and had it thrown out of court, because under Miranda once the man had asserted that he did not wish to talk until he had a lawyer present the police could not use any efforts to entice him to abandon that right.  You have the right to remain silent; that didn’t always mean that the police wouldn’t do everything in their power to make you talk.  Now it does.

  More to the point, you didn’t always have that right.  Quite the contrary, through most of history most people could be compelled to testify against themselves.  The most dramatic and famous example is undoubtedly the moment in the trial of Jesus of Nazareth, when, as presented in Matthew’s account, the High Priest Caiaphas says, “I adjure You by the living God that You tell us whether You are the Christ, the Son of God.”  That oath was such a strong command that under the understanding of the day failure to answer would be lying, perjury under oath.  On the basis of His answer that He was, they condemned him to death for blasphemy, modified to treason so as to get the approval of the Roman governor.  He was not allowed not to answer the question.

  This is not the only time or place where someone did not have the right to remain silent.  It has dogged people through the centuries, and in one otherwise optimistic view of the future it fails again.  In Star Trek VI:  The Undiscovered Country, at the moment that they need the truth from the Vulcan traitor, Ambassador Spock uses his mind meld telepathic abilities to pull all the details of the conspiracy from her memories.  Upon capturing the other conspirators they announced that they had a full confession from her; what they had was coerced testimony, forced self-incrimination, an unmistakable violation of the right to remain silent.

  Even today, exactly what this right against self-incrimination means has been put through the wringer in the courts.  Do the police have the right to take your fingerprints?  Can they compel blood or urine samples to test for illegal substances?  Can they go through your hair, under your fingernails, through your clothing, looking for microscopic evidence connecting you to a crime?  Is it a violation of this right for them to take DNA samples from you to compare against evidence at the scene?  All of these questions have been raised in court, as attorneys have argued that such evidence amounts to compelled testimony–and in this country, at least, they have been rejected, determined to be material facts, not compelled testimony.  However, lie detector tests and truth drugs are not admissible against the defendant, as these are viewed as violations of that basic right.

  I’m not saying that your characters should or should not have such a right in whatever game world you create.  I am saying you should decide whether they do or do not, and what that means for them and for the rest of the society in which they live.  Are people tortured to extract confessions?  Is that because they don’t have the right to remain silent, or because they do and we want them to waive it?  Do psions routinely scan the minds of suspects in search of some evidence of their guilt?  If they find it, do we trust their testimony?  If they are not permitted to testify, are the police permitted to use such information as this method obtains as the starting point for finding other evidence to support their case (what in American jurisprudence would then be called the “fruit of the poisonous tree”, excluded from trial because the police could not have found it without the illegally obtained first information)?  Or is this just something done so that someone can say, “You’ve got the wrong man, keep looking,” or “Yeah, this is him, start building a case”?

  You have the right to remain silent; anything you say can be taken down and used as evidence against you.  Maybe you don’t have that right; maybe the prosecutor can call you to the stand, ask if you did it, and compel you to answer.  Maybe the magic-users can cast their truth detection or compulsion spells on you and so force you to confess.  Maybe the doctors can give you a shot of Telol, causing you to tell all.  If you don’t have that right, it makes a big difference in how the law is going to treat you.  That’s an important part of your game world, not to be overlooked.

  Next week, something different.

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M. Joseph Young is co-author of Multiverser and Vice President for Development at Valdron Inc.  His many contributions to online literature are indexed for convenience, and he looks forward to discussing these things by e-mail or on our Gaming Outpost forums.