The State’s Right to Evidence and Duties of Citizenship

Abstract

According to Justice Scalia, “[w]hile every person is entitled to stand silent, it is more virtuous for the wrongdoer to admit his offence and accept the punishment he deserves,” and “to design our laws on premises contrary” to that view is “to abandon belief in either personal responsibility or the moral claim of just government to obedience.” The purpose of this Essay is to consider the proposition that citizens have an obligation to cooperate with law enforcement in a just society, including by undertaking measures that enhance the society’s knowledge of one’s own and others’ criminal activities. This Essay will defend the following propositions. First, once we start from the assumption that there is a duty on the part of citizens to cooperate with the legal system in a just society, it is difficult to resist the conclusion that citizens have a duty to cooperate with law enforcement and provide information about criminal wrongdoing to the authorities, and the duty appears to extend not just to other people’s criminal wrongdoing but to one’s own. Second, a society in which citizens understand themselves to have a moral obligation to cooperate with law enforcement is not necessarily a good society. Even in a just society, there is a proper, even adversarial, distance between citizens and the state that requires a constant vigilance to maintain. A place where we can arrive at this insight in the starkest way is the realm of criminal procedure, where criminal defense lawyers help maintain the kind of desirable distance precisely by placing various obstacles in front of the state’s efforts to enforce the law, but that orientation towards the state can be generalized outside the realm of criminal procedure narrowly conceived.