'You Have the Right to Remain Silent.' or Do You?(npr.org)
npr.org
'You Have the Right to Remain Silent.' or Do You?
http://www.npr.org/2014/10/05/353893046/you-have-the-right-to-remain-silent-or-do-you?utm_campaign=storyshare&utm_source=facebook.com&utm_medium=social
17 comments
> In everyday police interactions, a citizen should never have to assert Constitutional rights. The onus should be on the state's system to ensure they're granted.
Hear, hear!
Hear, hear!
Of course, the Constitution doesn't grant rights. Do you have a natural right to be left alone if you so choose? Do you have a natural right to not be a witness against yourself? It seems a society based on popular sovereignty should define these rights as inherent and innate to being a person.
And if you do assert your Constitutional rights, it's an easy way to escalate a situation where you soon learn the meaning to "you can beat the rap, but you can't beat the ride."
And if you do assert your Constitutional rights, it's an easy way to escalate a situation where you soon learn the meaning to "you can beat the rap, but you can't beat the ride."
Asserting your rights is a fantastic ride, if you know how to do it. Everyone should Google how Geithner beat both rap and ride from the NYPD in four hours.that guy's a pro.
If you don't know how to properly assert your rights, then you have none; expect to have your window smashed in, and be pulled out of your car. Or have cops and social workers come to remove your kids from an "unsafe" house 30 minutes after the power company shuts off the power for some reason.
But if you do it right, you're treated extremely politely by policemen and justice system participants.
If you don't know how to properly assert your rights, then you have none; expect to have your window smashed in, and be pulled out of your car. Or have cops and social workers come to remove your kids from an "unsafe" house 30 minutes after the power company shuts off the power for some reason.
But if you do it right, you're treated extremely politely by policemen and justice system participants.
Do you have a link to a story? A cursory search reveals people complaining about being duped by a video that was posted two years after some event.
Forgive the lack of a link. This was discussed at a lunch with fellow bankers a few years back, and one of my acquaintances had a rather detailed run-down. I figure it was more publically-discussed. As I have no citation, take this with as large a grain of salt as you'd like. :-)
Lacking actionable specifics that can survive independent testing, it seems like the straightforward explanation of "how" is simply being well-connected. This does not scale.
I do believe you're right about it not scaling. Police states never do.
Though I'm not sure republican forms of government (or indeed "democracy" itself) scale too well , either.
Though I'm not sure republican forms of government (or indeed "democracy" itself) scale too well , either.
That sounds like a terrifyingly bleak way to live.
Of course, the Constitution doesn't grant rights. Do you have a natural right to be left alone if you so choose? Do you have a natural right to not be a witness against yourself? It seems a society based on popular sovereignty should define these rights as inherent and innate to being a person.
In the UK, the police warn people on arrest "You do not have to say anything, but it may harm your defense if you fail to mention during questioning something you later rely on in court." Which sounds quite a lot like how this is going in leftpondian areas.
The idea is that if you suddenly come up with some claim in court without having mentioned it beforehand, it could be made up, but if you are sticking to the same story throughout then the court is more likely to believe you. Of course, it is absolutely the right thing to ask for a lawyer to be present during all questioning, and that is one's right. The lawyer may advise you to answer every question with "No comment", or (if the evidence is damning) to fess up.
The idea is that if you suddenly come up with some claim in court without having mentioned it beforehand, it could be made up, but if you are sticking to the same story throughout then the court is more likely to believe you. Of course, it is absolutely the right thing to ask for a lawyer to be present during all questioning, and that is one's right. The lawyer may advise you to answer every question with "No comment", or (if the evidence is damning) to fess up.
The illustrated guide to criminal law - http://lawcomic.net/guide/?p=2897 just finished up the 5th amendment.
You have to assert your right to silence, it isn't enough to be silent.
You have to assert your right to silence, it isn't enough to be silent.
That was actually useful, thanks.
There's a really terrible trend of requiring magic spells to be cast to "invoke" 4th and 5th amendment rights. You have a right to remain silent, as the Supreme Court has codified it; it doesn't make any sense to talk about "invoking" it specifically. You don't have to declare "I invoke my First Amendment rights" as a magic spell to avoid being prosecuted for writing something on the internet.
It's not so much invoking it as it is asserting it for the record. By immediately saying "I choose to remain silent so that I do not incriminate myself, as is my right codified in the Fifth Amendment", you are making a clear and conscious public affirmation that your silence cannot be used against you.
But I don't disagree with you; I don't think we should have to voice our rights. We should be able to hold the government to the task of protecting those rights, rather than having to protect ourselves explicitly.
But I don't disagree with you; I don't think we should have to voice our rights. We should be able to hold the government to the task of protecting those rights, rather than having to protect ourselves explicitly.
Agreed. The root cause of this trend is that the police are allowed to lie about the law, they are allowed to say anything they want in order to manipulate you into giving them what they want. The police know the areas of laws that apply to them extremely well; and yet they are not compelled or even encouraged to share that knowledge with you. This leaves you, citizen, up a creek if you don't know the law cold.
I can see (Californian) LEOs gleefully referencing this case with suspects, scaring them into thinking their silence is evidence of guilt.
Leverage, leverage, leverage. Law enforcement is always looking for more leverage, always pushing the boundaries, to move more easily from "suspect" to "criminal" to "prisoner". They would repeal the 4th, 5th, and 6th amendments if they could (along with modifications to the 1st and 2nd), because it would make their job easier.
Using information asymmetry to trick people is no less coercive than "roughing them up" in an interrogation. It's time we make it a crime for a self-identified police officer to lie about the law or the suspect's rights.
I can see (Californian) LEOs gleefully referencing this case with suspects, scaring them into thinking their silence is evidence of guilt.
Leverage, leverage, leverage. Law enforcement is always looking for more leverage, always pushing the boundaries, to move more easily from "suspect" to "criminal" to "prisoner". They would repeal the 4th, 5th, and 6th amendments if they could (along with modifications to the 1st and 2nd), because it would make their job easier.
Using information asymmetry to trick people is no less coercive than "roughing them up" in an interrogation. It's time we make it a crime for a self-identified police officer to lie about the law or the suspect's rights.
It makes more sense in non-verbal cases, I think. I read the suggestion somewhere (that "Illustrated Guide to Law" linked in a sibling comment) that Al Capone could have "plead the fifth" on his tax returns, instead of just not submitting them—and that the government would be required to accept this as a valid return, and do their own investigation of his tax status (whereas they wouldn't need to accept e.g. a blank return.) that sounds contentious to me, so I'd really like to hear what another lawyer thinks of it. If true, it almost explains the need to submit paper forms that are looked at by humans: special-case exceptions like this that override all normal "parsing" of a legal form using a plain-English statement.
" You have a right to remain silent, as the Supreme Court has codified it;"
So let's a few things things straight :)
1. This particular right does not explicitly appear in the constitution. There is nobody who argues otherwise. The history of the fifth amendment does not support any other reading than being about compulsion to testify (IE torture, etc).
2. The Supreme Court are the ones who say you have to invoke it explicitly
So the Supreme Court, who you say "codified" this right, are the very people saying you need to explicitly invoke it.
So it does make sense to talk about invoking it, since the same people who have explained this right have said, as part of that explanation, that you are required to do it. Basically "that it is your right to invoke your silence". Not "you have an unabrogated right to silence and not have that silence used against you".
"You don't have to declare "I invoke my First Amendment rights" as a magic spell to avoid being prosecuted for writing something on the internet."
Of course, you can be prosecuted for plenty of stuff you write on the internet, because the first amendment is not absolute, as the Supreme Court has codified it.
So let's a few things things straight :)
1. This particular right does not explicitly appear in the constitution. There is nobody who argues otherwise. The history of the fifth amendment does not support any other reading than being about compulsion to testify (IE torture, etc).
2. The Supreme Court are the ones who say you have to invoke it explicitly
So the Supreme Court, who you say "codified" this right, are the very people saying you need to explicitly invoke it.
So it does make sense to talk about invoking it, since the same people who have explained this right have said, as part of that explanation, that you are required to do it. Basically "that it is your right to invoke your silence". Not "you have an unabrogated right to silence and not have that silence used against you".
"You don't have to declare "I invoke my First Amendment rights" as a magic spell to avoid being prosecuted for writing something on the internet."
Of course, you can be prosecuted for plenty of stuff you write on the internet, because the first amendment is not absolute, as the Supreme Court has codified it.
Unlike you, I am not a laywer, so take this for what it's worth:
I agree with most of what you say, but I do think the following statement is a bit unfair:
> So it does make sense to talk about invoking it, since the same people who have explained this right have said, as part of that explanation, that you are required to do it.
Unless I'm mistaken, you're referring to two separate SCOTUS decisions that are separated by several decades (the latter decision is very recent). I don't think it's right to treat the Supreme Court as a singular, monolithic entity even within a given session (let alone separated by many years and with different chief justices, etc.)
Our public understanding of the supposed 'right to remain silent' developed after the Warren court decision, and while it's true that the Roberts court clarified (or imposed) the requirement that this be explicit, AFAICT it's not the only way to interpret the Warren ruling.
Again, I agree with the rest of what you're saying, but I don't think it's unfair to criticize the most recent SCOTUS ruling for appearing to[0] reverse or mitigate our understanding of the earlier SCOTUS ruling.
[0] I say 'appearing to' because it's easily arguable that this is a clarification, not a reversal, which AFAICT is the whole controversy to begin with
I agree with most of what you say, but I do think the following statement is a bit unfair:
> So it does make sense to talk about invoking it, since the same people who have explained this right have said, as part of that explanation, that you are required to do it.
Unless I'm mistaken, you're referring to two separate SCOTUS decisions that are separated by several decades (the latter decision is very recent). I don't think it's right to treat the Supreme Court as a singular, monolithic entity even within a given session (let alone separated by many years and with different chief justices, etc.)
Our public understanding of the supposed 'right to remain silent' developed after the Warren court decision, and while it's true that the Roberts court clarified (or imposed) the requirement that this be explicit, AFAICT it's not the only way to interpret the Warren ruling.
Again, I agree with the rest of what you're saying, but I don't think it's unfair to criticize the most recent SCOTUS ruling for appearing to[0] reverse or mitigate our understanding of the earlier SCOTUS ruling.
[0] I say 'appearing to' because it's easily arguable that this is a clarification, not a reversal, which AFAICT is the whole controversy to begin with
"Again, I agree with the rest of what you're saying, but I don't think it's unfair to criticize the most recent SCOTUS ruling for appearing to[0] reverse or mitigate our understanding of the earlier SCOTUS ruling."
It's certainly fair to criticize, but honestly, this is the problem with unenumerated rights in general (like "The right to privacy" and others), and judicially made rules like the exclusionary rule - they tend to erode or change over time, even after people come to rely on them.
I'd much prefer to see both in the constitution itself. :)
It's certainly fair to criticize, but honestly, this is the problem with unenumerated rights in general (like "The right to privacy" and others), and judicially made rules like the exclusionary rule - they tend to erode or change over time, even after people come to rely on them.
I'd much prefer to see both in the constitution itself. :)
The contemporaneous objection to the proposed Bill of Rights was that future generations would come to believe that only those rights enumerated in the Bill are protected by the Constitution.
It seems to me that that fear has basically come true. Adding a few more amendments won't fix that; in fact they would reinforce the problem.
It seems to me that that fear has basically come true. Adding a few more amendments won't fix that; in fact they would reinforce the problem.
There's a lecture by a law school professor called "Don't Talk to Police" that I've seen on HN before and is definitely worth watching. The case in the article is unfortunate, although I'm curious what might have happened if Tom had asked "am I under arrest?" after not being allowed to go home.
In the second example the article gives, I wonder what would've happened if the defendant had not answered any questions voluntarily and chosen to remain silent.
https://www.youtube.com/watch?v=6wXkI4t7nuc
In the second example the article gives, I wonder what would've happened if the defendant had not answered any questions voluntarily and chosen to remain silent.
https://www.youtube.com/watch?v=6wXkI4t7nuc
I will politely and respectfully disagree with everything stated in this video, but I will not stand in this fine gentleman's way of making more money for criminal lawyers. I hope many people listen to the advice in the link, and then call him to get out of the jam these lessons will put them in.
How about right to be in shock, unable to speak? Where is basic empathy?
Guy just trashed car, possibly killing number of people including his relatives, police arrests him just after accident. In such situation I would shit myself , rolled into fetal position and would not talk to anyone for hours/days.
No he gets jail, because he does not make statements for police..
Guy just trashed car, possibly killing number of people including his relatives, police arrests him just after accident. In such situation I would shit myself , rolled into fetal position and would not talk to anyone for hours/days.
No he gets jail, because he does not make statements for police..
No, you see, only victims deserve empathy. Not someone of whom the media, police and prosecuters have already determined that he is a criminal
"...the courts said the only exception is if defendants expressly tell police they are invoking their Fifth Amendment rights..."
The absence of speech should be protected as freedom of speech by the First Amendment. The emphasis is on should. I wonder in what ways it's been challenged in that sense. Everyone who wants to stay aware of their rights concerning [don't talk to police] topics is hopefully taking note and updating others on this news of last year. It's petty, troubling procedure to be forced to verbally invoke a primary Constitutional right before one 'obtains' that right. Yet so it goes. "I invoke my Fifth Amendment rights. I want to speak to a lawyer. (repeat)"
The absence of speech should be protected as freedom of speech by the First Amendment. The emphasis is on should. I wonder in what ways it's been challenged in that sense. Everyone who wants to stay aware of their rights concerning [don't talk to police] topics is hopefully taking note and updating others on this news of last year. It's petty, troubling procedure to be forced to verbally invoke a primary Constitutional right before one 'obtains' that right. Yet so it goes. "I invoke my Fifth Amendment rights. I want to speak to a lawyer. (repeat)"
[deleted]
"It's petty, troubling procedure to be forced to verbally invoke a primary Constitutional right before one 'obtains' that right"
Which right are you referring to here? As has been pointed out, the right to remain silent does not appear in the constitution. :) Only the right to not be compelled to be a witness against yourself, which is not the same at all (and does not need to be invoked)
Which right are you referring to here? As has been pointed out, the right to remain silent does not appear in the constitution. :) Only the right to not be compelled to be a witness against yourself, which is not the same at all (and does not need to be invoked)
I'm referring to the right to not self-incriminate. That is the issue at hand. What you said is untrue twice over. It's central to this issue and it does "need" to be invoked. The SCOTUS made some fateful rulings in 2013 and the gist ever since is that one must invoke the Fifth in order to be perceived as protected by the Fifth at that time. That's what the article is about.
"I'm referring to the right to not self-incriminate."
Also not in the constitution. Cite otherwise. The right the article is talking about is the fifth amendment, which only says "nor shall be compelled in any criminal case to be a witness against himself".
Not the same as a general right against self-incrimination (and no court case has ever held otherwise ...)
"What you said is untrue twice over. "
Again, in what way? You are the one who refuses to actually back up your statement that this right appears in the constitution, or was understood to be primary constitutional right.
(Spoiler alert: It hasn't been. There are plenty of state and other supreme court cases where silence was allowed to be used against people, and until the time of Miranda, nobody believed this was part of the fifth)
" It's central to this issue and it does "need" to be invoked."
I'm still not sure what you are talking about. I know what the article is talking about. The article is talking about an implicit right to silence created by the Miranda decision that the court found to be necessary to protect people, and its gradual erosion.
" and the gist ever since is that one must invoke the Fifth in order to be perceived as protected by the Fifth at that time. That's what the article is about."
See above
It is only in the past 50 years that any court has ever held the fifth amendment gave you the right to remain silent, and in fact, precedent was the exact opposite for centuries.
You are of course, welcome to look up the caselaw history if you don't believe me.
It simply was not understood to be a primary constitutional right, contrary to your assertion. There was not even anything you could invoke. Prosecutors were free to use your silence against you
Talking about it as if it has always been an understood part of the fifth amendment does nobody any favors. It hasn't. Again, you won't find any serious legal academic who argues otherwise.
Here's an unbiased view by a preeminent con-law scholar: http://www.volokh.com/2013/06/17/do-you-have-a-right-to-rema...
Note the section on pre-1965.
The truth is this is the problem with rights whose plain text does not appear in the constitution, like privacy, like the exclusionary rule, like a lot of things - they tend to erode over time.
But the solution to that is not to pretend they are written into the constitution and then lament a changing ideology of the supreme court, but instead actually put them there.
Also not in the constitution. Cite otherwise. The right the article is talking about is the fifth amendment, which only says "nor shall be compelled in any criminal case to be a witness against himself".
Not the same as a general right against self-incrimination (and no court case has ever held otherwise ...)
"What you said is untrue twice over. "
Again, in what way? You are the one who refuses to actually back up your statement that this right appears in the constitution, or was understood to be primary constitutional right.
(Spoiler alert: It hasn't been. There are plenty of state and other supreme court cases where silence was allowed to be used against people, and until the time of Miranda, nobody believed this was part of the fifth)
" It's central to this issue and it does "need" to be invoked."
I'm still not sure what you are talking about. I know what the article is talking about. The article is talking about an implicit right to silence created by the Miranda decision that the court found to be necessary to protect people, and its gradual erosion.
" and the gist ever since is that one must invoke the Fifth in order to be perceived as protected by the Fifth at that time. That's what the article is about."
See above
It is only in the past 50 years that any court has ever held the fifth amendment gave you the right to remain silent, and in fact, precedent was the exact opposite for centuries.
You are of course, welcome to look up the caselaw history if you don't believe me.
It simply was not understood to be a primary constitutional right, contrary to your assertion. There was not even anything you could invoke. Prosecutors were free to use your silence against you
Talking about it as if it has always been an understood part of the fifth amendment does nobody any favors. It hasn't. Again, you won't find any serious legal academic who argues otherwise.
Here's an unbiased view by a preeminent con-law scholar: http://www.volokh.com/2013/06/17/do-you-have-a-right-to-rema...
Note the section on pre-1965.
The truth is this is the problem with rights whose plain text does not appear in the constitution, like privacy, like the exclusionary rule, like a lot of things - they tend to erode over time.
But the solution to that is not to pretend they are written into the constitution and then lament a changing ideology of the supreme court, but instead actually put them there.
You're confusing explicit rights with implicit rights built on precedence. Much of what's considered Constitutional rights is not definite and explicit. Likewise, the Constitution doesn't explicitly state that you have a right to your physical senses as a sentient being beyond ambiguous terms pertaining to welfare. This reminds me of a leading worry during the writing of the Bill of Rights: a worry that the affirmation of some specific humanitarian rights might regrettably lead society into believing that mere omission becomes the grounds for abusing freedoms unstated.
> It is only in the past 50 years that any court has ever held the fifth amendment gave you the right to remain silent, and in fact, precedent was the exact opposite for centuries.
Yes. It became a right. Go ahead and argue all day about what you perceive as fulfilling the qualification of a "right." I'll argue in direct contrast if your interpretation of rights remains narrow and dictated by the past. It won't help the situation at hand. Miranda warnings wouldn't have resulted if it weren't for precedence and perceived rights upholding it. Now the tides shift again. You're free to call this a "return to the past" or a "return to previous rights I think you never had" or whatever you wish. I call it the erosion of rights.
--------------------
Edit:
> But the solution to that is not to pretend they are written into the constitution and then lament a changing ideology of the supreme court, but instead actually put them there.
That would be ideal. That would be a colossal task, indeed, in lieu of a great number of other rights continuing to erode through an oligarchy's surveillance institutions and corporate decree.
> It is only in the past 50 years that any court has ever held the fifth amendment gave you the right to remain silent, and in fact, precedent was the exact opposite for centuries.
Yes. It became a right. Go ahead and argue all day about what you perceive as fulfilling the qualification of a "right." I'll argue in direct contrast if your interpretation of rights remains narrow and dictated by the past. It won't help the situation at hand. Miranda warnings wouldn't have resulted if it weren't for precedence and perceived rights upholding it. Now the tides shift again. You're free to call this a "return to the past" or a "return to previous rights I think you never had" or whatever you wish. I call it the erosion of rights.
--------------------
Edit:
> But the solution to that is not to pretend they are written into the constitution and then lament a changing ideology of the supreme court, but instead actually put them there.
That would be ideal. That would be a colossal task, indeed, in lieu of a great number of other rights continuing to erode through an oligarchy's surveillance institutions and corporate decree.
You're caught in a semantic rut. Your peer in this conversation isn't suggesting that there is no "right to silence". Re-read his comment. He's acknowledging that there is an implied right, but pointing out that it is not in the Constitution. He agrees with you that the right is eroding.
His disagreement regards the solution that erosion. Your solution seems to be to shore up the implied right to silence that comes from Miranda. His is to add an amendment to the Constitution to formalize a right to silence.
His disagreement regards the solution that erosion. Your solution seems to be to shore up the implied right to silence that comes from Miranda. His is to add an amendment to the Constitution to formalize a right to silence.
It's a semantic rut, perhaps. It's not necessarily my semantic rut. Off the bat he was arguing down this road as if to suggest that I was implying that "remaining silent" was explicitly spelled out in the Constitution -- something I never implied. I'm not stating solutions. I'm commenting on results. Ideas for solutions are numerous and probably least served for attention in this thread. A full constitutional amendment would be great. Agreed. Unfortunately, that's a daunting likelihood given the prevailing winds.
This matter would benefit from re-reading my comments equally, as well, but I digress. No worries. Thank you for your added thoughts.
This matter would benefit from re-reading my comments equally, as well, but I digress. No worries. Thank you for your added thoughts.
You wrote:
" [basically it's sad that one must] verbally invoke a primary Constitutional right before one 'obtains' that right"
Note: you argue it is a primary constitutional right. Primary constitutional rights are those actually found in the constitution. Yours is not.
So when you say this is "something I never implied", i strongly disagree. If you didn't mean to imply it, fine. But I guarantee that anyone with any legal background read your comment and came away with the same impression.
Your argument seemed to me to be "because it's a primary constitutional right, I should not have to invoke it explicitly".
My argument is: You have to invoke it precisely because it is not a primary constitutional right.
Note: you argue it is a primary constitutional right. Primary constitutional rights are those actually found in the constitution. Yours is not.
So when you say this is "something I never implied", i strongly disagree. If you didn't mean to imply it, fine. But I guarantee that anyone with any legal background read your comment and came away with the same impression.
Your argument seemed to me to be "because it's a primary constitutional right, I should not have to invoke it explicitly".
My argument is: You have to invoke it precisely because it is not a primary constitutional right.
The term "Constitutional right" refers to legal rights derived from and related to the Constitution. Hence, they're termed Constitutional.
If you disagree with this term, you disagree with thousands upon thousands of other rights that are equally considered Constitutional and part of Constitutional law. Most Constitutional rights are not explicitly stated in the Constitution. Instead they're derived from interpretation of the succinct language used in the Constitution. This topic is rooted in Constitutional rights. I respect that the word 'primary' could be misinterpreted. And it's subjective. Personally, I don't know where I'd place this issue on a list of humanitarian rights if I had to rank. Most issues related to speech and freedom from tyranny, and its numerous forms of persecution, are issues that I usually deem 'primary.'
If you disagree with this term, you disagree with thousands upon thousands of other rights that are equally considered Constitutional and part of Constitutional law. Most Constitutional rights are not explicitly stated in the Constitution. Instead they're derived from interpretation of the succinct language used in the Constitution. This topic is rooted in Constitutional rights. I respect that the word 'primary' could be misinterpreted. And it's subjective. Personally, I don't know where I'd place this issue on a list of humanitarian rights if I had to rank. Most issues related to speech and freedom from tyranny, and its numerous forms of persecution, are issues that I usually deem 'primary.'
"The term "Constitutional right" refers to legal rights derived from and related to the Constitution. Hence, they're termed Constitutional."
Dude, you said "primary constitutional right", not "constitutional right". They are not the same.
Additionally, you are seriously confusing primary constitutional rights and rights and rules whose basis is implementation of constitutional rights. They are not the same as constitutional rights either.
For example, the exclusionary rule (that excludes evidence obtained through police violate your constitutional rights) is not a constitutional right, it is a judicial rule grounded in sane implementation of the 4th amendment.
In any case, this is not worth arguing any more for me.
Dude, you said "primary constitutional right", not "constitutional right". They are not the same.
Additionally, you are seriously confusing primary constitutional rights and rights and rules whose basis is implementation of constitutional rights. They are not the same as constitutional rights either.
For example, the exclusionary rule (that excludes evidence obtained through police violate your constitutional rights) is not a constitutional right, it is a judicial rule grounded in sane implementation of the 4th amendment.
In any case, this is not worth arguing any more for me.
Like I said, I respect that using the word "primary" is contentious. If that's your only true point, then there's little argument to be had other than a subjective nature of what I consider primary. If your argument extends past that, about the term "Constitutional right" itself, then, again, you'd be wrong to imply that "rights and rules" derived from Constitutional interpretation aren't Constitutional rights. That's not judicial wordplay. It's common language.
Example:
----------------------------
"What to Say to Invoke the Right to Silence
The new Supreme Court decision raises weighty questions, such as whether it’s reasonable to place the onus of asserting constitutional rights on everyday people, most of whom have never cracked the spine of a criminal procedure or constitutional law book. The more practical question is what, exactly, an out-of-custody person must say to inquisitive police officers in order to claim the right to silence. To be safe, they should make clear that they are invoking their Fifth Amendment right to silence and have nothing further to say. That way their subsequent failure to answer any questions cannot be mentioned at trial."
by: Micah Schwartzbach
http://www.nolo.com/legal-encyclopedia/when-how-invoke-your-...
----------------------------
This writer uses the term "constitutional rights" in context. He later says, "...invoking their Fifth Amendment right to silence..." (i.e. "... invoking their Constitutional right to silence...") in direct context. I won't dig up numerous other examples from lawyers who write about this subject in-depth. Court rulings continually change the landscape of rights. They change what's inherently so-called "Constitutional" at any point in time. Many issues become topics of people's Constitutional rights once they're challenged on the basis of the Constitution. This is irrespective of a changing landscape's rulings at any point in time.
Outside of that language, we may agree more than we disagree.
Example:
----------------------------
"What to Say to Invoke the Right to Silence
The new Supreme Court decision raises weighty questions, such as whether it’s reasonable to place the onus of asserting constitutional rights on everyday people, most of whom have never cracked the spine of a criminal procedure or constitutional law book. The more practical question is what, exactly, an out-of-custody person must say to inquisitive police officers in order to claim the right to silence. To be safe, they should make clear that they are invoking their Fifth Amendment right to silence and have nothing further to say. That way their subsequent failure to answer any questions cannot be mentioned at trial."
by: Micah Schwartzbach
http://www.nolo.com/legal-encyclopedia/when-how-invoke-your-...
----------------------------
This writer uses the term "constitutional rights" in context. He later says, "...invoking their Fifth Amendment right to silence..." (i.e. "... invoking their Constitutional right to silence...") in direct context. I won't dig up numerous other examples from lawyers who write about this subject in-depth. Court rulings continually change the landscape of rights. They change what's inherently so-called "Constitutional" at any point in time. Many issues become topics of people's Constitutional rights once they're challenged on the basis of the Constitution. This is irrespective of a changing landscape's rulings at any point in time.
Outside of that language, we may agree more than we disagree.
It's not really about being silent. It'd make much more sense if the Miranda copy was "you have the right to not be interrogated without a lawyer present; if you invoke this right, your silence in response to further questions asked without your lawyer present cannot be held against you. Anything else, can."
"you have the right to not be interrogated without a lawyer present" but that implies you have to answer questions once you get a lawyer present.
Nah, you don't have to answer—but they have every right to ask all the questions they like to you through your lawyer, and whatever response they observe to that "can and will be held against you" just as if you had volunteered to talk.
You can work it out through this equivalence: when you choose to speak without a lawyer present, you're basically self-representing in the interrogation. So your "lawyer" (i.e. you) can get you in trouble. The Miranda rights are sort of a "we will only assign mens rea to the return values from the public API of your mind" idea: by asserting your need for a lawyer, you're asserting that right now they're speaking directly to your private API—an internal version of yourself they don't have the right to know anything about. You-plus-your-lawyer becomes a full being again, and its words can harm it. (But it also has the actual right to remain silent—without invoking anything—and its silence cannot be held against it either.)
The critical thing about the lawyer right is that they actually lose the ability to interrogate you—to do anything at all that could elicit self-incrimination—until you get that lawyer. Whereas, both in the "I invoke my right to remain silent" pre-lawyer, and "no comment" post-lawyer cases, they can continue interrogating you all the like. in fact, if you're re-read your Miranda rights post-invoking-silence but pre-lawyer, your invocation goes away until you say it again! They can keep trying all sorts of things to weasel words out of you if all you ask is to allowed to be silent; once you ask for the lawyer, though, they're utterly locked out until you get one.
You can work it out through this equivalence: when you choose to speak without a lawyer present, you're basically self-representing in the interrogation. So your "lawyer" (i.e. you) can get you in trouble. The Miranda rights are sort of a "we will only assign mens rea to the return values from the public API of your mind" idea: by asserting your need for a lawyer, you're asserting that right now they're speaking directly to your private API—an internal version of yourself they don't have the right to know anything about. You-plus-your-lawyer becomes a full being again, and its words can harm it. (But it also has the actual right to remain silent—without invoking anything—and its silence cannot be held against it either.)
The critical thing about the lawyer right is that they actually lose the ability to interrogate you—to do anything at all that could elicit self-incrimination—until you get that lawyer. Whereas, both in the "I invoke my right to remain silent" pre-lawyer, and "no comment" post-lawyer cases, they can continue interrogating you all the like. in fact, if you're re-read your Miranda rights post-invoking-silence but pre-lawyer, your invocation goes away until you say it again! They can keep trying all sorts of things to weasel words out of you if all you ask is to allowed to be silent; once you ask for the lawyer, though, they're utterly locked out until you get one.
I have always thought it best to specify that you don't understand. If you are not a lawyer how can you know the ramifications for anything you do or do not say.
IANAL, but my guess is that asking for an attorney is the equivalent of asserting your right to remain silent as the police are not allowed to continue your interrogation. The right to counsel is a part of the 6th amendment though, not the 5th.
Some states require you consent to sobriety tests to keep your drivers license. You have the right to remain silent. But they reserve the right to ruin your life.
I'm from a state that does this and I have to confess, I'd never really thought about it this way before. There are so many other ways this sort of principle can be exploited: your ability to have a cell phone contract could be contingent on allowing the police to search your cell phone at any time, remotely; your ability to have a computer could be contingent upon the same; your ability to have an ID card could be continent upon consenting to constant facial recognition tracking.
It's pretty insidious. Obviously nothing is going to be done about it.
It's pretty insidious. Obviously nothing is going to be done about it.
What's upsetting here is not that the state can revoke your driver's license. Operating a 2-ton 100+ HP motor vehicle requires due care and observance of traffic law. It's super dangerous to everyone around the vehicle.
What's upsetting is that losing your right to operate heavy machinery is seen as "ruining your life", and often is in many places due to the built infrastructure requiring driving a car to go to work and buy food.
What's upsetting is that losing your right to operate heavy machinery is seen as "ruining your life", and often is in many places due to the built infrastructure requiring driving a car to go to work and buy food.
A drivers license has always been a privilege, not a right.
Likewise, having a cell phone is a privilege, not a right, but it's nearly impossible to survive in modernity without one, so restricting access to one becomes a form of coercion. No matter how you spin it, this is an attempt to coerce people into incriminating themselves.
There's nothing stopping these states from going further and saying that driving a car implies consent to have that car searched at any time, or impounded to be emissions-checked at the state's leisure.
There's nothing stopping these states from going further and saying that driving a car implies consent to have that car searched at any time, or impounded to be emissions-checked at the state's leisure.
Having a cell phone is a privilege? In what state, owing to what statute?
> Having a cell phone is a privilege?
The ownership of a physical phone is not; having service for that phone involves a voluntary transaction that may be denied, and is therefore a privilege.
The ownership of a physical phone is not; having service for that phone involves a voluntary transaction that may be denied, and is therefore a privilege.
It is a voluntary transaction between 2 private parties. Either party can deny that transaction, but the government stepping in and preventing the transaction seems like a very different thing. I suppose some would say it's part of thew government's right to regulate interstate commerce.
Well, the government owns the radio spectrum that the communication goes over, so it's more direct than that.
"owns" in this sentence is problematic. It is a highly technical discussion so it is probably best not to dwell on it. But the government regulates the radio spectrum on behalf of the public, who own it.
"The public" is an abstract concept. If you try to use radio spectrum in ways the government dislikes, it will stop you with violence, so they own it for all intents and purposes.
For that matter, the "government" is an abstract concept. So what? The point is, the "government" doesn't own anything. They regulate it. That is completely different than ownership, and in the case of radio spectrum the very concept of ownership is really hard to even reason about it.
What is ownership of a piece of land, precisely, then, and how does it differ from ownership of the radio spectrum? My understanding is that ownership of a piece of land simply means that you'll (or a proxy, whether private entity or Government, will) use violence (or threaten it) to keep other people from using it without your permission.
1) That is a very loose definition of ownership. For instance, I can threaten my next door neighbor to take over his deed. That doesn't make me the owner of the land. Ownership of anything is a social construct, without which the greatest warlord wins.
2) Even given the social construct of ownership, the enforcer of the social construct is not the "owner". If I pay a private security firm to guard my property, most people don't assume I've ceded ownership to them.
3) Even given those narrow definitions, the radio spectrum is much more nuanced than physical property. Radio waves literally travel around the world. I as a property owner can enact physical boundaries that have a fair chance of preventing trespass and providing an uninformed arbitrator to make a decent decision. When it comes to radio frequency, even the act of trespass is a highly technical and subjective topic.
2) Even given the social construct of ownership, the enforcer of the social construct is not the "owner". If I pay a private security firm to guard my property, most people don't assume I've ceded ownership to them.
3) Even given those narrow definitions, the radio spectrum is much more nuanced than physical property. Radio waves literally travel around the world. I as a property owner can enact physical boundaries that have a fair chance of preventing trespass and providing an uninformed arbitrator to make a decent decision. When it comes to radio frequency, even the act of trespass is a highly technical and subjective topic.
I have family that have been restricted from internet use. This includes the use of most cellphones. Makes it hard to get or maintain a job.
Restricted why? They are allowed to take away rights as punishment for a crime.
It's certainly regulatable, though it isn't now. Since cell carriers lease public airwaves, it'd be possible to mandate that they block some people from using their service, only sell phones if the person's ID is checked, etc.. This is drastic and would disrupt (in the traditional sense of the word) pay as you go phones that are popular for various demographics, but it seems possible, and there certainly isn't a reason why it couldn't happen.
If felons can be denied the right to vote, I think it'd be an easy sell to deny them the right to cell phones. Any state could pass it as a "tough on crime" measure.
If felons can be denied the right to vote, I think it'd be an easy sell to deny them the right to cell phones. Any state could pass it as a "tough on crime" measure.
It's not true that anything one can imagine being regulated can legally be regulated. The state has an extremely compelling interest in regulating automobiles --- they are incredibly dangerous and create externalities. It is harder to see how a restriction on free speech and association could pass Constitutional muster.
There's no free speech or association here, only questions of who can access government-controlled radio spectrum.
This is also incredibly dangerous -- nearly all drug trafficking is orchestrated via cellular networks, and it's not a stretch to imagine that felons might lose the right to use government radio spectrum to communicate in the same way they lose the right to vote in many states.
To put it another way, which seems more of a central right in the democratic system: voting, or controlled frequency access?
It seems very quixotic to make this an issue of free speech, when free speech itself is so highly regulated. Ask the protesters outside the free speech zone if free speech exists beyond state regulation -- the silence is your answer.
This is also incredibly dangerous -- nearly all drug trafficking is orchestrated via cellular networks, and it's not a stretch to imagine that felons might lose the right to use government radio spectrum to communicate in the same way they lose the right to vote in many states.
To put it another way, which seems more of a central right in the democratic system: voting, or controlled frequency access?
It seems very quixotic to make this an issue of free speech, when free speech itself is so highly regulated. Ask the protesters outside the free speech zone if free speech exists beyond state regulation -- the silence is your answer.
NY's Senator Schumer tried to pass a law that made anonymous prepaid cellphones illegal in 2010 (http://www.schumer.senate.gov/new_website/record.cfm?id=3252...).
While this bill seems to have quietly died, it shows that it is certainly possible.
While this bill seems to have quietly died, it shows that it is certainly possible.
The distinction between privileges and rights, while interesting from a moral perspective, isn't of much use in the real world. The vast majority of us would not be able to survive without the use of numerous privileges and "voluntary" transactions, and we require more and more every day.
What's more, if you manage to live completely off the grid on your own land, the result is that you have fewer resources to protect you in the case that someone who does make use of those privileges decides that they want to violate your rights.
Privileges and voluntary transactions are a myth - anyone who is restricted from them is at a significant disadvantage, and at significantly higher risk of loss of rights to property or to life.
What's more, if you manage to live completely off the grid on your own land, the result is that you have fewer resources to protect you in the case that someone who does make use of those privileges decides that they want to violate your rights.
Privileges and voluntary transactions are a myth - anyone who is restricted from them is at a significant disadvantage, and at significantly higher risk of loss of rights to property or to life.
During the original debate over the Bill Of Rights, a primary concern was that the failure to enumerate a right would be construed as non-existence thereof - exactly the opposite of what the Founding Fathers intended.
Methinks if the Founding Fathers had conceived of the notion of vehicular transportation being prohibited without governmental consent & licensing, they wouldn't have hesitated to include that as a fundamental right (just as security requires armaments, and speech requires presses - ownership & use of equipment facilitating both explicitly may not be infringed/abridged). As the notion of vehicle licensing (both horse and horseless) was never considered, unto inconceivable, they didn't enumerate it as a natural right. Require a driver's test and license a horse & carriage? absurd! ...well, now the technological improvement plus lack of enumerated right means 'tis common to construe vehicular travel as a "privilege" in a society where one is darned near dysfunctional without.
Methinks if the Founding Fathers had conceived of the notion of vehicular transportation being prohibited without governmental consent & licensing, they wouldn't have hesitated to include that as a fundamental right (just as security requires armaments, and speech requires presses - ownership & use of equipment facilitating both explicitly may not be infringed/abridged). As the notion of vehicle licensing (both horse and horseless) was never considered, unto inconceivable, they didn't enumerate it as a natural right. Require a driver's test and license a horse & carriage? absurd! ...well, now the technological improvement plus lack of enumerated right means 'tis common to construe vehicular travel as a "privilege" in a society where one is darned near dysfunctional without.
This use of the word "privilege" has always irked me - maybe I'm just not reading it in the correct sense. It sounds very paternalistic.
Driving is a regulated activity, but you do have a right to a drivers license if you are able to comply with the regulations. "Privilege" sounds so arbitrary, as if someone could say "I don't like your face, no license for you".
Driving is a regulated activity, but you do have a right to a drivers license if you are able to comply with the regulations. "Privilege" sounds so arbitrary, as if someone could say "I don't like your face, no license for you".
from Thefreedictionary.com's legal dictionary [1]:
License: The permission granted by competent authority to exercise a certain privilege that, without such authorization, would constitute an illegal act, a Trespass or a tort. The certificate or the document itself that confers permission to engage in otherwise proscribed conduct.
let's think about that: Driving is illegal. Marriage is illegal. Fishing is illegal.
1. http://legal-dictionary.thefreedictionary.com/license
License: The permission granted by competent authority to exercise a certain privilege that, without such authorization, would constitute an illegal act, a Trespass or a tort. The certificate or the document itself that confers permission to engage in otherwise proscribed conduct.
let's think about that: Driving is illegal. Marriage is illegal. Fishing is illegal.
1. http://legal-dictionary.thefreedictionary.com/license
Let's be clear here - what you're referring to is some states will suspend your DL for a year if you refuse all types testing. This includes the array of FST's (field sobriety tests), blood, urine, chemical or breathe.
This is not an admission of guilt, but in most states, a violation of your driving contract you signed when you were given your license.
Also, you can refuse an FST, then tell the police you refuse the rest of the tests until your lawyer is present. At that time, they arrest and book you and you can call an attorney to come and bail you out. By that time, your attorney will likely advise you to take one of the three tests since its been long enough and you're probably back under the legal limit.
It's a good strategy to delay taking of the tests. This way, in court, your attorney can argue you didn't refuse to take the test, and simply invoked your constitutional right until your lawyer was present to make sure everything was legal.
This is not an admission of guilt, but in most states, a violation of your driving contract you signed when you were given your license.
Also, you can refuse an FST, then tell the police you refuse the rest of the tests until your lawyer is present. At that time, they arrest and book you and you can call an attorney to come and bail you out. By that time, your attorney will likely advise you to take one of the three tests since its been long enough and you're probably back under the legal limit.
It's a good strategy to delay taking of the tests. This way, in court, your attorney can argue you didn't refuse to take the test, and simply invoked your constitutional right until your lawyer was present to make sure everything was legal.
Another good strategy is DON'T DRINK AND DRIVE.
That doesn't help the main point here, which is police imposition on people that have done nothing wrong. You don't need to yell at the side point without actually contributing to the conversation.
You assuming people are guilty with your statement.
If you get drunk and get behind the wheel, any ruin that ensues is entirely on you.
IIRC, all 50 states have implied consent laws.
[deleted]
[deleted]
What's the point of having laws, if your citizens can't possibly know/remember them?
Not that I think the US is there yet, but the answer is that having so many laws that basically waking up and going about your daily routine means breaking at least a few laws, is the ultimate goal. If everything is a crime and everyone is a criminal, it's much easier for the government to control the people rather than the other way around. This concept comes up in many science fiction works, even non-Dystopian ones.
I've always wondered this while driving through Chicago. The speed limit is 55mph, but everyone, cops included, goes 70 when traffic allows for it. And I've done 80mph with a cop behind me and not been pulled over.
Which leads me to believe that the speed limit is only there so the police have a reason to pull over anyone without any other reason. Don't like the look of the driver? Pull them over, while ignoring every other car doing 70.
Which leads me to believe that the speed limit is only there so the police have a reason to pull over anyone without any other reason. Don't like the look of the driver? Pull them over, while ignoring every other car doing 70.
It's even worse in some places. Here in Atlanta, there is a law against impeding the flow of traffic. The I-285 perimeter highway around the city has a posted speed of 55 for most of it, yet traffic constantly flows at about 70-80mph. Theoretically, if you are going 65mph in the leftmost lane while people are flying around you and backed up behind you, you can be stopped and cited for both impeding the flow of traffic and speeding.
Who knows if it would get thrown out in court, but most people plead guilty to traffic citations by just paying the fine anyway, and the system knows that.
Who knows if it would get thrown out in court, but most people plead guilty to traffic citations by just paying the fine anyway, and the system knows that.
The article hit the nail on the head. It is a no-win scenario. Having watched many law professors give lectures on this very topic and something they always make sure to point out, the issue that I always have with it is the wording:
"Anything you say or do may (or can and will for modern readings) be used against you in a court of law"
What it does not say is it can be used for you. What would of changed if Tom knew that showing good human conscious would help him in court? Yet the Miranda Warning worded to say nothing good can come out of this for you, that is I have absolutely nothing to gain by talking to you. It's a lose-lose situation. Could you imagine the frustration?
"Anything you say or do may (or can and will for modern readings) be used against you in a court of law"
What it does not say is it can be used for you. What would of changed if Tom knew that showing good human conscious would help him in court? Yet the Miranda Warning worded to say nothing good can come out of this for you, that is I have absolutely nothing to gain by talking to you. It's a lose-lose situation. Could you imagine the frustration?
[deleted]
"Sir, can you tell me how fast you were going?" I've always wondered what the best answer would be.
Maybe it's a regional thing, but around here the question is always "Do you know why I pulled you over?" to which I've answered, "no, sir." To answer anything else is to incriminate yourself, and officers will write in the comments section of the ticket (for the judge to see) that you affirmed your offense, essentially pleading guilty on the spot.
For example, let's say you're going 10mph over the speed limit and you're aware of that, but you don't know your tail light is out. The officer pulls you over for the tail light, asks the question, and you answer "because I was speeding, I guess". Now he can not only write you the ticket for the tail light, but you just gave him a confession for the speeding too. Now you've guaranteed that you'll get two citations when you might have just gotten off with a "fix that tail light" warning.
For example, let's say you're going 10mph over the speed limit and you're aware of that, but you don't know your tail light is out. The officer pulls you over for the tail light, asks the question, and you answer "because I was speeding, I guess". Now he can not only write you the ticket for the tail light, but you just gave him a confession for the speeding too. Now you've guaranteed that you'll get two citations when you might have just gotten off with a "fix that tail light" warning.
You are absolutely correct. However, a court will accept that you tried to plead guilty at the earliest point in time, and will usually give you a reduced penalty for doing so. You'll usually get no points on your license, either.
from thefreedictionary.com's legal dictionary: In civil lawsuits, the term guilty does not imply criminal responsibility but refers to misconduct.
Source: I settle approximately 4 speeding tickets a month for customers.
from thefreedictionary.com's legal dictionary: In civil lawsuits, the term guilty does not imply criminal responsibility but refers to misconduct.
Source: I settle approximately 4 speeding tickets a month for customers.
"Yes." And leave it at that. he'll move on to the next line of questioning. Acceptance of the speed you were going, along with a confirmation that you were not being inattentive while driving (which is the point of the question) will solve your issues much faster. I have gotten out of speeding tickets by simply stating "Yes".
"Not fast enough; you still caught me" is definitely not the best answer, but a funny one.
"Not fast enough; you still caught me" is definitely not the best answer, but a funny one.
In some cases they're giving the opportunity to self-incriminate for speeding.
Maybe they didn't get a solid read on their radar gun, or maybe you saw them and were slowing down already when it locked, so they may have no actual evidence. But if they can trick/scare you into admitting that you were speeding, then they don't need the radar gun readings. So you should be very hesitant to tell them any numbers that are above the legal limit.
Maybe they didn't get a solid read on their radar gun, or maybe you saw them and were slowing down already when it locked, so they may have no actual evidence. But if they can trick/scare you into admitting that you were speeding, then they don't need the radar gun readings. So you should be very hesitant to tell them any numbers that are above the legal limit.
They don't need the radar gun reading to give you a ticket for speeding. There was a discussion of it here on HN, where all they need is "based upon my training and experience" and a visual estimate of your speed, you can get nailed without a radar gun.
I've always said "... I thought I was going the limit... was I?" and I get off with a warning most of the time. I always answer any follow up some utterance like "oh...", but I never explicitly admit fault.
I get off with a warning for most offenses but I think it's more about being very polite and cooperative.
Source: I get stopped once or twice a year for various reasons. (Have been driving for 20 years, 20-40 stops)
I get off with a warning for most offenses but I think it's more about being very polite and cooperative.
Source: I get stopped once or twice a year for various reasons. (Have been driving for 20 years, 20-40 stops)
Perhaps another question: "How fast was I going, officer?"
My friend recently tried "do you know how fast I was going" with his best smile of course. The officer responded something like "yes, but I want to see how honest you're going to be with me" with his best smile of course. This was probably a slam dunk for the officer, but my friend got off with 5-over, a hundred dollars, and no points. They were just out to generate revenue on a holiday weekend - and maybe get people to slow down - and I think we all knew it.
They weren't using radar guns and they didn't tell him their readings?
Most people have watched enough "Cops" to have memorized the script. Now, go grab a copy of a law dictionary (I use Bouvier's or Black's) and read the definition of every word in that script. You'll be amazed at what it really means.
Silence is considered acceptance in contempt. A cop telling you that you have the right to put yourself in contempt, when you have a duty as a taxpaying citizen to respond, should give you some pause.
Don't take my word for it, though; read a law dictionary.
Silence is considered acceptance in contempt. A cop telling you that you have the right to put yourself in contempt, when you have a duty as a taxpaying citizen to respond, should give you some pause.
Don't take my word for it, though; read a law dictionary.
I have absolutely no idea what you are trying to say.
It sounds like you are implying that keeping mum is legally equivalent to agreeing to anything that a police officer says. That simply isn't true.
If you have something useful to contribute, please make it more clear and include a citation somewhat more precise than "somewhere within the 2052 pages of Black's Law Dictionary".
It sounds like you are implying that keeping mum is legally equivalent to agreeing to anything that a police officer says. That simply isn't true.
If you have something useful to contribute, please make it more clear and include a citation somewhat more precise than "somewhere within the 2052 pages of Black's Law Dictionary".
Interesting quote you put there. Did I say that?
But sure, i'll be happy to do your homework for you. Grab your book, an look up the following words: "You" "Right" "Remain" "Silent" "Attorney" "Afford" "Understand"
Those would probably be a good start for you. You'll learn they don't mean what you think they mean.
Afterwards, might I suggest a book on offer and acceptance? The "Examples and Explanations" series has a great book on Contracts, and might get you to a deeper understanding of the meaning of silence.
But sure, i'll be happy to do your homework for you. Grab your book, an look up the following words: "You" "Right" "Remain" "Silent" "Attorney" "Afford" "Understand"
Those would probably be a good start for you. You'll learn they don't mean what you think they mean.
Afterwards, might I suggest a book on offer and acceptance? The "Examples and Explanations" series has a great book on Contracts, and might get you to a deeper understanding of the meaning of silence.
> Interesting quote you put there. Did I say that?
No. I used the quotation marks to indicate my paraphrasing of what I believed you were implying, not your actual words.
No. I used the quotation marks to indicate my paraphrasing of what I believed you were implying, not your actual words.
We'll consider your silence to the rest of my post as agreement to its contents.
And we'll consider your downvotes to be a sign of vexation, rather than legitimate contribution to the conversation. This type of censorship is not in the spirit of the HN guidelines.
Regardless, I have karma to burn. bury away. :-)
Regardless, I have karma to burn. bury away. :-)
[deleted]
Miranda readings, which most people conflate with this "right to remain silent" are a bit of a bizarre invention of the Warren Court from other preexisting rights:
1. The against self-incrimination under the Fifth Amendment. 2. The right to have counsel present during interrogation, since interrogation is considered an inherently coercive environment under the Sixth Amendment.
If the goal is for the suspect to understand his or her legal rights during questioning, "You have the right to remain silent," is a very bad way to phrase Fifth and Sixth to an average Jane.
A more sane way might be an exclusionary rule that throws out all statements before the suspect has the chance to talk to an attorney.
To patch up the corner cases, you could probably import quite a few hearsay exceptions, like excited utterance.
Plus, I don't like this "know the magic words or else" type jurisprudence. "Am I free to leave?" "Am I being detained?" "Do you have a warrant?"
In everyday police interactions, a citizen should never have to assert Constitutional rights. The onus should be on the state's system to ensure they're granted.