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'You Have the Right to Remain Silent.' or Do You?

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Re: 'You Have the Right to Remain Silent.' or Do You?

#11

Post by s_q_b »

Technically no, because there isn't actually a right to remain silent under the United States Constitution.

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.

Re: 'You Have the Right to Remain Silent.' or Do You?

#13

Post by aric »

"...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)"

Re: 'You Have the Right to Remain Silent.' or Do You?

#14

Post by at-fates-hands »

smokeyj wrote: post #4

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.

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.

Re: 'You Have the Right to Remain Silent.' or Do You?

#16

Post by tptacek »

tedks wrote: post #8
krallja wrote: post #5

Earlier quoted context omitted.

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 i…

Having a cell phone is a privilege? In what state, owing to what statute?

Re: 'You Have the Right to Remain Silent.' or Do You?

#17

Post by vertex-four »

krallja wrote: post #5
smokeyj wrote: post #4

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.

A drivers license has always been a privilege, not a right.

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.

Re: 'You Have the Right to Remain Silent.' or Do You?

#18

Post by mnw21cam »

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.

Re: 'You Have the Right to Remain Silent.' or Do You?

#19

Post by morganvachon »

Frozenlock wrote: post #15

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.

Re: 'You Have the Right to Remain Silent.' or Do You?

#20

Post by vertex-four »

tptacek wrote: post #16
tedks wrote: post #8

Earlier quoted context omitted.

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 i…

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.

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