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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?

#21

Post by morganvachon »

fiatmoney wrote: post #10

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.

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

#22

Post by ctdonath »

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.

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.

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

#24

Post by rabid_fish »

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?

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.

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

#25

Post by phkahler »

derefr wrote: post #3

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.

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

#27

Post by javajosh »

fiatmoney wrote: post #10

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.

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.

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

#28

Post by [deleted] »

aric wrote: post #13

"...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…

[deleted]

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

#29

Post by DannyBee »

aric wrote: post #13

"...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…

"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)

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

#30

Post by derefr »

fiatmoney wrote: post #10

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 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.
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