'You Have the Right to Remain Silent.' or Do You? • Hacker News Board

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

#31

Post by phkahler » Mon, Oct 06, 2014, 5:18 PM UTC

baddox wrote: post #26

phkahler wrote: post #23

"Sir, can you tell me how fast you were going?" I've always wondered what the best answer would be.

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.

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

#32

Post by wffurr » Mon, Oct 06, 2014, 5:19 PM UTC

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.

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.

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

#33

Post by DannyBee » Mon, Oct 06, 2014, 5:21 PM UTC

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.

" 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.

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

#34

Post by derefr » Mon, Oct 06, 2014, 5:33 PM UTC

phkahler wrote: post #25

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.

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.

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

#35

Post by hallman76 » Mon, Oct 06, 2014, 5:33 PM UTC

at-fates-hands wrote: post #14

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…

Another good strategy is DON'T DRINK AND DRIVE.

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

#36

Post by patrickmay » Mon, Oct 06, 2014, 5:35 PM UTC

s_q_b wrote: post #11

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 consi…

> 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!

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

#37

Post by tedks » Mon, Oct 06, 2014, 5:39 PM UTC

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?

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.

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

#38

Post by aric » Mon, Oct 06, 2014, 5:43 PM UTC

DannyBee wrote: post #29

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)

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.

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

#39

Post by breischl » Mon, Oct 06, 2014, 5:51 PM UTC

phkahler wrote: post #23

"Sir, can you tell me how fast you were going?" I've always wondered what the best answer would be.

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.

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

#40

Post by treehau5 » Mon, Oct 06, 2014, 5:52 PM UTC

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?