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That is one of the most impressive and informative flowcharts I've seen in a long time. The 5th Amendment is a tricky thing and this cleared it up quite a bit.

That is one of the most impressive and informative flowcharts I've seen in a long time. The 5th Amendment is a tricky thing and this cleared it up quite a bit. That said, there will always be fringe cases and people should be using their brain and not just blindly following a flowchart.

rcthompson 11y ago
I don't know if this flowchart is intended as a practical guide so much as it is a statement on how difficult and complicated it is to actually invoke the 5th amendment.
- tptacek 11y ago
  It's not complicated in the common case. Look at the flowchart again. "If an agent of the government is questioning you, then, to each question, state that you are invoking your Fifth Amendment right and then do not answer the question".
  - nickpsecurity 11y ago
    Exactly. The flowchart is mainly about potential for deviations and corner case crap (Miranda). I mentally reduce it to this: If question, then assert Fifth Amendment and Lawyer. If search request, assert Fourth Amendment and Laywer where request isn't an allowed exception. Either way, repeatedly ask if you're free to go. And be respectful in attitude for best results. Eventually, they let you go, ticket you, hold you, or charge you.
hamburglar 11y ago
One thing it doesn't clear up for me is whether you can invoke the fifth amendment even in cases where there is not a specific crime you might incriminate yourself with. "Could your answer make it look like you committed a crime?" Considering that I have been advised that anything I say may be used against me, I would think that the answer to this question is inherently yes, even if I can't actually imagine how it might be used to incriminate me. Can I invoke the fifth simply on the principle of playing it extremely safe?
- nabla9 11y ago
  You spotted the weak link in this flowchart: "Could YOUR answer (or silence) be used to make it look like YOU committed a CRIME". There is no way to know. When cop comes and casually talks to you, he may not even consider you a suspect until later. If you follow the watertight route, you may never talk to police: https://www.youtube.com/watch?v=6wXkI4t7nuc https://www.youtube.com/watch?v=6wXkI4t7nuc You must have constant adversary attitude towards police asking questions in every situation. In practice people never do that and usually nothing bad happens, but still... It's part of the good police work to be casual and make people feel that people are jerks if they don't cooperate.

rcthompson 11y ago

I don't know if this flowchart is intended as a practical guide so much as it is a statement on how difficult and complicated it is to actually invoke the 5th amendment.

tptacek 11y ago
It's not complicated in the common case. Look at the flowchart again. "If an agent of the government is questioning you, then, to each question, state that you are invoking your Fifth Amendment right and then do not answer the question".
- nickpsecurity 11y ago
  Exactly. The flowchart is mainly about potential for deviations and corner case crap (Miranda). I mentally reduce it to this: If question, then assert Fifth Amendment and Lawyer. If search request, assert Fourth Amendment and Laywer where request isn't an allowed exception. Either way, repeatedly ask if you're free to go. And be respectful in attitude for best results. Eventually, they let you go, ticket you, hold you, or charge you.

hamburglar 11y ago

One thing it doesn't clear up for me is whether you can invoke the fifth amendment even in cases where there is not a specific crime you might incriminate yourself with. "Could your answer make it look like you committed a crime?" Considering that I have been advised that anything I say may be used against me, I would think that the answer to this question is inherently yes, even if I can't actually imagine how it might be used to incriminate me. Can I invoke the fifth simply on the principle of playing it extremely safe?

nabla9 11y ago
You spotted the weak link in this flowchart: "Could YOUR answer (or silence) be used to make it look like YOU committed a CRIME". There is no way to know. When cop comes and casually talks to you, he may not even consider you a suspect until later. If you follow the watertight route, you may never talk to police: https://www.youtube.com/watch?v=6wXkI4t7nuc https://www.youtube.com/watch?v=6wXkI4t7nuc You must have constant adversary attitude towards police asking questions in every situation. In practice people never do that and usually nothing bad happens, but still... It's part of the good police work to be casual and make people feel that people are jerks if they don't cooperate.