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My understanding is that it's settled law that Americans have the right to remain silent unconditionally.

gnopgnip 7y ago
It is not that straightforward. Generally you cannot be compelled to testify against yourself. But you can be legally compelled to perform certain actions, and held in contempt if you fail to do so. Whether or not disclosing a password is self incrimination, or something you are required to provide is an actively changing area of the law.
- mcny 7y ago
  > But you can be legally compelled to perform certain actions, and held in contempt if you fail to do so. I anal but isn’t this basically slavery/forced indenture? Could a court of law compel Apple to write some software? If so, can a court of law require George RR Martin to write a novel and send him to prison if he declines?
  - solidsnack9000 7y ago
    Courts can not compel arbitrary things but they can compel participation in the trial process, in order to bring the trial to conclusion. Imagine what a miscarriage of justice it would be, if people had an unrestricted right to hold up the process.
  - jki275 7y ago
    Look up the All Writs act. It's an open question as to whether it actually applies, and Apple has successfully fought off the FBI on this, but it hasn't gotten a court decision that sets a solid precedent. Conceptually I agree with you, the law is not as clear.
  - noirbot 7y ago
    Once you're in the court system of most any country, what things you legally can and can't do are a lot harder to enforce. You're essentially needing to fight a well-trained opponent on their home turf with biased referees and no real downside to them for cheating. I'd imagine neither of your examples could or would happen given the power Apple and Martin's representatives have, and how absurd forcing someone to write a book as part of a court decision would be, but I'm fairly sure you could find examples of relatively similar things. I could certainly see something like a contract-related case being resolved by essentially legally compelling someone to write a book that they said they'd write, or else be fined/imprisoned.
    - mcny 7y ago
      > I could certainly see something like a contract-related case being resolved by essentially legally compelling someone to write a book that they said they'd write, or else be fined/imprisoned. Again, I anal so I don't know the law but contracts sound like a strictly civilian (not government vs not government) court case where there should be no possibility of imprisonment. If there is it sounds like a bug to me and we ought to amend the laws so that it is not possible.
- rootusrootus 7y ago
  For an example, Francis Rawls is (AFAIK) still in jail, will be there indefinitely, and has not been charged with a crime. So long as he refuses to divulge his password, he is held in contempt of court.
wahern 7y ago
The "right to remain silent" comes from the Miranda warning, which is a simplified formulation of the constitutional right. Your "Miranda rights" are a superset of the rights directly guaranteed by the constitution. But they're judge-made (i.e. "activist judge") procedural protections which only exist in a narrow context. Importantly, the Miranda warning also says you have a right to an attorney. The notion is that until you have an attorney to explain your inviolable constitutional rights and to counsel you which questions you must, should, or should not answer, the court grants you a [mostly] unconditional right to silence. The whole notion of Miranda rights is still highly contentious, especially among conservative jurists, and that's why an increasingly conservative Supreme Court has narrowed and carved out exception to Miranda rights. Because of the conservative exceptions, you should never just remain silent. You should politely ask for an attorney whenever a question is asked, but even then you might still get dinged for refusing to answer some types of questions. For example, if you're not yet in custody, or for simple questions like your name. It's complicated, which is precisely what the original Miranda rights were intended to safeguard against. The irony is the right against self-incrimination, and many other rights copied from English law and enshrined in the constitution, were originally judge-made rules. By creating Miranda rights the "liberal" Supreme Court was following in the footsteps of traditional Anglo-American legal practice, and exercising their inherent powers. Courts have inherent, constitutionally protected authority to control what is and is not allowed to be presented in court. (Though it overlaps with legislative powers to control court procedures.) Almost all the rules for doing so were crafted by the English courts over nearly a millennium. It's not at all out of sorts for the highest court in the land to craft a new rule instructing lower courts that testimony is presumptively compelled if given before a Miranda warning and to reject it at trial. To be fair, the conservative counter argument is that in England the highest court in the land was the House of Lords, which was also a House of Parliament, which was and remains the seat of legislative power. Procedural protections didn't always arise in the House of Lords, but the closer you get to 1776 the fewer instances there were of lower courts making such procedural rules. So similar to the Second Amendment, you can pick and choose a window of time that best support a claim to historical precedent.

It is not that straightforward. Generally you cannot be compelled to testify against yourself. But you can be legally compelled to perform certain actions, and held in contempt if you fail to do so. Whether or not disclosing a password is self incrimination, or something you are required to provide is an actively changing area of the law.

mcny 7y ago
> But you can be legally compelled to perform certain actions, and held in contempt if you fail to do so. I anal but isn’t this basically slavery/forced indenture? Could a court of law compel Apple to write some software? If so, can a court of law require George RR Martin to write a novel and send him to prison if he declines?
- solidsnack9000 7y ago
  Courts can not compel arbitrary things but they can compel participation in the trial process, in order to bring the trial to conclusion. Imagine what a miscarriage of justice it would be, if people had an unrestricted right to hold up the process.
- jki275 7y ago
  Look up the All Writs act. It's an open question as to whether it actually applies, and Apple has successfully fought off the FBI on this, but it hasn't gotten a court decision that sets a solid precedent. Conceptually I agree with you, the law is not as clear.
- noirbot 7y ago
  Once you're in the court system of most any country, what things you legally can and can't do are a lot harder to enforce. You're essentially needing to fight a well-trained opponent on their home turf with biased referees and no real downside to them for cheating. I'd imagine neither of your examples could or would happen given the power Apple and Martin's representatives have, and how absurd forcing someone to write a book as part of a court decision would be, but I'm fairly sure you could find examples of relatively similar things. I could certainly see something like a contract-related case being resolved by essentially legally compelling someone to write a book that they said they'd write, or else be fined/imprisoned.
  - mcny 7y ago
    > I could certainly see something like a contract-related case being resolved by essentially legally compelling someone to write a book that they said they'd write, or else be fined/imprisoned. Again, I anal so I don't know the law but contracts sound like a strictly civilian (not government vs not government) court case where there should be no possibility of imprisonment. If there is it sounds like a bug to me and we ought to amend the laws so that it is not possible.
rootusrootus 7y ago
For an example, Francis Rawls is (AFAIK) still in jail, will be there indefinitely, and has not been charged with a crime. So long as he refuses to divulge his password, he is held in contempt of court.

wahern 7y ago

The "right to remain silent" comes from the Miranda warning, which is a simplified formulation of the constitutional right. Your "Miranda rights" are a superset of the rights directly guaranteed by the constitution. But they're judge-made (i.e. "activist judge") procedural protections which only exist in a narrow context. Importantly, the Miranda warning also says you have a right to an attorney. The notion is that until you have an attorney to explain your inviolable constitutional rights and to counsel you which questions you must, should, or should not answer, the court grants you a [mostly] unconditional right to silence. The whole notion of Miranda rights is still highly contentious, especially among conservative jurists, and that's why an increasingly conservative Supreme Court has narrowed and carved out exception to Miranda rights. Because of the conservative exceptions, you should never just remain silent. You should politely ask for an attorney whenever a question is asked, but even then you might still get dinged for refusing to answer some types of questions. For example, if you're not yet in custody, or for simple questions like your name. It's complicated, which is precisely what the original Miranda rights were intended to safeguard against. The irony is the right against self-incrimination, and many other rights copied from English law and enshrined in the constitution, were originally judge-made rules. By creating Miranda rights the "liberal" Supreme Court was following in the footsteps of traditional Anglo-American legal practice, and exercising their inherent powers. Courts have inherent, constitutionally protected authority to control what is and is not allowed to be presented in court. (Though it overlaps with legislative powers to control court procedures.) Almost all the rules for doing so were crafted by the English courts over nearly a millennium. It's not at all out of sorts for the highest court in the land to craft a new rule instructing lower courts that testimony is presumptively compelled if given before a Miranda warning and to reject it at trial. To be fair, the conservative counter argument is that in England the highest court in the land was the House of Lords, which was also a House of Parliament, which was and remains the seat of legislative power. Procedural protections didn't always arise in the House of Lords, but the closer you get to 1776 the fewer instances there were of lower courts making such procedural rules. So similar to the Second Amendment, you can pick and choose a window of time that best support a claim to historical precedent.