4 ms·

Your right to remain silent only applies to statements made to police and more specifically, those statements being used in court. You don't have a right to ref

Your right to remain silent only applies to statements made to police and more specifically, those statements being used in court. You don't have a right to refuse to answer a judge, for example. You also don't have a right to refuse to answer a police officer generally, such as when they're asking you questions as part of booking you (do you have health conditions they need to know about, for example), and furthermore, during (say, a threshold inquiry or administrative detention) police are legally allowed to treat you refusing to answer them as guilty behavior. To be clear, in very simplified layman's terms: threshold inquiry = "Hi there, can I ask you a few questions?" and administrative detention = a traffic stop, or "Hi there, come over here, I have some questions to ask you." The primary difference between TI and AD is that in a TI the police ask, and in AD, they order. If you're being ordered to do something, yes, You Are Being Detained, and no, you are not Free To Go. IANAL, etc etc and this shit is annoyingly complex, so please do your own research, folks. Kafkaesque....try this on for size: thanks to the Berghuis v Thompkins USSC ruling in 2010, it is no longer sufficient to remain silent. You now have to specifically state you wish to remain silent when you are Mirandized. I wish I were making this up. The court flipped Miranda on its head almost completely. Prior to v Thompkins, the state had to prove, with high standard of evidence, that you had willingly waived your right to remain silent. Now remaining silent isn't enough...and aying anything is taken as an immediate implied waiver. https://en.wikipedia.org/wiki/Berghuis_v._Thompkins https://en.wikipedia.org/wiki/Berghuis_v._Thompkins

otterley 4y ago
I am, in fact, a lawyer. Please consult a criminal attorney as you have no idea what you are talking about. HN is not a place for lawyer wannabes to make incorrect assertions about the law. At the very least, please refer to this helpful reference from the ACLU, who are also staffed with actual lawyers who know what they’re talking about: https://www.aclu.org/know-your-rights/stopped-by-police https://www.aclu.org/know-your-rights/stopped-by-police
- frutiger 4y ago
  > HN is not a place… However, HN is a place where we prefer to explain why someone (or something) is wrong instead of just saying that they are wrong with no further justification.
  - Aeolun 4y ago
    I find the justification comes in the first sentence? At the very least I’m more likely to believe the unqualified assertion from a lawyer.
    - KennyBlanken 4y ago
      I'm an astronaut with a degree in nuclear physics and a minor in underwater basket weaving, would you like advice on anything?
      - Aeolun 4y ago
        Is isn’t it hard to weave underwater? What kind of materials do you actually use for that? But seriously, most people that aren’t a lawyer are very likely to IANAL on the internet, the ones claiming to be one (especially on HN) are more likely to actually be. I’d need some research to back that up, but since I am lazy I’m going to go with my gut on this.
      - heretogetout 4y ago
        More like: I'm an astronaut with a degree in nuclear physics and a minor in underwater basket weaving and while I cannot give you personalized advice I can suggest reviewing this general information produced by professionals that are interested in this cause: insert link here.
  - plomk 4y ago
    They identified as a lawyer. Explaining what you’re asking could be construed as offering advice on the Internet, which is potentially perilous for their ongoing livelihood. That’s not unique to the law, either, and is common in licensed professions where the license permits you to wield your knowledge at great risk to another (i.e., a physician). I, for one, am glad otterley pointed it out. It’s an effective caution and prompted me to consider it critically. Given the OP cited case law and therefore sounds somewhat informed, I can understand the urgency of the caution, and I think otterley is (skillfully) balancing that caution against their ongoing responsibilities due to what I’m telling you.
- fnordpiglet 4y ago
  I bet he’s a good programmer though.
  - awsrocks 4y ago
- KennyBlanken 4y ago
  That ACLU flyer is wildly out of touch with reality. "You have the right to remain silent during a traffic stop." Yeah. Sure. You try that and let me know how it works out for you...after your car has been disassembled, all its upholstery ripped, and put in impound. After you are released from jail exactly 47.9 hours later, or charged with "interfering with the duties of a police officer" or "obstruction of justice" or "causing a public disturbance (which may or may not be dropped by the DA. Or thrown out at your hearing the next afternoon, by the judge.) "If your rights are violated while being arrested, take notes" - with what, exactly? The pen and paper the people who violated my rights gave me? These people live in a alternate reality. The ACLU has no concept of what constitutes practical advice for dealing with abusive police or the issues the vast majority of Americans face when stopped by an officer...like ending up in jail and missing work the next day, your car destroyed, and being summarily fired for failing to show. Congrats! You are now unemployed, with an arrest record, probably your name in the newspaper police blotter, and a bunch of legal expenses from the trumped-up charges. But hey, you followed the advice of an organization that will do absolutely nothing to help you after you followed their instructions and it caused you to end up unemployed, in debt to an attorney, with no wheels...then homeless because you missed your rent. I don't think a single person at the ACLU has ever had to worry about having enough money to buy groceries, lived one paycheck away from missing rent, or worked a job where if they didn't show up for a shift on time, they were fired.
  - deleted 4y ago
    [deleted]
  - otterley 4y ago
    IAAL but this is not legal advice. You’re mixing up a number of distinct concepts and problems. The ACLU’s advice is not meant to insulate you from lawful investigatory procedure. It’s meant to help minimize the likelihood that you will be convicted of a crime and to maximize the likelihood that unlawfully-obtained evidence will be suppressed at trial. They say in the U.S., “you can beat the rap, but you can’t beat the ride.” This is true. You can assert your rights, but it’s best not to interfere or say anything other than “I do not assent to search” during the initial encounter. But you might be arrested, taken to jail, etc. Does it suck? Yes. But if I have no other choice, I’d rather spend a week in local lockup while everything gets cleared up than a year or more in state prison (and potentially the loss of other rights afterwards) because I got convicted of a crime. Sometimes there is just no way out of a bad police encounter here. I wish there was, but the best we can do as a society is vote to change the laws around policing. Finally, keep in mind that your perspective may be distorted by the news, in a sort of reverse survivorship bias. For every instance of police abuse during an encounter, there could be 10 or 100 where asserting one’s rights leads to no dramatic episode at all, and where the ACLU’s advice led to a conflict-free outcome. You don’t have the full picture, and it’s best not to draw conclusions with certainty if you’re not an expert. (Even experts usually temper their analyses.)
lamontcg 4y ago
And that decision was in 2010 before Kavanaugh replaced Kennedy and Barrett replaced Ginsburg. It isn't going to be getting better any time soon.
- otterley 4y ago
  That decision does not say what the commenter thinks it says. It says that if you start silent and then start talking, your earlier silence does not prevent your later statements from being used as evidence. It does not say that you can’t continue to remain silent or refuse to testify against yourself.

otterley 4y ago

I am, in fact, a lawyer. Please consult a criminal attorney as you have no idea what you are talking about. HN is not a place for lawyer wannabes to make incorrect assertions about the law. At the very least, please refer to this helpful reference from the ACLU, who are also staffed with actual lawyers who know what they’re talking about: https://www.aclu.org/know-your-rights/stopped-by-police https://www.aclu.org/know-your-rights/stopped-by-police

frutiger 4y ago
> HN is not a place… However, HN is a place where we prefer to explain why someone (or something) is wrong instead of just saying that they are wrong with no further justification.
- Aeolun 4y ago
  I find the justification comes in the first sentence? At the very least I’m more likely to believe the unqualified assertion from a lawyer.
  - KennyBlanken 4y ago
    I'm an astronaut with a degree in nuclear physics and a minor in underwater basket weaving, would you like advice on anything?
    - Aeolun 4y ago
      Is isn’t it hard to weave underwater? What kind of materials do you actually use for that? But seriously, most people that aren’t a lawyer are very likely to IANAL on the internet, the ones claiming to be one (especially on HN) are more likely to actually be. I’d need some research to back that up, but since I am lazy I’m going to go with my gut on this.
    - heretogetout 4y ago
      More like: I'm an astronaut with a degree in nuclear physics and a minor in underwater basket weaving and while I cannot give you personalized advice I can suggest reviewing this general information produced by professionals that are interested in this cause: insert link here.
- plomk 4y ago
  They identified as a lawyer. Explaining what you’re asking could be construed as offering advice on the Internet, which is potentially perilous for their ongoing livelihood. That’s not unique to the law, either, and is common in licensed professions where the license permits you to wield your knowledge at great risk to another (i.e., a physician). I, for one, am glad otterley pointed it out. It’s an effective caution and prompted me to consider it critically. Given the OP cited case law and therefore sounds somewhat informed, I can understand the urgency of the caution, and I think otterley is (skillfully) balancing that caution against their ongoing responsibilities due to what I’m telling you.
fnordpiglet 4y ago
I bet he’s a good programmer though.
- awsrocks 4y ago
KennyBlanken 4y ago
That ACLU flyer is wildly out of touch with reality. "You have the right to remain silent during a traffic stop." Yeah. Sure. You try that and let me know how it works out for you...after your car has been disassembled, all its upholstery ripped, and put in impound. After you are released from jail exactly 47.9 hours later, or charged with "interfering with the duties of a police officer" or "obstruction of justice" or "causing a public disturbance (which may or may not be dropped by the DA. Or thrown out at your hearing the next afternoon, by the judge.) "If your rights are violated while being arrested, take notes" - with what, exactly? The pen and paper the people who violated my rights gave me? These people live in a alternate reality. The ACLU has no concept of what constitutes practical advice for dealing with abusive police or the issues the vast majority of Americans face when stopped by an officer...like ending up in jail and missing work the next day, your car destroyed, and being summarily fired for failing to show. Congrats! You are now unemployed, with an arrest record, probably your name in the newspaper police blotter, and a bunch of legal expenses from the trumped-up charges. But hey, you followed the advice of an organization that will do absolutely nothing to help you after you followed their instructions and it caused you to end up unemployed, in debt to an attorney, with no wheels...then homeless because you missed your rent. I don't think a single person at the ACLU has ever had to worry about having enough money to buy groceries, lived one paycheck away from missing rent, or worked a job where if they didn't show up for a shift on time, they were fired.
- deleted 4y ago
  [deleted]
- otterley 4y ago
  IAAL but this is not legal advice. You’re mixing up a number of distinct concepts and problems. The ACLU’s advice is not meant to insulate you from lawful investigatory procedure. It’s meant to help minimize the likelihood that you will be convicted of a crime and to maximize the likelihood that unlawfully-obtained evidence will be suppressed at trial. They say in the U.S., “you can beat the rap, but you can’t beat the ride.” This is true. You can assert your rights, but it’s best not to interfere or say anything other than “I do not assent to search” during the initial encounter. But you might be arrested, taken to jail, etc. Does it suck? Yes. But if I have no other choice, I’d rather spend a week in local lockup while everything gets cleared up than a year or more in state prison (and potentially the loss of other rights afterwards) because I got convicted of a crime. Sometimes there is just no way out of a bad police encounter here. I wish there was, but the best we can do as a society is vote to change the laws around policing. Finally, keep in mind that your perspective may be distorted by the news, in a sort of reverse survivorship bias. For every instance of police abuse during an encounter, there could be 10 or 100 where asserting one’s rights leads to no dramatic episode at all, and where the ACLU’s advice led to a conflict-free outcome. You don’t have the full picture, and it’s best not to draw conclusions with certainty if you’re not an expert. (Even experts usually temper their analyses.)

lamontcg 4y ago

And that decision was in 2010 before Kavanaugh replaced Kennedy and Barrett replaced Ginsburg. It isn't going to be getting better any time soon.

otterley 4y ago
That decision does not say what the commenter thinks it says. It says that if you start silent and then start talking, your earlier silence does not prevent your later statements from being used as evidence. It does not say that you can’t continue to remain silent or refuse to testify against yourself.