3 ms·

While you have the right to remain silent, I remember reading somewhere that you have to actively invoke that right (by stating something like "I invoke my 5th

by kmoser 3y ago

While you have the right to remain silent, I remember reading somewhere that you have to actively invoke that right (by stating something like "I invoke my 5th amendment right to remain silent") for your silence to be considered an invocation of that right, and not merely suspicious behavior, an implicit admission of guilt, or obstruction of justice. This is actually reprehensible, since invoking a right should mean actually engaging in it (e.g. remaining silent), with no explanation necessary. Another topic that everybody should know about is juror nullification.

sgjohnson 3y ago
> Another topic that everybody should know about is juror nullification. Jurors who are aware of jury nullification are routinely dismissed.
- AlbertCory 3y ago
  I saw this happen in a real trial. It's more complicated than just saying "jury nullification." You have to explain your beliefs.
- everybodyknows 3y ago
  Is it indeed routine to ask prospective jurors if they are aware of the term? Anecdata: I can see how it might be possible, based on my own jury duty callup last month. Hundreds in the waiting room, when individual trials did "go to jury", a secondary lottery chose from the hundreds a batch of more than 60 to go for interview. So, the lawyers would be further weeding out some 80%.
  - woodruffw 3y ago
    > Is it indeed routine to ask prospective jurors if they are aware of the term? It probably varies, but it isn't routine where I live. I've been called for voire dire and subsequent selection a few times, and haven't ever been asked about nullification. (I think the majority of people get excluded based on whether the trial's schedule would be an unreasonable hardship/imposition, voluntarily disclosed conflicts of interest, etc.)
  - kmoser 3y ago
    Lawyer: "Are you aware of the phrase 'juror nullification?'" Potential juror: "I am now!"
- Uehreka 3y ago
  Nope, this is a commonly repeated falsehood. Judges really don’t want to reduce the jury pool unless they really really need to. If they cut everyone who had seen CGP Grey’s video on Jury Nullification they’d unnecessarily thin the pool. The way they do it is by specifically asking if you have any beliefs that would lead you to convict/acquit someone even if the evidence pointed to the opposite outcome. The question even tells you that Jury Nullification (making a false verdict) is a thing that’s possible to do. They want to know if you’re planning on doing it. If you’re called for a murder trial and say “I don’t think murder is immoral” or “If the guy’s been accused, let him hang!” then yes, you’ll get out of jury duty. You’ll also look like a huge asshole in front of a bunch of people from your community. And that’s how they get ya. Unless you have some really out-there views, or are willing to commit to acting like you do, you can’t get out of jury duty by going “I know about Jury Nullification!”
Sargos 3y ago
>by stating something like "I invoke my 5th amendment right to remain silent" This needs to be rather structured as well as the cops can ignore your statement unless it has a proper syntax and names the 5th element directly. Example: "give me a lawyer dog" doesn't cut it (https://www.washingtonpost.com/news/true-crime/wp/2017/11/02/the-suspect-told-police-give-me-a-lawyer-dog-the-court-says-he-wasnt-asking-for-a-lawyer/ https://www.washingtonpost.com/news/true-crime/wp/2017/11/02...)
dragonwriter 3y ago
> While you have the right to remain silent, I remember reading somewhere that you have to actively invoke that right (by stating something like "I invoke my 5th amendment right to remain silent") for your silence to be considered an invocation of that right, and not merely suspicious behavior, an implicit admission of guilt, or obstruction of justice. This is, as I ubderstand it, incorrect on multiple levels. First, all you need to do is shut up to exercise the right. Second, no matter how you frame exercising the right, police can and will treat it as suspicious. You may be confusing the right to remain silent with the right to have counsel present during questioning, which must be explicilty invoked for questioning without counsel present and its fruits to be excluded. They are separate, but related (as invoking the right to counsel also narrows the ways police can pressure you to waive the rightbto remain silent without legally tainting anything they get out of it.)
- jcranmer 3y ago
  > First, all you need to do is shut up to exercise the right. Actually, as I understand it, SCOTUS has said that merely being silent is not the same as invoking your Fifth Amendment right to remain silent. I think this jurisprudence is complete bananapants, but the argument is that you have to explicitly and unambiguously invoke your Fifth Amendment right for it to kick in, and being silent isn't an unambiguous invocation.
  - ccooffee 3y ago
    Correct. You MUST EXPLICITLY invoke your fifth amendment right against self-incrimination. (Okay, there may be some edge cases where invoking the fifth is implied, but SCOTUS has merely acknowledged that these edge cases could exist, but to my knowledge has never given rules for when it applies. Better safe than sorry.) e: see Salinas v Texas[0] for example [0] https://www.law.cornell.edu/supremecourt/text/12-246#writing-12-246_OPINION_3 https://www.law.cornell.edu/supremecourt/text/12-246#writing...
    - PaulHoule 3y ago
      In a courtroom, yes. https://www.nytimes.com/1973/07/18/archives/krough-pleads-5th-at-house-inquiry-first-watergate-witness-to.html https://www.nytimes.com/1973/07/18/archives/krough-pleads-5t...
raincom 3y ago
When agents interrogate people in their custody, yes, miranda rights are read to the detained. What about non-custodial interviews? People are asked to come for interviews without being detained. In such cases, one is not read miranda rights. This is where people get trapped by the law enforcement: non-custodial interviews/interrogations are often conducted at home/work/private offices, even police stations. For more, Berghuis v. Thompkins, Salinas v. Texas https://en.wikipedia.org/wiki/Berghuis_v._Thompkins https://en.wikipedia.org/wiki/Berghuis_v._Thompkins

by kmoser 3y ago

sgjohnson 3y ago

> Another topic that everybody should know about is juror nullification. Jurors who are aware of jury nullification are routinely dismissed.

AlbertCory 3y ago
I saw this happen in a real trial. It's more complicated than just saying "jury nullification." You have to explain your beliefs.
everybodyknows 3y ago
Is it indeed routine to ask prospective jurors if they are aware of the term? Anecdata: I can see how it might be possible, based on my own jury duty callup last month. Hundreds in the waiting room, when individual trials did "go to jury", a secondary lottery chose from the hundreds a batch of more than 60 to go for interview. So, the lawyers would be further weeding out some 80%.
- woodruffw 3y ago
  > Is it indeed routine to ask prospective jurors if they are aware of the term? It probably varies, but it isn't routine where I live. I've been called for voire dire and subsequent selection a few times, and haven't ever been asked about nullification. (I think the majority of people get excluded based on whether the trial's schedule would be an unreasonable hardship/imposition, voluntarily disclosed conflicts of interest, etc.)
- kmoser 3y ago
  Lawyer: "Are you aware of the phrase 'juror nullification?'" Potential juror: "I am now!"
Uehreka 3y ago
Nope, this is a commonly repeated falsehood. Judges really don’t want to reduce the jury pool unless they really really need to. If they cut everyone who had seen CGP Grey’s video on Jury Nullification they’d unnecessarily thin the pool. The way they do it is by specifically asking if you have any beliefs that would lead you to convict/acquit someone even if the evidence pointed to the opposite outcome. The question even tells you that Jury Nullification (making a false verdict) is a thing that’s possible to do. They want to know if you’re planning on doing it. If you’re called for a murder trial and say “I don’t think murder is immoral” or “If the guy’s been accused, let him hang!” then yes, you’ll get out of jury duty. You’ll also look like a huge asshole in front of a bunch of people from your community. And that’s how they get ya. Unless you have some really out-there views, or are willing to commit to acting like you do, you can’t get out of jury duty by going “I know about Jury Nullification!”

Sargos 3y ago

>by stating something like "I invoke my 5th amendment right to remain silent" This needs to be rather structured as well as the cops can ignore your statement unless it has a proper syntax and names the 5th element directly. Example: "give me a lawyer dog" doesn't cut it (https://www.washingtonpost.com/news/true-crime/wp/2017/11/02/the-suspect-told-police-give-me-a-lawyer-dog-the-court-says-he-wasnt-asking-for-a-lawyer/ https://www.washingtonpost.com/news/true-crime/wp/2017/11/02...)

dragonwriter 3y ago

> While you have the right to remain silent, I remember reading somewhere that you have to actively invoke that right (by stating something like "I invoke my 5th amendment right to remain silent") for your silence to be considered an invocation of that right, and not merely suspicious behavior, an implicit admission of guilt, or obstruction of justice. This is, as I ubderstand it, incorrect on multiple levels. First, all you need to do is shut up to exercise the right. Second, no matter how you frame exercising the right, police can and will treat it as suspicious. You may be confusing the right to remain silent with the right to have counsel present during questioning, which must be explicilty invoked for questioning without counsel present and its fruits to be excluded. They are separate, but related (as invoking the right to counsel also narrows the ways police can pressure you to waive the rightbto remain silent without legally tainting anything they get out of it.)

jcranmer 3y ago
> First, all you need to do is shut up to exercise the right. Actually, as I understand it, SCOTUS has said that merely being silent is not the same as invoking your Fifth Amendment right to remain silent. I think this jurisprudence is complete bananapants, but the argument is that you have to explicitly and unambiguously invoke your Fifth Amendment right for it to kick in, and being silent isn't an unambiguous invocation.
- ccooffee 3y ago
  Correct. You MUST EXPLICITLY invoke your fifth amendment right against self-incrimination. (Okay, there may be some edge cases where invoking the fifth is implied, but SCOTUS has merely acknowledged that these edge cases could exist, but to my knowledge has never given rules for when it applies. Better safe than sorry.) e: see Salinas v Texas[0] for example [0] https://www.law.cornell.edu/supremecourt/text/12-246#writing-12-246_OPINION_3 https://www.law.cornell.edu/supremecourt/text/12-246#writing...
  - PaulHoule 3y ago
    In a courtroom, yes. https://www.nytimes.com/1973/07/18/archives/krough-pleads-5th-at-house-inquiry-first-watergate-witness-to.html https://www.nytimes.com/1973/07/18/archives/krough-pleads-5t...

raincom 3y ago

When agents interrogate people in their custody, yes, miranda rights are read to the detained. What about non-custodial interviews? People are asked to come for interviews without being detained. In such cases, one is not read miranda rights. This is where people get trapped by the law enforcement: non-custodial interviews/interrogations are often conducted at home/work/private offices, even police stations. For more, Berghuis v. Thompkins, Salinas v. Texas https://en.wikipedia.org/wiki/Berghuis_v._Thompkins https://en.wikipedia.org/wiki/Berghuis_v._Thompkins