9 ms·

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

59 points by jcater 12y ago

nextweek2 12y ago
I have always thought it best to specify that you don't understand. If you are not a lawyer how can you know the ramifications for anything you do or do not say.
- viggity 12y ago
  IANAL, but my guess is that asking for an attorney is the equivalent of asserting your right to remain silent as the police are not allowed to continue your interrogation. The right to counsel is a part of the 6th amendment though, not the 5th.
derefr 12y ago
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."
- phkahler 12y ago
  "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.
  - derefr 12y ago
    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.
smokeyj 12y ago
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.
- krallja 12y ago
  A drivers license has always been a privilege, not a right.
  - tedks 12y ago
    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 impounded to be emissions-checked at the state's leisure.
    - tptacek 12y ago
      Having a cell phone is a privilege? In what state, owing to what statute?
      - vertex-four 12y ago
        > Having a cell phone is a privilege? The ownership of a physical phone is not; having service for that phone involves a voluntary transaction that may be denied, and is therefore a privilege.
        seanflyon 12y ago
        It is a voluntary transaction between 2 private parties. Either party can deny that transaction, but the government stepping in and preventing the transaction seems like a very different thing. I suppose some would say it's part of thew government's right to regulate interstate commerce.
Guvante 12y ago
The illustrated guide to criminal law - http://lawcomic.net/guide/?p=2897 http://lawcomic.net/guide/?p=2897 just finished up the 5th amendment. You have to assert your right to silence, it isn't enough to be silent.
- razster 12y ago
  That was actually useful, thanks.
fiatmoney 12y ago
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.
- morganvachon 12y ago
  It's not so much invoking it as it is asserting it for the record. By immediately saying "I choose to remain silent so that I do not incriminate myself, as is my right codified in the Fifth Amendment", you are making a clear and conscious public affirmation that your silence cannot be used against you. But I don't disagree with you; I don't think we should have to voice our rights. We should be able to hold the government to the task of protecting those rights, rather than having to protect ourselves explicitly.
- javajosh 12y ago
  Agreed. The root cause of this trend is that the police are allowed to lie about the law, they are allowed to say anything they want in order to manipulate you into giving them what they want. The police know the areas of laws that apply to them extremely well; and yet they are not compelled or even encouraged to share that knowledge with you. This leaves you, citizen, up a creek if you don't know the law cold. I can see (Californian) LEOs gleefully referencing this case with suspects, scaring them into thinking their silence is evidence of guilt. Leverage, leverage, leverage. Law enforcement is always looking for more leverage, always pushing the boundaries, to move more easily from "suspect" to "criminal" to "prisoner". They would repeal the 4th, 5th, and 6th amendments if they could (along with modifications to the 1st and 2nd), because it would make their job easier. Using information asymmetry to trick people is no less coercive than "roughing them up" in an interrogation. It's time we make it a crime for a self-identified police officer to lie about the law or the suspect's rights.
- derefr 12y ago
  It makes more sense in non-verbal cases, I think. I read the suggestion somewhere (that "Illustrated Guide to Law" linked in a sibling comment) that Al Capone could have "plead the fifth" on his tax returns, instead of just not submitting them—and that the government would be required to accept this as a valid return, and do their own investigation of his tax status (whereas they wouldn't need to accept e.g. a blank return.) that sounds contentious to me, so I'd really like to hear what another lawyer thinks of it. If true, it almost explains the need to submit paper forms that are looked at by humans: special-case exceptions like this that override all normal "parsing" of a legal form using a plain-English statement.
s_q_b 12y ago
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 considered an inherently coercive environment under the Sixth Amendment. If the goal is for the suspect to understand his or her legal rights during questioning, "You have the right to remain silent," is a very bad way to phrase Fifth and Sixth to an average Jane. A more sane way might be an exclusionary rule that throws out all statements before the suspect has the chance to talk to an attorney. To patch up the corner cases, you could probably import quite a few hearsay exceptions, like excited utterance. Plus, I don't like this "know the magic words or else" type jurisprudence. "Am I free to leave?" "Am I being detained?" "Do you have a warrant?" 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.
- patrickmay 12y ago
  > 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!
- ithought 12y ago
  Of course, the Constitution doesn't grant rights. Do you have a natural right to be left alone if you so choose? Do you have a natural right to not be a witness against yourself? It seems a society based on popular sovereignty should define these rights as inherent and innate to being a person. And if you do assert your Constitutional rights, it's an easy way to escalate a situation where you soon learn the meaning to "you can beat the rap, but you can't beat the ride."
  - anonbanker 12y ago
    Asserting your rights is a fantastic ride, if you know how to do it. Everyone should Google how Geithner beat both rap and ride from the NYPD in four hours.that guy's a pro. If you don't know how to properly assert your rights, then you have none; expect to have your window smashed in, and be pulled out of your car. Or have cops and social workers come to remove your kids from an "unsafe" house 30 minutes after the power company shuts off the power for some reason. But if you do it right, you're treated extremely politely by policemen and justice system participants.
aric 12y ago
"...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 updating others on this news of last year. It's petty, troubling procedure to be forced to verbally invoke a primary Constitutional right before one 'obtains' that right. Yet so it goes. "I invoke my Fifth Amendment rights. I want to speak to a lawyer. (repeat)"
- deleted 12y ago
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- DannyBee 12y ago
  "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)
  - aric 12y ago
    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.
    - DannyBee 12y ago
      "I'm referring to the right to not self-incriminate." Also not in the constitution. Cite otherwise. The right the article is talking about is the fifth amendment, which only says "nor shall be compelled in any criminal case to be a witness against himself". Not the same as a general right against self-incrimination (and no court case has ever held otherwise ...) "What you said is untrue twice over. " Again, in what way? You are the one who refuses to actually back up your statement that this right appears in the constitution, or was understood to be primary constitutional right. (Spoiler alert: It hasn't been. There are plenty of state and other supreme court cases where silence was allowed to be used against people, and until the time of Miranda, nobody believed this was part of the fifth) " It's central to this issue and it does "need" to be invoked." I'm still not sure what you are talking about. I know what the article is talking about. The article is talking about an implicit right to silence created by the Miranda decision that the court found to be necessary to protect people, and its gradual erosion. " 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." See above It is only in the past 50 years that any court has ever held the fifth amendment gave you the right to remain silent, and in fact, precedent was the exact opposite for centuries. You are of course, welcome to look up the caselaw history if you don't believe me. It simply was not understood to be a primary constitutional right, contrary to your assertion. There was not even anything you could invoke. Prosecutors were free to use your silence against you Talking about it as if it has always been an understood part of the fifth amendment does nobody any favors. It hasn't. Again, you won't find any serious legal academic who argues otherwise. Here's an unbiased view by a preeminent con-law scholar: http://www.volokh.com/2013/06/17/do-you-have-a-right-to-remain-silent-thoughts-on-the-sleeper-criminal-procedure-case-of-the-term-salinas-v-texas/ http://www.volokh.com/2013/06/17/do-you-have-a-right-to-rema... Note the section on pre-1965. The truth is this is the problem with rights whose plain text does not appear in the constitution, like privacy, like the exclusionary rule, like a lot of things - they tend to erode over time. But the solution to that is not to pretend they are written into the constitution and then lament a changing ideology of the supreme court, but instead actually put them there.
Frozenlock 12y ago
What's the point of having laws, if your citizens can't possibly know/remember them?
- morganvachon 12y ago
  Not that I think the US is there yet, but the answer is that having so many laws that basically waking up and going about your daily routine means breaking at least a few laws, is the ultimate goal. If everything is a crime and everyone is a criminal, it's much easier for the government to control the people rather than the other way around. This concept comes up in many science fiction works, even non-Dystopian ones.
  - freehunter 12y ago
    I've always wondered this while driving through Chicago. The speed limit is 55mph, but everyone, cops included, goes 70 when traffic allows for it. And I've done 80mph with a cop behind me and not been pulled over. Which leads me to believe that the speed limit is only there so the police have a reason to pull over anyone without any other reason. Don't like the look of the driver? Pull them over, while ignoring every other car doing 70.
    - morganvachon 12y ago
      It's even worse in some places. Here in Atlanta, there is a law against impeding the flow of traffic. The I-285 perimeter highway around the city has a posted speed of 55 for most of it, yet traffic constantly flows at about 70-80mph. Theoretically, if you are going 65mph in the leftmost lane while people are flying around you and backed up behind you, you can be stopped and cited for both impeding the flow of traffic and speeding. Who knows if it would get thrown out in court, but most people plead guilty to traffic citations by just paying the fine anyway, and the system knows that.
mnw21cam 12y ago
In the UK, the police warn people on arrest "You do not have to say anything, but it may harm your defense if you fail to mention during questioning something you later rely on in court." Which sounds quite a lot like how this is going in leftpondian areas. The idea is that if you suddenly come up with some claim in court without having mentioned it beforehand, it could be made up, but if you are sticking to the same story throughout then the court is more likely to believe you. Of course, it is absolutely the right thing to ask for a lawyer to be present during all questioning, and that is one's right. The lawyer may advise you to answer every question with "No comment", or (if the evidence is damning) to fess up.
phkahler 12y ago
"Sir, can you tell me how fast you were going?" I've always wondered what the best answer would be.
- baddox 12y ago
  Perhaps another question: "How fast was I going, officer?"
  - phkahler 12y ago
    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.
    - mahyarm 12y ago
      They weren't using radar guns and they didn't tell him their readings?
- breischl 12y ago
  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.
  - frenchman_in_ny 12y ago
    They don't need the radar gun reading to give you a ticket for speeding. There was a discussion of it here on HN, where all they need is "based upon my training and experience" and a visual estimate of your speed, you can get nailed without a radar gun.
treehau5 12y ago
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?
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qwerta 12y ago
How about right to be in shock, unable to speak? Where is basic empathy? Guy just trashed car, possibly killing number of people including his relatives, police arrests him just after accident. In such situation I would shit myself , rolled into fetal position and would not talk to anyone for hours/days. No he gets jail, because he does not make statements for police..
- Confusion 12y ago
  No, you see, only victims deserve empathy. Not someone of whom the media, police and prosecuters have already determined that he is a criminal
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anonbanker 12y ago
Most people have watched enough "Cops" to have memorized the script. Now, go grab a copy of a law dictionary (I use Bouvier's or Black's) and read the definition of every word in that script. You'll be amazed at what it really means. Silence is considered acceptance in contempt. A cop telling you that you have the right to put yourself in contempt, when you have a duty as a taxpaying citizen to respond, should give you some pause. Don't take my word for it, though; read a law dictionary.
- mcherm 12y ago
  I have absolutely no idea what you are trying to say. It sounds like you are implying that keeping mum is legally equivalent to agreeing to anything that a police officer says. That simply isn't true. If you have something useful to contribute, please make it more clear and include a citation somewhat more precise than "somewhere within the 2052 pages of Black's Law Dictionary".
  - anonbanker 12y ago
    Interesting quote you put there. Did I say that? But sure, i'll be happy to do your homework for you. Grab your book, an look up the following words: "You" "Right" "Remain" "Silent" "Attorney" "Afford" "Understand" Those would probably be a good start for you. You'll learn they don't mean what you think they mean. Afterwards, might I suggest a book on offer and acceptance? The "Examples and Explanations" series has a great book on Contracts, and might get you to a deeper understanding of the meaning of silence.
    - mcherm 12y ago
      > Interesting quote you put there. Did I say that? No. I used the quotation marks to indicate my paraphrasing of what I believed you were implying, not your actual words.
      - anonbanker 12y ago
        We'll consider your silence to the rest of my post as agreement to its contents.
austinl 12y ago
There's a lecture by a law school professor called "Don't Talk to Police" that I've seen on HN before and is definitely worth watching. The case in the article is unfortunate, although I'm curious what might have happened if Tom had asked "am I under arrest?" after not being allowed to go home. In the second example the article gives, I wonder what would've happened if the defendant had not answered any questions voluntarily and chosen to remain silent. https://www.youtube.com/watch?v=6wXkI4t7nuc https://www.youtube.com/watch?v=6wXkI4t7nuc
- anonbanker 12y ago
  I will politely and respectfully disagree with everything stated in this video, but I will not stand in this fine gentleman's way of making more money for criminal lawyers. I hope many people listen to the advice in the link, and then call him to get out of the jam these lessons will put them in.

59 points by jcater 12y ago

I have always thought it best to specify that you don't understand. If you are not a lawyer how can you know the ramifications for anything you do or do not say.

viggity 12y ago
IANAL, but my guess is that asking for an attorney is the equivalent of asserting your right to remain silent as the police are not allowed to continue your interrogation. The right to counsel is a part of the 6th amendment though, not the 5th.

derefr 12y ago

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."

phkahler 12y ago
"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.
- derefr 12y ago
  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.

smokeyj 12y ago

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.

krallja 12y ago
A drivers license has always been a privilege, not a right.
- tedks 12y ago
  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 impounded to be emissions-checked at the state's leisure.
  - tptacek 12y ago
    Having a cell phone is a privilege? In what state, owing to what statute?
    - vertex-four 12y ago
      > Having a cell phone is a privilege? The ownership of a physical phone is not; having service for that phone involves a voluntary transaction that may be denied, and is therefore a privilege.
      - seanflyon 12y ago
        It is a voluntary transaction between 2 private parties. Either party can deny that transaction, but the government stepping in and preventing the transaction seems like a very different thing. I suppose some would say it's part of thew government's right to regulate interstate commerce.

Guvante 12y ago

The illustrated guide to criminal law - http://lawcomic.net/guide/?p=2897 http://lawcomic.net/guide/?p=2897 just finished up the 5th amendment. You have to assert your right to silence, it isn't enough to be silent.

razster 12y ago
That was actually useful, thanks.

fiatmoney 12y ago

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.

morganvachon 12y ago
It's not so much invoking it as it is asserting it for the record. By immediately saying "I choose to remain silent so that I do not incriminate myself, as is my right codified in the Fifth Amendment", you are making a clear and conscious public affirmation that your silence cannot be used against you. But I don't disagree with you; I don't think we should have to voice our rights. We should be able to hold the government to the task of protecting those rights, rather than having to protect ourselves explicitly.
javajosh 12y ago
Agreed. The root cause of this trend is that the police are allowed to lie about the law, they are allowed to say anything they want in order to manipulate you into giving them what they want. The police know the areas of laws that apply to them extremely well; and yet they are not compelled or even encouraged to share that knowledge with you. This leaves you, citizen, up a creek if you don't know the law cold. I can see (Californian) LEOs gleefully referencing this case with suspects, scaring them into thinking their silence is evidence of guilt. Leverage, leverage, leverage. Law enforcement is always looking for more leverage, always pushing the boundaries, to move more easily from "suspect" to "criminal" to "prisoner". They would repeal the 4th, 5th, and 6th amendments if they could (along with modifications to the 1st and 2nd), because it would make their job easier. Using information asymmetry to trick people is no less coercive than "roughing them up" in an interrogation. It's time we make it a crime for a self-identified police officer to lie about the law or the suspect's rights.
derefr 12y ago
It makes more sense in non-verbal cases, I think. I read the suggestion somewhere (that "Illustrated Guide to Law" linked in a sibling comment) that Al Capone could have "plead the fifth" on his tax returns, instead of just not submitting them—and that the government would be required to accept this as a valid return, and do their own investigation of his tax status (whereas they wouldn't need to accept e.g. a blank return.) that sounds contentious to me, so I'd really like to hear what another lawyer thinks of it. If true, it almost explains the need to submit paper forms that are looked at by humans: special-case exceptions like this that override all normal "parsing" of a legal form using a plain-English statement.

s_q_b 12y ago

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 considered an inherently coercive environment under the Sixth Amendment. If the goal is for the suspect to understand his or her legal rights during questioning, "You have the right to remain silent," is a very bad way to phrase Fifth and Sixth to an average Jane. A more sane way might be an exclusionary rule that throws out all statements before the suspect has the chance to talk to an attorney. To patch up the corner cases, you could probably import quite a few hearsay exceptions, like excited utterance. Plus, I don't like this "know the magic words or else" type jurisprudence. "Am I free to leave?" "Am I being detained?" "Do you have a warrant?" 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.

patrickmay 12y ago
> 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!
ithought 12y ago
Of course, the Constitution doesn't grant rights. Do you have a natural right to be left alone if you so choose? Do you have a natural right to not be a witness against yourself? It seems a society based on popular sovereignty should define these rights as inherent and innate to being a person. And if you do assert your Constitutional rights, it's an easy way to escalate a situation where you soon learn the meaning to "you can beat the rap, but you can't beat the ride."
- anonbanker 12y ago
  Asserting your rights is a fantastic ride, if you know how to do it. Everyone should Google how Geithner beat both rap and ride from the NYPD in four hours.that guy's a pro. If you don't know how to properly assert your rights, then you have none; expect to have your window smashed in, and be pulled out of your car. Or have cops and social workers come to remove your kids from an "unsafe" house 30 minutes after the power company shuts off the power for some reason. But if you do it right, you're treated extremely politely by policemen and justice system participants.

aric 12y ago

"...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 updating others on this news of last year. It's petty, troubling procedure to be forced to verbally invoke a primary Constitutional right before one 'obtains' that right. Yet so it goes. "I invoke my Fifth Amendment rights. I want to speak to a lawyer. (repeat)"

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DannyBee 12y ago
"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)
- aric 12y ago
  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.
  - DannyBee 12y ago
    "I'm referring to the right to not self-incriminate." Also not in the constitution. Cite otherwise. The right the article is talking about is the fifth amendment, which only says "nor shall be compelled in any criminal case to be a witness against himself". Not the same as a general right against self-incrimination (and no court case has ever held otherwise ...) "What you said is untrue twice over. " Again, in what way? You are the one who refuses to actually back up your statement that this right appears in the constitution, or was understood to be primary constitutional right. (Spoiler alert: It hasn't been. There are plenty of state and other supreme court cases where silence was allowed to be used against people, and until the time of Miranda, nobody believed this was part of the fifth) " It's central to this issue and it does "need" to be invoked." I'm still not sure what you are talking about. I know what the article is talking about. The article is talking about an implicit right to silence created by the Miranda decision that the court found to be necessary to protect people, and its gradual erosion. " 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." See above It is only in the past 50 years that any court has ever held the fifth amendment gave you the right to remain silent, and in fact, precedent was the exact opposite for centuries. You are of course, welcome to look up the caselaw history if you don't believe me. It simply was not understood to be a primary constitutional right, contrary to your assertion. There was not even anything you could invoke. Prosecutors were free to use your silence against you Talking about it as if it has always been an understood part of the fifth amendment does nobody any favors. It hasn't. Again, you won't find any serious legal academic who argues otherwise. Here's an unbiased view by a preeminent con-law scholar: http://www.volokh.com/2013/06/17/do-you-have-a-right-to-remain-silent-thoughts-on-the-sleeper-criminal-procedure-case-of-the-term-salinas-v-texas/ http://www.volokh.com/2013/06/17/do-you-have-a-right-to-rema... Note the section on pre-1965. The truth is this is the problem with rights whose plain text does not appear in the constitution, like privacy, like the exclusionary rule, like a lot of things - they tend to erode over time. But the solution to that is not to pretend they are written into the constitution and then lament a changing ideology of the supreme court, but instead actually put them there.

Frozenlock 12y ago

What's the point of having laws, if your citizens can't possibly know/remember them?

morganvachon 12y ago
Not that I think the US is there yet, but the answer is that having so many laws that basically waking up and going about your daily routine means breaking at least a few laws, is the ultimate goal. If everything is a crime and everyone is a criminal, it's much easier for the government to control the people rather than the other way around. This concept comes up in many science fiction works, even non-Dystopian ones.
- freehunter 12y ago
  I've always wondered this while driving through Chicago. The speed limit is 55mph, but everyone, cops included, goes 70 when traffic allows for it. And I've done 80mph with a cop behind me and not been pulled over. Which leads me to believe that the speed limit is only there so the police have a reason to pull over anyone without any other reason. Don't like the look of the driver? Pull them over, while ignoring every other car doing 70.
  - morganvachon 12y ago
    It's even worse in some places. Here in Atlanta, there is a law against impeding the flow of traffic. The I-285 perimeter highway around the city has a posted speed of 55 for most of it, yet traffic constantly flows at about 70-80mph. Theoretically, if you are going 65mph in the leftmost lane while people are flying around you and backed up behind you, you can be stopped and cited for both impeding the flow of traffic and speeding. Who knows if it would get thrown out in court, but most people plead guilty to traffic citations by just paying the fine anyway, and the system knows that.

mnw21cam 12y ago

In the UK, the police warn people on arrest "You do not have to say anything, but it may harm your defense if you fail to mention during questioning something you later rely on in court." Which sounds quite a lot like how this is going in leftpondian areas. The idea is that if you suddenly come up with some claim in court without having mentioned it beforehand, it could be made up, but if you are sticking to the same story throughout then the court is more likely to believe you. Of course, it is absolutely the right thing to ask for a lawyer to be present during all questioning, and that is one's right. The lawyer may advise you to answer every question with "No comment", or (if the evidence is damning) to fess up.

phkahler 12y ago

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

baddox 12y ago
Perhaps another question: "How fast was I going, officer?"
- phkahler 12y ago
  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.
  - mahyarm 12y ago
    They weren't using radar guns and they didn't tell him their readings?
breischl 12y ago
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.
- frenchman_in_ny 12y ago
  They don't need the radar gun reading to give you a ticket for speeding. There was a discussion of it here on HN, where all they need is "based upon my training and experience" and a visual estimate of your speed, you can get nailed without a radar gun.

treehau5 12y ago

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?

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qwerta 12y ago

How about right to be in shock, unable to speak? Where is basic empathy? Guy just trashed car, possibly killing number of people including his relatives, police arrests him just after accident. In such situation I would shit myself , rolled into fetal position and would not talk to anyone for hours/days. No he gets jail, because he does not make statements for police..

Confusion 12y ago
No, you see, only victims deserve empathy. Not someone of whom the media, police and prosecuters have already determined that he is a criminal

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anonbanker 12y ago

Most people have watched enough "Cops" to have memorized the script. Now, go grab a copy of a law dictionary (I use Bouvier's or Black's) and read the definition of every word in that script. You'll be amazed at what it really means. Silence is considered acceptance in contempt. A cop telling you that you have the right to put yourself in contempt, when you have a duty as a taxpaying citizen to respond, should give you some pause. Don't take my word for it, though; read a law dictionary.

mcherm 12y ago
I have absolutely no idea what you are trying to say. It sounds like you are implying that keeping mum is legally equivalent to agreeing to anything that a police officer says. That simply isn't true. If you have something useful to contribute, please make it more clear and include a citation somewhat more precise than "somewhere within the 2052 pages of Black's Law Dictionary".
- anonbanker 12y ago
  Interesting quote you put there. Did I say that? But sure, i'll be happy to do your homework for you. Grab your book, an look up the following words: "You" "Right" "Remain" "Silent" "Attorney" "Afford" "Understand" Those would probably be a good start for you. You'll learn they don't mean what you think they mean. Afterwards, might I suggest a book on offer and acceptance? The "Examples and Explanations" series has a great book on Contracts, and might get you to a deeper understanding of the meaning of silence.
  - mcherm 12y ago
    > Interesting quote you put there. Did I say that? No. I used the quotation marks to indicate my paraphrasing of what I believed you were implying, not your actual words.
    - anonbanker 12y ago
      We'll consider your silence to the rest of my post as agreement to its contents.

austinl 12y ago

There's a lecture by a law school professor called "Don't Talk to Police" that I've seen on HN before and is definitely worth watching. The case in the article is unfortunate, although I'm curious what might have happened if Tom had asked "am I under arrest?" after not being allowed to go home. In the second example the article gives, I wonder what would've happened if the defendant had not answered any questions voluntarily and chosen to remain silent. https://www.youtube.com/watch?v=6wXkI4t7nuc https://www.youtube.com/watch?v=6wXkI4t7nuc

anonbanker 12y ago
I will politely and respectfully disagree with everything stated in this video, but I will not stand in this fine gentleman's way of making more money for criminal lawyers. I hope many people listen to the advice in the link, and then call him to get out of the jam these lessons will put them in.