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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 Suprem

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.
DannyBee 12y ago
" You have a right to remain silent, as the Supreme Court has codified it;" So let's a few things things straight :) 1. This particular right does not explicitly appear in the constitution. There is nobody who argues otherwise. The history of the fifth amendment does not support any other reading than being about compulsion to testify (IE torture, etc). 2. The Supreme Court are the ones who say you have to invoke it explicitly So the Supreme Court, who you say "codified" this right, are the very people saying you need to explicitly invoke it. So it does make sense to talk about invoking it, since the same people who have explained this right have said, as part of that explanation, that you are required to do it. Basically "that it is your right to invoke your silence". Not "you have an unabrogated right to silence and not have that silence used against you". "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." Of course, you can be prosecuted for plenty of stuff you write on the internet, because the first amendment is not absolute, as the Supreme Court has codified it.
- chimeracoder 12y ago
  Unlike you, I am not a laywer, so take this for what it's worth: I agree with most of what you say, but I do think the following statement is a bit unfair: > So it does make sense to talk about invoking it, since the same people who have explained this right have said, as part of that explanation, that you are required to do it. Unless I'm mistaken, you're referring to two separate SCOTUS decisions that are separated by several decades (the latter decision is very recent). I don't think it's right to treat the Supreme Court as a singular, monolithic entity even within a given session (let alone separated by many years and with different chief justices, etc.) Our public understanding of the supposed 'right to remain silent' developed after the Warren court decision, and while it's true that the Roberts court clarified (or imposed) the requirement that this be explicit, AFAICT it's not the only way to interpret the Warren ruling. Again, I agree with the rest of what you're saying, but I don't think it's unfair to criticize the most recent SCOTUS ruling for appearing to[0] reverse or mitigate our understanding of the earlier SCOTUS ruling. [0] I say 'appearing to' because it's easily arguable that this is a clarification, not a reversal, which AFAICT is the whole controversy to begin with

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.

DannyBee 12y ago

" You have a right to remain silent, as the Supreme Court has codified it;" So let's a few things things straight :) 1. This particular right does not explicitly appear in the constitution. There is nobody who argues otherwise. The history of the fifth amendment does not support any other reading than being about compulsion to testify (IE torture, etc). 2. The Supreme Court are the ones who say you have to invoke it explicitly So the Supreme Court, who you say "codified" this right, are the very people saying you need to explicitly invoke it. So it does make sense to talk about invoking it, since the same people who have explained this right have said, as part of that explanation, that you are required to do it. Basically "that it is your right to invoke your silence". Not "you have an unabrogated right to silence and not have that silence used against you". "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." Of course, you can be prosecuted for plenty of stuff you write on the internet, because the first amendment is not absolute, as the Supreme Court has codified it.

chimeracoder 12y ago
Unlike you, I am not a laywer, so take this for what it's worth: I agree with most of what you say, but I do think the following statement is a bit unfair: > So it does make sense to talk about invoking it, since the same people who have explained this right have said, as part of that explanation, that you are required to do it. Unless I'm mistaken, you're referring to two separate SCOTUS decisions that are separated by several decades (the latter decision is very recent). I don't think it's right to treat the Supreme Court as a singular, monolithic entity even within a given session (let alone separated by many years and with different chief justices, etc.) Our public understanding of the supposed 'right to remain silent' developed after the Warren court decision, and while it's true that the Roberts court clarified (or imposed) the requirement that this be explicit, AFAICT it's not the only way to interpret the Warren ruling. Again, I agree with the rest of what you're saying, but I don't think it's unfair to criticize the most recent SCOTUS ruling for appearing to[0] reverse or mitigate our understanding of the earlier SCOTUS ruling. [0] I say 'appearing to' because it's easily arguable that this is a clarification, not a reversal, which AFAICT is the whole controversy to begin with