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Comment by imwillofficial | Hacker News Reader

This is a loop hole that is often exploited to punish people without the application of due process.

Terrible.

He doesn't have the right to plead the 5th to avoid testifying against anyone but himself or his spouse, so his attempts to plead the 5th were just nonsense. Making an issue now seems to me like the "justice" connected criminals he was protecting by his contempt are somehow more worthy of rights than everyone they have used this tool on.

One always has the right to remain silent, for any reason. Compelled speech is immoral. (And rights do not come from the government)

The people telling you otherwise are not interested in protecting you or anyone else.

Rights don’t come from your government but the protection of those rights does, so tomato tomato.

You have the right to remain silent during questioning outside court. By the way have you seen how far this has degraded? You can't remain silent until you say you are remaining silent explicitly by claiming this right.

But, I'm not sure you have the right to not speak in court when called to testify.

For anyone who wants to read up on the erosion of the right to remain silent.

https://www.aclu.org/press-releases/two-supreme-court-cases-...

In particular, here's a quick overview of the idea that you need to speak to invoke your right to remain silent, rather than just remaining silent.

https://versustexas.com/blog/miranda-right-to-remain-silent/

> He doesn't have the right to plead the 5th to avoid testifying against anyone but himself or his spouse, so his attempts to plead the 5th were just nonsense

That’s not true, you can invoke the Fifth anytime testimony might incriminate you, regardless of who it is directly against. If this is founded (which may itself be contested if it isn’t directly against yourself), you can’t be compelled to testify unless the potential for self-incrimination is neutralized by immunity.

However, in this case there was no real self-incrimination concern.

Yes, I meant the 5th is only to avoid testimony incriminating himself, which he couldn't do.

No, the "right to remain silent" is absolute. It's a refusal to testify to anything at all. The grounds of self-incrimination are there, but if nobody knows what you'll be asked or how you'll answer, those grounds are sort of immaterial.

> No, the "right to remain silent" is absolute.

Constitutionally, no, the right referenced by that phrase in, e.g., the Miranda warnings is the 5th Amendment right against self-incrimination (“No person... shall be compelled in any criminal case to be a witness against himself”).

The belief that a more general “right to remain silent” exists may be a moral belief of some people, but, it is not a legal right, and judges can and will conduct questioning to assess if the legal right applies.

What do you mean if nobody knows what you'll be asked? You have to actually have been asked something to decline to answer.

This is correct.

You can’t just say you are invoking the 5th and refuse to testify. If pressed, you actually have to get up there and invoke it — possibly to every question if needed.

The fear of perjury is an interesting twist, though. And the removal of immunity may affect things too.

(Although in your own trial you have the right to not testify, that doesn’t apply here).

> The fear of perjury is an interesting twist, though.

Its a nice try, but the right not to testify against yourself is not a right not to testify in a situation in which you might be tempted to choose (perjury not being a crime you can connit accidentally) to commit a crime.

What if you're a pathological liar?

Then you can choose psychiatric incarceration?

What about the belief that you can't selectively invoke it? That if you break that silence then they can compel you to answer everything else from that point on? How's that work?

They might as well abolish this right anyway. As if every device we ever touch won't testify against us in the first place.

Nitpick: When you refuse to testify against your spouse you are invoking spousal communication privilege, or spousal testimonial privilege, not 5A.

When you say loophole, do you mean the fact you have no 5A right against self incrimination once you are grAnted immunity? Or something else?

I was talking about holding people in contempt and jailing them for long periods of time.

You can not be held in contempt for invoking your 5th amendment rights when they apply. That's one of the things the fifth amendment protects against.

Then why does it happen?

It doesn't. When has it in the past 50 years? (There were some violations during the 60s and earlier). You might find a counter example with some CIA involvement or something.

Like you cannot walk into a bank with a gun yelling 5th amendment and not go to jail. It's not blanket. It protects you from statements of self incrimination.

Are you serious?

Yes. What's your counterexample?

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