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Comment by rayiner | Hacker News Reader

The teacher should be in hot water for teaching the 5th amendment incorrectly. From the text of the amendment: "No person shall be... compelled in any criminal case to be a witness against himself..."

The 5th amendment gives people the right to refuse to testify, as a witness, in a way that might incriminate oneself. Relatedly, it excludes self-incriminating statements in certain circumstances from evidence in criminal cases. While the 5th amendment has been interpreted to apply to many different proceedings (not just criminal cases, as in the text of the amendment), there must be some sort of proceeding of a disciplinary nature.

If the survey results were not shared with the police or intended to be used in a criminal case, it's quite likely not the case that the 5th amendment was implicated at all.

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And because admission of drug use could be used in a criminal case against the student, it applies, does it not?

You can invoke the 5th amendment in proceedings that are not currently, but could become, criminal proceedings, on the grounds that your answers may be used against you criminally. For instance, you can refuse to answer questions in a civil case deposition relating to potentially criminal activities. The only way to remove the right against self-incrimination is to grant immunity, which for drug-related offenses means, to be safe, both state and federal government would have to agree.

What's even more sad is that a brief word from a civics teacher got a significant number of students to think twice about taking the survey. Why didn't the students' parents talk to their own kids about the survey? It's a parent's responsibility, as much as it is a civics teacher's responsibility, to discuss civics issues like this with their children. Most of the parents would probably do well to audit Mr. Dryden's class.

> Why didn't the students' parents talk to their own kids about the survey?

Maybe the parents weren't told that the survey was asking about potentially illegal behavior and wasn't anonymous.

Maybe the survey's true nature was buried in ambiguous terms or lengthy legalese.

Maybe the survey was opt-out instead of opt-in, and most people took the path of least resistance and didn't bother to do anything with it (if their kids even remembered to give them information that was sent home).

Use of the privilege is not based on the type of proceeding (ie, it applies to more than just criminal cases), but upon the nature of the statement or admission and the exposure that would invite. Precedent has shown self-incrimination is enforceable in non-disciplinary public school "proceedings".

If the students were "coerced" or "compelled" to take a survey that may self-incriminate them, then it could probably be shown the privilege did apply.

There was a case a couple of years ago out of SCOTUS applying the 5th to questioning in the presence of a police officer on school grounds. I'm not aware of anything applying without the potential for disciplinary action.

> If the students were "coerced" or "compelled" to take a survey that may self-incriminate them, then it could probably be shown the privilege did apply.

This is actually a gray area. My understanding is that this isn't true until the school administrators call the police in. Before that, they are not agents of the police and they don't have to mirandize you. It's also cloudy because the administrators are seen as in loco parentis (in place of the parents). Here is the wikipedia article that details the changing case law around what public school administrators can do w/r/t the bill of rights. http://en.wikipedia.org/wiki/In_loco_parentis#Primary_and_se...

Rayiner, you may be a lawyer, but your understanding of the 5th Amendment is on very shaky grounds. Courts have significantly expanded the 5th Amendment rights beyond the mere text of the Amendment.

It is no longer necessary for criminal proceedings to be in progress; it is now sufficient that the testimony could give rise to criminal proceedings. See, for example, Lois Lerner, the IRS official who took the 5th Amendment at a Congressional (i.e., non-criminal) proceeding because the testimony given could have led to criminal proceedings.

In Miranda vs. Arizona, the Supreme Court said that the admission of an elicited incriminating statement by a suspect not informed of these rights violates the Fifth and the Sixth Amendment right to counsel.

Thanks for that. I'm not a US citizen and was always curious why it was called the Miranda warning. I just read about the case on Wikipedia: http://en.wikipedia.org/wiki/Miranda_v._Arizona

Miranda is not implicated because the students are not in "custody" as required for Miranda to apply.

That's silly. If the 5th amendment isn't needed here then it is simply overkill. You still have the right to not incriminate oneself. They only way you are correct is if they offered a waiver of immunity for any confessed crimes. This is how they can compel you to speak in front of grand juries. For certain crimes, school officials are required to report them to the police.

> You still have the right to not incriminate oneself.

No, you have the right not to testify information that would incriminate you in a proceeding. It's a narrower right than you're making it out to be.

You also have the right not to tell the principal of your high school about all the drugs you're doing.

So you are required to tell your school officials everything you've ever done wrong? The 5th amendment offers protection in places where you are otherwise legally required to testify, but it's obvious you don't need that additional protection in places where you aren't legally compelled to testify.

But it is a useful protection when you don't know if you are required to testify -- knowing that you have the 5th means you no longer need to know if you are being compelled or not.

> So you are required to tell your school officials everything you've ever done wrong?

That's neither here nor there. I'm just saying I doubt it's the case that the 5th amendment prevents the school administration from making a student fill out that survey in the absence of any police involvement or review of the results.

Have you been to a school recently? The "resource officer" is present in any secondary school that can afford him. This personification of the fear and incompetence of the modern American educator is the reason that fistfights, smoking, possession of prescribed medicine, etc. now regularly result in children holding criminal records. The American public high school is quite explicitly an arm of the law enforcement-industrial complex.

The likelihood that a survey in which an American public school student admitted drug use would not find its way into the grubby clutches of law enforcement is approximately nil.

5th amendment jurisprudence requires the threat of criminal proceedings to be real, not baseless speculation ("The likelihood that a survey in which an American public school student admitted drug use would not find its way into the grubby clutches of law enforcement is approximately nil.")

Stipulating your claim (are you a jurist?), how does this shake out? Do you expect the likelihood of referral to law enforcement/prosecution to be zero? If it is non-zero, how do you expect the set of self-incriminating surveys to be partitioned? Is it possible that the school administrator will consider the wealth of a student's parents, and their propensity to seek redress through the representation of an attorney? This would make these surveys more troubling, not less, because now they're putting just the poor kids into "real, not baseless" criminal proceedings.

>The 5th amendment gives people the right to refuse to testify, as a witness, in a way that might incriminate oneself.

I'm not American, but I'm pretty sure the fifth amendment applies to any and all self incriminating statements that can be used to support a criminal charge against you. This is the entire reason police advise you of these exact same rights at the moment of arrest.

By your explanation, anything you say to a police officer or other figure of authority (in this case the school) that leads to criminal prosecution is fair game. That simply isn't the case.

Entire context:

nor shall (a person) be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;

Witness is in reference to the general action; not just sitting on a stand.

> I'm not American, but I'm pretty sure the fifth amendment applies to any and all self incriminating statements that can be used to support a criminal charge against you.

The core of the rule is narrower than that: http://www.law.cornell.edu/wex/fifth_amendment ("The Fifth Amendment protects criminal defendants from having to testify if they may incriminate themselves through the testimony.")

It has been broadened beyond that, ("In the landmark Miranda v. Arizona ruling, the United States Supreme Court extended the Fifth Amendment protections to encompass any situation outside of the courtroom that involves the curtailment of personal freedom"), but note that Miranda itself is inapplicable because the "custody" element is missing.

I can't find any case law on the subject, but there is an old law review article that discusses some of the issues: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=20....

Even within the framework of the article, which argues in favor of students having 5th amendment rights in general, it's hard to see how a survey aimed at gathering information for psychological evaluation would implicate the 5th amendment. The most likely answer seems to be that it's permissible so long as the student retains the right to invoke the 5th in any criminal action against him.

From your link:

The term "coercion" is an elastic word that may mean different things in different settings. In the public school context, for example, an administrator may suspect a student of wrongdoing" and threaten to impose a penalty unless the student makes a statement. The administrator may threaten to suspend or expel the student, to call the police, or to impose a less "severe" penalty such as keeping the student after school. At some point, these threats become coercion, thereby implicating the fifth amendment

Considering what is happening to the teacher, I'm sure any reasonably skilled lawyer would be able to make the case that such an atmosphere of coercion does in fact exist in this particular district.

The survey is compelling students, under color of legal authority, to confess to crimes. This confession can later be construed as "discoverable evidence" leading to actionable charges.

The objection here is to "fishing expeditions" wherein evidence is gathered en masse under an innocent pretext, and later (whether planned or not) an authority could gain access to that information and use it against the coerced students. Example: survey occurs, police find evidence of drug crimes with tenuous connection to a particular student, survey results are demanded via warrant by police, confession by student in question is revealed and a whole lotta other students' confessions are found and subsequently acted on.

That the evidence was elicited prior to development of a criminal case does not excuse compelling students to confess, whoever to, to otherwise unidentified crimes. If the evidence exists at the onset of criminal investigation, it cannot be recalled by the suspect under 5th Amendment grounds. That the confession is elicited by the state, to wit the public school, compounds the issue: the government is not allowed to demand evidence of criminal culpability without warranted cause, which is exactly what the school in question was doing.

Your statement of the rule is both too broad ("the government is not allowed to demand evidence of criminal culpability") and yet insufficiently broad to capture the activity the school engaged in (a survey by the school administration designed to gather information about potential psychological issues).

You missed the clause "without warranted cause" (make that "warrantable") in that quotation.

Broad-based gathering of information about potential psychological issues, without anonymity and with viable consequences of expulsion or prosecution, is nothing more than a "fishing expedition"/"witch hunt" - exactly the kind of thing the 4th and 5th Amendments are intended to protect against.

there must be some sort of proceeding of a disciplinary nature.

Well, if a student tells school officials he's been breaking the law, that could trigger a "proceeding of a disciplinary nature", couldn't it? I believe there is case law on this sort of thing.

The right not to incriminate yourself is a basic civil right. The Fifth Amendment is a codification of the right, which was given to you, as our Founding Fathers saw it, by the laws of nature. The Amendment may refer only to some circumstances, but the right was prior to it.

So, the teacher was correct to treat the students about their basic, God-given rights.

Whose God?

Perhaps metaphorical, does it matter? Some people talk of God, others use it as a figure of speech. The meaning is largely the same, in this particular case.

Rights come from a metaphorical God?

Why not?

I don't always agree with rayiner, but when I do, it's because someone else invoked sky spirits.

Don't be pedantic. It is a figure of speech that the founding fathers used.

Well, but the fact is you are never compelled to incriminate yourself. So I think your distinction is without a difference here. The teacher informed the children, who are not lawyers by the way, they do not have to incriminate themselves. I think your distinction is true in a pedantic sense but I think this was a correct interpretation of what you are not compelled to do.

Based on your literal interpretation, the 5th amendment would only apply to the male gender, no?

No: he is trying to explain that the 5th ammendment was necessary because normal people understand that nobody has the right to expect an answer from you when asking you about your (possibly criminal) behaviour. However, normal people, when the ammendment was written, did not take this for granted when standing as witnesses (because it had not been taken for granted before, as history shows).

So the amendment is necessary not because of the general case (in any circumstances, it is obvious that nobody has the right to expect a self-incriminating answer to a question) but because of the specific case of a witness.

However, nowadays, people seem to need to be recalled that they are not expected to speak against themselves anywhere. Except if they willingly want to do so.

"Did you insult your classmate?" is usually not a legal proceeding. However, answering it one way or the other will help you or not. You do not need to answer that question. But quoting the Fifth for not doing so is ridiculuous: it is way before the Fifth amendment.

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