'You Have the Right to Remain Silent.' or Do You?
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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.
Hear, hear!
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."
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.
Though I'm not sure republican forms of government (or indeed "democracy" itself) scale too well , either.
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.
You have to assert your right to silence, it isn't enough to be silent.
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.
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.
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.
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
It's certainly fair to criticize, but honestly, this is the problem with unenumerated rights in general (like "The right to privacy" and others), and judicially made rules like the exclusionary rule - they tend to erode or change over time, even after people come to rely on them.
I'd much prefer to see both in the constitution itself. :)
It seems to me that that fear has basically come true. Adding a few more amendments won't fix that; in fact they would reinforce the problem.
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.
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..
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)"
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)
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-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.
> 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.
Yes. It became a right. Go ahead and argue all day about what you perceive as fulfilling the qualification of a "right." I'll argue in direct contrast if your interpretation of rights remains narrow and dictated by the past. It won't help the situation at hand. Miranda warnings wouldn't have resulted if it weren't for precedence and perceived rights upholding it. Now the tides shift again. You're free to call this a "return to the past" or a "return to previous rights I think you never had" or whatever you wish. I call it the erosion of rights.
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Edit:
> 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.
That would be ideal. That would be a colossal task, indeed, in lieu of a great number of other rights continuing to erode through an oligarchy's surveillance institutions and corporate decree.
His disagreement regards the solution that erosion. Your solution seems to be to shore up the implied right to silence that comes from Miranda. His is to add an amendment to the Constitution to formalize a right to silence.
This matter would benefit from re-reading my comments equally, as well, but I digress. No worries. Thank you for your added thoughts.
Note: you argue it is a primary constitutional right. Primary constitutional rights are those actually found in the constitution. Yours is not.
So when you say this is "something I never implied", i strongly disagree. If you didn't mean to imply it, fine. But I guarantee that anyone with any legal background read your comment and came away with the same impression.
Your argument seemed to me to be "because it's a primary constitutional right, I should not have to invoke it explicitly".
My argument is: You have to invoke it precisely because it is not a primary constitutional right.
If you disagree with this term, you disagree with thousands upon thousands of other rights that are equally considered Constitutional and part of Constitutional law. Most Constitutional rights are not explicitly stated in the Constitution. Instead they're derived from interpretation of the succinct language used in the Constitution. This topic is rooted in Constitutional rights. I respect that the word 'primary' could be misinterpreted. And it's subjective. Personally, I don't know where I'd place this issue on a list of humanitarian rights if I had to rank. Most issues related to speech and freedom from tyranny, and its numerous forms of persecution, are issues that I usually deem 'primary.'
Dude, you said "primary constitutional right", not "constitutional right". They are not the same.
Additionally, you are seriously confusing primary constitutional rights and rights and rules whose basis is implementation of constitutional rights. They are not the same as constitutional rights either.
For example, the exclusionary rule (that excludes evidence obtained through police violate your constitutional rights) is not a constitutional right, it is a judicial rule grounded in sane implementation of the 4th amendment.
In any case, this is not worth arguing any more for me.
Example:
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"What to Say to Invoke the Right to Silence
The new Supreme Court decision raises weighty questions, such as whether it’s reasonable to place the onus of asserting constitutional rights on everyday people, most of whom have never cracked the spine of a criminal procedure or constitutional law book. The more practical question is what, exactly, an out-of-custody person must say to inquisitive police officers in order to claim the right to silence. To be safe, they should make clear that they are invoking their Fifth Amendment right to silence and have nothing further to say. That way their subsequent failure to answer any questions cannot be mentioned at trial."
by: Micah Schwartzbach
http://www.nolo.com/legal-encyclopedia/when-how-invoke-your-...
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This writer uses the term "constitutional rights" in context. He later says, "...invoking their Fifth Amendment right to silence..." (i.e. "... invoking their Constitutional right to silence...") in direct context. I won't dig up numerous other examples from lawyers who write about this subject in-depth. Court rulings continually change the landscape of rights. They change what's inherently so-called "Constitutional" at any point in time. Many issues become topics of people's Constitutional rights once they're challenged on the basis of the Constitution. This is irrespective of a changing landscape's rulings at any point in time.
Outside of that language, we may agree more than we disagree.
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.
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.
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.
2) Even given the social construct of ownership, the enforcer of the social construct is not the "owner". If I pay a private security firm to guard my property, most people don't assume I've ceded ownership to them.
3) Even given those narrow definitions, the radio spectrum is much more nuanced than physical property. Radio waves literally travel around the world. I as a property owner can enact physical boundaries that have a fair chance of preventing trespass and providing an uninformed arbitrator to make a decent decision. When it comes to radio frequency, even the act of trespass is a highly technical and subjective topic.
The thing is, the only reason you can't do that is that your next door neighbour will allow a proxy (the Government) to get involved (or rather, has already allowed so as part of the social contract we all "agree" to).
If there wasn't someone stronger than you who has a vested interest in keeping things as they are, you decidedly could threaten your neighbour to take over the ownership of the land. "Non-violent" ownership is solely a thing because there's an entity, with more power and ability to be violent than anyone else, which has an interest in keeping it that way.
> Even given the social construct of ownership, the enforcer of the social construct is not the "owner". If I pay a private security firm to guard my property, most people don't assume I've ceded ownership to them.
That is why I specifically mentioned a proxy.
If felons can be denied the right to vote, I think it'd be an easy sell to deny them the right to cell phones. Any state could pass it as a "tough on crime" measure.
While this bill seems to have quietly died, it shows that it is certainly possible.
This is also incredibly dangerous -- nearly all drug trafficking is orchestrated via cellular networks, and it's not a stretch to imagine that felons might lose the right to use government radio spectrum to communicate in the same way they lose the right to vote in many states.
To put it another way, which seems more of a central right in the democratic system: voting, or controlled frequency access?
It seems very quixotic to make this an issue of free speech, when free speech itself is so highly regulated. Ask the protesters outside the free speech zone if free speech exists beyond state regulation -- the silence is your answer.
What's more, if you manage to live completely off the grid on your own land, the result is that you have fewer resources to protect you in the case that someone who does make use of those privileges decides that they want to violate your rights.
Privileges and voluntary transactions are a myth - anyone who is restricted from them is at a significant disadvantage, and at significantly higher risk of loss of rights to property or to life.
Methinks if the Founding Fathers had conceived of the notion of vehicular transportation being prohibited without governmental consent & licensing, they wouldn't have hesitated to include that as a fundamental right (just as security requires armaments, and speech requires presses - ownership & use of equipment facilitating both explicitly may not be infringed/abridged). As the notion of vehicle licensing (both horse and horseless) was never considered, unto inconceivable, they didn't enumerate it as a natural right. Require a driver's test and license a horse & carriage? absurd! ...well, now the technological improvement plus lack of enumerated right means 'tis common to construe vehicular travel as a "privilege" in a society where one is darned near dysfunctional without.
Driving is a regulated activity, but you do have a right to a drivers license if you are able to comply with the regulations. "Privilege" sounds so arbitrary, as if someone could say "I don't like your face, no license for you".
License: The permission granted by competent authority to exercise a certain privilege that, without such authorization, would constitute an illegal act, a Trespass or a tort. The certificate or the document itself that confers permission to engage in otherwise proscribed conduct.
let's think about that: Driving is illegal. Marriage is illegal. Fishing is illegal.
It's pretty insidious. Obviously nothing is going to be done about it.
This is not an admission of guilt, but in most states, a violation of your driving contract you signed when you were given your license.
Also, you can refuse an FST, then tell the police you refuse the rest of the tests until your lawyer is present. At that time, they arrest and book you and you can call an attorney to come and bail you out. By that time, your attorney will likely advise you to take one of the three tests since its been long enough and you're probably back under the legal limit.
It's a good strategy to delay taking of the tests. This way, in court, your attorney can argue you didn't refuse to take the test, and simply invoked your constitutional right until your lawyer was present to make sure everything was legal.
What's upsetting is that losing your right to operate heavy machinery is seen as "ruining your life", and often is in many places due to the built infrastructure requiring driving a car to go to work and buy food.
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.
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.
"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?
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.
I get off with a warning for most offenses but I think it's more about being very polite and cooperative.
Source: I get stopped once or twice a year for various reasons. (Have been driving for 20 years, 20-40 stops)
For example, let's say you're going 10mph over the speed limit and you're aware of that, but you don't know your tail light is out. The officer pulls you over for the tail light, asks the question, and you answer "because I was speeding, I guess". Now he can not only write you the ticket for the tail light, but you just gave him a confession for the speeding too. Now you've guaranteed that you'll get two citations when you might have just gotten off with a "fix that tail light" warning.
from thefreedictionary.com's legal dictionary: In civil lawsuits, the term guilty does not imply criminal responsibility but refers to misconduct.
Source: I settle approximately 4 speeding tickets a month for customers.
"Not fast enough; you still caught me" is definitely not the best answer, but a funny one.
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.
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".
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.
No. I used the quotation marks to indicate my paraphrasing of what I believed you were implying, not your actual words.
Regardless, I have karma to burn. bury away. :-)