Invoking your fifth amendment cannot be used to as evidence against you in a criminal court, but it can be used in civil cases. Its called adverse inference. Basically in a civil court if you refuse to provide information, it can be used against you to decide a fine or penalty. But it cannot lead to your incarceration under a criminal indictment.
Griffin V California from '65
That’s pretty good to know, as far as I understand the fifth is to be used exclusively in the context of presumption of innocence and protection of civils from authority. It would be very fucked up if some jerk would turn it on it’s head and argue that you not saying some shit that may incriminate you as far as you know is actually incriminating itself. That’s how oppressive regimes work.
Yes, but the case being referenced involved what it means to invoke your fifth amendment rights.
Is remaining silent invoking the right, or do you have to state “I am invoking the right to remain silent”, or some other statement?
Per the supreme Court, you can’t passively invoke the right and can only do so actively. So simply not answering a question isn’t invoking the fifth amendment and could be used against you.
That seems fucking stupid as hell, why do you need to “invoke” any right at all? And why would there be a requirement to access this right that most people wouldn’t know
You’re talking about a country where “I want a lawyer, dawg” is not sufficient to be provided a lawyer, because the cops can reasonably think that you want a dog that’s a lawyer. The legal system in the US is beyond saving.
Every part of our collective absurdity permeates all facets of our life. Just look at our ad space and signage. Food requirements or lack thereof. Civil service (one worker, six supervisors). Everything in any system of ours is absurd on levels no one person can truly fathom.
They haven’t stopped making laws. We are inundated with new laws every legislation cycle (the current cycle being more an exception than a rule). But the enforcement of these laws is up to the various USA offices. And the judicial bench has been stacked with ultra-conservative judges more interested in Christian morality than civil rights or social equity.
Consequently, what laws we do get are often twisted against their stated purpose by subsequent administrations.
There is a rationale, it just fails to be consistent with the reason the right is explicitly enumerated.
Some rights are more about restraining the governments actions towards you. The right to legal counsel prohibits the government from putting you on trial totally lost and oblivious. The right to remain silent is a nickname we give to the prohibition on someone being “compelled in any criminal case to be a witness against himself”.
Rights that prohibit government actions are usually automatic: free speech, no unreasonable search and seizure, and so on all prohibit the government from doing something.
The right to counsel requires the government to provide you with a lawyer if you need one, and to stop asking you questions if you ask for one until they show up.
The conservative supreme Court majority held that the “right to remain silent” was a right to make the government stop, just like asking for a lawyer, and that it didn’t follow that the two rights needed to be invoked in different manners: no one has argued that their behavior should have implied they wanted a lawyer even if they didn’t say so. Further, they said that if “not speaking” is what constitutes invoking the fifth, then it opens more questions about what manner of not speaking counts as an invocation. If someone doesn’t answer, can the cop repeat themselves?
Invoking the right however is unambiguous, making it a better legal standard.
This falls apart not because of the nickname we give the right, but because of what it says and the intent behind it: “No person … shall be compelled in any criminal case to be a witness against himself”. The key word is “compelled”. The phrasing and intent are clear that it’s about compulsion , not invoking an entitlement. Any statement you make you should be able to refuse to allow to be used against you, otherwise it’s compulsion even if given willingly at the time.
That’s great but we’re talking about Miranda rights and case law and all kinds of adjunct shit based around these ideas that formed the basis of what cops can do to you in custody like this, and they tell you explicitly “you have the right to remain silent”.
That’s not constitutional, that seems to be the police informing you of something that their processes and procedures say they have to do. You are told explicitly “YOU MAY NOW REMAIN SILENT” by the authority figure standing in front of you, not some abstract judge of an arcane document somewhere
Those are explicitly derived from the bit of the constitution I was referring to. That’s what defines what they have to tell you and what it means.
I’m not sure what you’re looking for here. You asked why you would need to invoke a right, and why it would be this way. There’s simply isn’t an answer that doesn’t involve the constitution or judges. The authority figure is using words that judges outlined the basic gist of in 1965 and different judges have dialed back the protections of in the 2000s and earlier.
I think the question he has is why would you have to ‘invoke’ a right they literally spelled out to you just seconds before?
If the cop pointed to a glass of water on the table and said ‘you have the right to drink this water’ and you drink the water, and later you’re prosecuted for stealing water, or your blatant disregard for property was used against you in court, because you didn’t explicitly state ‘ok, i am invoking my right to drink this water’…
Aside from emotionally abusive relationships, what other party of life are you explicitly told you have the right to do something and then abused for doing it? It’s basically manipulation disguised as helpful information.
And that’s exactly what I explained. There isn’t an answer that doesn’t involve the constitution and what judges had to say about things.
considering the police are legally allowed to lie to you, the Miranda warning using the name for a legal concept instead of a more accurate description of the right is about the least abusive thing they can do.
It’s not particularly weird for rights to need to be explicitly actioned in general, as an aside. You have to actively get the arms to bare them, write a letter to petition the government, ask for a lawyer and ask them to stop interrogation. Invoking a right isn’t weird, but in this case the actual right is freedom from being coerced into self incrimination. They shouldn’t be able to start interrogation until you unambiguously waive your rights.
Remember, the system of “law” was never designed to help the people, only reinforce the rule of the owning class over the masses. The system originates from the dictates of kings.
The modern iteration is intentionally convoluted to ensure that the majority, who cannot afford quality counsel, cannot leverage the law against the owning-class, who have access to insurmountable resources and legal advantages.
You tell them you want your lawyer and you will not answer any questions until you see them. Your lawyer will tell you how to proceed.
If the police have nothing on you and wanted to fish something out of you, your lawyer will get you free. If the police have something against you and are pursuing further, your lawyer will inform you of what your options are. But generally, this is when you’re going to have to deal with this shit. It doesn’t matter if you did it or not at that point, but a lawyer will be your best bet to make it out on best grounds - whether that is get out free or with the smallest fine/sentence.
Just know:
if the police has something on you, and you did it, its game over, a lawyer may help ease the price you pay
if the police has something on you, and you didn’t do it, its an unfortunate situation, a lawyer may help ease the price you pay or get you off free
if the police has nothing on you, and you did it, though unethical, a lawyer will get you off free
if the police has nothing on you, and you didn’t do it, a lawyer will get you off free
I mean, it’s fun to believe there’s this One Neat Trick to avoid being wrongfully convicted. If you’re just smart enough, educated enough, and cool in the moment, you can outfox the police, the DA, and the judge using a proven formula laid out in the US Constitution.
But then you hear how these stories play out - cops outright lying to people they’re interviewing, DAs lying about what you’re being accused of, defense attorneys working with the prosecution, suspects being held for days or weeks without habeas corpus, suspects being threatened, suspects being tortured, suspects being lynched in their cells.
There’s no “winning move” absent having friends on the outside of the system willing and able to lobby on your behalf.
FYI:
https://en.wikipedia.org/wiki/Berghuis_v._Thompkins
Understand how to invoke your right to remain silent and what consequences silence or otherwise may have–especially if improperly used.
Invoking your fifth amendment cannot be used to as evidence against you in a criminal court, but it can be used in civil cases. Its called adverse inference. Basically in a civil court if you refuse to provide information, it can be used against you to decide a fine or penalty. But it cannot lead to your incarceration under a criminal indictment. Griffin V California from '65
That’s pretty good to know, as far as I understand the fifth is to be used exclusively in the context of presumption of innocence and protection of civils from authority. It would be very fucked up if some jerk would turn it on it’s head and argue that you not saying some shit that may incriminate you as far as you know is actually incriminating itself. That’s how oppressive regimes work.
Yes, but the case being referenced involved what it means to invoke your fifth amendment rights.
Is remaining silent invoking the right, or do you have to state “I am invoking the right to remain silent”, or some other statement?
Per the supreme Court, you can’t passively invoke the right and can only do so actively. So simply not answering a question isn’t invoking the fifth amendment and could be used against you.
That seems fucking stupid as hell, why do you need to “invoke” any right at all? And why would there be a requirement to access this right that most people wouldn’t know
You’re talking about a country where “I want a lawyer, dawg” is not sufficient to be provided a lawyer, because the cops can reasonably think that you want a dog that’s a lawyer. The legal system in the US is beyond saving.
Please tell me this isn’t true. Lie to me if required. I can’t handle any more America. This may be the metaphorical straw
https://slate.com/news-and-politics/2017/10/suspect-asks-for-a-lawyer-dawg-judge-says-he-asked-for-a-lawyer-dog.html> I want a lawyer, dawg
Da fuck?
Maybe you should just always say that you did it. Everything else is not worth the effort. The system is fucked and Americans too
Every part of our collective absurdity permeates all facets of our life. Just look at our ad space and signage. Food requirements or lack thereof. Civil service (one worker, six supervisors). Everything in any system of ours is absurd on levels no one person can truly fathom.
It’s our strength and weakness.
“Credo quia absurdum”, translated “I believe because it is absurd”
After adopting this belief, a peace will descend upon you
Because the US legislature stopped making laws, courts make laws instead, and they do it based on who’s taking them on luxury trips.
The US legislature is in effect half a dozen sugar babies.
They haven’t stopped making laws. We are inundated with new laws every legislation cycle (the current cycle being more an exception than a rule). But the enforcement of these laws is up to the various USA offices. And the judicial bench has been stacked with ultra-conservative judges more interested in Christian morality than civil rights or social equity.
Consequently, what laws we do get are often twisted against their stated purpose by subsequent administrations.
You’re not wrong.
There is a rationale, it just fails to be consistent with the reason the right is explicitly enumerated.
Some rights are more about restraining the governments actions towards you. The right to legal counsel prohibits the government from putting you on trial totally lost and oblivious. The right to remain silent is a nickname we give to the prohibition on someone being “compelled in any criminal case to be a witness against himself”.
Rights that prohibit government actions are usually automatic: free speech, no unreasonable search and seizure, and so on all prohibit the government from doing something.
The right to counsel requires the government to provide you with a lawyer if you need one, and to stop asking you questions if you ask for one until they show up.
The conservative supreme Court majority held that the “right to remain silent” was a right to make the government stop, just like asking for a lawyer, and that it didn’t follow that the two rights needed to be invoked in different manners: no one has argued that their behavior should have implied they wanted a lawyer even if they didn’t say so. Further, they said that if “not speaking” is what constitutes invoking the fifth, then it opens more questions about what manner of not speaking counts as an invocation. If someone doesn’t answer, can the cop repeat themselves?
Invoking the right however is unambiguous, making it a better legal standard.
This falls apart not because of the nickname we give the right, but because of what it says and the intent behind it: “No person … shall be compelled in any criminal case to be a witness against himself”. The key word is “compelled”. The phrasing and intent are clear that it’s about compulsion , not invoking an entitlement. Any statement you make you should be able to refuse to allow to be used against you, otherwise it’s compulsion even if given willingly at the time.
That’s great but we’re talking about Miranda rights and case law and all kinds of adjunct shit based around these ideas that formed the basis of what cops can do to you in custody like this, and they tell you explicitly “you have the right to remain silent”.
That’s not constitutional, that seems to be the police informing you of something that their processes and procedures say they have to do. You are told explicitly “YOU MAY NOW REMAIN SILENT” by the authority figure standing in front of you, not some abstract judge of an arcane document somewhere
Those are explicitly derived from the bit of the constitution I was referring to. That’s what defines what they have to tell you and what it means.
I’m not sure what you’re looking for here. You asked why you would need to invoke a right, and why it would be this way. There’s simply isn’t an answer that doesn’t involve the constitution or judges. The authority figure is using words that judges outlined the basic gist of in 1965 and different judges have dialed back the protections of in the 2000s and earlier.
I think the question he has is why would you have to ‘invoke’ a right they literally spelled out to you just seconds before?
If the cop pointed to a glass of water on the table and said ‘you have the right to drink this water’ and you drink the water, and later you’re prosecuted for stealing water, or your blatant disregard for property was used against you in court, because you didn’t explicitly state ‘ok, i am invoking my right to drink this water’…
Aside from emotionally abusive relationships, what other party of life are you explicitly told you have the right to do something and then abused for doing it? It’s basically manipulation disguised as helpful information.
And that’s exactly what I explained. There isn’t an answer that doesn’t involve the constitution and what judges had to say about things.
considering the police are legally allowed to lie to you, the Miranda warning using the name for a legal concept instead of a more accurate description of the right is about the least abusive thing they can do.
It’s not particularly weird for rights to need to be explicitly actioned in general, as an aside. You have to actively get the arms to bare them, write a letter to petition the government, ask for a lawyer and ask them to stop interrogation. Invoking a right isn’t weird, but in this case the actual right is freedom from being coerced into self incrimination. They shouldn’t be able to start interrogation until you unambiguously waive your rights.
Remember, the system of “law” was never designed to help the people, only reinforce the rule of the owning class over the masses. The system originates from the dictates of kings.
The modern iteration is intentionally convoluted to ensure that the majority, who cannot afford quality counsel, cannot leverage the law against the owning-class, who have access to insurmountable resources and legal advantages.
How?
You tell them you want your lawyer and you will not answer any questions until you see them. Your lawyer will tell you how to proceed.
If the police have nothing on you and wanted to fish something out of you, your lawyer will get you free. If the police have something against you and are pursuing further, your lawyer will inform you of what your options are. But generally, this is when you’re going to have to deal with this shit. It doesn’t matter if you did it or not at that point, but a lawyer will be your best bet to make it out on best grounds - whether that is get out free or with the smallest fine/sentence.
Just know:
You have to pay the lawyer.
I mean, it’s fun to believe there’s this One Neat Trick to avoid being wrongfully convicted. If you’re just smart enough, educated enough, and cool in the moment, you can outfox the police, the DA, and the judge using a proven formula laid out in the US Constitution.
But then you hear how these stories play out - cops outright lying to people they’re interviewing, DAs lying about what you’re being accused of, defense attorneys working with the prosecution, suspects being held for days or weeks without habeas corpus, suspects being threatened, suspects being tortured, suspects being lynched in their cells.
There’s no “winning move” absent having friends on the outside of the system willing and able to lobby on your behalf.
There might not be a winning move, but there are definitely losing moves, and not making them helps you… well, not lose.
Sure. When there’s no winning move, they’re all losing moves.
No. Not making them just changes the length of the game.
But also, if you’re being waterboarded, you don’t want the game to continue
“I invoke my right to remain silent”
“I want a lawyer”
that works unless you live in louisiana:
https://archive.findlaw.com/blog/lawyer-dog-appeal-denied-by-overly-semantic-court/