Do I detect a bit of frustration here, Mr. Defense Attorney?
Well that character sure seems upset about it. But it’s a mistake to attribute any of these characters’ attitudes to the author.
I’ve known most of this Miranda weirdness for as long as I’ve been practicing law, so it’s hard to feel frustrated by it. It’s the way it is. And the case law only gets weirder and weirder, because the courts seem to have no clue where the law is coming from. It’s gotten to the point where I’m more fascinated with it than frustrated by it. I love exploring these intersections of myth and reality, where the commonly-held belief is so deeply ingrained (despite being so completely wrong) that those who benefit from the reality are afraid of it, while those who suffer from it embrace it.
My frustrations these days are mostly reserved for actual individual injustices, where someone could be doing the right thing and yet amazingly won’t. Mostly.
“[The supreme court] truly thought the police would only be able to use statements that were so voluntary that they were said despite the fact that a lawyer was actually present during questioning.”
I find that really hard to believe. They’ve had what, 50 years to fix the problem and haven’t done anything? Despite how abysmally different things work from the way they supposedly wanted them to?
I’m not sure if I’m in agreement or disagreement with Sis here, so let me provide some of my own thoughts. The relevant clause is “No person shall be compelled [to self-incriminate in criminal matters].”
Said another way, “No self-incriminating statements made under compulsion are admissible.”
The Miranda warning is a warning to essentially get the point across that, “Although you, as a reasonable person, may feel compelled to speak given the circumstances, I am here to tell you that you are not being compelled.”
However, it may very well also be that the founding fathers and ourselves may place different meaning on just what situations constitute compulsion. While I believe they were well-educated for their time, and with significant foresight, I don’t believe they had the same understanding of modern psychology that we have today. I would doubt that they would consider a deceitful but non-threatening conversation to constitute compulsion (even if we might), given the compulsions that they bore witness to would have been of the capital punishment and torturous variety.
At the same time, a strict reading of the amendment seems to suggest that this is not a right that you can waive. The text suggests that you cannot voluntarily enter into a situation in which you are being compelled to make self-incriminating statements.
The text doesn’t word it as a right or a freedom on behalf of the individual; it words it as a *restriction* on the part government. It reads like something that’s two-fold:
1. You can volunteer self-incriminating statements, but…
2. You cannot volunteer *to be compelled to make* self-incriminating statements.
The Miranda warning does, however, appear to presuppose that the type of interrogation that occurs afterwards is NOT a compelling one.
In this case, though, I’m not sure how many people would reasonably consider “volunteering to go toe-to-toe in a battle of wits and information with the police” to be volunteering yourself to be placed under compulsion.
Though, now I feel like the case could be made that lie-detectors automatically break the 5th amendment, regardless of their success rate. As the truth of your statement becomes compulsory when hooked up to a lie-detector. By being hooked up to a lie-detector, I think a reasonable person would feel compelled to tell the truth, and it seems like a strict reading of the amendment would not allow the court to admit self-incriminating evidence from a person in that circumstance, voluntarily or not.
Does this sound like the same thing that Sis was trying to get across?
I tend to disagree with Planeshaper’s post. I do not think that the rephrasing “No self-incriminating statements made under compulsion are admissible” is at all the same as the original text. As you said, the 5th amendment is setting limits on what the state is allowed to do, and the rephrasing is making a declaration about admissibility. A person can absolutely waive this right. In the first panel, a person is taking an action to allow the state to coerce them; Lady State asking ‘May I?’ is really the key here. I know that there is much argument about the terms ‘Shall’ and ‘Will’ and ‘May’, but when reading the 5th amendment, the term ‘Shall’ still jumps way out at me (…nor SHALL be compelled in any criminal case to be a witness against himself…). The Miranda warning changes the situation to one where a person is not forced to allow themselves to be compelled (in the interrogation), but is actively allowing themselves to be compelled, so it seems to satisfy the requirement in the 5th amendment. Now If the text read ‘MAY be compelled….’, I would wholeheartedly agree.
I also disagree with Sis’ argument that it is ‘magical’ and ‘involuntary’ simply because it is easy to waive this particular right. While it may be easy, it is waived by a clear action being taken. It seems similar to waiving your 4th amendment rights by consenting to a search. In fact I would argue that in many circumstances in which police would be asking to conduct a search, consenting to a search could be much easier to do carelessly than waiving your 5th amendment rights. The fact that it is easy, and that many people foolishly do it, doesn’t necessarily make it a problem.
It really concerns me how much the Lady State seems to enjoy inflicting pain.
I’ve noticed there are two different Lady States in the comic. When she looks like a stone statue (like she does here), she’s the bad guy, inflicting pain and swinging the big hammer around. When she looks like a normal human, she’s a bit more level-headed.
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