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There are now 37 comments on pg 65. Silence vs. Taking the Fifth.
What are your thoughts?
  1. Gregory Bogosian says

    What purpose does this requirement to expressly invoke one’s right against self-incrimination serve?

    • Your right to remain silent is for when an officer is arresting you before you have had a chance to speak to council.
      These people have their lawyers (of varying qualities), and the court has every reason to expect them to answer their questions now.

      • You have it backwards, the right against self-incrimination has existed in the U.S. since before there was any such thing as a police force in the U.S. Its main purpose is to prevent the defendant from being forced to incriminate themselves in court after they have spoken with their legal counsel. In court the defendant doesn’t have to say a thing. The only reason that the police interrogate people after they arrest them is to get them to confess before their lawyer can get to them and get the defendant to exercise their fifth amendment rights.

        • I think the original purpose of the no person shall be “compelled in any criminal case to be a witness against himself” part of the 5th was to eliminate torture as an investigative method. The Wikipedia article on the 5th amendment ties it back to the persecution of Puritans in England, which seems to make sense.

  2. KW says

    Given that testimony is recorded, this provides a record of claiming 5th.

    I don’t think that is the real reason, though.

    On the other hand, a foreigner is basically required to have a lawyer, which seems kinda… ummm… unfriendly? for lack of a better word. Yes, yes, I know, everyone should have a lawyer, but y’know, it just doesn’t feel kosher, that it’s so complex that people are forced to have a lawyer, unless they really wanna be someone’s bedmate in jail for a long time.

    If you’re a teen exploring the world, visiting the US, and you stumble over a law, it seems you’re likely to go home with an uncomplimentary opinion of the USA. And, I suspect that might be part of Nathan’s opinion of Miranda.

    • Non-foreigners need to have lawyers too. Lawyers (especially ones who aren’t criminal defense attorneys) who are accused of a crime need legal counsel to help them too. The law is complex, being a foreigner makes it harder, but being native to here doesn’t make it easy.

  3. KW says

    This example seems contrived. I’d expect the committee staff to tell him he’s going to jail for contempt if he doesn’t say something. Not that I don’t mind again seeing the lovely Pi and her compelling eyes! :-)

    • ALL of my examples are contrived. And thank goodness!

      If I was using actual cases, as it’s done in law school, we’d be here forever, presenting a whole new set of facts for each case, just to bring out a tiny nugget, maybe only a single element of the law. Often seeming to contradict each other or worse. And then try to piece together a rule that explains most of them.

      My way frees me up to present a contrived example that gets the point across all at once.

      (That said, you’re absolutely right that you can certainly be held in contempt for sitting mute. But we already talked about contempt earlier, and it’s important to show that there are other real-life consequences.)

  4. KW says

    And take off that damn hat when yer in front of a congresscritter!

    • Gary says, “That “damn hat” is a kepi, and it’s making an ironic statement about your mainstream sensibilities while setting a trend your kids’ll be following in three years. Plus it looks awesome on me.”

  5. Mark C says

    It’s not very strong evidence.

    • I agree. Clearly the prosecution takes the defendant’s silence to mean one thing instead of 99 potential innocent things.

      • My Mom always taught me that if I didn’t have anything nice to say, not to say anything nice at all. So instead of telling the officer he was a sh!t head, I simply said nothing. To be polite.

    • It is not strong evidence, but Nathan is demonstrating why this is the wrong thing to do. He is feeding the prosecution ammunition unnecessarily.

  6. Yan says

    This is strange.
    I thought that this “Miranda Right” or whatever just IS, i.e. you have it, period, and you don’t need to pronounce the magical incantation of “I hereby use my right granted by the 5th to remain silent” for it to come into force.

    • Could you imagine having to exercise your First Amendment rights explicitly this way? I evoke my right to free expression in delivering this commentary of US law.

      • I want to make a counterpoint to that, Jeff.

        Your First Amendment Right to free expression is something you carry inherently, but you do evoke it when challenged.

        If you are playing protest songs on a street corner you can be removed at the request of local businesses who find you a nuisance despite the presence of your rights. You then need to get a permit to allow you to continue. The permit should be granted because of your First Amendment Rights, but you do need to actively assert them.

        • Having to get a permit/license would infer that the act you are doing is illegal, and something you did not have a right to do in the first place. Needing permission from a government entity makes the activity a privilege, and not a right.

          Rights exist continuously, open for exercise at any desired time, no one needs permission to use them, if they did, they wouldn’t be “rights” anymore…

          • The government is allowed to put into place reasonable requirements for you to exercise your rights. It’s reasonable to require a person to obtain a permit for a public rally, or a registration for a handgun, for example.
            No rights are truly absolute. Even the “inalienable rights” of life, liberty, and property can be taken from you under certain conditions (most commonly, being convicted of a crime).

            • Look also at wartime. Canada had some real fun when civil rights were suspended in Quebec because of an invocation of the War Measures Act.

          • That is false, Librarian. A license has nothing to do with whether your act is illegal. I answered this already elsewhere. It has to do with lawful conduct that happens to be regulated. Like getting a marriage license to ensure you’re not committing bigamy or incest, or a driver’s license to ensure you meet basic safety standards.

            You have the right to marry, but the state still gets to regulate it. You have the right to free speech, but there are plenty of regulations and limitations on that as well. That doesn’t mean you don’t have a right.

  7. Nick Lamb says

    In the UK silence / refusal to answer when formally questioned by the police can be introduced as evidence just like actual answers. This seems to mostly be used when a defendant refuses to answer one or two specific questions (like “Why did you go to your ex-girlfriend’s house in the middle of the night?”) in an interview setting where they were otherwise co-operative but then suddenly in court they have a plausible answer to those questions. The general idea seems to be to suggest to the jury that the defendant used the extra time between interview and trial to make up a story. I don’t know how successful that is.

    • This page and the page previous reminds me of Lois Learner and the IRS hearings.

      It seemed very odd to me that she was answering questions and then would selectively plead the fifth at certain times. In effect, it seemed she was only answering questions that made her look good.

      My thoughts would be that her refusal to answer certain questions but answer others would lead me to believe that she DID have something to hide on certain subjects.

      • Which is *exactly* why she took the 5th instead of answering those questions! Being able to use that against her as evidence would kind of ruin the point of even having the 5th amendment, heh.

        I believe part of why you have to invoke the 5th for each and every question is that you’re only supposed to use it when the answer would incriminate you – so you’re still obligated to answer any questions that *don’t* incriminate you.

        Now, if you look at things broadly, you could argue that answering *any* question /could/ incriminate you in /some/ way, but that’s arguable.

  8. Michael says

    Being silent without declaring that your are exercising your rights is the same thing as answering a question with silence, not simply refusing to answer. Refusing to answer a query by using the fifth can’t be used against you, but only answering a question with silence is something that can be used, just like an articulate response; the prosecution (or defense) can freely comment on it.

  9. Librarian says

    So, why can’t I make a blanket statement?

    Or, more rather, why can’t I set the absolute “terms and conditions” by which anyone desiring to have my statements must abide?

    Websites do it all the time, “if you want to access this webpage, you must abide by the following terms and conditions, and if you do not agree with these terms, you have no business on this webpage, please leave immediately.”

    Why can’t I offer contract with the judge and court, under non-negotiable terms and conditions, presented in a court of record?

    • I don’t see any reason why you can’t offer that. The court is free to ignore it and follow their own compulsory procedures though.

  10. WJS says

    That bit about not being able to say you don’t want to answer any questions doesn’t seem quite right. If you show that you know about your 5th amd. right and indicate that you intend to exercise it, isn’t asking a lot of questions anyway just wasting everybody’s time? Or is the idea to allow them to wear you down with repeated questioning?

    • Not every answer to every question is incriminating. You can’t say you’re not answering ANY questions, only the potentially incriminating ones. And you don’t know if it’s one of those until they ask it.

      Every now and then, you hear people make that “wear you down” critique, but it really isn’t what’s going on, much less a reason for the rule.

  11. I happened to see this just as the real Jeph Jacques was brought down by lawyers, albeit in a civil matter.

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