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There are now 82 comments... what are your thoughts?
  1. Andrew M. Farrell says

    Does the situation reverse itself *right* as you become under arrest? Meaning if an officer stops you but does not arrest you, then you need to explicitly assert your right?

  2. Librarian says

    I’m still confused as to why I can’t offer an explicit expression of assertion of right in all circumstances that would be pre-described in that same expression?

    Why is my power to contract limited/eliminated once I enter a court setting, and why can I not offer up non-negotiable terms and conditions that the court and judge must abide if they desire to have certain of my statements, which terms and conditions would be recorded in the court record for a written testimony and proof of contract?

    • Because the courts are part of the sovereign governments, federal and state, of this country. So they have the right to compel you to do certain things without ever entering into a contract with you, so long as they do not violate the constitution, or any of the statutes of their jurisdiction. If the courts could not compel people to do certain things against their will, then they could not punish people for breaking the law, because most people who break the law would never consent to be punished for it.

    • You certainly can make such a contract, or try to – a plea bargain is essentially a contract between the state and the defendant. So if you said, “I will only speak if I reserve the right to refuse to answer any follow-up questions”, and they agreed, that’s fine.

      Contracts require two sides, though, and they don’t have to agree. As mentioned, they can simply compel testimony.

    • Because the law already defines what your rights are and the method in which they must be asserted. It’s not a contract. It’s not subject to alteration. You don’t get to prescribe the method or the terms. It simply doesn’t work that way.

      If you walk in the courthouse and say you’re going to do things differently, all you’re going to get is a pissed-off judge.

  3. alex n says

    it’s like these rules were interpreted by lawyers just to make sure us ordinary people need to keep hiring lawyers.

    • Speaking from a political science perspective, the moment you start trying to regulate any sort of competition for finite resources (in this case ‘not jail’ is what people are competing for) it gets really complicated really fast. Everyone tries to twist your words to get things they should not get, people lie or misrepresent themselves, or sometimes just act on their own assumptions rather than fully read things.

      You need a lawyer because the law is necessarily complex, and no layman has any opportunity to understand the complexity they are dealing with.

      Think about coming to work for a new company, they have new terms, different processes for everything and it can be very hard to adjust – and that is in a system where (generally) everyone is helping you. If your boss or a co-worker has it out for you it can be very hard to get fair treatment.

      Unless someone along the way put in an annoying, complicated (but fair) conflict resolution system that will help the higher ups realize what is going on.

      • “The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”- Alexander Hamilton, Federalist #62

        You didn’t always need a lawyer for court, neither was one required, and “counsel” does not mean lawyer. In fact, court lawyers are a relatively recent addition to the American legal system, imported from England around the time of the Civil War, which before was a repugnant institution not to be administered, and for no small reason either, as can be plainly seen.

        When only one class of people can understand what the laws say, they in effect, become the highest power in the land, because they have the power to reinterpret the law for and against the originally sovereign layperson, which interpretation more often then not, will only serve to reinforce their position in power, to the overall detriment of the people.
        It’s a conflict of interest if ever one existed.

        • In 1735, Alexander Hamilton was the lawyer for John Peter Zenger in a very famous trial, and had he not had a lawyer there, John Peter Zenger would surely have been found guilty. You don’t need a lawyer for court, but it’s usually greatly advised, and not just for knowledge of the law.

          I’m a gamer, and well-familiar with the difficulty of clearly, concisely and exactly specifying a collection of rules. It’s not at all trivial; if I finish a board game, I will probably have a copy of the rules in logical notation, so I can look up exactly what the rules are in the edge cases. that even I as designer may not know the answer to.

          There may be too many laws, but we as a democracy have made those laws, and there’s too few people who are willing to get rid of the laws they feel are important in the process of getting rid of laws they don’t feel are important.

          • I don’t disagree that in court or formal questioning one should have a lawyer, but what about where I usually meet the government. Should the first thing I say in any interaction with a cop be, ” I would like to call my lawyer?” Until now, I didn’t even know how to effectively invoke my 5th amendment rights against self incrimination, and that is a basic right with 200+ years of history. (I still don’t since the story arc is still ongoing). My problem is that I don’t have the money to keep a lawyer on 24 hour call just in case I need her advice.

            David, do you have a link to an example of this logical notation for game rules?

            • Well, basic law should really be taught in school. Along with English and Math every citizen requires a basic understanding of the rules we operate under. That would help a lot.

              The second thing I would like to see is a mandatory revision process. Either a mandatory re-structuring of the body of law every generation (20-25 years) or a truncation system that constantly requires laws to be double checked and revised after a set number of years. It would be a lot of work, but that is the price you pay for systems that work well.

              • I wholly agree with this.

                Except truncating or changing the common law. But a common review should be often.

              • Basics of our law should be a part of every Civics class.

                …oh wait, nobody teaches Civics any more!

                As for mandatory revision, it’s a thought-provoking idea to be sure. I’ve sometimes thought that agency regulations should have an expiration date — I’ve known people who sincerely got deep pleasure from being able to stymie folks by pointing to a contradictory regulation from decades past, still in force. Conditions change, but regulations are forever.

                But as for the rest of it, I’d say we’re already revising it all on a daily basis. Statutes tend to get revised all on their own by active legislatures, with prodding from interest groups and lobbyists. And common law by definition evolves over time as judges interpret and re-interpret and address new situations.

                As for constitutional law… well, I’ll just save that comment for later.


              No, seriously. A board game is just a giant state machine, and programming languages are the tools humans have made for describing state machines. There certainly could be advantages to a board game specific notation, but it would also be new and unknown and a lot of work to get right.

              It’d be nice if it were this simple to handle law. There are certain advantages (and huge disadvantages) to writing law in something like Lojban, but even that won’t get willfully fuzzy distinctions like the ones between manslaughter and murder clear.

        • oh just stop already.

          “the right to counsel”
          the right to be advised.
          to have someone more knowledgable than yourself assist you.
          who is going to assist?
          hopefully an expert.
          of law.
          we call them: “lawyers”.
          eventually good lawyers (or engineers, or doctors) resent charlatans calling themselves lawyers yet failing to provide proper counsel. so you end up with a Bar Association who certfies individuals who indeed actually rate the title “lawyer”.

          why do you keep making everything so hard with your reivisionist history and outlandish legal theories? just stop.

  4. Broney says

    Whoa, hold on – could Capone have actually gotten away with filing the taxes and leaving blank info?

    • I assume you’ll get into this later: can your pleading the 5th be used by investigators to lead them to evidence they can hunt down on their own?

      • The way I understand it, anytime someone pleads the fifth it cannot be used or construed as evidence in any way, shape, or form. Meaning that evidence gathered on the basis of someone pleading the fifth would be thrown out.

        I admit, however, that I may be wrong as my only education in such matter are highly specialized.

  5. Alex Wyman says

    Okay, maybe (probably… all but definitely…) this question has already been answered and I’ve just been too slow, but it’s bugging me: what’s the criterion for a question being potentially incriminating? Is it that, if you take all the conceivable answers to the question and there’s one that, if true, would prove an element of a crime, then the question is incriminating? Then how do you define “all the conceivable answers”? Or is there a different standard? Or is it not really exact the way I want it to be?

    • Go back to this page:

      It’s not hypothetical — it’s not about all the potential answers that might be given.

      “Incriminating” means the answer you WOULD give could be used to help prove an element of a crime.

      The hypothetical bit isn’t about your answer, but about what might be done with it. Whether you actually committed the crime or not, if your answer could conceivably be used to make a case that you did, then it counts as incriminating for Fifth Amendment purposes.

      • However, nobody knows… or is allowed to know… what that answer would have been, and you never have to explain why the answer would be incriminating, as that would defeat the purpose.

        Therefore, it seems like you can refuse to answer a lot of questions you should answer based on the presumption of a hypothetical answer you wouldn’t ever have to explain.

        • But the government gets to know what the answer would have been by granting immunity.

          Which raises the question, what happens if you refuse to answer a question, and then government grants immunity and compels answering. Next it turns out that the answer really isn’t in any conceivable way incriminating. You refused to answer out of spite, not to avoid prosecution. Can you now be found in contempt of court for the initial refusal? I reckon not, the immunity must cover that as well. Otherwise you just have been compelled to testify against yourself regarding the contempt of court, in direct violation of the 5th amendment.

  6. Mark C says

    We never did explore what that immunity meant. Sure, their testimony can’t be used as evidence, but the information could. “Where are the bodies buried?” – um, I still plead the fifth. I’d be curious to go down that path sometime.

    This goes with my confusion about grand juries and where they fit into this.

    • Go back to this page: for how it works in Fifth Amendment context.

      We went into it in more detail in the comments, but I’m not going to give the full lesson on the various types of immunity and their ramifications until we get to Advanced Crim Pro later on — the stuff that happens once you’re formally charged with a crime in court. Grand Jury issues will be covered in that subject, as well.

      One thing at a time. We’ll get there!

      • Will Advanced Criminal Procedure also go over all the various types of pleading, the order in which they must be plead, the methods by which to do so, and the applicability thereof? What about Summons?

        • These are post-investigation procedures, so they’ll go in Crim Pro II, but here’s a quick summary for the time being:

          There are four kinds of pleading a defendant will do in a criminal case: “Not Guilty,” “Guilty,” “No Contest (a/k/a ‘nolo contendere’),” and “Alford Plea”

          1) First thing you do is plead “not guilty.” Even if you did it. Even if you want to plead guilty. Nobody would know what to do if the first thing you did was plead “guilty.” The clerk probably wouldn’t have a form for that, and everyone in the courtroom would look at each other anxiously and wonder “what just happened.” Every case starts with a “not guilty” plea.

          2) If you get a plea bargain, you will plead “guilty” to some lesser charge (or lesser quantity of charges) in satisfaction of all the others. Some charges may need to be dismissed, and others added, by the prosecution in order for this to happen.

          3) In some jurisdictions you can plead “no contest” — not admitting guilt, but not saying you didn’t do it either — though it’s treated the same as a guilty plea.

          4) In most (but not all) jurisdictions you can make an “Alford” plea, where you insist that you really are innocent, but admit that the prosecution’s evidence would be sufficient for a jury to find you guilty. It’s also treated the same as a guilty plea.

          5) You can decide not to plead to anything, and leave your “not guilty” plea intact. In that case, either the prosecution will drop the case, or the judge will dismiss it, or you’ll go to trial.

          The government’s pleadings are things like Complaints, Indictments and Informations (there are other words that get used, too). These initiate a prosecution by formally charging you with a crime — which is done by accusing you of breaking a specific law, and stating where, when, and how you did it. They can be as detailed as a novel, or a strictly bare-bones summary of the minimum content necessary to inform you of what they intend to prove, but not how they intend to prove it. (E.g., a 50-page recitation of conspirators and background and acts and investigations and suppositions and conclusions, vs. “On May 7, 2014, in the vicinity of 123 Main Street, Kenton County, Librarian committed the crime of Aggravated Loitering in violation of Penal Law section 4, in that he stood in the doorway of Mom’s Bakery demanding cupcakes from passers-by and refused to move when directed by the undersigned officer.”)

          A criminal summons isn’t really a pleading, though it does accuse you of a crime. Its purpose is more to direct you to appear in court so that you can then be formally charged (or told that the case is being dropped). It is usually handed out by a police officer, saying you’re charged with X crime, and directing you to appear in court on date Y to be arraigned on that charge. It’s given as an alternative to locking you up — letting you go about your business until your court date, and is typically reserved for minor offenses and traffic infractions. (In an exception to what I said above, many criminal summonses give you a chance to plead guilty by checking a box and mailing it in with a fine. Why anybody would plead guilty before even setting foot in a courtroom is beyond me — your lawyer could have gotten the thing thrown out or possibly negotiated a non-criminal plea bargain, or the prosecutor might have decided not to even prosecute it the day before — and instead you just gave yourself a criminal record. Well done.) You are required to appear as directed by the summons, and will get in more trouble if you don’t, though I’ve found that some courts are cool with it if you call ahead to reschedule to a more convenient date.

          • “What are you in for?”

            “Armed robbery and aggravated assault. You?”

            “I was begging for cupcakes downtown.”

            *everyone inches away*

          • One professor talking about domestic violence showed a mugshot of a man wearing a shirt “I have the dick, I make the rules.”

            He pled guilty at arraignment.

          • If you can go to a local court on a day you’re not working on, then the only coast is your time. If you have to get a day off work, you don’t get paid for that day, and it may hurt your chances of promotion if your boss frowns on whatever you’ve charged with. If the court is a long distance away… the cost of long distance travel plus finding an attorney plus time can easily add up to more then what the fine is.

            • All of which are excellent reasons to avoid committing offenses.

              To be less glib: Almost any contact you have with the justice system involves additional costs and inconveniences, from the loss of time and pay, to court fees and fines, to the often staggering cost of lawyers. The system generally treats all of this as part of the deal, part of one’s responsibilities as a citizen. If you’re going to commit an infraction, then you’re going to have to deal with the collateral consequences as well as the penal ones.

              Even in a civil case, if someone sues you for no good reason, the cost of dealing with it is on your shoulders (unless you’re in one of the rare “loser pays” scenarios). It’s just seen as a cost of participation in society.

              • “If you’re going to commit an infraction, then you’re going to have to deal with the collateral consequences as well as the penal ones. ”

                Of course, this is true even if you *didn’t* commit any infraction, and were charged in error or maliciously.

                • Yup. Same as if you were sued wrongfully in civil court. Part of the cost of participating in society.

                  Now should that be how things are? That’s a great topic for another discussion, with all kinds of policy arguments for and against. However, as things are now, that is how they do work.

            • You’d have to check your local laws. From what I can see, some judges will also refuse nolo pleas except under certain circumstances.

  7. Kyle says

    Hold on. You can plead the 5th when filling forms for the IRS?

    In that case, shouldn’t everyone do that? Whatever answer you provide could certainly be used against you by the government (taxes are overly complex).

    The IRS already gets most of this information from your employer anyway, and if your employer makes a mistake (and you don’t), the IRS could certainly call you in.

    • It’s been the rule since 1927 that you can take the Fifth and not answer incriminating questions on a tax form, but you still have to answer the rest and file it. In 1976 the Supreme Court went further and said that if you do fill in incriminating answers, you’ve waived the Fifth and your answers can be used against you.

      So if you got all of your income from selling heroin, you could take the Fifth with respect to anything asking about the source of your income, but you’d still have to report that income. (On the plus side, the IRS lets you deduct business expenses of running your narcotics operation. Fair is fair.)

      In real life (in my experience, anyway) the IRS doesn’t go running to the DOJ saying “look! this guy was selling drugs!” The only thing the IRS cares about is whether you reported everything and paid up (but if you didn’t, THEN they might go after you criminally for tax evasion or the like). When a tax return gets used against someone as evidence of some other crime, it’s usually when the feds got the tax return in a search warrant or from someone other than the IRS and found the incriminating answers themselves.

      • Do you have to launder the money that you made from selling narcotics before you can pay taxes on it like in Breaking Bad?

        • Nope. Not at all.

          That wouldn’t be a good idea, either. Not only because it’s freaking illegal, but also because the forensic accountants in the IRS’s criminal investigation unit get all excited when they see indications of money laundering, and now who cares if you took the fifth about crime A because you’re going down for the coverup crime B.

          • That’s because Money Laundering takes up about 3 folders of paperwork, and juries consider Money Laundering a crime.

            Unlike Tax Evasion, which is harmless pass-time sport that can fill up filing cabinets. -_-;

          • So the right thing for career criminals to do when they interact with the I.R.S. is just pay their taxes as though they earned their money legally, but take the fifth when the I.R.S. asks them anything about the source of their money.

      • minor issue in your example: Congress really hates drug dealers. 26 U.S.C. section 280E: “No deduction or credit shall be allowed for any amount … in carrying on… [the] trafficking in controlled substances…” The upshot is that illegal drug expenses are specially excluded. I think any other illegal business would have worked in your example though.

          • Now that lead to the question of what happens where the government asks a series of questions like “do you have any deductible advertising expenses?” where leaving any individual question blank is not unusual, but leaving all of them blank is indicative of criminal behavior? if i keep poor records for my actual legitimate business, should i assert 5th amendment privilege when i leave the expense portion empty?

              • Presumably, if not knowing the answer is itself incriminating, you can take 5th.

                As for deductibles, I understand it’s not required to claim them, and even if you do claim, you don’t need to claim all. Affer all, deductions reduce your owed taxes.

        • “…which is prohibited by Federal law or the law of any State in which such trade or business is conducted.”

          A legitimate pharmacy or research institution can apparently still deduct the cost of legally transporting controlled substances.

  8. KW says

    I’d like to return to a previous subject for a moment. If someone kills someone else by avoidable accident, and gets charged with manslaughter. Let’s say he kills someone AGAIN in the exact same manner, and is charged with recklessness. What happens the third time? Does the prosecutor go for murder 1, figuring that there’s no way you can do it twice and not get a clue, or is prosecutor stuck with recklessness?

    • If I was the prosecutor I would be going back over everything looking for a common thread. If I find something tying them together I might argue that there is new evidence that all three were murder 1. This would not keep happening unless the person in question was trying, and I think a Jury would buy that pretty easily.

      • For the sake of argument, let’s assume it’s truly an avoidable accident, and you were legally careless (or whatever the term is) the first time and legally reckless the 2nd and 3rd times.

        • Seems to me that a guy needs to lose his right to participate in that dangerous activity after time 2. You have no business operating a car or heavy machinery or whatnot if you’re that clumsy and deadly.

          So maybe it’s still Recklessness, but it’s Recklessness and Operating Without a License. Which does sort of sound like you’re going out of your way.

          • You guys are making it way too complicated. Let me try an example: suppose you are playing baseball; you’re at bat, and just as you swing, someone thoughtfully sticks their head into your swing zone. This isn’t thoughtlessness on your part, but it’s the best example that I can come up with. I wasn’t asking about an activity which is normally considered dangerous, nor was I asking about intent, just asking a hypothetical question.

            • I would think that the prosecutor would be completely free to charge him with murder, so long as he didn’t mind the guy easily proving to the jury it was an accident and getting a “not guilty” verdict.

  9. So if a Politician want’s to arrest you, you have to speak up, and when a cop arrests you, you have to zip it.

    Damn. I’d rather talk to a cop then a lobbyist.

    • Politicians don’t arrest.

      My understanding so far is, if you’re required to speak in a hearing, you can be held in contempt if you don’t speak, unless you initially assert 5th on a specific subject. Based on what Nathan said, you don’t get to plead 5th in grand jury hearings, which I suspect means that they are not recorded.

  10. Y. Exeter says

    Side note: Comments are closed for the next page?

      • Or my challenging of everything he says…

        To be fair, my questions are quite harsh and complicated, and I wouldn’t blame him for not wanting to answer or put up with them, but I ask and counter because I want to strip away the illusions I might have and discover the real truth behind everything.

        • I kind of doubt it. He mentioned previously (back when it topped 100 comments, many of them yours) that he liked the discussion going on.

          He’s had the patience to make it through this far. I don’t think he’s petty enough to cut comments to everyone just because he’s tired of responding to one person. =P

        • I am getting a little tired of saying “please wait,” actually. But I never get tired of people asking challenging questions — that’s half the fun for me!

          However, I do moderate comments that persist in pushing myths, agendas, and disinformation.

          There’s a difference between asking “why isn’t it entrapment if an undercover says he’s not a cop” and stating “it’s the law that it’s entrapment if an undercover says he’s not a cop.” One is a welcome question. The other is counterproductive and unwelcome.

          Similarly, it’s great when comments say “Nathan, wasn’t there a case last month that overturned that entrapment rule?” But it’s obnoxious when comments say “forget what the rule is now, my understanding is that it used to be considered entrapment, so it’s still entrapment.”

          The line can sometimes be a little blurry, and I prefer to err on the side of letting people post comments. But if it looks to me like the line’s been crossed, I’m probably going to moderate that comment.

          This Class Participation section is a wonderful forum for exploring the finer points of how the law actually works now. They’re not a forum for pushing an agenda. Likewise, they’re perfect for healthy debate of the ideas behind the law; but personal recriminations, conspiracy theories, and recalcitrance don’t belong.

          • Well, I’ll admit I haven’t been the best at putting things in words, but when I make declarations like I do, I’m wanting to know why that reasoning doesn’t work, in fact.

            I mean, obviously anything outside the norm will upturn the norm, and potentially upset a judge- but that’s no excuse for a judge to go outside the law in order to address it. So I want to know why, in law, the reasoning or action doesn’t work, rather than a blanket statements like “the judge won’t let you, and if you piss him off, bad things will happen,” as if the judge is privileged to go against the law at his own discretion to deal with troublesome arguments…

            Lawful means not forbidden by law, legal means prescribed by law. I don’t see how then it is inherently illegal to do something in a manner other than in the prescribed manner.

            Likewise, if it’s a matter of definition, I don’t see how you get to redefine words to suit your purpose. If it’s a matter of interpretation of definition, it’s still bound by the construction of that definition.

            • Terms get redefined all the time. For example, the exact definition of “rape” depends upon both the jurisdiction and timeframe; I’m sure that other terms get clarified on occasion also. Certain cases can result in courts declaring certain things (in this example, ways of defining rape) unconstitutional, and other cases can set guidelines on how to determine if the definition is met (for example, a rule such as if video shows victim mounting rapist, then it can’t be convicted, unless there’s evidence of reluctance or coercion). Nathan has covered all of this on various pages.

              Would you knowingly annoy or anger a judge? I’m sure judges can do plenty legally; maybe Nathan can cover this topic later.

              • Terms can only be clarified, and procedure for determining the semblance thereof, and on occasion, meanings added thereto, but their past definitions are set and inviolate, else there can be no law at all, but the very arbitrary nature of a governor’s whim and pleasure to do as he pleases to the detriment of all others.

                A Tiger will never be a Lion, and “I” will always refer to the one himself speaking. The definition of a Contract must by necessity be governed by” offer, consideration and agreement,” else how can it be enforced?
                Likewise murder shall always be murder, else the law has transgressed it’s very purpose.

                A marriage is entering of a man and a woman into matrimony, and can be no other thing made of it, else the purpose of the term, being to describe a certain and particular thing, is wholly defeated.
                A license must therefore, be permission by competent authority to do what would otherwise, (or, in any other case) be unlawful, and not a term for the regulation of what is already a wholly lawful activity.

                So say otherwise is a total perversion of language, the base and authority of which being set upon only the speaker’s own intent to deceive the hearer.

  11. KW says

    “Terms can only be clarified”. Ok, so we have marriage, which has been “clarified” as also meaning two people of same sex, and in some states, has been “clarified” yet again as meaning only man and woman.

    I know “clarify” is actually the official term, but that doesn’t sound like the most appropriate term; the most appropriate term would seem to be “redefine”.

    • I would hardly call it “redefining” when 99% of the meaning remains the same. None of the consequences of marriage change in the slightest just because you decide that “a man and a woman” was overly specific and the spirit of the law meant “two people”.

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