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Join the conversation! There are now 102 comments on this chapter's page FIFTH AMENDMENT FLOWCHART. What are your thoughts?
  1. Robert says

    Nicely put together, however there is a typo for you to fix:

    After the do-over point, on the right hand side, where you have the first ‘You have invoked your right to remain silent’ in the third paragraph, it reads: ‘If the keep asking’ which should read ‘If they keep asking.’

    Small detail, just giving you a heads up to fix it… great job only having that one error (that I noticed) in so much text!

        • Absolutely. This document is a sufficient replacement for counsel. Just bring a copy of this to court, and show the judge, and you will most likely win your case.

      • While we’re talking about typographical things, the final set of “NO” options aren’t labeled. Not a biggie, since we can figure it out, but just thought I’d mention it in case it mattered to you.

  2. Benjamin says

    Thanks so much for the awesome flowchart! I wonder how this (and the 4th amendment one) will fit when you try to lay them out for the next book.

    One question I had from back when you were discussing official forms: How does your right against self-incrimination come into play when you’re filling out a form for a background check as a condition of employment? (I’m thinking specifically the SF-85, SF-85P or SF-86). Does it matter if the individual is employed directly as a government employee or by a contractor (people employed by private companies who contract with the government may be required to fill out an SF-85P or SF-86 as a condition of employment.)

    • Your right against self incrimination only applies to the government. It wouldn’t apply to a private employer, and I’m sure that having committed a crime in the past doesn’t count as a new crime you can incriminate yourself with.

      If you’re applying for work with the government, and they ask you if you have committed any crimes that aren’t on your record, I guess you don’t have to answer that. But then they don’t have to offer you a job.

    • I’m not a lawyer, but I’m guessing that you don’t need to fill out those forms if they’d incriminate you. Of course you won’t get the job, but you don’t need to fill them out.

    • But what’s the incriminating question being asked? Background checks usually ask only if you’ve been convicted of a crime. It’s not a crime to have been convicted of a crime, so there’s nothing incriminating in answering that truthfully.

      On an SF form, they do ask if you’ve taken drugs illegally, but they also clearly state that your truthful answer will not be used against you in any criminal proceeding, and neither will any information derived from that answer. In other words, your answer can’t be incriminating. So you can’t take the Fifth.

      If you don’t want to answer that question, then don’t apply for that job. It’s not as though the government is requiring you to apply for the job. It’s only saying that if you do apply for it, you’ll have to answer this question. So there’s no voluntariness issue.

      More broadly, let’s say you want to engage in a regulated activity. In order to get a license to do it, you have to fill out a form with the government. Let’s say your answer to one of the questions on the form actually would be incriminating — it could be used as evidence against you in a criminal prosecution. You may choose to take the Fifth for that question, but they’re allowed to deny you the license as a result. Nobody’s forcing you to apply for the license, so there’s no voluntariness issue.

  3. Pendorbound says

    Very useful! Would you consider releasing a version of this without the background gradient suitable for printing? Or, do you maybe have a poster in the works for sale?

    This is the kind of thing I’d love to run a big print of on the plotter & put it on the wall, but I’d happily pay you for the privilege as well. =)


  4. Rimfax says

    If you could make a 3×4 aspect ration version, you’d sell the crap out of some t-shirts, especially if you could replace some illustrations with those in your comic style.

    • TBH, I think this is still a LOOOOOOOOT of information to be able to fit on a t-shirt.

      And not require someone to bring along a magnifying glass to read it and never ever wash the thing ever, anyways.

  5. Daniel Kane says

    If you can take the fifth while filling out forms, could, say, Al Capone have taken the fifth on his tax forms and refused to disclose the source of his income (rather than lying about it and getting arrested for tax evasion)? If so, can anyone refuse to report this because it would be incriminating if they had obtained the money illegally?

    • I think this did come up in the comments on a previous panel! Joshua has the right of it – you have to disclose the income or risk tax evasion charges, but you can take the fifth on the source of it.

      So if you have income from illegal activities, then when it comes time to file your taxes, declare the amount, but where it says source of income write something like “Decline to state (5th Amendment)”. (I am given to understand that if the IRS sees this, they will not bother with trying to find what you may or may not have done to earn that money.)

  6. Jeff says

    One small suggestion – if feasible, arrowheads make some parts of it a bit more clear (for instance, the “Are you a human being” and “can your answer/silence be used to prove an element of a crime” boxes both go to the same terminus, but it’s not immediately obvious that that’s a terminus.)

  7. Joshua says

    Is the long-short of this: Say nothing, ever, except “I am (ironically) exercising my right to remain silent, and I want a lawyer”, unless your lawyer says you have to talk? (because we know cops can lie, so we can’t trust them to tell us how our rights are going to apply)

    • That’s what you say if you’re in custodial interrogation, sure. But if it’s not law enforcement asking you the questions (or providing the forms to fill out, or whatever), you have to assert that you’re taking the privilege every time they ask a question. And there are some situations where the 5th Amendment will NOT apply, and you will have to answer or face penalties.

      • And of course, you cannot take the fifth on behalf of another. Typically speaking, the only exception is spousal privilege (and only spouses, your family is not protected, including your children).

        • Don’t confuse the constitutional right against self-incrimination with a rule of evidence. The spousal privilege is not the same thing as the Fifth Amendment right against self-incrimination. The evidentiary privileges exist to protect sacrosanct relationships, where the law says it’s more important for them to share information without fear of it being later repeated in court. If your spouse could be forced to testify to things you shared in confidence, it would destroy marriage. Similarly, if your lawyer could be forced to testify to what you told him in confidence, you wouldn’t tell him what really happened, so he couldn’t do his job and the system would fail. If your doctor could be forced to put your consultations on public record, you might not tell him your embarrassing symptoms and you’d get the wrong treatment. And if you couldn’t confess to your priest in secret, you wouldn’t, and there goes your immortal soul The clergy, doctors, and lawyers make up the three “learned professions” where the professional is responsible for the life [or afterlife] of another human being, making important decisions and taking important actions on their behalf, and so they are held to higher standards of behavior than other callings and at the same time their confidential communications are deemed sacrosanct by the rules of evidence. The relationship with your parents and children was never held to be as sacrosanct as that between husband and wife — who the law traditionally treats as a single person — and so there is no privilege there. Similarly, the relationship with your accountant or grocer is not as sacrosanct as that with your lawyer or doctor, and so there is no privilege there.

          But none of that has anything to do with the Fifth Amendment.

          • I thought spousal immunity was self-incrimination, because an husband and wife, lawfully wed, are considered as one Person under law. Was I led to understand wrongly?

            • It’s not that they’re considered one person. They’re still two separate people, separately responsible for their own actions. Maybe back in the 1600s or so there was a legal fiction that they were a single unit, in order to give legal force to the special treatment we give spouses. But nowadays we just give them the special treatment because they’re married, without having to employ the legal fiction that they’re one person.

          • Maybe they should add computer repair guys to that list of people who can’t be compelled to testify. Maybe then I’d have users actually tell me the truth about what they were doing when it just ‘shut off out of nowhere’ while they ‘weren’t even touching it’!

            • I had that actually happen. Turns out my power supply blew something inside, and the surge caused the laptop to just shut off.

  8. Librarian says

    “So, do you know why I pulled you over?” and “Do you know how fast you were going?”
    >”I refuse to answer and want a lawyer.”
    “Please sign this ticket.”
    >”But could not my signature evidence proof that I might be the person you pulled over? By placing my signature, would I not have provided information that could be used against myself in a criminal proceeding? How can I possibly identify myself when doing so could place me in peril of criminal charges by the State?”
    “Sign this summons then.”
    > “Am I to understand you have already instituted criminal charges against my person with the local judge of this jurisdiction, and are now executing his Official Writ of Summons? For what reason then have I to sign anything? You’ve executed the writ, now let me be on my way, or am I now in custody?”

    How might this play out? Would it be better to continue to remain silent at the outset? And how might that approach play out?

    • Miranda doesn’t apply, because a traffic stop doesn’t count as “custodial interrogation” for Miranda. So your first answer’s a little off. The cop’s playing a game here to get you to say something incriminating, even if it’s just admitting to 5 miles over in an attempt to minimize it. You can simply choose not to play the game.

      Refusing to sign is silly. You already gave him your license and registration. (Yes, you did. It’s usually a crime not to. Plus you just gave him probable cause to arrest you for driving without a license.) He knows who you are. Providing your name is not “incriminating” in a case like this. That’s a really rare phenomenon, like where they only know the name of the perpetrator, and you tell them it’s you.

      Your issue with the summons is also silly. Forget everything the sovereign citizen people have told you. It is not what the law is, it’s not how the law works, and it will only get you in worse trouble.

      • So all that said, I’m still unclear on the proper script/scenario that doesn’t needlessly aggravate an officer but also protects your rights. If you were stopped and the officer played that game with you, how would you think the conversation should go?

        • Here’s a few ways it could go:

          “Do you know why I pulled you over?”
          “No.” (This is a truthful answer in all cases, unless you happen to be a mind reader.)
          “License and registration, please.”
          “Here you go.”


          “Do you know why I pulled you over?”
          “Why DID you pull me over?”


          “Do you know why I pulled you over?”
          “Here’s my license and registration.”

          • “Do you know why I pulled you over?”
            “I’m a physician, here’s my card; make an appointment and we’ll see about treating your memory loss.” :-)

      • I think a traffic stop not counting as custody is a bit silly. Since I do not think any reasonable person could just drive away from a traffic stop without expecting to get arrested/forcibly stopped.

          • > It may sound silly, but it’s the rule. See the discussion about it here.

            So I’m guessing that no-one has replied to the “Do you know why…” question with one of the perfectly reasonable replies listed above, and attempted to drive off. Otherwise this rule might be slightly different

    • Signing the ticket is only acknowledging that you received the ticket. Your signature is your promise that you will deal with the ticket in one way or another (by paying it, or fighting it). If you don’t sign, the police officer can use other means to make sure you take care of the ticket – by arresting you and bringing you before a judge the next morning.

      • …unless it’s a Friday, in which case the judge is off fishing for the weekend. :-)

        …a weekend in jail will encourage Friday-night troublemakers to either not commit crimes, or get better at not looking like they’re committing crimes! ;-)

  9. Hurricane Ivan says

    At the bottom of the chart, after both instances of the question “Did YOU renew the discussion about your case”, you appear to have neglected to write the “No” andswer on the appropriate arrows.

    Otherwise, very illustrative.

  10. Snaf says

    Is there a significant difference (in theory or in practice) between the two ‘favorable’ outcomes at the bottom of the chart: invoking both your right to silence and counsel vs. only asking for a lawyer?

    My understanding so far is that invoking your right to legal counsel has essentially the same effect as invoking your right to silence: the police have to stop questioning you. So what happens differently if you invoke /both/ rights?

    • As a practical matter, you get the same protection invoking counsel alone as invoking both counsel and silence.

      It’s a distinction without a difference at this point, a vestige of the law coming at the issue from different directions.

      Note, however, that it’s not the same if you only invoke silence. Which disadvantages those who only know to invoke that one. The law might be evolving to a point where either is as good as both, but that could take another 20 or 30 years at this rate.

      It all comes of the Supreme Court’s confusion leading up to and creating the Miranda rule, and the ensuing confusion and inconsistency of the caselaw. A simple rule excluding any government-induced self-incrimination would be principled and consistent, but the second getting results enters into the equation all consistency and principle become compromised.

      I’m typing this on a cell phone, I hope that wasn’t too garbled.

      • Not garbled at all! Thank you for responding, Nathan!

        My question could have used work though. I suppose I was trying to ask if invoking right to counsel would imply invoking right to silence. Instead my silly phrasing made it sound like I thought they were equivalent, though I already knew this wasn’t the case.

        Being a layman, I’d always been instructed the smart, “common sense” move is asking for a lawyer when in police custody, but had heard surprisingly little about the right to silence and how one needs to express their intent to exercise it. I certainly didn’t know any of that before I started reading this webcomic!

        Anyway, its a relief to know that asking for a lawyer at least is as good as both. I was flipping through your comics on Miranda and noticed that none of the conspirators invoked *only* right to counsel, so I was curious if there was a reason for that; for me it was a glaring omission since I’d think it the most likely scenario to occur in practice!

        Oh and my imagination may have been conjuring up scenarios where invoking right to counsel but ‘forgetting’ to invoke right to silence could somehow be used as a loophole by the State or cause Very Bad Things™ to happen at trial, or simply cause a public defender to tear out his/her hair while shouting ‘NO, YOU IMPOSSIBLE FOOL!’

        • Well, you presumably wouldn’t have the protection that your silence couldn’t be used against you, although it would be a really hard sell that it was an indicator of guilt that you didn’t answer a question that nobody had asked you.

  11. code- says

    One question about the “Could YOUR answer(or silence) be used to make it look like YOU committed a CRIME?” —> No answer part.

    How exactly do I know what could be used to implicate me in a crime? How do I trust a LEO agent stating that it can’t be used to implicate me? I’d be very well inclined to remain silent until I’ve heard from my own counsel that it is in fact required for me to answer the question. Would I still be subject to penalties for my refusal to answer?

    • The law takes a broad view here. If it is conceivable that a prosecutor could use your words to help establish any element of any crime at a trial, then it counts as incriminating. See this page.

      How do you know if that’s a possibility? There are so many criminal laws out there that it seems impossible to know. (See this chapter.) But the law’s going to give you the benefit of the doubt here. If there’s any doubt about it — if it’s not obviously non-incriminating — then it’s going to count as incriminating.

      It’s actually more obvious when an answer CANNOT be used against you. Stating your name for the record is almost never incriminating — it’s not a crime to be you. (In an extraordinarily rare case, they might know the name of the perpetrator but not know that you’re that person, in which case identifying yourself would be incriminating.) Similarly, if you’ve been given immunity, your words cannot be used against you, so they’re not incriminating.

      Don’t trust a police officer who says your words won’t be used against you. An L.E.O. is allowed to L.I.E. And he can’t give you immunity. That comes from prosecutors and politicians and sometimes by operation of law, but not from police promises. Anyway, how does he know what you’re going to say before you say it?

      • Thanks for the info. I was more confused about the punishment part, and the implications of compelled testimony. Is there any time that you could be compelled to testify without being granted immunity of some sort? If so, could that testimony be used against you later if the focus of the trial/hearing changes or it otherwise becomes relevant, or would it be exempt due to it being forced?

        Also, are judges and/or chair-people the only ones allowed to compel testimony?

        • Seems to me that the entire point of the Amendment is that there are no circumstances in which the government is legally allowed to compel testimony from you, then use that testimony against you.

      • Would it really be incriminating to state your name even then, though (if the police know nothing but the name of a criminal)? Names aren’t unique, so you could have the same name as a criminal without being them.

  12. Andrew M. Farrell says

    If you are properly read your rights but state that you don’t understand them (Either by asking a question about them or saying you don’t speak English), what happens?

    From reddit:

    • I just saw that. Here’s the ELI5 answer I posted:

      You’re not going to be read your rights until you’re already under arrest, so you’ll still be under arrest. That’s not going to change.

      A lot of the time, nobody’s going to read you your rights even then. It’s not automatic, and it’s not required. The only time they need to read you your rights is if they’re trying to get you to make an incriminating statement.

      If you’re read your rights, and you say you don’t understand them, the officer can try to explain them until you do. Or he can decide you’re being a pain in the ass and stop asking. NOTE, however, that courts almost always presume that you DO understand them if you speak the language. The words are basic.

      If you’re read your rights and you say nothing, YOU HAVE NOT INVOKED YOUR RIGHTS. If you merely remain silent without SAYING you’re going to remain silent (I know, right?) the officer can continue questioning you.

      tl;dr – If you say “no” they’ll explain again or stop asking. If you say nothing, they can keep interrogating you.

  13. I admire your effort and its fine. But I noticed that you haven’t used standard flowchart symbols for drawing. However nice flowchart!

  14. I’ve heard that police will go out of their way to NOT read people their rights when they’re arrested (unlike on TV). That way, they can use anything the suspect blurts out on their own later on, plus they also play off the misconception that “No rights read = arrest thrown out” or at least “statement can’t be used” and hope people talk more. They just have to be careful not to ask any questions.

    Hmmm, here’s a question. As long as they don’t do any “interrogating”, can a police officer lie and say that statements can’t be used against them?

    Example (while driving tot he station):
    Perp: “Hey, you didn’t read me my rights!”
    Cop: “That’s right. So we can’t use what you say.”
    Perp: “Oh really? Well, blah blah blah incriminating thing.”
    Cop: “…”

    • Cops can lie, Nathan said so above (and in previous pages somewhere). The motto might be “protect and serve”, but that doesn’t seem to apply to whomever the officer is currently speaking to.

        • The case seems to fit into the flowchart; follow along in the section section, from “Do-Over Point”. You’re in custodial interrogation. (“We can’t use what you say” is an attempt to get you to say something incriminating.) You haven’t been Mirandized (“no” to the first box). You did not explicit invoke your rights (“no” to the second box), and then made the incriminating statement.

          So, the government does not get to use that statement directly at trial, but can use evidence to which it leads. They also get the Miranda do-over, to see if you’ll repeat your statement after being read your rights.

          • Well, the question here is what exactly constitutes “likely to get an incriminating response”. Just above the “do-over” line, we have the exchange “I can explain!” “Please do!”, with the implication that despite the officer encouraging the guy to keep talking, it still counts as voluntary, despite the fact the officer is clearly after an incriminating statement there.

    • Nathan actually already both covered the whole “Don’t read you your rights” business earlier on in the comic, and the “Not asking questions” situation . Assuming that there’s no urgent threat to prompt the emergency exception, the second you enter police custody (Like being arrested!) if they don’t Mirandize you, they’re not going to be able to use your statements unless you testify to something different in court. It doesn’t matter if the statements are volunteered or interrogated out of you (And remember, a police interrogation doesn’t just mean questions: any sort of interaction that could prompt a response counts), until you’ve been informed of your rights it’s basically useless.

      Unless you testify to something contrary to that in court, in which case, the normally unusable statements can be used against your testimony.

      • To be clear though, they can’t use the normally unusable statements to say “Hey he totally admitted to doing it and this is clear evidence that he did.” They’re only allowed to do it to say “This guy changes his story a lot, can you really trust anything he says?”

  15. Amy says

    I’m a public defender, and I would pay good money for poster sized versions of the “know your rights” charts to put up on the walls of my office. These are amazing! Let me know if they ever come out in posters, please!

  16. Alex says

    Is the comic on hiatus? It’s been much longer than usual since the last update…

    • Nope, that was an unusual flurry of posts at the end there, trying to finish that chapter ahead of a busy time at work. I’m in the busy time now. So basically we’re back to my usual “when I get a moment I’ll try to work on it” schedule.

      • Putting feeding your family and paying your bills over the comic! Shame on you. :)
        I do know of at least one case where a person in Texas tried to get out of a speeding ticket by only speaking German to the officer that pulled her over. It didn’t work to well in that case since he simply repeated all his questions again in German (his father had been stationed in Germany and married a local).

  17. Esurnir says

    I’m very curious, would a border check of an american citizen fall under the “non-custodial interrogation” box of the fifth amendment chart? Like say you’re an american, returning from an oversea trip in Swatzilanistan a country known for dealing in exotic plants, lax controlled substance regulation with a fierce biker community and with company providing guided combat tour for the enemy-of-the-us crusader association, I assume that as an american you have a right to come back into your own country, but border control seems to be this gray area where (there’s already a search exception but that’s not the case) the government get to ask you anything it wants and you’re supposed to answer truthfully, is there a fifth amendment right at the passport check?

    • Routine questioning at the border is not custodial, so Miranda doesn’t apply. You’re still allowed to take the Fifth if your answer might be incriminating, BUT…

      If they detain you to ask further questions, then it is custodial, and they’ll have to mirandize you first. Furthermore, even detaining your luggage or your tickets counts as custody here, as much as if they’d put you in handcuffs.

      Customs declaration forms don’t ask for incriminating responses — here’s what one looks like. But you are compelled to answer them. So if your answer were somehow, somehow, incriminating, then that would be compelled self-incrimination, and that answer could not be used as evidence against you in a subsequent prosecution. (You wouldn’t be immunized from prosecution, however. So you couldn’t say “I’m smuggling heroin” and somehow be able to get away with it. [Contrast this with, say, Grand Jury testimony in New York State, where subpoenaed testimony confers transactional immunity by because it was compelled. Federal constitutional law is a baseline minimum; the states are free to give you more protections.])

      It is extremely rare for an answer on the declaration form to be incriminating. What’s more likely is the follow-up questioning, where Miranda rules would apply.

      Thanks for an interesting question!

      • I was mostly interested in the interview itself like “what was the purpose of your trip” (take a tour in the neighbouring country of kuwaitisland to shoot ak47 and consume great quantity of government subsidized meth). I understand the form themselves didn’t sound so harmful to me (unless you lie on them. Then good luck).

        • The correct answer to that question is “pleasure”. Or, if you’re in some messed up work situation, “business”. (not that answering honestly is incriminating – it’s not illegal to go and do something where it’s legal there, but not at home. That’s the whole point of Las Vegas.)

            • Also some laws apply to all US citizens in ALL locations, including outside the country – still not sure what the mechanism is for that, but in particular I’m thinking about the anti-“trafficking in persons” laws, combating sex tourism. I have heard, but cannot confirm, that it is also illegal for any US citizen to bribe a foreign official, even if such a bribe is customary in that environment.

              Plus, as Carl said, some government workers are subject to US laws wherever they are (eg, Military, Secret Services, diplomats, etc), although I think in that case the issue was the Agents in question misusing their government funds, drinking while on duty, etc.

      • What about this question on the form isn’t incriminating?

        Mark an X in the Yes or No box. Are you bringing with you:
        -Fruits, plants, food, or insects?
        -Meats, animals, or animal/wildlife products?
        -Disease agents, cell cultures, or snails?
        -Soil or have you visited a farm/ranch/pasture outside the United States?

        Mostly, I’m thinking of this ( video, where a defence lawyer is defending the importance of the fifth amendment. If you’ve brought a bony fish into the U.S. in violation 16 U.S.C. & 3370, then could you plead the fifth on the customs form? Would it even matter, considering this law is probably a strict liability matter?

        • Depends. Is it a crime? If it isn’t, then you can’t take the fifth, even if they could fine you civilly for it.

          If it is a crime, then you can take the fifth on it. But then, they can simply say “Okay, you can’t enter the country”.

          And of course, if you lie on the form, you’re committing perjury.

      • You might want to check on that … there are IRS cases where incriminating answers on tax forms COULD be used, despite that the answers were compelled! The general theory is that you have to write “Fifth Amendment privilege claimed” on your tax return to claim the privilege.

        • Yup, I thought that was made clear. If it wasn’t, I apologize.

          When you’re compelled to answer on a form, be it customs declarations or tax returns, and your answer could be incriminating, refer to this part of the flowchart:

  18. jy3 says

    I was wondering: how does the power to compel testimony interact with a duty to keep a secret (classification, non-disclosure agreements, intrusion, etc.)?

    For instance, suppose I’m testifying and asked to reveal a state secret. Would I be required to reveal it, and could I be charged if I did?

    • If it’s a state secret, it’s probably covered by the Classified Information Procedures Act, and the prosecutor (as the government’s lawyer) will be responsible for making sure the government’s interests are protected. So no, you probably wouldn’t be required to reveal it.

      If it’s a civil non-disclosure agreement, then ideally the lawyer who drafted the agreement will have taken the state’s subpoena/questioning power into consideration. A well-drafted non-disclosure agreement will require the subpoenaed party to notify the other party that they’re about to be compelled to disclose confidential info. This gives the other party a chance to quash the subpoena, or at least get a protective order to stop the government from forcing you to divulge their secrets. (Otherwise, you might be out of luck, and coincidentally in the market for a more thorough lawyer.)

  19. pfarland says

    Not really related to the topic at hand, but if someone is found guilty of Attempted Murder and then the victim dies as a direct result of the injuries sustained they can then be tried for murder, correct? And if so, do they have to vacate the previous conviction of Attempted Murder? I was just wondering (it came up during a conversation about the 48 hours program). If that’s the case, couldn’t it be possible for the state to lose the murder trial and the perpetrator to walk free?

    • Nope. When you commit murder, you’re by definition also committing attempted murder. They wouldn’t have to vacate the original judgement. Now, whether or not going back and trying you again violates Double Jeopardy, I don’t know.

    • Yes, this is off-topic, and should have been posted on a more relevant page. But we haven’t gotten to Double Jeopardy yet, and won’t for a while, so here’s a quick answer:

      Yes, the defendant could be charged anew with murder. There’s a “delayed death” exception to the general rule that you can’t be prosecuted again for the same offense. The actus reus (what you did) and mens rea (why you did it) are identical, but now there’s a new element to be proven: that the act indeed caused death. There’s a new harm, and the state is given a chance to punish it. (There’s a lot more to it than this, and it can get more than a little convoluted, but that’s the gist of it.)

      The original conviction wouldn’t be need to be vacated — this is “in addition to,” not “instead of.” But any time already spent in prison would probably count towards any sentence imposed on a new conviction for murder.

      Try to keep questions and comments on the right page from now on, though, okay?

        • I’m curious how this effects john hinkley jr.

          I heard that Mr. brady, of the brady bill fame, had died due to complications caused by his injury, (received back in the 80’s, about 31 years prior,) and the government was set to charge Reagan’s would be assassin with murder.

          I was under the impression the victim had to die in a fairly timely manner for that to apply.

          What am I missing?

  20. Amanda says

    One tiny thing of note (on a page that’s been around a while, sorry) — the last line in the flow chart, the one leading to the congratulations! box doesn’t have the “No” on it, it’s just blank

  21. Shashakiro says

    Question: when you say that immunized testimony cannot be “used against you”, that only refers to criminal proceedings, right?

    So a lawyer compelled to testify about his corrupt kickback scheme with a judge (immunized because the prosecution mainly wants to go after the judge) could still be disbarred, because that isn’t a criminal sanction?

  22. Furslid says

    I’m confused. If Miranda-bad statements can be used to contradict what you say in court, why not continue with a Miranda-bad interrogation after rights are invoked.

    After arrest.
    Suspect:Invokes right
    Suspect:Incriminates self.

    At trial
    Defendant: Denies guilt.
    Prosecutor: Brings in Miranda-bad statement to contradict.

  23. Gurst says

    There’s one more option missing in the “Booo!” box near the bottom; even if I haven’t invoked my general right to silence or council, I can still invoke the 5th to refuse to answer specific questions as though I weren’t in custody. Are there downsides to this, other than the interrogation continuing?

  24. This is obviously quite old, so probably no one is going to see my question, but I’ll ask anyway.

    The ATF 4473 form must be filled out by anyone trying to purchase a gun from a federally firearms licensed dealer (FFL). One of the questions it asks is “Are the the actual transferee/buyer of the gun(s) listed on this form?”. If the buyer does not answer this in the negative, the FFL is required to refuse the sale.

    This question exists specifically to prevent a “crime” the ATF has invented: the “straw purchase”, where one person buys a gun on behalf of someone else (possibly because the real purchaser is legally prohibited from buying it). Alternatively, you could say that the question exists to *create* the crime, because if you answer in the negative and yet are buying on behalf of another, you have lied on a federal form, which is a felony.

    My question: Could you not take the fifth on this question, and argue that the government has no right to punish you for doing, by directing the FFL, as the government’s agent, to refuse the purchase?

    My guess is that, technically, the answer is no, precisely _because_ straw purchase is not a crime. If it were a crime, then answering in the affirmative would constitute admission of guilt of a plan to commit that crime, so you could take the fifth, and the government could not punish you for it and the FFL would have to sell you the gun.

    If that’s right, though, then some of the other questions on the ATF 4473 seem problematic. Specifically, one question asks if the buyer is a fugitive from justice, and another asks if the buyer is an unlawful user of controlled substances. Answering “yes” to either of these questions is an admission of guilt, and it’s arguably coerced by making answering the questions a condition of sale. I suppose that could be addressed by a limited grant of immunity, but I don’t see that anywhere on the form.

    What’s the justification for this?

    • I hate to break it to you, but straw purchase is very much a federal criminal offense. It’s not an ATF-invented crime, either. Congress passed it nearly 50 years ago, after years and years of hearings and debate, as part of the Gun Control Act of 1968, and it is presently codified at 18 USC 922(a)(6). (Section 924 goes on to say you can get a max of 10 years for doing it. For actual application, the U.S. Sentencing Guidelines were jacked up back in 2011, to ensure the penalty for straw purchase was the same as for unlawful possession itself. Under the current Guidelines, a squeaky-clean first offender faces 15 to 21 months in federal prison for a straw purchase of just one little .22 plinker.) Federal prosecutors love crimes like these, because they are very easy to prove, the sentences are insane enough to force plea bargains and snitching, and they make the office look good by going after “violent crime.” It says so right in the manual.

      For readers unfamiliar with the issue, the ATF 4473 is the “background check” form. Section 922 lists a number of situations that make it illegal to possess a gun. It also makes it illegal for a licensed dealer to sell a gun to someone who isn’t allowed to have one. The ATF 4473 is where the buyer gives the dealer the necessary information to run a background check, and also certifies that they aren’t prohibited from having a gun. The buyer has to fill it out in person, in front of the dealer.

      The ATF 4473 is not like a tax return, as you are not compelled to answer the questions. If you don’t want to answer them, then fine. Nobody’s forcing you to.

      However, if you refuse to answer them — even if you take the Fifth right there on the page — then the dealer cannot sell you the gun. He would be committing a federal crime if he did that. 27 CFR 478.124 adds more specifics to the requirements of Section 922, but the upshot is that the dealer is the one who’s compelled to get the information.

      But in your comment, you suggest that you the buyer are compelled to provide the answer, because if you don’t then the government will punish you — by forcing the dealer not to sell you the gun.

      That raises a thorny, and fairly sophisticated, constitutional issue. Namely: Does the Second Amendment right to bear arms entitle you to possession of a weapon, even if Congress says otherwise?

      Although our law recognizes certain fundamental rights, no right is absolute. As we’re seeing throughout these chapters on criminal law and procedure, the state can forcibly take your life, your liberty, and your property under certain conditions. And those are as absolute as rights get. As we’ll see later on in Constitutional Law, your absolute right to speak your mind isn’t entirely absolute, either (although it’s nowhere NEAR as limited as many progressive people like to say it is — though of course they’re free to say it). Is the right to bear arms more absolute than those of life and mind? No.

      If the government is going to limit one of your rights, the courts will apply various levels of “scrutiny” to determine if it’s constitutional or not. The most strict scrutiny we use is called “strict scrutiny.” But the default for Due Process and other things is the “rational basis” test, which boils down to “can we imagine a hypothetical situation where this isn’t crazy?” As you can imagine, this is fairly lenient.

      I have an entire section coming up dedicated entirely to the Second Amendment, so I’m not going to dig too deeply here. Moreover, the constitutionality of Section 922 isn’t as well-settled as some claim. In 2010, the Eleventh Circuit didn’t even bother with rational basis review — they upheld it on the grounds that it’s been the law for so long that it must be constitutional. Seriously. That’s about as deep as that decision goes. And there are plenty who think that’s as deep as the law needs to go. Even so, the First, Fourth, and Seventh Circuits have upheld Section 922 after applying strict scrutiny or lesser “intermediate” scrutiny.

      If you ask me (and you did), this is one of those rights that requires strict scrutiny. That means that, in this scenario, we’d have to ask the following questions:

      (1) Does Section 922(a)(6) impose a burden on a right historically guaranteed by the Second Amendment?
      If no, then it’s constitutional, and the issue is decided.
      If yes, however, then ask:

      (2) Is Section 922(a)(6) justified by a “compelling” government interest?
      If no, then it’s UNconstitutional, and the issue is decided.
      If yes, however, then ask:

      (3) Is Section 922(a)(6) “narrowly tailored” to meet that interest?
      If no, then it’s UNconstitutional, and the issue is decided.
      If yes, however, then ask:

      (4) Is there NO OTHER way to meet that interest that imposes LESS of a burden on the right?
      If there is another way, then it’s UNconstitutional, and the issue is decided.
      If there is no other way, then it’s constitutional, the law stands, and the issue is decided.

      I think that’s an excellent exercise for you the reader to work through on your own. I can think of excellent arguments that come out either way. Here’s a sloppy one to get you started:
      (1) Yes, it restricts your ability to get a gun, and that’s something the Second Amendment guarantees.
      (2) Is there a compelling government interest? Yes. We don’t want people who are proven to be a danger to society, engaging in unjustified violence, walking around with tools that make it very easy to commit.
      (3) Is it narrowly tailored? No. The categories are sweeping generalizations. Not one requires an individualized finding that this particular person poses an actual threat, much less a continuing one.
      That would end it, but courts really hate that argument. More work for them, I guess. Even though they’re literally in the business of making individualized case-by-case determinations. But whatever, let’s go on to
      (4) Is there a less-restrictive means of keeping dangerous people from getting guns? Yes. It would be ridiculously easy to simplify the background check process with a single list of identities from the databases who are prohibited from having a gun. The person buying the gun must show their I.D., which is checked against the registry. If they are buying it for someone else, whether as a gift or whatever, they have to provide that person’s identifying info, which gets checked. Nobody is asked to certify that they are or aren’t violating the law, and nobody gets a gun who shouldn’t. Nobody goes to jail for being unaware that their friend is on the list, nobody loses their dealer license for being fooled by a cheater. Done. Easy. Therefore, the law is unconstitutional.

      That’s a sloppy way of getting to “they shouldn’t be able to hold a gun to your head and make you admit you shouldn’t be buying this gun.”

      So what does that mean for your self-incrimination question?
      If it’s right, then the question becomes moot.
      If it’s wrong, then it goes back the same as before — nobody’s forcing you to do it, so it’s not compelled self-incrimination, and trying to take the Fifth won’t do you any good.

      • ” Is there a less-restrictive means of keeping dangerous people from getting guns? Yes. It would be ridiculously easy to simplify the background check process with a single list of identities from the databases who are prohibited from having a gun.”

        That sounds like an OFAC check, aka the “don’t send money to people / charities on this list of evil terrorists” rule! It’s… not THAT easy, and to the extent that it is easy, it’s ineffective. Let’s say we’re uninterested in circumvention by lying (already a problem with the current regime, both for guns & terrorist finance), and are solely trying to help honest people know if buying a gun for their cousin Fred is okay. Well… some of these categories have a LOT of names to keep track of, across state systems (every felon ever? everyone who’s evaded arrest? And I don’t even know how you’d get a database of mentally ill people, which seems super-sensitive and not data I’d trust to the government, nor a list of people who are “addicted” to marijuana). Or there’s very common names. Or there’s names with multiple different Romanizations (comes up a lot with OFAC, where there’s a number of Arabic names). OFAC already doesn’t really work, and that’s a highly restricted list of entities; if Congress wants a “broad” list, it’ll work even less well, and attempting to compile such a database would probably be a privacy disaster after it’s either hacked, or some Snowden-esque figure with inside access decides to publicize it.

        That said, interesting comments! Regardless of what the actual courts think, my own beliefs would be that argument should stand or fall on #3 – is it okay to ban sweeping classes of individuals from having a gun? If so, then a voluntary “please self-enforce these conditions, we’ll come back and prosecute you if you mess up” seems about the best that can be done, so it’d pass condition #4. If not, then the government needs to draw a much more restricted list.

        • It also has to include every underage US citizen (sorted by the age requirements in each of the 50 states), as well as every non-citizen in the world (with no 2nd amendment rights)

      • Thanks for the extensive reply.

        One point to begin with: 922 doesn’t actually ban straw purchases. 922(a)(6) says it’s an offense to lie while buying a gun, which is what puts the teeth behind the ATF’s invention of the straw purchase crime, but doesn’t change the fact that without the question on the form, there would be no crime. There’s also 922(d), which makes it a crime to transfer a gun to a prohibited person — so if the straw purchaser is buying on behalf of a prohibited person, then it is a crime with or without the question on the form. But if the straw purchaser is buying on behalf of someone who is not prohibited, the law imposes no restrictions other than the duty to be truthful and so the crime is created by the combination of the question on the form and the instruction to the FFL.

        I absolutely agree that given the placement and stark language of the second amendment, it seems like a fairly fundamental right, like the others that receive strict scrutiny, though SCOTUS hasn’t said and courts have differed.

        The “but nobody is forcing you” point is well-taken, but seems dangerous to me. Not so much in the case of firearms, but in a broader sense it seems easy to construct arbitrary limitations on fundamental rights. All you need is some reason to license some people essential to the exercise of the right, then you can mandate whatever other sorts of restrictions you like by telling the licensees that they must enforce those rules or their licenses will be withdrawn. Then it’s not the government restricting exercise of the right, it’s the licensees — private individuals — and in any case no one is forcing people to exercise the right in question. You don’t have to buy a gun, but you also don’t have to speak, or practice a religion, or anything, really.

      • “That raises a thorny, and fairly sophisticated, constitutional issue. Namely: Does the Second Amendment right to bear arms entitle you to possession of a weapon, even if Congress says otherwise?”

        Does a steak knife technically satisfy the constitutional requirement? I know must people probably wouldn’t consider it adequate.

      • I love the way you not only answered the actual question, but also the implied question! Your teaching is excellent.

  25. Rick says

    Nice chart, very helpful. One thing I’d like to point out, in the brown box under the Miranda section for “you did everything wrong” it says that your silence can be used against you. This isn’t always the case, at least not in most jurisdictions. If you are under custodial interrogation, whether Mirandized or not, your silence or staying mute can’t be used against you to establish guilt. For impeachment purposes though, your silence under custodial interrogation may be used to impeach your testimony unless Mirandized and/or express invocation. In non-custodial interrogation, any incriminating question requires express invocation otherwise silence may be used to establish guilt (WARNING: some jurisdictions and courts might allow prosecutors to use express invocation to show guilt as though you were silent). Also, under “Taking The Fifth” section it says blanket denials are not permitted which might be generally true but there are some exceptions like congressional testimony or (I think) targets of a grand jury investigation. Thanks, feel free to correct or clarify anything I wrote.

      • I’m not sure what you’re referring to. Sometimes a criminal defendant might choose to waive his right to not testify and take the witness stand. In such a case, the prosecution could their statements made in violation of Miranda or even staying mute (if they haven’t read Miranda warnings) to attack the credibility of the testimony, so long as it was made voluntarily.

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