'You Have the Right to Remain Silent.' or Do You?

http://www.npr.org/2014/10/05/353893046/you-have-the-right-to-remain-silent-or-do-you?utm_campaign=storyshare&utm_source=facebook.com&utm_medium=social

by jcater • 12 years ago

59 95 12 years ago

npr.org

nextweek2• 12 years ago

I have always thought it best to specify that you don't understand. If you are not a lawyer how can you know the ramifications for anything you do or do not say.

viggity• 12 years ago

IANAL, but my guess is that asking for an attorney is the equivalent of asserting your right to remain silent as the police are not allowed to continue your interrogation. The right to counsel is a part of the 6th amendment though, not the 5th.

derefr3• 12 years ago

It's not really about being silent. It'd make much more sense if the Miranda copy was "you have the right to not be interrogated without a lawyer present; if you invoke this right, your silence in response to further questions asked without your lawyer present cannot be held against you. Anything else, can."

phkahler3• 12 years ago

"you have the right to not be interrogated without a lawyer present" but that implies you have to answer questions once you get a lawyer present.

derefr3• 12 years ago

Nah, you don't have to answer—but they have every right to ask all the questions they like to you through your lawyer, and whatever response they observe to that "can and will be held against you" just as if you had volunteered to talk.

You can work it out through this equivalence: when you choose to speak without a lawyer present, you're basically self-representing in the interrogation. So your "lawyer" (i.e. you) can get you in trouble. The Miranda rights are sort of a "we will only assign mens rea to the return values from the public API of your mind" idea: by asserting your need for a lawyer, you're asserting that right now they're speaking directly to your private API—an internal version of yourself they don't have the right to know anything about. You-plus-your-lawyer becomes a full being again, and its words can harm it. (But it also has the actual right to remain silent—without invoking anything—and its silence cannot be held against it either.)

The critical thing about the lawyer right is that they actually lose the ability to interrogate you—to do anything at all that could elicit self-incrimination—until you get that lawyer. Whereas, both in the "I invoke my right to remain silent" pre-lawyer, and "no comment" post-lawyer cases, they can continue interrogating you all the like. in fact, if you're re-read your Miranda rights post-invoking-silence but pre-lawyer, your invocation goes away until you say it again! They can keep trying all sorts of things to weasel words out of you if all you ask is to allowed to be silent; once you ask for the lawyer, though, they're utterly locked out until you get one.

smokeyj• 12 years ago

Some states require you consent to sobriety tests to keep your drivers license. You have the right to remain silent. But they reserve the right to ruin your life.

krallja• 12 years ago

A drivers license has always been a privilege, not a right.

tedks6• 12 years ago

Likewise, having a cell phone is a privilege, not a right, but it's nearly impossible to survive in modernity without one, so restricting access to one becomes a form of coercion. No matter how you spin it, this is an attempt to coerce people into incriminating themselves.

There's nothing stopping these states from going further and saying that driving a car implies consent to have that car searched at any time, or impounded to be emissions-checked at the state's leisure.

vertex-four4• 12 years ago

The distinction between privileges and rights, while interesting from a moral perspective, isn't of much use in the real world. The vast majority of us would not be able to survive without the use of numerous privileges and "voluntary" transactions, and we require more and more every day.

What's more, if you manage to live completely off the grid on your own land, the result is that you have fewer resources to protect you in the case that someone who does make use of those privileges decides that they want to violate your rights.

Privileges and voluntary transactions are a myth - anyone who is restricted from them is at a significant disadvantage, and at significantly higher risk of loss of rights to property or to life.

ctdonath• 12 years ago

During the original debate over the Bill Of Rights, a primary concern was that the failure to enumerate a right would be construed as non-existence thereof - exactly the opposite of what the Founding Fathers intended.

Methinks if the Founding Fathers had conceived of the notion of vehicular transportation being prohibited without governmental consent & licensing, they wouldn't have hesitated to include that as a fundamental right (just as security requires armaments, and speech requires presses - ownership & use of equipment facilitating both explicitly may not be infringed/abridged). As the notion of vehicle licensing (both horse and horseless) was never considered, unto inconceivable, they didn't enumerate it as a natural right. Require a driver's test and license a horse & carriage? absurd! ...well, now the technological improvement plus lack of enumerated right means 'tis common to construe vehicular travel as a "privilege" in a society where one is darned near dysfunctional without.

nsxwolf2• 12 years ago

This use of the word "privilege" has always irked me - maybe I'm just not reading it in the correct sense. It sounds very paternalistic.

Driving is a regulated activity, but you do have a right to a drivers license if you are able to comply with the regulations. "Privilege" sounds so arbitrary, as if someone could say "I don't like your face, no license for you".

anonbanker12• 12 years ago

from Thefreedictionary.com's legal dictionary [1]:

License: The permission granted by competent authority to exercise a certain privilege that, without such authorization, would constitute an illegal act, a Trespass or a tort. The certificate or the document itself that confers permission to engage in otherwise proscribed conduct.

let's think about that: Driving is illegal. Marriage is illegal. Fishing is illegal.

1. http://legal-dictionary.thefreedictionary.com/license

tedks6• 12 years ago

I'm from a state that does this and I have to confess, I'd never really thought about it this way before. There are so many other ways this sort of principle can be exploited: your ability to have a cell phone contract could be contingent on allowing the police to search your cell phone at any time, remotely; your ability to have a computer could be contingent upon the same; your ability to have an ID card could be continent upon consenting to constant facial recognition tracking.

It's pretty insidious. Obviously nothing is going to be done about it.

at-fates-hands• 12 years ago

Let's be clear here - what you're referring to is some states will suspend your DL for a year if you refuse all types testing. This includes the array of FST's (field sobriety tests), blood, urine, chemical or breathe.

This is not an admission of guilt, but in most states, a violation of your driving contract you signed when you were given your license.

Also, you can refuse an FST, then tell the police you refuse the rest of the tests until your lawyer is present. At that time, they arrest and book you and you can call an attorney to come and bail you out. By that time, your attorney will likely advise you to take one of the three tests since its been long enough and you're probably back under the legal limit.

It's a good strategy to delay taking of the tests. This way, in court, your attorney can argue you didn't refuse to take the test, and simply invoked your constitutional right until your lawyer was present to make sure everything was legal.

hallman76• 12 years ago

Another good strategy is DON'T DRINK AND DRIVE.

wffurr• 12 years ago

What's upsetting here is not that the state can revoke your driver's license. Operating a 2-ton 100+ HP motor vehicle requires due care and observance of traffic law. It's super dangerous to everyone around the vehicle.

What's upsetting is that losing your right to operate heavy machinery is seen as "ruining your life", and often is in many places due to the built infrastructure requiring driving a car to go to work and buy food.

rosser• 12 years ago

If you get drunk and get behind the wheel, any ruin that ensues is entirely on you.

jlgaddis• 12 years ago

IIRC, all 50 states have implied consent laws.

Guvante• 12 years ago

The illustrated guide to criminal law - http://lawcomic.net/guide/?p=2897 just finished up the 5th amendment.

You have to assert your right to silence, it isn't enough to be silent.

razster• 12 years ago

That was actually useful, thanks.

fiatmoney• 12 years ago

There's a really terrible trend of requiring magic spells to be cast to "invoke" 4th and 5th amendment rights. You have a right to remain silent, as the Supreme Court has codified it; it doesn't make any sense to talk about "invoking" it specifically. You don't have to declare "I invoke my First Amendment rights" as a magic spell to avoid being prosecuted for writing something on the internet.

morganvachon4• 12 years ago

It's not so much invoking it as it is asserting it for the record. By immediately saying "I choose to remain silent so that I do not incriminate myself, as is my right codified in the Fifth Amendment", you are making a clear and conscious public affirmation that your silence cannot be used against you.

But I don't disagree with you; I don't think we should have to voice our rights. We should be able to hold the government to the task of protecting those rights, rather than having to protect ourselves explicitly.

javajosh• 12 years ago

Agreed. The root cause of this trend is that the police are allowed to lie about the law, they are allowed to say anything they want in order to manipulate you into giving them what they want. The police know the areas of laws that apply to them extremely well; and yet they are not compelled or even encouraged to share that knowledge with you. This leaves you, citizen, up a creek if you don't know the law cold.

I can see (Californian) LEOs gleefully referencing this case with suspects, scaring them into thinking their silence is evidence of guilt.

Leverage, leverage, leverage. Law enforcement is always looking for more leverage, always pushing the boundaries, to move more easily from "suspect" to "criminal" to "prisoner". They would repeal the 4th, 5th, and 6th amendments if they could (along with modifications to the 1st and 2nd), because it would make their job easier.

Using information asymmetry to trick people is no less coercive than "roughing them up" in an interrogation. It's time we make it a crime for a self-identified police officer to lie about the law or the suspect's rights.

derefr3• 12 years ago

It makes more sense in non-verbal cases, I think. I read the suggestion somewhere (that "Illustrated Guide to Law" linked in a sibling comment) that Al Capone could have "plead the fifth" on his tax returns, instead of just not submitting them—and that the government would be required to accept this as a valid return, and do their own investigation of his tax status (whereas they wouldn't need to accept e.g. a blank return.) that sounds contentious to me, so I'd really like to hear what another lawyer thinks of it. If true, it almost explains the need to submit paper forms that are looked at by humans: special-case exceptions like this that override all normal "parsing" of a legal form using a plain-English statement.

DannyBee6• 12 years ago

" You have a right to remain silent, as the Supreme Court has codified it;"

So let's a few things things straight :)

1. This particular right does not explicitly appear in the constitution. There is nobody who argues otherwise. The history of the fifth amendment does not support any other reading than being about compulsion to testify (IE torture, etc).

2. The Supreme Court are the ones who say you have to invoke it explicitly

So the Supreme Court, who you say "codified" this right, are the very people saying you need to explicitly invoke it.

So it does make sense to talk about invoking it, since the same people who have explained this right have said, as part of that explanation, that you are required to do it. Basically "that it is your right to invoke your silence". Not "you have an unabrogated right to silence and not have that silence used against you".

"You don't have to declare "I invoke my First Amendment rights" as a magic spell to avoid being prosecuted for writing something on the internet."

Of course, you can be prosecuted for plenty of stuff you write on the internet, because the first amendment is not absolute, as the Supreme Court has codified it.

chimeracoder• 12 years ago

Unlike you, I am not a laywer, so take this for what it's worth:

I agree with most of what you say, but I do think the following statement is a bit unfair:

So it does make sense to talk about invoking it, since the same people who have explained this right have said, as part of that explanation, that you are required to do it.

Unless I'm mistaken, you're referring to two separate SCOTUS decisions that are separated by several decades (the latter decision is very recent). I don't think it's right to treat the Supreme Court as a singular, monolithic entity even within a given session (let alone separated by many years and with different chief justices, etc.)

Our public understanding of the supposed 'right to remain silent' developed after the Warren court decision, and while it's true that the Roberts court clarified (or imposed) the requirement that this be explicit, AFAICT it's not the only way to interpret the Warren ruling.

Again, I agree with the rest of what you're saying, but I don't think it's unfair to criticize the most recent SCOTUS ruling for appearing to[0] reverse or mitigate our understanding of the earlier SCOTUS ruling.

[0] I say 'appearing to' because it's easily arguable that this is a clarification, not a reversal, which AFAICT is the whole controversy to begin with

s_q_b• 12 years ago

Technically no, because there isn't actually a right to remain silent under the United States Constitution.

Miranda readings, which most people conflate with this "right to remain silent" are a bit of a bizarre invention of the Warren Court from other preexisting rights:

1. The against self-incrimination under the Fifth Amendment. 2. The right to have counsel present during interrogation, since interrogation is considered an inherently coercive environment under the Sixth Amendment.

If the goal is for the suspect to understand his or her legal rights during questioning, "You have the right to remain silent," is a very bad way to phrase Fifth and Sixth to an average Jane.

A more sane way might be an exclusionary rule that throws out all statements before the suspect has the chance to talk to an attorney.

To patch up the corner cases, you could probably import quite a few hearsay exceptions, like excited utterance.

Plus, I don't like this "know the magic words or else" type jurisprudence. "Am I free to leave?" "Am I being detained?" "Do you have a warrant?"

In everyday police interactions, a citizen should never have to assert Constitutional rights. The onus should be on the state's system to ensure they're granted.

patrickmay• 12 years ago

In everyday police interactions, a citizen should never have to assert Constitutional rights. The onus should be on the state's system to ensure they're granted.

Hear, hear!

ithought2• 12 years ago

Of course, the Constitution doesn't grant rights. Do you have a natural right to be left alone if you so choose? Do you have a natural right to not be a witness against yourself? It seems a society based on popular sovereignty should define these rights as inherent and innate to being a person.

And if you do assert your Constitutional rights, it's an easy way to escalate a situation where you soon learn the meaning to "you can beat the rap, but you can't beat the ride."

anonbanker12• 12 years ago

Asserting your rights is a fantastic ride, if you know how to do it. Everyone should Google how Geithner beat both rap and ride from the NYPD in four hours.that guy's a pro.

If you don't know how to properly assert your rights, then you have none; expect to have your window smashed in, and be pulled out of your car. Or have cops and social workers come to remove your kids from an "unsafe" house 30 minutes after the power company shuts off the power for some reason.

But if you do it right, you're treated extremely politely by policemen and justice system participants.

ithought2• 12 years ago

aric6• 12 years ago

"...the courts said the only exception is if defendants expressly tell police they are invoking their Fifth Amendment rights..."

The absence of speech should be protected as freedom of speech by the First Amendment. The emphasis is on should. I wonder in what ways it's been challenged in that sense. Everyone who wants to stay aware of their rights concerning [don't talk to police] topics is hopefully taking note and updating others on this news of last year. It's petty, troubling procedure to be forced to verbally invoke a primary Constitutional right before one 'obtains' that right. Yet so it goes. "I invoke my Fifth Amendment rights. I want to speak to a lawyer. (repeat)"

DannyBee6• 12 years ago

"It's petty, troubling procedure to be forced to verbally invoke a primary Constitutional right before one 'obtains' that right"

Which right are you referring to here? As has been pointed out, the right to remain silent does not appear in the constitution. :) Only the right to not be compelled to be a witness against yourself, which is not the same at all (and does not need to be invoked)

aric6• 12 years ago

I'm referring to the right to not self-incriminate. That is the issue at hand. What you said is untrue twice over. It's central to this issue and it does "need" to be invoked. The SCOTUS made some fateful rulings in 2013 and the gist ever since is that one must invoke the Fifth in order to be perceived as protected by the Fifth at that time. That's what the article is about.

Frozenlock• 12 years ago

What's the point of having laws, if your citizens can't possibly know/remember them?

morganvachon4• 12 years ago

Not that I think the US is there yet, but the answer is that having so many laws that basically waking up and going about your daily routine means breaking at least a few laws, is the ultimate goal. If everything is a crime and everyone is a criminal, it's much easier for the government to control the people rather than the other way around. This concept comes up in many science fiction works, even non-Dystopian ones.

freehunter• 12 years ago

I've always wondered this while driving through Chicago. The speed limit is 55mph, but everyone, cops included, goes 70 when traffic allows for it. And I've done 80mph with a cop behind me and not been pulled over.

Which leads me to believe that the speed limit is only there so the police have a reason to pull over anyone without any other reason. Don't like the look of the driver? Pull them over, while ignoring every other car doing 70.

mnw21cam• 12 years ago

In the UK, the police warn people on arrest "You do not have to say anything, but it may harm your defense if you fail to mention during questioning something you later rely on in court." Which sounds quite a lot like how this is going in leftpondian areas.

The idea is that if you suddenly come up with some claim in court without having mentioned it beforehand, it could be made up, but if you are sticking to the same story throughout then the court is more likely to believe you. Of course, it is absolutely the right thing to ask for a lawyer to be present during all questioning, and that is one's right. The lawyer may advise you to answer every question with "No comment", or (if the evidence is damning) to fess up.

phkahler3• 12 years ago

"Sir, can you tell me how fast you were going?" I've always wondered what the best answer would be.

baddox• 12 years ago

Perhaps another question: "How fast was I going, officer?"

phkahler3• 12 years ago

My friend recently tried "do you know how fast I was going" with his best smile of course. The officer responded something like "yes, but I want to see how honest you're going to be with me" with his best smile of course. This was probably a slam dunk for the officer, but my friend got off with 5-over, a hundred dollars, and no points. They were just out to generate revenue on a holiday weekend - and maybe get people to slow down - and I think we all knew it.

breischl• 12 years ago

In some cases they're giving the opportunity to self-incriminate for speeding.

Maybe they didn't get a solid read on their radar gun, or maybe you saw them and were slowing down already when it locked, so they may have no actual evidence. But if they can trick/scare you into admitting that you were speeding, then they don't need the radar gun readings. So you should be very hesitant to tell them any numbers that are above the legal limit.

frenchman_in_ny• 12 years ago

They don't need the radar gun reading to give you a ticket for speeding. There was a discussion of it here on HN, where all they need is "based upon my training and experience" and a visual estimate of your speed, you can get nailed without a radar gun.

nsxwolf2• 12 years ago

I've always said "... I thought I was going the limit... was I?" and I get off with a warning most of the time. I always answer any follow up some utterance like "oh...", but I never explicitly admit fault.

I get off with a warning for most offenses but I think it's more about being very polite and cooperative.

Source: I get stopped once or twice a year for various reasons. (Have been driving for 20 years, 20-40 stops)

morganvachon4• 12 years ago

Maybe it's a regional thing, but around here the question is always "Do you know why I pulled you over?" to which I've answered, "no, sir." To answer anything else is to incriminate yourself, and officers will write in the comments section of the ticket (for the judge to see) that you affirmed your offense, essentially pleading guilty on the spot.

For example, let's say you're going 10mph over the speed limit and you're aware of that, but you don't know your tail light is out. The officer pulls you over for the tail light, asks the question, and you answer "because I was speeding, I guess". Now he can not only write you the ticket for the tail light, but you just gave him a confession for the speeding too. Now you've guaranteed that you'll get two citations when you might have just gotten off with a "fix that tail light" warning.

anonbanker12• 12 years ago

You are absolutely correct. However, a court will accept that you tried to plead guilty at the earliest point in time, and will usually give you a reduced penalty for doing so. You'll usually get no points on your license, either.

from thefreedictionary.com's legal dictionary: In civil lawsuits, the term guilty does not imply criminal responsibility but refers to misconduct.

Source: I settle approximately 4 speeding tickets a month for customers.

anonbanker12• 12 years ago

"Yes." And leave it at that. he'll move on to the next line of questioning. Acceptance of the speed you were going, along with a confirmation that you were not being inattentive while driving (which is the point of the question) will solve your issues much faster. I have gotten out of speeding tickets by simply stating "Yes".

"Not fast enough; you still caught me" is definitely not the best answer, but a funny one.

treehau5• 12 years ago

The article hit the nail on the head. It is a no-win scenario. Having watched many law professors give lectures on this very topic and something they always make sure to point out, the issue that I always have with it is the wording:

"Anything you say or do may (or can and will for modern readings) be used against you in a court of law"

What it does not say is it can be used for you. What would of changed if Tom knew that showing good human conscious would help him in court? Yet the Miranda Warning worded to say nothing good can come out of this for you, that is I have absolutely nothing to gain by talking to you. It's a lose-lose situation. Could you imagine the frustration?

qwerta• 12 years ago

How about right to be in shock, unable to speak? Where is basic empathy?

Guy just trashed car, possibly killing number of people including his relatives, police arrests him just after accident. In such situation I would shit myself , rolled into fetal position and would not talk to anyone for hours/days.

No he gets jail, because he does not make statements for police..

Confusion• 12 years ago

No, you see, only victims deserve empathy. Not someone of whom the media, police and prosecuters have already determined that he is a criminal

anonbanker12• 12 years ago

Most people have watched enough "Cops" to have memorized the script. Now, go grab a copy of a law dictionary (I use Bouvier's or Black's) and read the definition of every word in that script. You'll be amazed at what it really means.

Silence is considered acceptance in contempt. A cop telling you that you have the right to put yourself in contempt, when you have a duty as a taxpaying citizen to respond, should give you some pause.

Don't take my word for it, though; read a law dictionary.

mcherm2• 12 years ago

I have absolutely no idea what you are trying to say.

It sounds like you are implying that keeping mum is legally equivalent to agreeing to anything that a police officer says. That simply isn't true.

If you have something useful to contribute, please make it more clear and include a citation somewhat more precise than "somewhere within the 2052 pages of Black's Law Dictionary".

anonbanker12• 12 years ago

Interesting quote you put there. Did I say that?

But sure, i'll be happy to do your homework for you. Grab your book, an look up the following words: "You" "Right" "Remain" "Silent" "Attorney" "Afford" "Understand"

Those would probably be a good start for you. You'll learn they don't mean what you think they mean.

Afterwards, might I suggest a book on offer and acceptance? The "Examples and Explanations" series has a great book on Contracts, and might get you to a deeper understanding of the meaning of silence.

austinl• 12 years ago

There's a lecture by a law school professor called "Don't Talk to Police" that I've seen on HN before and is definitely worth watching. The case in the article is unfortunate, although I'm curious what might have happened if Tom had asked "am I under arrest?" after not being allowed to go home.

In the second example the article gives, I wonder what would've happened if the defendant had not answered any questions voluntarily and chosen to remain silent.

https://www.youtube.com/watch?v=6wXkI4t7nuc

anonbanker12• 12 years ago

I will politely and respectfully disagree with everything stated in this video, but I will not stand in this fine gentleman's way of making more money for criminal lawyers. I hope many people listen to the advice in the link, and then call him to get out of the jam these lessons will put them in.

'You Have the Right to Remain Silent.' or Do You?

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