591
He took it literally (thelemmy.club)
submitted 8 months ago by to c/greentext@sh.itjust.works
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cross-posted from: https://lemdro.id/post/28115777

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[–] 36 points 8 months ago (7 children)

Funnily enough, the supreme court ruled that you cannot invoke your right to remain silent by remaining silent. You have to actually say something about "I want a lawyer."

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  • [–] 34 points 8 months ago (6 children)

    Why the fuck do you have to invoke it at all? It's a right. They should all be invoked by default.

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  • [–] 8 points 8 months ago (4 children)

    The (obviously flawed) reasoning the supreme Court used is that it's the same as invoking the right to legal counsel: we tend to accept that you need to ask for a lawyer, they don't just get you one. Likewise, if you want them to stop asking you questions you need to say so.

    Considering the right isn't the "right to remain silent" we nickname it, but No person shall be ... compelled in any criminal case to be a witness against himself, it's a bit preposterous. Like saying it was a legal warrantless search because you never said "stop", you just locked the doors, tried to keep them out, and tried to keep them out of certain areas.

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  • [–] 5 points 8 months ago (3 children)

    You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.

    Seems pretty clear to me. Not a nickname. All silence after that point is perfectly warranted and should not be held against them. They can ask all the questions they want but they're not entitled to answers.

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  • [–] 5 points 8 months ago (2 children)

    Where do those words come from? Are they written into law? The wording is often policy, not law.

    The Miranda warning varies from jurisdiction to jurisdiction and doesn't need to be read exactly because it's a description of your fifth amendment rights, amongst others.

    https://en.wikipedia.org/wiki/Salinas_v._Texas

    https://en.wikipedia.org/wiki/Berghuis_v._Thompkins

    It's not an exaggeration to say that you need to explicitly invoke the fifth to have its protections.
    The reason there's a disconnect between what it seems like the warning is saying and the protections you actually have is because they've been rolling back the protections for years.
    Did you know that the courts decided that the Miranda warning doesn't need to fully explain your rights?

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  • [–] 4 points 8 months ago (1 child)

    That was from the wikipedia page about it and lined up with every variation of it I can recall hearing, which are derived from the original Miranda court decision. "You have the right to remain silent" was always part of it. SO if they say those words and a person does not speak to them afterwards it SHOULD be assumed that they are utilizing that right.

    I'm not arguing what you explicitly need to do in reality. I'm arguing that reality is bullshit and there's no actual justification to expect people to explicitly invoke their rights. If you by default have no rights unless you request them, or you are judged as guilty for using them without asking, they're not rights.

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  • [–] 3 points 8 months ago

    I agree with you. It's just that the "right to remain silent" is the name for the category of right that the fifth amendment provides, not the actual right.
    The reason the interpretation is bullshit is because what the actual amendment says is stronger than a simple right to not speak: it's very clearly intended to be freedom from being coerced to provide information that could hurt you. They shouldn't be able to interrogate you at all until you clearly waive the right against self incrimination.
    You don't have the literal right to remain silent. You have the right to tell them to stop coercing you, after which they have to end the interrogation.

    It's not generally uncommon to have to do something to exercise a right. No one is passively invoking the right to petition their representatives or own weapons. The supreme Court has just unfortunately held that you have to tell the cops to stop pressuring you, instead of them not being able to start.

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