this post was submitted on 07 Jan 2026

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Early_To_Risa@sh.itjust.works

He took it literally (thelemmy.club)

submitted 7 months ago by Sine_Fine_Belli@lemmy.world to c/greentext@sh.itjust.works

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cross-posted from: https://lemdro.id/post/28115777

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[–] Derpenheim@lemmy.zip 103 points 7 months ago (2 children)

Invoking your fifth amendment cannot be used to as evidence against you in a criminal court, but it can be used in civil cases. Its called adverse inference. Basically in a civil court if you refuse to provide information, it can be used against you to decide a fine or penalty. But it cannot lead to your incarceration under a criminal indictment. Griffin V California from '65

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[–] ricecake@sh.itjust.works 30 points 7 months ago (1 child)

Yes, but the case being referenced involved what it means to invoke your fifth amendment rights.
Is remaining silent invoking the right, or do you have to state "I am invoking the right to remain silent", or some other statement?

Per the supreme Court, you can't passively invoke the right and can only do so actively. So simply not answering a question isn't invoking the fifth amendment and could be used against you.

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[–] TheJesusaurus@sh.itjust.works 39 points 7 months ago (4 children)

That seems fucking stupid as hell, why do you need to "invoke" any right at all? And why would there be a requirement to access this right that most people wouldn't know

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[–] Takios@discuss.tchncs.de 34 points 7 months ago (1 child)

You're talking about a country where "I want a lawyer, dawg" is not sufficient to be provided a lawyer, because the cops can reasonably think that you want a dog that's a lawyer. The legal system in the US is beyond saving.

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[–] TheJesusaurus@sh.itjust.works 11 points 7 months ago (2 children)

Please tell me this isn't true. Lie to me if required. I can't handle any more America. This may be the metaphorical straw

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[+] alltomorrowsregrets@sh.itjust.works 17 points 7 months ago* (last edited 7 months ago) (2 children)

[deleted]

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[–] Johanno@feddit.org 7 points 7 months ago

Da fuck?

Maybe you should just always say that you did it. Everything else is not worth the effort. The system is fucked and Americans too

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[–] TheJesusaurus@sh.itjust.works 1 point 7 months ago* (last edited 7 months ago)

I said lie to me you motherfucker

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[–] Stonewyvvern@lemmy.world 8 points 7 months ago (1 child)

Every part of our collective absurdity permeates all facets of our life. Just look at our ad space and signage. Food requirements or lack thereof. Civil service (one worker, six supervisors). Everything in any system of ours is absurd on levels no one person can truly fathom.

It's our strength and weakness.

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[–] Mulligrubs@lemmy.world 3 points 7 months ago*

"Credo quia absurdum", translated "I believe because it is absurd"

After adopting this belief, a peace will descend upon you

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[–] HK65@sopuli.xyz 31 points 7 months ago (1 child)

Because the US legislature stopped making laws, courts make laws instead, and they do it based on who's taking them on luxury trips.

The US legislature is in effect half a dozen sugar babies.

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[–] UnderpantsWeevil@lemmy.world 4 points 7 months ago

Because the US legislature stopped making laws

They haven't stopped making laws. We are inundated with new laws every legislation cycle (the current cycle being more an exception than a rule). But the enforcement of these laws is up to the various USA offices. And the judicial bench has been stacked with ultra-conservative judges more interested in Christian morality than civil rights or social equity.

Consequently, what laws we do get are often twisted against their stated purpose by subsequent administrations.

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[–] ricecake@sh.itjust.works 7 points 7 months ago (1 child)

You're not wrong.

There is a rationale, it just fails to be consistent with the reason the right is explicitly enumerated.

Some rights are more about restraining the governments actions towards you. The right to legal counsel prohibits the government from putting you on trial totally lost and oblivious. The right to remain silent is a nickname we give to the prohibition on someone being "compelled in any criminal case to be a witness against himself".
Rights that prohibit government actions are usually automatic: free speech, no unreasonable search and seizure, and so on all prohibit the government from doing something.
The right to counsel requires the government to provide you with a lawyer if you need one, and to stop asking you questions if you ask for one until they show up.

The conservative supreme Court majority held that the "right to remain silent" was a right to make the government stop, just like asking for a lawyer, and that it didn't follow that the two rights needed to be invoked in different manners: no one has argued that their behavior should have implied they wanted a lawyer even if they didn't say so. Further, they said that if "not speaking" is what constitutes invoking the fifth, then it opens more questions about what manner of not speaking counts as an invocation. If someone doesn't answer, can the cop repeat themselves?
Invoking the right however is unambiguous, making it a better legal standard.

This falls apart not because of the nickname we give the right, but because of what it says and the intent behind it: "No person ... shall be compelled in any criminal case to be a witness against himself". The key word is "compelled". The phrasing and intent are clear that it's about compulsion , not invoking an entitlement. Any statement you make you should be able to refuse to allow to be used against you, otherwise it's compulsion even if given willingly at the time.

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[–] TheJesusaurus@sh.itjust.works 3 points 7 months ago (1 child)

That's great but we're talking about Miranda rights and case law and all kinds of adjunct shit based around these ideas that formed the basis of what cops can do to you in custody like this, and they tell you explicitly "you have the right to remain silent".

That's not constitutional, that seems to be the police informing you of something that their processes and procedures say they have to do. You are told explicitly "YOU MAY NOW REMAIN SILENT" by the authority figure standing in front of you, not some abstract judge of an arcane document somewhere

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[–] ricecake@sh.itjust.works 4 points 7 months ago (1 child)

Those are explicitly derived from the bit of the constitution I was referring to. That's what defines what they have to tell you and what it means.

I'm not sure what you're looking for here. You asked why you would need to invoke a right, and why it would be this way. There's simply isn't an answer that doesn't involve the constitution or judges. The authority figure is using words that judges outlined the basic gist of in 1965 and different judges have dialed back the protections of in the 2000s and earlier.

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[–] dnick@sh.itjust.works 2 points 7 months ago (1 child)

I think the question he has is why would you have to 'invoke' a right they literally spelled out to you just seconds before?

If the cop pointed to a glass of water on the table and said 'you have the right to drink this water' and you drink the water, and later you're prosecuted for stealing water, or your blatant disregard for property was used against you in court, because you didn't explicitly state 'ok, i am invoking my right to drink this water'...

Aside from emotionally abusive relationships, what other party of life are you explicitly told you have the right to do something and then abused for doing it? It's basically manipulation disguised as helpful information.

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[–] ricecake@sh.itjust.works 2 points 7 months ago

And that's exactly what I explained. There isn't an answer that doesn't involve the constitution and what judges had to say about things.
considering the police are legally allowed to lie to you, the Miranda warning using the name for a legal concept instead of a more accurate description of the right is about the least abusive thing they can do.

It's not particularly weird for rights to need to be explicitly actioned in general, as an aside. You have to actively get the arms to bare them, write a letter to petition the government, ask for a lawyer and ask them to stop interrogation. Invoking a right isn't weird, but in this case the actual right is freedom from being coerced into self incrimination. They shouldn't be able to start interrogation until you unambiguously waive your rights.

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[–] Doc_Crankenstein@slrpnk.net 0 points 7 months ago

Remember, the system of "law" was never designed to help the people, only reinforce the rule of the owning class over the masses. The system originates from the dictates of kings.

The modern iteration is intentionally convoluted to ensure that the majority, who cannot afford quality counsel, cannot leverage the law against the owning-class, who have access to insurmountable resources and legal advantages.

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[–] halvar@lemy.lol 20 points 7 months ago

That's pretty good to know, as far as I understand the fifth is to be used exclusively in the context of presumption of innocence and protection of civils from authority. It would be very fucked up if some jerk would turn it on it's head and argue that you not saying some shit that may incriminate you as far as you know is actually incriminating itself. That's how oppressive regimes work.

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