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.
Comment on He took it literally
Derpenheim@lemmy.zip 1 day agoInvoking 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
halvar@lemy.lol 23 hours ago
ricecake@sh.itjust.works 1 day ago
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.
TheJesusaurus@sh.itjust.works 1 day ago
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
Takios@discuss.tchncs.de 21 hours ago
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.
TheJesusaurus@sh.itjust.works 21 hours ago
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
HK65@sopuli.xyz 1 day ago
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.
UnderpantsWeevil@lemmy.world 2 hours ago
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.
ricecake@sh.itjust.works 23 hours ago
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.
TheJesusaurus@sh.itjust.works 21 hours ago
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
Doc_Crankenstein@slrpnk.net 19 hours 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.