Comment on He took it literally
ricecake@sh.itjust.works 2 days agoYou’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 2 days 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
ricecake@sh.itjust.works 2 days ago
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.
dnick@sh.itjust.works 1 day ago
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.
ricecake@sh.itjust.works 1 day 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.