Comment on He took it literally
ricecake@sh.itjust.works 4 days agoWhere 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.
en.wikipedia.org/wiki/Salinas_v._Texas
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?
lightnsfw@reddthat.com 3 days ago
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.
ricecake@sh.itjust.works 3 days 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.