Fifth Amendment Flowchart
lawcomic.net
lawcomic.net
If you want to learn the basics of self-incrimination law, check out these two lectures from FLETC (with transcripts!): 1. https://www.fletc.gov/audio/miranda-5th-amendment-mp3 2. https://www.fletc.gov/audio/miranda-waivers-and-invocations-...
Then, read the self-incrimination chapters in the book Examples and Explanations: Criminal Procedure (The Constitution and Police). http://www.amazon.com/Examples-Explanation-Procedure-Constit...
Tada. You now know more about self-incrimination than 95% of practicing lawyers.
Separately, the lawyers at FLETC deserve real praise for their lectures. They're clear and succinct when so much legal education is muddled nonsense. Listening to their Fourth Amendment (search and seizure) lectures before my 1L Constitutional criminal procedure exam was revelatory. https://www.fletc.gov/4th-amendment-roadmap
http://lawcomic.net/guide/?p=2256
For what it's worth, the whole site is a good read for an introduction to American law.
https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
Is this on purpose? And why? What (ow who) makes such laws so complicated, that you seem to have to study law to maneuver through these minefields.
For example, the whole Miranda rights thing came from a Supreme Court decision from 1966, not a law passed by Congress.
As a hypothetical example, imagine a court 50 years ago said that talking to the police after invoking your 5th Amendment rights nullified your invocation of your rights.
Then, a case appears where a suspect wasn't read his Miranda rights but had invoked the 5th, except he then spoke to the police immediately after (and nullified his previous invocation). Well, what if the court decides he can re-invoke his 5th Amendment rights once he's finally read his Miranda rights? Boom. More precedence.
See how it can get complicated? It's almost kind of like when you have to write a bunch of edge-case code because weird "gotchas" keep cropping up and it's a bitch to rewrite the entire thing.
This process btw is how USA effectively got software patents.
A corporation or other applied for a patent on a production process that used a computer (and therefore software) to gain more precise control of the results than previous mechanical means.
The patent holder was sued over it, and a judge ruled in the patent holders favor.
This ruling was then used by other lawyers to press for "process" patents, where the process was described in software.
And so far no higher court has overruled the initial ruling, thus effectively USA have software patents.
Judges on the same tier are not strictly bound, but in the interest of consistency (the law always seeks to be applied in the same way to the same situation), will look to the rulings of other courts on their level if no higher court has ruled. This is called persuasive precedent. The Supremes often take a case because the lower courts, (Circuit Courts of Appeals) have ruled differently on the same issue. This is called a circuit split.
Coming from a civil law country (where precedence does not play that much of a role) really makes these things hard to grasp normally.
It's worth remembering that Americans have generally a pretty solid right to avoid self-incrimination. In the UK, for instance, your silence can be used against you in court.
I think this happens a lot more with the 4th and 5th amendments because they're so politically dicey. Like, okay, the cops shouldn't have searched that parked car without a warrant, but now you're the judge who has to exclude the gloves spattered with the victim's blood they found in the trunk.
I think it's more complex for government, but still complex for the person being questioned. For instance, the chart notes that if you are granted immunity, you cannot leave a form blank or assert your right to remain silent in a blanket fashion.
A second way things are complicated in the Hiibel case, which requires you to speak to the police to say your name.
A third way is that suspects who assert their rights are sometimes treated worse by the police. The US has a storied history of police abuse, including torture (Jon Burge, for one). Occasionally, this is caught on video, and it sometimes seems that the reaction by the police is one of anger. Infuriating the police by asserting your rights may get you some non-judicial punishment, including "contempt-of-cop", in which the police assault you and then charge you with assault via, for instance, bleeding on their uniforms (Henry Davis). In unlucky cases, you may end up dead from "excited delirium", a disease almost exclusively suffered by those in police custody but out of range of video cameras.
I'm not sure about that. The government does this all the time - cops will know exactly where the lines are and how to get you to fuck up. They get daily practice in it.
Meanwhile, your average citizen likely doesn't know what the Fifth Amendment means beyond vague stuff they remember from high school, and there's a good chance they really don't know you have to explicitly state you're exercising it.
How about: "My lawyer would be happy to answer all your questions".
Is that enough? Or does one need to explicitly add "I am invoking my rights under the fifth amendment"? Or explicitly state that "I want a lawyer" (which, doesn't make sense for a person who already has too many lawyers).
I'm looking for one polite, simple, clear statement to use.
> YOUR magic words: "I'm not answering any question and I want a lawyer"
then shut the fuck up.
Although I think you have to provide your identity to officers? Not sure.
I heard a story about Larry Ellison pulled over by the police in the parking lot of Oracle. Apparently he said "Call my lawyer", handed them his lawyer's card, and walked into the building.
There is another reason to use the recommended phrase, too: it's a standard. More people will immediately understand your intent (regardless of how they respond).
> I want to be polite
While general politeness is always a good idea, the police are not on your side and you absolutely should not go out of your way to appease them. If they want to hassle you, they are going to do it anyway. In practice, they probably already made their quick-and-arbitrary conclusion before they started talking to you.
Don't take my word for it - this is the advice any decent lawyer will give you. I highly recommend watching this[1] lawyer explain the public<->police interaction, corroborated by a police officer who explains how they try to scam you into talking.
[1] https://www.youtube.com/watch?v=6wXkI4t7nuc
edit: fixed minor editing error
While "My lawyer would be happy to answer all your questions" could be sufficient, why leave it to chance? Just be very clear since the situation could result in life-changing consequences: "I am invoking my right to remain silent and will only answer questions with a lawyer present."
Edit: stop worrying about winning the hearts of police in a situation like this. Their interests are diametrically opposed to yours at that point in time. No need to be an asshole but you're also not going to hurt their feelings by protecting your interests; and if they seem to take issue with your statement (social pressure is another interrogation tactic, BTW), just remember that this is not a social situation so their opinion of you is not relevant. Investigators are not going to lay off you just because they think you're a swell person.
If question, then assert Fifth Amendment and Lawyer.
If search request, assert Fourth Amendment and Laywer where request isn't an allowed exception.
Either way, repeatedly ask if you're free to go. And be respectful in attitude for best results. Eventually, they let you go, ticket you, hold you, or charge you.
If you follow the watertight route, you may never talk to police: https://www.youtube.com/watch?v=6wXkI4t7nuc You must have constant adversary attitude towards police asking questions in every situation. In practice people never do that and usually nothing bad happens, but still... It's part of the good police work to be casual and make people feel that people are jerks if they don't cooperate.
> the long-short of this: Say nothing, ever, except “I am (ironically) exercising my right to remain silent, and I want a lawyer”, unless your lawyer says you have to talk? (because we know cops can lie, so we can’t trust them to tell us how our rights are going to apply)
> > That’s what you say if you’re in custodial interrogation, sure. But if it’s not law enforcement asking you the questions (or providing the forms to fill out, or whatever), you have to assert that you’re taking the privilege every time they ask a question. And there are some situations where the 5th Amendment will NOT apply, and you will have to answer or face penalties.
I believe the following is what you meant, but to be clear, cops are allowed to lie. Or so I've read, and it's probably safest to assume they're both allowed and will.
Although I would be curious as to the legalities as to a police officer having the ability to force an answer to a situation you are not directly involved with. A classic example is compelling testimony when you are a witness and your life has been threatened if you do give testimony. In those cases I know you have no right to be silent, you can be punished for doing so. But that's in a court of law and a cop asking you a question over the matter at the scene is an interesting variable. I suppose the cop could arrest you for obstruction of justice, but then the Miranda warning would then be in effect.
While the situation in the US is bad, I don't think a straight ban is the answer. It's definitely complicated.
No, and I don't understand the relevance.
> While the situation in the US is bad, I don't think a straight ban is the answer. It's definitely complicated.
It is indeed complicated, but it's pretty clear that the status quo isn't the answer either.
The Second Amendment isn't going anywhere. A class of first graders got massacred and the country's overall reaction was "whoops!" If that doesn't move the gun control needle, not much will.
"The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms."
They already admit that the right isn't unlimited:
" Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons."
This is key. The NRA screams that any attempt to regulate any aspect of guns is unconstitutional, but that's clearly not the case.
Said screaming has, unfortunately, been very politically effective.
http://www.amazon.com/Illustrated-Guide-Criminal-Law/dp/1598...
I can't remember the booth #, but he was toward the back around Aisle 1200 for anyone who is going today or this weekend.
I mean, really, do
No Fifth Amendment protection against ANYONE ELSE using your words against you
If you say it to a friend, your boss, a cab driver, or on social media, your words are FAIR GAME
That said, the labels could have been more clear in that situation, and there were a few missing at the end of the whole thing.
Just that one is about creating and the other about getting f*cked over.