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Penelope_Tree
Shamanic Panic



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5th Amendment no longer a right?
#18852779 - 09/17/13 09:08 AM (10 years, 4 months ago) |
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I'm invoking my First Amendment right to freedom of speech in this post.
From the recent ruling on Salinas v. Texas (link to .pdf document of the ruling):
Quote:
JUSTICE ALITO, joined by THE CHIEF JUSTICE and JUSTICE KENNEDY, concluded that petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officer’s question.
(a) To prevent the privilege against self-incrimination from shield- ing information not properly within its scope, a witness who “‘desires the protection of the privilege . . . must claim it’ ” at the time he relies on it.
In effect, this is saying that you do not have a "right" to remain silent, but rather a privilege that you must explicitly claim - regardless of whether or not you are read your Miranda Rights.
Erwin Chemerinsky, dean of First Amendment law at the University of California, Irvine School of Law, wrote a piece in the ABA Journal, Silence Is Not Golden, Supreme Court Says, comments:
Quote:
There is a profound irony to the plurality’s approach: exercising the right to remain silent by being silent is not sufficient to invoke that right. A defendant must speak in order to claim that right and likely must do so with exactly the type of “ritualistic formula” that the court has previously rejected.
Refer to first line of post.
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imachavel
I loved and lost but I loved-ftw



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Re: 5th Amendment no longer a right? [Re: Penelope_Tree]
#18852801 - 09/17/13 09:15 AM (10 years, 4 months ago) |
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So if they say "you have the right to remain silent" you must say "I choose to exercise my right to remain silent" otherwise by remaining silent you are forfeiting your right? Is that it the gist of the post?
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zappaisgod
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Re: 5th Amendment no longer a right? [Re: imachavel]
#18852841 - 09/17/13 09:33 AM (10 years, 4 months ago) |
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Where in the Constitution does it say you have a right to remain silent?
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Le_Canard
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Re: 5th Amendment no longer a right? [Re: zappaisgod]
#18852873 - 09/17/13 09:47 AM (10 years, 4 months ago) |
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I believe there's a bit in there about the right not to be compelled to testify against yourself, but you might want to ask Enlil about that one.
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imachavel
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Re: 5th Amendment no longer a right? [Re: zappaisgod]
#18853406 - 09/17/13 12:41 PM (10 years, 4 months ago) |
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Quote:
zappaisgod said: Where in the Constitution does it say you have a right to remain silent?
The right to remain silent is a legal right recognised, explicitly or by convention, in many of the world's legal systems.
The right covers a number of issues centred around the right of the accused or the defendant to refuse to comment or provide an answer when questioned, either prior to or during legal proceedings in a court of law. This can be the right to avoid self-incrimination or the right to remain silent when questioned. The right usually includes the provision that adverse comments or inferences cannot be made by the judge or jury regarding the refusal by a defendant to answer questions before or during a trial, hearing or any other legal proceeding. This right constitutes only a small part of the defendant's rights as a whole.[citation needed]
The Fifth Amendment protects individuals from being forced to incriminate themselves. Incriminating oneself (or another person) is defined as exposing oneself to "an accusation or charge of crime," or as involving oneself (or another person) "in a criminal prosecution or the danger thereof."[33] The privilege against compelled self-incrimination is defined as "the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself or herself. ... "[34] To "plead the Fifth" is to refuse to answer any question because "the implications of the question, in the setting in which it is asked" lead a claimant to possess a "reasonable cause to apprehend danger from a direct answer", believing that "a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result."[35]
Historically, the legal protection against self-incrimination was directly related to the question of torture for extracting information and confessions.[36][37]
http://en.wikipedia.org/wiki/Taking_the_Fifth#Self-incrimination
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Enlil
OTD God-King




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Re: 5th Amendment no longer a right? [Re: Penelope_Tree]
#18853541 - 09/17/13 01:24 PM (10 years, 4 months ago) |
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There is no general right to remain silent in the U.S. You can be compelled to testify, even against yourself, in many cases. The 5th amendment right only applies when you are in jeopardy of criminal prosecution. People are compelled to testify against themselves in civil trials every day.
As far as that SCOTUS case goes, it's not a huge change of law, but it is a pretty annoying erosion of the 5th amendment right. I doubt it's going to change much in how the police/courts operate, though.
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Le_Canard
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Re: 5th Amendment no longer a right? [Re: Enlil] 1
#18853664 - 09/17/13 02:02 PM (10 years, 4 months ago) |
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Oh well. At least the Supremes ruled -(by a slim margin) that cops couldn't bring drug dogs right up the front door without probable cause.
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johnm214


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Re: 5th Amendment no longer a right? [Re: zappaisgod]
#18854845 - 09/17/13 06:36 PM (10 years, 4 months ago) |
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Quote:
zappaisgod said: Where in the Constitution does it say you have a right to remain silent?
5th and 14th amendment.
Not speaking is a right you have a liberty interest in. You no more have to talk to the police than you have to let them do anything else.
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zappaisgod
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Re: 5th Amendment no longer a right? [Re: johnm214]
#18857200 - 09/18/13 09:30 AM (10 years, 4 months ago) |
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Quote:
johnm214 said:
Quote:
zappaisgod said: Where in the Constitution does it say you have a right to remain silent?
5th and 14th amendment.
Not speaking is a right you have a liberty interest in. You no more have to talk to the police than you have to let them do anything else.
Show me the text. All it says is you have a right not to incriminate yourself with testimony. I believe there are numerous instances where the law might hold that you have an obligation to speak. For instance to report a fire or a crime or to fail to warn. See multitudinous lawsuits resulting in a whole string of labels on, for instance, ladders.
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Penelope_Tree
Shamanic Panic



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Re: 5th Amendment no longer a right? [Re: Enlil]
#18857699 - 09/18/13 12:04 PM (10 years, 4 months ago) |
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Quote:
Enlil said: There is no general right to remain silent in the U.S. You can be compelled to testify, even against yourself, in many cases. The 5th amendment right only applies when you are in jeopardy of criminal prosecution. People are compelled to testify against themselves in civil trials every day.
As far as that SCOTUS case goes, it's not a huge change of law, but it is a pretty annoying erosion of the 5th amendment right. I doubt it's going to change much in how the police/courts operate, though.
From what I understand of the case, the man (Salinas) was casually questioned as a witness and didn't answer the officer's questions. He wasn't being called to testify. I guess one could make the argument that he was obstructing justice by not answering the questions in a murder investigation, so IDK why not just stop there and avoid the issue about 'having to express your desire to invoke your 5th amendment right.' It just seems a rather round-about path to justify the prosecution's use of Salinas' silence as evidence against him, and, like you said, an erosion of the 5th amendment.
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Enlil
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Re: 5th Amendment no longer a right? [Re: Penelope_Tree]
#18857807 - 09/18/13 12:28 PM (10 years, 4 months ago) |
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Refusing to answer questions about a murder investigation isn't obstructing justice.
The issue in that case is very limited. Salinas was being questioned, and he answered every question asked UNTIL the cops asked if the casings found would match Salinas' shotgun. Clearly, Salinas was not invoking the 5th when he was answering questions, so the court had to decide whether his sudden silence to one particular question automatically invoked the 5th. The Court found that it did not.
It makes some sense, of course, under the facts of that particular case. The cops have to stop asking questions once the 5th is invoked...how could they possibly have known at that point? If Salinas had said "I'm done answering questions" or "I want my lawyer present for any further questioning", that would be invoking the 5th. Sudden silence wasn't.
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