You have the right to remain silent.....OR DO YOU???

[Mani]

It seems you need to actually say, "I'm invoking the 5th amendment!" Because remaining silent CAN and WILL be used against you.


http://www.npr.org/2014/10/05/353893...lent-or-do-you

You have the right to remain silent."

Any devotee of TV crime dramas or police procedural shows hears the phrase regularly. But new court decisions in recent years have chipped away at that principle.

Take the case of California resident Richard Tom. In 2007, he broadsided a car, injuring a girl and killing her sister. At the accident scene, he asked to go home but was told no. He wasn't handcuffed, but police held him in the back of a police car. At no point did he ask the police about the victims. During his trial for vehicular manslaughter, prosecutor Shin-Mee Chang told the jury that Tom's failure to ask about them pointed to the "consciousness of his own guilt."

"His complete lack of concern for the occupants of the car that he had just broadsided was one factor that showed his indifference to the consequences of his reckless driving that night," Chang says.

But didn't Tom have the right to remain silent — to not ask about the victims? For decades, television shows like Columbo and the Law and Order series have told us: "You have the right to remain silent. Anything you say can and will be used against you in a court of law."

But the truth is, it's not that simple. Courts have found that suspects don't have to be read their rights upon arrest, but only right before they are interrogated. And there can be a long lag time between the two.

In the case of Richard Tom, for example, he was in custody for two hours before he was read his rights. Earlier this year, the California Supreme Court ruled in Tom's case, and said his silence at the scene of the accident could be used against him.

"The California Supreme Court has left us in a no-win situation, where as soon as you are arrested the prosecutor can use anything you say [and] anything you don't say against you," says Marc Zilversmit, Tom's attorney.

The U.S. Supreme Court issued a similar decision in 2013, in a case involving a suspect's silence prior to arrest. In that case, the suspect voluntarily answered police questions for nearly two hours but refused to talk in depth about a gun found in his house. The prosecutor used that against him at trial.

"Most people assume that if you have a right and you exercise it, that's all you need to do," says Stanford law professor Jeff Fisher.

Fisher says the courts' rulings set a trap for the unwary. The courts said the only exception is if defendants expressly tell police they are invoking their Fifth Amendment rights. Fisher says the rulings affect every kind of criminal case, including white-collar investigations where suspects are often questioned at length before being arrested.

"Under these decisions, somebody in that situation, just as much as the person accused of murder or manslaughter, needs to announce that they are relying on the Fifth Amendment privilege," Fisher says. "It's not enough to simply refuse to talk to police."

If all this sounds ominous, Kent Scheidegger, with the Criminal Justice Legal Foundation, isn't fazed. He says the reality is we never actually had a right to stay silent.

"What's in the Constitution is a right not to be compelled to be a witness against yourself," Scheidegger says. "The Constitution does not say you have a right to remain silent, and although there is a lot of overlap in those two, they are not the same thing."

Scheidegger says the U.S. Supreme Court made up the phrase "right to remain silent," and that its 1966 ruling requiring Miranda warnings popularized the false impression that that's what the Fifth Amendment says. Scheidegger may be more forthright than the courts; they still maintain that there is a right to silence, tenuous as it might be.

[Spikender]

Yep.

I read about this before but it wasn't about this particular case. I'll have to find the one I read about last year.

Regardless, we know you have the right to do whatever the $#@! the cop wants you to do for the most part, so whether you remain silent, say something, or suck the cop's big toe is irrelevant.

[luctor-et-emergo]

I have seen so many people recently say things along the lines of 'The government gave me my rights'. A lot of refugees even, who you'd expect 'kinda' know that government can only protect their rights or take them away. You'd expect that people who have been suppressed know that rights don't cost money.

I think this is one of the main issues that we should fight for, having people recognize that they got their rights as a human being when their life started. Having people realize that those are THEIR rights, which they do not have to pay tribute for or perform silly tricks in order to retain them. At this moment, not enough people realize this or if they do they aren't outraged. We should work to change that. It is one line of arguments that I find when you take the time to explain it to people they will agree with you. I have come as far as having a real socialist agree with me that rights don't cost money and everything his socialist party calls 'rights' are actually privileges. He still thinks those privileges are mostly a good thing but I have heard no more positive stories about government, mostly critical since then, I call that a little success.

[Lucille]

http://www.ronpaulforums.com/showthr...ilty-of-murder

http://www.ronpaulforums.com/showthr...ainst-suspects

[idiom]

I have seen so many people recently say things along the lines of 'The government gave me my rights'. A lot of refugees even, who you'd expect 'kinda' know that government can only protect their rights or take them away. You'd expect that people who have been suppressed know that rights don't cost money.

I think this is one of the main issues that we should fight for, having people recognize that they got their rights as a human being when their life started. Having people realize that those are THEIR rights, which they do not have to pay tribute for or perform silly tricks in order to retain them. At this moment, not enough people realize this or if they do they aren't outraged. We should work to change that. It is one line of arguments that I find when you take the time to explain it to people they will agree with you. I have come as far as having a real socialist agree with me that rights don't cost money and everything his socialist party calls 'rights' are actually privileges. He still thinks those privileges are mostly a good thing but I have heard no more positive stories about government, mostly critical since then, I call that a little success.

I have seen so many people make the mistake of reifying rights and treating them like actual things rather than concepts.

[economics102]

I have seen so many people recently say things along the lines of 'The government gave me my rights'. A lot of refugees even, who you'd expect 'kinda' know that government can only protect their rights or take them away. You'd expect that people who have been suppressed know that rights don't cost money.

I think this is one of the main issues that we should fight for, having people recognize that they got their rights as a human being when their life started. Having people realize that those are THEIR rights, which they do not have to pay tribute for or perform silly tricks in order to retain them. At this moment, not enough people realize this or if they do they aren't outraged. We should work to change that. It is one line of arguments that I find when you take the time to explain it to people they will agree with you. I have come as far as having a real socialist agree with me that rights don't cost money and everything his socialist party calls 'rights' are actually privileges. He still thinks those privileges are mostly a good thing but I have heard no more positive stories about government, mostly critical since then, I call that a little success.

This was one of the chief arguments against having a Bill of Rights -- that it would cause people to misunderstand the nature of rights and where those rights come from.

Anytime someone says something like "my first amendment rights," they probably don't understand that the first amendment is not the source of their rights but merely a law forbidding the federal government from infringing on said rights, which pre-date and supercede the Constitution and Bill of Rights.

[LibForestPaul]

I have seen so many people recently say things along the lines of 'The government gave me my rights'. .

But then they would have to understand that they can't rely on the state to take "rights" away, from gays, negroes, Chinese, Mexicans, women, white males, their neighbors; and who the hell wants to respect their neighbors rights.