Let’s say a cop comes up to me and asks me about my neighbor. Seemingly innocent questions like, “How long have you lived here?” and “How well did you know Joe Pedo?” Is there any reason for me, based on this ruling, to not refuse to answer ANY questions and immediately say, “I invoke my Fifth Amendment rights to not speak with you. Am I free to go?”
Followup question: Since the 5th Amendment is to avoid self-incrimination and living next to someone for 3 years is not a crime, am I even allowed to invoke the 5th Amendment on that question? Or do I have to wait for “Were you at his house on the evening of June 31st?” to invoke the 5th (whether I was there or not)?
This ruling doesn’t affect the circumstances under which you can invoke the Fifth. If a cop just walks up to you and starts asking questions you can leave whenever you like notwithstanding the Fifth. As to the general gist of your question, you don’t have to justify invoking the Fifth unless you are otherwise obliged to speak (say, giving a deposition in an unrelated civil matter.)
If a cop walks up to you and starts asking questions that are clearly directed towards you, I would not suggest leaving without making sure you are free to go. It could morph into some kind of claim of evasion or running away which could be used to establish cause for detention.
Your best bet is to decline to answer, refuse any search, and ask if you are free to go.
You didn’t ask for an explanation. You asked for an answer and I gave it to you. The answer to your question is “no.” There is nothing vague about the answer “no” to your question. In context, what did the answer “no” to your question reveal? The answer of “no” to your question conveys the message there isn’t any implication that subjects in custody are Miranda Rights because they are not expected to know those rights without the advisement. The answer of “no” was resoundingly clear and unambiguous here given the context. The answer of “no” in this context was not possibly “vague”, even if you perceived it as vague.
However, there isn’t any implication those in custody and advised of their Miranda rights are not expected to know them prior to being advised of them.
Hmm…I’d probably characterize the pre-Miranda law as permitting a person to refuse to answer government questions when there was a threat of a judicially imposed punishment.
In my defense, the “no” was modified with the statement that you could “also live with the notion of not necessarily” which seemed to undermine its intent and finality. That’s what confused me, honestly. But this is a digression over misunderstanding; I apologize for snarking on what I perceived to be a frustratingly terse response. It was unwarranted and I ought to have just asked for an explanation instead. I may be a hothead but I do appreciate your input.
Not trying to be obtuse but I can’t really come up with a justification for the requirement of reading a person their Miranda rights apart from the presumption that they need to be informed about those rights. What am I missing? The implication of your statement is that we read Miranda rights for some purpose other than informing a person of their Miranda rights. What is that purpose?
The Fifth Amendment protection from self-incrimination does not necessarily mean you don’t have to talk to the cops. You could know the text of the Constitution forwards and backwards and not glean that distinction without a grounding in its subsequent interpretation.
Reading this thread, the big thing that came as a surprise to me is the notion that you actually have to explicitly invoke your Fifth Amendment Right To Silence; just remaining silent apparently doesn’t cut it. What’s the philosophical justification for this? is there an Important Reason that Constitutional Rights must be invoked in this manner, rather than construed from actions such as merely remaining silent?
What if I forgot it was the Fifth Amendment and tried in vain to invoke my Fourth Amendment Right To A Free Defense For The Indigent? Or what if I said correctly but I did so in Navajo and no one knew what I meant? What I’m trying to get at is that there are lots of problems to requiring an explicit invocation that wouldn’t be there if the rights could be invoked implicitly…
It basically means the right to remain silent is a lie, because you can’t invoke it without first not being silent. And that’s not just a problem–it’s a paradox… But no one has ever accused our justice system as being rational.
The fight against ignorance is a long, long road.
EDIT: I mean, think about it. You have the right to remain silent, and everything you do say can and will be used against you. A literal reading of that is that, when you claim your right to be silent, you are by definition not being silent in that one statement, so your declaration of intent to use that right can in fact be used against you.
The solution to this daunting paradox is: not everything you say can be used against you. Specifically, the invocation of the right to silence cannot itself be used against you; the prosecutor cannot even mention it at trial.
Someone explain this dichotomy to me.
Before taken into custody I am expected to know my 5th Amendment rights and explicitly invoke them but once I am taken into custody the expectation is that I do not know my rights (hence being Mirandized) and I have the right to stay quiet without my silence being brought up in trial.
So SCOTUS expects me to be a nomologist before being arrested and an idiot afterwards?
The part that’s blowing my mind is that: invoking the right **can’t **be used against you, simply exercising the right can be used against you. And the US supreme court seems to think that this is a perfectly reasonable state of affairs!
Am I misunderstanding the situation? And do you, Bricker, think this is reasonable?
In this (clearly not a lawyer) layperson’s opinion - the difference here is that the testimony of the officers is that the ‘defendant remained silent when initially questioned on X, Y and Z but answered all other questions , this led us to believe…’ as contrasted with ‘the defendant invoked his rights’ (which cannot be testified to at all).
The other difference is that in this case, the defendant was ‘selective’ in what he would answer and when he would stay silent - which is different than ‘invoking right to remain silent and then staying silent for the entire time’ - IMHO, if the defendant had not been selective in his answering pattern - it would have been the same as invoking.
It’s not really a paradox - refusing to answer by saying ’ I don’t want to answer’ is not the same thing as ‘staying silent’
It is my understanding, and I’m neither a lawyer or an American, that a suspect in custody can stop talking to the police/start talking to the police again as much as they want. And that selectively not answering certain topics isn’t something that the prosecutor can mention to the jury. If a suspect in custody can’t selectively answer questions would this case have even gotten heard by the SC?
the suspect(s) can, and often do, all kinds of stupid things when in custody - in this case - the suspect was not yet ‘in custody’ - the point is - if you want to invoke your right to silence, etc - invoke and then STAY SILENT (and ask for your attorney) - if the police tehn say “we’re just talking here” - ask if you’re free to go - if not - then invoke - if so - then leave.