this post was submitted on 08 Nov 2023
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You shouldn't just shut up after identifying yourself either, you should explicitly state that you are exercising your 5th amendment rights and then shut up. Talking afterwards can be taken as rescinding your 5th amendment assertion.
Famously, a judge once ruled that saying "Yo, I want a lawyer, dawg" was actually not a 5th amendment assertion, and that the suspect was genuinely requesting a dog who practices law.
Hi, did you know that there are a large number of English speakers on the internet for whom quoting an amendment of the US constitution would not be helpful?
Yes, I would be one of them. However that still doesn't mean what I've said isn't generally best practice, even in areas where it's not fully required per case law. At the initial interaction with police, you should identify yourself, then clearly say you cannot answer questions without first getting legal advice. Then shut up and don't answer questions.
Although, if you really want to get into the nitty gritty, other jurisdictions may have more extensive requirements for what you must say, so shutting up isn't necessarily the best advice everywhere, all the time. There's also subtle differences between the right to silence and rights against self-incrimination.
In the UK, which first started using right to silence in the 17th century (and then spread its law over much of the rest of the world), inferences can be made from silence. No conviction can be wholly based on silence, but it can be the wrong move. In some situations, eg fraud and terrorism, the right to silence is reduced and you may be obligated to answer. In these circumstances you cannot legally remain silent, but you are still protected against self-incrimination.
That’s worse mate! You said 5th amendment three bloody times, when you could have given the same advice without referencing it at all. It’s not like saying “5th amendment” is a neck verse or something. You can just say “I’m choosing to invoke my right to not answer questions at this time” and as a bonus, that works everywhere that has such a right, including the United States ¯\_(ツ)_/¯
Maybe I should've added in that it was specifically referring to the US in my first comment, but I also wanted to use it as an example to show that there is some significant nuance and depth to the subject.
In any case, most of the world does understand US terminology in some manner. For example, the Philippines courts referenced "so-called Miranda rights" when establishing their law.
That's exactly what I did in the comment you just replied to:
But that doesn't include the story about the lawyer dog, which seemed relevant to this post with a dog giving legal advice.
Well.... We did kinda occupy The Philippines for about 60-70 years. It makes sense that their legal system might look like ours, kinda like Japan as well. I know we basically set up the modern Japanese government, I wouldn't be at all surprised to find out we did the same thing in The Philippines.
Again, only in the US.
Nevertheless, the right to remain silent is protected in many countries. Deciding whether to use it on the other hand, is not always easy.
Absolutely, however the right to silence is not universal. There are circumstances in some jurisdictions where you can be compelled to say things. In such cases the things you say cannot be used in evidence against you (right against self-incrimination) but they can still lead to evidence that can be used.
Even the US has a bit of this, for example you can be compelled to give over a password. To draw an example, if you were investigated for robbery and had the password "IRobPeople", then the password couldn't be used in evidence against you but any evidence they find when using the password could.
The US Supreme Court has ruled that passwords are protected by the fifth amendment protection against self-incrimination.
Biometrics are not.
Law enforcement hacking into your device is acceptable. Evidence on your device remains admissable with probable cause, a warrant or a judge who likes the police / dislikes you.
Some judges will hold you in contempt for failing unlock your own device. (fourteen years is the record on contempt jail terms). So YMMV once youre facing charges.
Theres also a forgone conclusion rule. If the prosecutors can show sufficient evidence to a crime exists on your device, you can be compelled to open it. I do not know how this proof happens.
Also some judges (including SCOTUS by a ruling) just dont care if the evidence of a crime was legally obtained, they let it be admissible because locking you away is more important than state actors following protocols that preserve civil rights. Id est, the whole of the fourth and fifth amendments to the Constitution of the United States are as slippery as Schrödinger's cat.
Obligatory shut the fuck up.
You can’t not link the National Lawyer's Guild version! It’s like the best one, and they’re mentioned by name in the picture haha