No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
More specifically, the self incrimination clause, the part that reads "nor shall be compelled in any criminal case to be a witness against himself," is the part that I want to talk about today. This particular clause has been variously interpreted by the court. On the one hand, we have decisions like Haynes v. US, where the Supreme Court held that a criminal cannot be forced to register his guns, because the act of registering an item that he cannot legally own is tantamount to an admission of guilt, and violates the self incrimination clause.
In the other extreme, that same Supreme Court held in 1927, in US v Sullivan that a person must fill out a tax form, even if in so doing he admits to illegal activity. In contradiction to this, the Supreme court also held in Garner v United States (1976) that a person who answers the tax form does so voluntarily, and therefore was not compelled to be a witness against himself when the information is used against him.
That is why it comes as no surprise to me that the Supreme Court just held that a person who refuses to answer when asked if he broke the law can have the fact that he refused to answer used against him as evidence that he broke the law. According to the Supreme Court, your constitutional rights do not count until the police read you your Miranda warning. Whether or not, and when, you have constitutional rights depends entirely on whether or not and when the police SAY you have those rights, which makes them not rights at all.
In other words, if a cop asks you a question, there are only three possible answers:
1 Admit guilt, in which case you will be thrown in jail.
2 Claim innocence: which of course can be used against you as "obstruction"
3 Refuse to answer: which will be used as an admission of guilt.
The police state gets more restrictive every day.
Getting to the point where I will need a lawyer to advise me what to say before I talk to the cops.
ReplyDeleteI think I'll preface every statement in the future with "I am not answering questions at this time. I will make a brief statement and after that I wish to consult with an attorney".
Even if the cop only asks "What time is it?"