What's the Miranda-logic behind the U.S. 5th Amendment?

[Cheetah]

The Fifth Amendment (Amendment V) to the United States Constitution is part of the Bill of Rights and protects against unfair treatment in legal processes.

Specifically, how it developed into the famous Miranda rights. The full text, with the part which underlays the Miranda rights emphasised:

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 offence 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.

I'm asking because this story:

http://www.npr.org/2014/10/05/353893046/you-have-the-right-to-remain-silent-or-do-you

'You Have The Right To Remain Silent.' Or Do You?

[...]

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.

[...]

"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.

[...]

"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."

[...]

"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."
[...]

So if anything one says or doesn't say can be used against a person, what exactly is the meaning of 'witness against himself'? What was ever the practical application of that rule?

 

[Antilogic]

It's a bit ironic you have to announce you are remaining silent. But apparently the police like to treat us like guilty children.

 

[Farm Boy]

They've functionally eviscerated the 4th, on to the 5th.

 

[Antilogic]

Why stop there? The FISA court ignores maximizes the freedom of the 6th and 7th as well.

 

[Farm Boy]

That a hoop that can moved past.

 

[peter grimes]

^ what's that mean, FB?

 

[brennan]

The notion that what you don't say can be used against you is an obvious non-sequitur. what you don't say contains zero information. The idea that this content-free-silence can be put to use as though it contains meaning is the sort of dangerous, ignorant, mob-pleasing foolishness that should be driven out of any self-respecting legal system.

 

[Farm Boy]

^ what's that mean, FB?

The need for it to be a FISA court to move past such foolishness behind which crimes hide. More rogues than honest men find shelter under Habeas Corpus after all. Gotta catch the crimes.

 

[JollyRoger]

The Robert's Court has been slowly, but steadily eroding Miranda - seems like a case or two each term chips away at it. So far, silence has been used against a suspect when it is a gap - in the case detailed, the suspect was not being silent until it became convenient to do so. I think that gap is protected by the 5th, but the Roberts Court has a way of using crabbed logic to get to the result it wants.

 

[brennan]

Surely this means that the courts opine that you must 'opt in' to constitutional amendments. So until you tell someone that you believe in the second you have no right to own a gun? Until you publicly advertise your belief in the importance of freedom of speech you cannot expect to be granted that right?

Idiocy.

 

[Antilogic]

You forgot to pre-opt in to your speech rights, so you don't have the right to advertise you think free speech rights are important.

 

[Timsup2nothin]

The notion that what you don't say can be used against you is an obvious non-sequitur. what you don't say contains zero information. The idea that this content-free-silence can be put to use as though it contains meaning is the sort of dangerous, ignorant, mob-pleasing foolishness that should be driven out of any self-respecting legal system.

The mob has been totally preconditioned for it though. How often do you hear in movies or the endless 'heroic cop' TV shows that "only the guilty demand a lawyer".

 

[Bootstoots]

Well, if troops decide to show up to my apartment and just stay there without my permission, I know what I have to do to get them back out.

Of course this will probably result in the Third Amendment's "time of war" clause being stretched to include undeclared perpetual wars like the War on Terror, and there's probably something deep in one of the FISA amendments or the NDAA or the PATRIOT act that allows the military to occupy apartments under some condition. Also the landlord is the owner of the apartment, so the court might well rule that I didn't have standing in the first place and ignore the Third Amendment part of the case entirely.

None of that stops me from fantasizing about bringing a Third Amendment case to court though. I just want to see if there's any part of the Bill of Rights that can't be contorted into meaninglessness.

 

[Antilogic]

Just use your new stand your ground rights.

That'll go over real well.

 

[tetley]

Funny thing is, 4th amendment is the reason the Supreme Court gives for giving it jurisdiction over Roe vs. Wade. Apparently outlawing abortion is a search & seizure. But the TSA stripping your clothes off and naked body scanning you isn't. Personally, I think abortion falls under the 10th. But definitely not the 4th.

 

[Farm Boy]

The TSA activities at airports is still a search, isn't it? Merely that it's qualified as a "reasonable" one?

 

[Timsup2nothin]

The TSA activities at airports is still a search, isn't it? Merely that it's qualified as a "reasonable" one?

It's voluntary. You consent by buying a ticket.

 

[JollyRoger]

Funny thing is, 4th amendment is the reason the Supreme Court gives for giving it jurisdiction over Roe vs. Wade. Apparently outlawing abortion is a search & seizure. But the TSA stripping your clothes off and naked body scanning you isn't. Personally, I think abortion falls under the 10th. But definitely not the 4th.

Actually, anti-choice laws were struck pursuant to the 14th Amendment.

The TSA activities at airports is still a search, isn't it? Merely that it's qualified as a "reasonable" one?

It's an administrative search that arguably should not subject you to prosecution if they find anything illicit.

 

[Farm Boy]

Well, I suppose they can just switch the justification to anyone who wants to fly on a plane is engaging in behavior that constitutes reasonable suspicion.