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this post was submitted on 20 Oct 2024
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People have rights.
Rights do not disappear just because you get accused.
In addition, the principle of "innocent until proven guilty" applies, and it is only the judge who decides what is proven and what is not (this protects from prejudice at the police)
I don't know all your amendments, but there is a thing like your 5th. just stronger: The accused is free not to help the police in any way. He may say things or remain silent, he needs not to give them things, and they may not create any kind of disadvantage for him from that. Also the court must not interpret this against him. Also spouse and family are not required to help or testify.
It is Germany here.
As an American this is an interesting comment.
Traditional American understandings agree with the notion of innocent until proven guilty and that rights exist regardless of accusations. But here it is not a judge but a jury of your peers who decides the facts based on evidence shown to them. Here judges decide matters of law not fact.
(Unless you choose to have a judge rule on the facts (likely because you are probably unpopular in your community because of the nature of the accusations and you feel it'd be more fair for a judge to decide the fact in your eyes))..
Well, from American movies you usually get the impression that all rights disappear suddenly as soon as the police comes into the picture.... This is really very, very different here. Even as an accused you can talk to policemen like to normal people in 99% of all cases.
Movies are works of fiction not law. In America if you choose to temporarily waive your right to silence and speak to police you may at any point reassert that right.
I couldn't blame cinematographers for attempting to tell a story. But they are artists not lawyers.
You may talk to police that way in America but any good lawyer will tell you not to because the strength of the fact that your silence can't be used against you often will offend out weigh any defense you might argue.
When guilt must be proven absence of evidence is the defendant's friend.
And if you watch enough arraignments, it is just so painful to watch a defendant completely spill the beans even over a judge and lawyer telling them to shut up. So many people really don't seem to understand that they can't simply fast talk their way out of charges once the process starts, and everything they say is going to be recorded.
You are saying this with so many words... do you really need to speak it out loud, like "I assert my right..."? I mean, can't you simply tell a thing or not tell it, at any time?
You have to actually say that you are asserting your right (in the US) to stop interrogations.
There was a case recentlyish (you can search for details if you're interested, I can only recall the broad strokes) where an accused said "I want a lawyer, dawg" and this was interpreted as "I want a lawyer dog", as in a dog who is a lawyer, and this was not found to be an assertion of the right to remain silent. The whole thing was eye rollingly stupid, but when in America....
Hehe :)
Here: nearly unthinkable. Nobody needs to inform the police in explicit words about their rights, because rights have to be respected whether you tell some magic spell or not, and the police knows people's rights, because it is their job, so nobody needs to explain them. These police would get their asses full of trouble for such a prank.
The "lawyer dog" case did not hinge on that.
The suspect,Warren Demesme, did not unequivocally demand a lawyer. He said: “If y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not whats up.”
The finding was that he asked a question rather than making a statement. The "dog" was completely irrelevant in the decision, but you know Internet pop news sites are going to be Internet pop news sites.
You can still think the outcome was expecting too much precision by a suspect and disagree with it, but let's at least be accurate in criticism/discussion instead of perpetuating meme tier inaccuracy.
You can indeed stay silent. However, if you want the police to stop asking you questions, you have to affirmatively say you are asserting your right. If you just clam up, the cops can keep asking and asking you things. Similar to getting a lawyer- you have the right to a lawyer, but when you are in police custody you aren't going to get one until you ask for it during the questioning.
Great question. In theory/practice you can just shut up from square one. But asserting your rights by doing so in clear unambiguous terms for is advisable. Judges understand someone saying "I wish to invoke my right against self incrimination as protected in the 5th amendment" better than the do pure silence.
The legal rights come into play exactly when the police come into the picture.
All of these are included in the 5th (except for subpoena of non-spouse family, but as a practical matter prosecution has a hard time forcing an unwilling family member to testify in any useful way), and on top of it the Miranda warning requirement exists to inform people of the rights. A lot of people just have a really, really difficult time shutting their mouths even when told to.
I can hardly believe that, since I have read (not in movies) about cases when prosecution has forced accused people to give them passwords etc.
Circumstances? Passwords are contents of the mind, and therefore protected under the 5th. Someone in a situation where they are accused or under investigation has the 5th to fall back on.
There have been cases recently about the legality of forcing thumbprints on biometrically locked phones, under the theory that a thumbprint is a physical attribute and not something kept in the mind (so you know, lesson there is to keep using a old fashioned passcode). Otherwise, someone on bond or parole or something may have a condition of their arrangement be to allow their devices to be searched. Refusing that is a matter of breaking an agreement made in court.
Or contents of a piece of paper.
Outrageous. This is taking away the defendant's rights. Nobody can ever believe that he made this decision of his own free will.
Here, this right cannot be taken away, therefore such an agreement would be invalid.
In the context of the discussion, I don't know what you are getting at here.
But compelling someone to say or type in a password is something where they could assert the 5th. If the police find the password written down on a piece of paper and then type it in themselves over the protest of the defendant, that is not a 5th amendment violation. That's just using a piece of physical evidence.
This was my speculation on how I imagine it could possibly happen, as you say you have seen it written about. I have never seen it happen as a condition this way, but if you provide more detail I can be more precise in answering.
But if it is say in another hypothetical, a condition on a deferred sentence, then at that point guilt has already been established and a the deferment is an alternative option from the baseline of prison. Again, some specific links to this happening would really help sort what it is you're seeing.
I was implicitly asking if it would be any different then, in your legislation. For example, can they ask him for the paper where the password is written?
A person is free to not answer any question. They can sit there completely silent.
No, that's not what I meant.
You said above > Passwords are contents of the mind, and therefore protected
So I am asking, isn't it protected in the same way if it is a content of a piece of paper in the defendant's possession?
Can they force him to give it to them, to tell them where it is, to confirm if it is his own piece of paper etc.
No, but they can get a warrant to search his property and find the paper on their own.
The knowledge of the location of the paper is a content of the mind. The defendant does not have to answer any question.
Eeeeeeehhhhhhhhhhhhhhhhhhh...judges decide fact all the time in civil cases, or in criminal bench trials.
7th amendment applies to civil suits. Judges may when common law doesn't govern. But that's limited. And criminal defendants must consent to bench trial by not contesting any of the facts.
In the Federal system it does. At the state level, a jury for a particular civil matter is not guaranteed. Judges regularly end up as the finders of fact in state civil cases.
Not always. If the case is not serious enough, a jury trial is not guaranteed. This SCOTUS case found 6 months to be the cutoff for a serious enough crime.
A bench trial where no one is contesting the facts can happen, in that case the defendant is probably contesting the constitutionality of the law, so therefore doesn't need any dispute any of the facts. But, as in the above link, a case may happen where either the defendant is not guaranteed a jury because the punishment falls below the threshold establsihed, or they waive the jury and the judge sits in as the finder of both law and fact.