
Fifth Amendment Flowchart - apsec112
http://lawcomic.net/guide/?p=2897
======
thucydides
I aced my criminal procedure and criminal law courses in law school and
defended a few dozen accused criminals in federal and state courts. To be
blunt, I don't see how anyone could possibly learn the law of self-
incrimination from this chart. It's way too confusing. Maybe a Tufte acolyte
could redesign it.

If you want to learn the basics of self-incrimination law, check out these two
lectures from FLETC (with transcripts!): 1\.
[https://www.fletc.gov/audio/miranda-5th-amendment-
mp3](https://www.fletc.gov/audio/miranda-5th-amendment-mp3) 2\.
[https://www.fletc.gov/audio/miranda-waivers-and-
invocations-...](https://www.fletc.gov/audio/miranda-waivers-and-invocations-
mp3)

Then, read the self-incrimination chapters in the book _Examples and
Explanations: Criminal Procedure (The Constitution and Police)_.
[http://www.amazon.com/Examples-Explanation-Procedure-
Constit...](http://www.amazon.com/Examples-Explanation-Procedure-Constitution-
Explanations/dp/1454815469)

Tada. You now know more about self-incrimination than 95% of practicing
lawyers.

Separately, the lawyers at FLETC deserve real praise for their lectures.
They're clear and succinct when so much legal education is muddled nonsense.
Listening to their Fourth Amendment (search and seizure) lectures before my 1L
Constitutional criminal procedure exam was revelatory.
[https://www.fletc.gov/4th-amendment-roadmap](https://www.fletc.gov/4th-
amendment-roadmap)

------
csandreasen
The same site has a good Fourth Amendment flowchart as well:

[http://lawcomic.net/guide/?p=2256](http://lawcomic.net/guide/?p=2256)

For what it's worth, the whole site is a good read for an introduction to
American law.

~~~
kethinov
They need a third amendment flowchart too. You never know when you might be
unjustly asked to quarter soldiers.

~~~
ryan-c
There was recently a case where someone tried to claim a violation of the
third amendment, but that claim was rejected. Some interesting arguments.

[https://www.washingtonpost.com/news/volokh-
conspiracy/wp/201...](https://www.washingtonpost.com/news/volokh-
conspiracy/wp/2015/03/23/federal-court-rejects-third-amendment-claim-against-
police-officers/)

------
sdoering
Seeing this I was stunned at how complicated this whole thing is (not being an
American).

Is this on purpose? And why? What (ow who) makes such laws so complicated,
that you seem to have to study law to maneuver through these minefields.

~~~
tptacek
It's complicated because it's based on 200 years of case law. That's how
American (common) law works: the law itself states a broad principle and is
refined through the courts.

It's worth remembering that Americans have generally a pretty solid right to
avoid self-incrimination. In the UK, for instance, your silence can be used
against you in court.

~~~
rayiner
And a lot of case law arises from the desire to create specific _prospective_
incentives for the parties in different situations. But a lot also arises out
of judges trying to distinguish past precedent to get an end-result they want.

I think this happens a lot more with the 4th and 5th amendments because
they're so politically dicey. Like, okay, the cops shouldn't have searched
that parked car without a warrant, but now you're the judge who has to exclude
the gloves spattered with the victim's blood they found in the trunk.

~~~
mikecb
And then you get violations without the exclusionary remedy, which seems weird
to everyone.

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paulsutter
Great flowchart.

How about: "My lawyer would be happy to answer all your questions".

Is that enough? Or does one need to explicitly add "I am invoking my rights
under the fifth amendment"? Or explicitly state that "I want a lawyer" (which,
doesn't make sense for a person who already has too many lawyers).

I'm looking for one polite, simple, clear statement to use.

~~~
masklinn
Bottom section:

> YOUR magic words: "I'm not answering any question and I want a lawyer"

then shut the fuck up.

Although I think you have to provide your identity to officers? Not sure.

~~~
paulsutter
Yes, but I already have a lawyer, and I want to be polite. Police have plenty
of ways to hassle you if they think you're a dick. And they'll reach that
conclusion quickly and arbitrarily.

I heard a story about Larry Ellison pulled over by the police in the parking
lot of Oracle. Apparently he said "Call my lawyer", handed them his lawyer's
card, and walked into the building.

~~~
pdkl95
This is not the time for improvisation. While your version _may_ be fine,
lawyers say to use these phrases and they have many good reasons why they
choose the words they use. At best, your variation will be _equivalent_ to the
recommended wordings, and you add the risk that your wording may not cover
everything or a misuse of legal terms.

There is another reason to use the recommended phrase, too: it's a standard.
More people will immediately understand your intent (regardless of how they
respond).

> I want to be polite

While general politeness is always a good idea, the police are _not_ on your
side and you _absolutely_ should not go out of your way to appease them. If
they want to hassle you, they are going to do it anyway. In practice, they
probably _already_ made their quick-and-arbitrary conclusion _before_ they
started talking to you.

Don't take my word for it - this is the advice any decent lawyer will give
you. I highly recommend watching this[1] lawyer explain the public<->police
interaction, corroborated by a police officer who explains how they try to
scam you into talking.

[1]
[https://www.youtube.com/watch?v=6wXkI4t7nuc](https://www.youtube.com/watch?v=6wXkI4t7nuc)

edit: fixed minor editing error

~~~
talmand
I agree, that is an excellent video. I think it should be required to watch
once a person reaches legal adulthood.

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ill0gicity
That is one of the most impressive and informative flowcharts I've seen in a
long time. The 5th Amendment is a tricky thing and this cleared it up quite a
bit. That said, there will always be fringe cases and people should be using
their brain and not just blindly following a flowchart.

~~~
rcthompson
I don't know if this flowchart is intended as a practical guide so much as it
is a statement on how difficult and complicated it is to actually invoke the
5th amendment.

~~~
tptacek
It's not complicated in the common case. Look at the flowchart again. "If an
agent of the government is questioning you, then, to each question, state that
you are invoking your Fifth Amendment right and then do not answer the
question".

~~~
nickpsecurity
Exactly. The flowchart is mainly about potential for deviations and corner
case crap (Miranda). I mentally reduce it to this:

If question, then assert Fifth Amendment and Lawyer.

If search request, assert Fourth Amendment and Laywer where request isn't an
allowed exception.

Either way, repeatedly ask if you're free to go. And be respectful in attitude
for best results. Eventually, they let you go, ticket you, hold you, or charge
you.

------
venomsnake
Obligatory - never talk to the police

[https://www.youtube.com/watch?v=6wXkI4t7nuc](https://www.youtube.com/watch?v=6wXkI4t7nuc)

~~~
savingthrow
From the comments:

> the long-short of this: Say nothing, ever, except “I am (ironically)
> exercising my right to remain silent, and I want a lawyer”, unless your
> lawyer says you have to talk? (because we know cops can lie, so we can’t
> trust them to tell us how our rights are going to apply)

> > That’s what you say if you’re in custodial interrogation, sure. But if
> it’s not law enforcement asking you the questions (or providing the forms to
> fill out, or whatever), you have to assert that you’re taking the privilege
> every time they ask a question. And there are some situations where the 5th
> Amendment will NOT apply, and you will have to answer or face penalties.

~~~
a3n
> because we know cops can lie

I believe the following is what you meant, but to be clear, cops are _allowed_
to lie. Or so I've read, and it's probably safest to assume they're both
allowed and will.

~~~
talmand
Oh, they do. There's a number of cases where a confession was obtained on
video because the cops flat out lied to the suspect.

------
36erhefg
What I don't get why would you have to explicitly invoke your right to remain
silent, if the law says that you have the then.

~~~
rayiner
You don't have the right to remain silent. You have the right not to be
compelled to provide incriminating testimony. The cops have the right to ask
you questions otherwise.

~~~
talmand
Um, the first line in the Miranda warning literally says you have the right to
remain silent. That is for police questioning, which they can choose to do
whether you answer or not. The fifth really won't come into play until
sometime around being charged and questioned by a judge and/or prosecutor.

~~~
rayiner
The Miranda warning is layman's explanation of the right. It does not define
the right itself. For example, if the police rush to the scene and A claims
that B hit her, they can ask you "did you see B hit A?" and you don't have a
right to stay silent.

~~~
talmand
The "right to remain silent" that is in the Miranda warning, laymen
explanation or not, is in effect when you are under arrest and face police
questioning. That is the situation that I'm referring to and your example is a
completely different context.

Although I would be curious as to the legalities as to a police officer having
the ability to force an answer to a situation you are not directly involved
with. A classic example is compelling testimony when you are a witness and
your life has been threatened if you do give testimony. In those cases I know
you have no right to be silent, you can be punished for doing so. But that's
in a court of law and a cop asking you a question over the matter at the scene
is an interesting variable. I suppose the cop could arrest you for obstruction
of justice, but then the Miranda warning would then be in effect.

------
aklemm
Wonderful site. Does anyone know of other resources for the lay person to get
a better grasp of the law, without becoming a laywer? Earlier in my adulthood,
I would have appreciated a book explaining in very general terms what exactly
lawyers do and some illustrative examples.

~~~
vinceguidry
You should read history rather than law books. Specifically, the history of
English common law. Our entire legal system is built on it.

------
skrowl
Is there a 2nd amendment flowchart? I feel like we'll be needing one soon.

~~~
ceejayoz
[ Do you think the words "well regulated" mean "no regulation is permitted"? ]
---YES---> [ Go back to school. ]

The Second Amendment isn't going anywhere. A class of first graders got
massacred and the country's overall reaction was "whoops!" If that doesn't
move the gun control needle, not much will.

~~~
briHass
Speaking of school...SCOTUS already made it perfectly clear that the only
important aspect of the 2nd Amendment's wording is the second part. In their
language from DC v Heller:

"The Amendment’s prefatory clause announces a purpose, but does not limit or
expand the scope of the second part, the operative clause. The operative
clause’s text and history demonstrate that it connotes an individual right to
keep and bear arms."

They already admit that the right isn't unlimited:

" Like most rights, the Second Amendment right is not unlimited. It is not a
right to keep and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose: For example, concealed weapons prohibitions have been upheld
under the Amendment or state analogues. The Court’s opinion should not be
taken to cast doubt on longstanding prohibitions on the possession of firearms
by felons and the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of arms. Miller’s holding
that the sorts of weapons protected are those “in common use at the time”
finds support in the historical tradition of prohibiting the carrying of
dangerous and unusual weapons."

~~~
ceejayoz
> They already admit that the right isn't unlimited.

This is key. The NRA screams that any attempt to regulate any aspect of guns
is unconstitutional, but that's clearly not the case.

Said screaming has, unfortunately, been very politically effective.

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gooseus
Very nice, I actually just met this guy (Nathaniel Burney) yesterday at NY
ComicCon, got a signed copy of his first book for $10:

[http://www.amazon.com/Illustrated-Guide-Criminal-
Law/dp/1598...](http://www.amazon.com/Illustrated-Guide-Criminal-
Law/dp/1598391836/ref=sr_1_1?s=books&ie=UTF8&qid=1444400865&sr=1-1)

I can't remember the booth #, but he was toward the back around Aisle 1200 for
anyone who is going today or this weekend.

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HeXetic
People are commenting that this is a great flowchart, and I'd agree that it
has some great information, but... what kind of awful flow chart has multiple
outputs with the SAME value from them?

I mean, really, do

    
    
      No Fifth Amendment protection against ANYONE ELSE using your words against you
    

and

    
    
      If you say it to a friend, your boss, a cab driver, or on social media, your words are FAIR GAME
    

really need two separate boxes?

~~~
GavinMcG
I think so. Those are separate distinctions that people fail to make in other
situations – e.g. the common online claim to having a First Amendment right to
say whatever you want in the comments section – and dealing with them
separately is worthwhile, in my mind.

That said, the labels could have been more clear in that situation, and there
were a few missing at the end of the whole thing.

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brainburn
I guess law and programming aren't too different after all.

Just that one is about creating and the other about getting f*cked over.

~~~
mfoy_
Just to be clear, are you drawing this conclusion because they both can
involve flowcharts?

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ju-st
Assuming that you were an evil mastermind, how could you hide the fact better
that human rights are violated, but still be able to argue the converse?

