Right to Remain Silent

Bill of rights, constitution, 5th amendment, fifth amendment, racine, kenosha, westosha, milwaukee, wisconsinThe Right To Reman Silent

The 5th Amendment was ratified by Congress in 1791. It is part of the Bill of Rights, the first ten amendments to the United States Constitution. The 5th Amendment provides several protections, but one of the most commonly invoked protections is the right to remain silent. This right originally only applied to proceedings in federal court but not state court. This is a crucial distinction, as most criminal defendants are tried in state courts. This changed after the Civil War as part of a trend in which the Bill of Rights was systematically applied to all of the states by the United States Supreme Court. In 1961, the Supreme Court decided in Miranda v. Arizona that the right to remain silent applied not just in the courtroom, but also to any situation where individual freedom of action is curtailed, such as police interrogation.

Defendants Usually Do Not Testify

The 5th Amendment right to remain silent has thus grown dramatically from its humble beginnings in 1791. Indeed, popular depictions of the 5th Amendment Right are numerous. They might involve a defendant in a criminal case refusing to take the stand at trial, or a suspect in police custody refusing to answer questions without the presence of a lawyer. Although often dramatized, these situations are very common. In criminal cases, defendants usually do not testify. This is sometimes because the defendant would need to tell the truth on the stand about what happened and thus give evidence against himself. In other situations, a defendant may avoid the stand so their testimony cannot be misconstrued to say something different than what they meant. Before a criminal trial, the defendant’s attorney will help him to understand the benefits and the risks of taking the stand.

You Can Decline To Talk To The Police

But does the right to remain silent apply to someone who is not on trial? What if the police ask you questions about someone else who is suspected of having committed a crime? Often, people believe that they have to answer questions asked by the police. However, this is not the case. It is acceptable for you to decline to answer any questions asked by the police, even if you have been subpoenaed as a witness in a criminal case. Furthermore, refusing to answer questions may be a wise decision, especially if your answers could be interpreted more than one way. If you are in doubt about whether you should answer questions asked by the police, you should politely decline and then consult with an attorney. This is a better alternative to making an incriminating admission. If you do answer questions, always be truthful.

Corporations And Business Entities Do Not Have The Right To Remain silent

When does the Fifth Amendment not apply? The Fifth cannot be pled by corporations or business entities. It is available only to an individual person. Also, the Fifth cannot preclude a third party, such as your employer, from producing documents to incriminate you.

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If you are in doubt as to whether to exercise your right to remain silent, you should seek legal advice as soon as possible.

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Will of the People vs Will of the Law

The Effect of Public Opinion in Judicial Interpretation of the Law

The dilemma continues: how is public opinion influencing decisions of judges at both state and federal levels? In recent years, judges are finding it harder and harder to rule against the crushing weight of public pressure, even if the majority’s opinions aren’t in accordance with state and federal law. The impact is significant.

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Increased Political Polarization

As a result of the past half century, increasing polarization between political alignment and religious beliefs has left a volatile situation in which people become extremely emotionally charged. These are significant influences that can affect the presiding judicial interpretation and ability to sentence against what public opinion drifts toward. Judges are faced with the dilemma of following the law and doing what they see fit or buckling under the growing pressure out of fear of being ultimately recalled by those who elected them.

Iowa Judges Recalled

The undeniable influence of a loud majority group was demonstrated on a smaller scale in the fate of three Iowa judges in a 2009 ruling to legalize same-sex marriage within the state. All three judges involved were recalled in 2010 by an extremely aggressive conservative movement that vehemently disagreed with judges’ constitutional interpretation of same-sex marriage. Despite being recalled, Judge Streit remains firm in his resolute that judges should remain politically and religiously absent. However, Iowa District Court Judge Jeffrey Neary states that the days of simply ruling against the demands of the public with little explanation are gone. Judges often write extensive opinion papers on their rulings to hopefully avoid too much public scrutiny and escape being recalled for an unpopular decision.

Today US Courts Favor Public Majority

In the past, the United States saw many rulings against public agenda particularly in cases surrounding the rights and privileges of minority groups. Another interesting aspect of these unpopular rulings is that to avoid greater opposition, the Supreme Court would intentionally vote without clear margins. This way the court could still appear to be leaning with the will of the majority, while still ultimately moving against it. However according to the Penn Undergraduate Law Journal, the US today is still seeing a general trend from federal courts ruling in favor of the public majority.

Is public influence helping or hurting?

On the side of ruling in favor of the public majority, it could mean for US citizens that their values and wants are being consistently upheld, which is especially a positive if they feel that other areas of government aren’t representing them. However, the negative side presents its challenges. Supreme Court judges are meant to be ruling on behalf of the law and the Constitution and not on the behalf of public agenda, religion, and politics. The results of deviating from this process could shepherd inequitable sentencing due to anything being justified as constitutional or unconstitutional.

Public Opinion And Religious Stances

It seems that public opinion on politics and religious stances will continue to play a major role in the US’s judiciary decisions on both a state and federal level. Still, the question remains: should state and federal judges be representing the will of the people or the will of the law?

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Notes from Judge Robert J. Kennedy