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Thread: Fifth Amendment brain teaser...

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    Fifth Amendment brain teaser...

    The case: Hiibel v. Sixth Judicial District Court of Nevada 542 U.S. 177

    The question at hand is whether or not providing your name to the police could potentially violate your Fifth Amendment rights against self-incrimination.

    The court held that the identification requirement did not violate Hiibel's Fifth Amendment rights because he had no reasonable belief that his name would be used to incriminate him; however, the Court left open the possibility that Fifth Amendment privilege might apply in a situation where there was a reasonable belief that giving a name could be incriminating.

    So, essentially, what they are saying is that you cannot refuse to give an officer your name because that does not violate your Fifth Amendment rights. However, if there is a situation where you believe that it would potentially be self-incriminating, then you could refuse to provide it.

    Here is the weird part... would you not have to explain that reasonable belief at some point? And if you did explain that reasonable belief would that not serve to self-incriminate?

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    Regular Member Fallschirmjäger's Avatar
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    Since it's been postulated that the average citizen commits three felonies a day , I have no reasonable belief that my name could Not be used to incriminate me.

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    Quote Originally Posted by thaJack View Post
    The case: Hiibel v. Sixth Judicial District Court of Nevada 542 U.S. 177

    The question at hand is whether or not providing your name to the police could potentially violate your Fifth Amendment rights against self-incrimination.

    The court held that the identification requirement did not violate Hiibel's Fifth Amendment rights because he had no reasonable belief that his name would be used to incriminate him; however, the Court left open the possibility that Fifth Amendment privilege might apply in a situation where there was a reasonable belief that giving a name could be incriminating.

    So, essentially, what they are saying is that 1. you cannot refuse to give an officer your name because that does not violate your Fifth Amendment rights. However, if there is a situation where you believe that it would potentially be self-incriminating, then you could refuse to provide it.

    Here is the weird part... 2. would you not have to explain that reasonable belief at some point? 3. And if you did explain that reasonable belief would that not serve to self-incriminate?
    Huh!?!

    1. The court did not say that--it did not say you cannot refuse to give an officer your name. The court said: "While we recognize petitioner’s strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him." Basically, the court said that a proper stop-and-identify statute was constitutional. There is no reason you cannot refuse to identify if you are in a location that has neither statute, ordinance, nor case law against obstructing a cop by refusing identity. You just have to watch out for the cop deciding to write you a citation for some offense, for example, the one he suspected when he stopped you. Some cops take an identity refusal at the citation-writing stage to be an indication you won't show up in court. At least one state lets a cop arrest you for a misdemeanor if he has reason to believe you won't show up for court.

    2. Yes. In court.

    3. I would think so. Unless you had a really wily lawyer who could explain it without giving away the incriminating details.
    Last edited by Citizen; 04-18-2012 at 10:12 PM.
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    Sorry, the assumption, which I should have mentioned, was that there is a Stop and ID statute. They said that you are required to comply by verbally giving your name unless you have reason to believe that it may incriminate you.

    My question was related to how you show that reasonable belief without actually incriminating yourself.

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    Regular Member Fallschirmjäger's Avatar
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    Without knowing the wording of said supposed statute, it's hard to give a definitive answer.

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    Quote Originally Posted by Fallschirmjäger View Post
    Without knowing the wording of said supposed statute, it's hard to give a definitive answer.
    Here's Nevada's http://leg.state.nv.us/NRS/NRS-171.html#NRS171Sec123 where Hiibel occurred. Virginia does not have such a statute that I know.

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    NRS 171.123 Temporary detention by peace officer of person suspected of criminal behavior or of violating conditions of parole or probation: Limitations.

    1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.
    2. Any peace officer may detain any person the officer encounters under circumstances which reasonably indicate that the person has violated or is violating the conditions of the person’s parole or probation.
    3. The officer may detain the person pursuant to this section only to ascertain the person’s identity and the suspicious circumstances surrounding the person’s presence abroad. Any person so detained shall identify himself or herself, but may not be compelled to answer any other inquiry of any peace officer.
    4. A person must not be detained longer than is reasonably necessary to effect the purposes of this section, and in no event longer than 60 minutes. The detention must not extend beyond the place or the immediate vicinity of the place where the detention was first effected, unless the person is arrested.
    Absent the circumstances outlined in 1.) and 2.) I wouldn't say a thing besides, "Am I being detained because you are accusing me of breaking the law? What makes you suspicious that I have broken the law?"

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    Regular Member Beretta92FSLady's Avatar
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    Quote Originally Posted by thaJack View Post
    [snippers]

    Here is the weird part... would you not have to explain that reasonable belief at some point? And if you did explain that reasonable belief would that not serve to self-incriminate?
    You could find an attorney that may be able to work out a deal with the prosecutor that if you testify against yourself then you will be immune from prosecution.
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    Quote Originally Posted by Fallschirmjäger View Post
    Absent the circumstances outlined in 1.) and 2.) I wouldn't say a thing besides, "Am I being detained because you are accusing me of breaking the law? What makes you suspicious that I have broken the law?"
    Good point. If you do get arrested for failing to ID yourself then the cop will have to clearly articulate the cause.

    You're under arrest!
    What's the charge?
    Resisting arrest!
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    Regular Member Fallschirmjäger's Avatar
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    Recent experience suggests that asking "Am I being detained?" may get an answer but asking "What statute do you suspect me of violating?" will get a combination of stupid looks, silence, and/or evasive answers.

    You doing the same when asked questions you are not required by law to answer, will be characterized as lying, being evasive, combative, and non-cooperative.
    Last edited by Fallschirmjäger; 05-04-2012 at 04:23 PM.

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    Regular Member Logan 5's Avatar
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    Quote Originally Posted by Fallschirmjäger View Post
    You doing the same when asked questions you are not required by law to answer, will be characterized as lying, being evasive, combative, and non-cooperative.
    And in some cases unless you drop your pants, bend over, and hand them the broken mop handle, everything else will be characterized as lying, being evasive, combative, and non-cooperative.
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    Quote Originally Posted by thaJack View Post
    The case: Hiibel v. Sixth Judicial District Court of Nevada 542 U.S. 177

    The question at hand is whether or not providing your name to the police could potentially violate your Fifth Amendment rights against self-incrimination.
    The Fifth Amendment of our United States Constitution is clear with respect to the circumstances under which it applies insofar as revealing personal information to others:

    1. "a capital, or otherwise infamous crime"
    2. "on a presentment or indictment of a Grand Jury"
    3. "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger"
    4. "in any criminal case to be a witness against himself"

    Let's examine Hibel to see if any of these apply:


    "(c) Hiibel’s contention that his conviction violates the Fifth Amendment’s prohibition on self-incrimination fails because disclosure of his name and identity presented no reasonable danger of incrimination. The Fifth Amendment prohibits only compelled testimony that is incriminating, see Brown v. Walker, 161 U.S. 591, 598, and protects only against disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used, Kastigar v. United States, 406 U.S. 441, 445." - Source


    We see that number 4 applies, insofar as the revelation of one's name in and of itself is not incriminating evidence.

    Nevertheless, I believe this excerpt, as well as what follows in the paragraph to which I linked, should also be considered:


    "While the Court recognizes his strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him."


    It's clear SCOTUS is telling the State of Nevada that a statute compelling an individual to reveal their name violates the principles of privacy on which our country was founded, and may in some cases become or lead to self-incrimination, at which point SCOTUS would be happy to revisit the case.

    The court held that the identification requirement did not violate Hiibel's Fifth Amendment rights because he had no reasonable belief that his name would be used to incriminate him; however, the Court left open the possibility that Fifth Amendment privilege might apply in a situation where there was a reasonable belief that giving a name could be incriminating.

    So, essentially, what they are saying is that you cannot refuse to give an officer your name because that does not violate your Fifth Amendment rights. However, if there is a situation where you believe that it would potentially be self-incriminating, then you could refuse to provide it.
    That's what I get out of it. However, this opens a conundrum: If the only reason a person would refuse to give one's name is because of a reasonable believe that it would be potentially self-incriminating, wouldn't that also create a reasonable belief in the minds of law enforcement that a crime may have been committed?

    Therein lies the catch-22! Damned if you do, and damned if you don't, but only if you've committed a crime. If you haven't committed a crime, you're only damned if you don't provide your name.
    Last edited by since9; 05-13-2012 at 02:29 AM.
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    My criminal attorney (in Nevada) says Hiibel is no longer controlling and new case law from elsewhere in the country requires you to identify yourself if seized, even without suspicion.

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    Quote Originally Posted by Yard Sale View Post
    My criminal attorney (in Nevada) says Hiibel is no longer controlling and new case law from elsewhere in the country requires you to identify yourself if seized, even without suspicion.
    So, lets see if I understand this:

    Your attorney believes there is case law that supercedes SCOTUS decision?

    Or is it that he believes there is a SCOTUS case that supercedes Hiibel?

    What case law does he reference?

    What is controlling if Hiibel isn't? I do not recall a SCOTUS decision that reverses Hiibel.


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    Regular Member MyWifeSaidYes's Avatar
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    Quote Originally Posted by Yard Sale View Post
    My criminal attorney (in Nevada) says Hiibel is no longer controlling and new case law from elsewhere in the country requires you to identify yourself if seized, even without suspicion.
    Can your attorney cite the case? If not, get a new lawyer.
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    Amendment 4
    The right of the people to be secure in their persons, houses, papers, and
    effects, against unreasonable searches and seizures, shall not be violated, and
    no Warrants shall issue, but upon probable cause, supported by Oath or
    affirmation, and particularly describing the place to be searched, and the
    persons or things to be seized.
    Trying to seize information via a demand for ID is BS. I am, Jack Kass, nice to meet you officer A. Hole.

    Amendment 5
    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.

    Since anything you say can and may be used against you at anytime the identification of yourself can be used against you at any time for any criminal charge they come up with later. Who knows but, maybe there is another person with the name Jack Kass that there is a warrant out for and you, the innocent citizen, will be deprived of life, liberty, and property without receiving any due process simply because you identified yourself.

    At trial;
    Prosecutor: Did you not identify yourself as Jack Kass?
    You: Yes I did
    P: Are you Jack Kass?
    Y: Yes I am
    P: Please read the name listed on this warrant out loud
    Y: It says Jack Kass, but ......(interrupted)
    P: So that is your name is it not?
    Y: Yes but it's. .. (interrupted)
    P: It's a yes or no question only and you have just confirmed that is your name on that warrant, no further questions your honor.
    Y: It's not ... (judge interrupts) me...
    Judge: That is enough ORDER IN THE COURT

    You see where this is going.

    Amendment 1
    Congress shall make no law respecting an establishment of religion, or
    prohibiting the free exercise thereof; or abridging the freedom of speech, or
    of the press; or the right of the people peaceably to assemble, and to petition
    the Government for a redress of grievances.
    Is also the right to not speak.

    Amendment 9
    The enumeration in the Constitution, of certain rights, shall not be construed
    to deny or disparage others retained by the people.
    Just because a right is not listed does not mean that you don't have it. It just means that our founding father thought that if it was not listed that it was plainly obvious. Such as the right to travel. The right to not to talk to ANYONE unless being compelled by a lawful warrant/court order.
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