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.
And then you get violations without the exclusionary remedy, which seems weird to everyone.
Re:Fifth Amendment Flowchart
by kybernetikos on Thursday October 08, 2015 @01:26PM
(#10354297)
The flow chart makes it clear that there are quite a few different scenarios in which your silence can be used against you in court in the USA too.
Yes, in cases where you don't claim your 5th Amendment privilege. In other western countries, no such privilege exists at all.
Re:Fifth Amendment Flowchart
by kybernetikos on Friday October 09, 2015 @01:07PM
(#10361586)
That's not the view of the European Court of Human Rights which apparently said "the right to remain silent under police questioning and the privilege against self-incrimination are generally recognized international standards which lie at the heart of the notion of a fair procedure". https://en.wikipedia.org/wiki/Right_to_silence
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.