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Re:Fifth Amendment Flowchart by tptacek on Thursday October 08, 2015 @07:57AM (#10352085)
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.

Re:Fifth Amendment Flowchart by rayiner on Thursday October 08, 2015 @08:07AM (#10352131)
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.

Re:Fifth Amendment Flowchart by mikecb on Thursday October 08, 2015 @08:39AM (#10352298)
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.
Re:Fifth Amendment Flowchart by tptacek on Thursday October 08, 2015 @01:51PM (#10354539)
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