rights waiving

[atk]

Moderators: Sorry if this is in the wrong forum. I know you'll move it along if there's a better place


I'm interested in further discussion of the topic of rights-waiving vs. choosing to not exercize them. This conversation started in a different thread (here).

Bikeguy: Your example (choosing to pass up on a jury trial) is interesting. I think it still works within my theory. Here's why:

Choosing whether or not to exercize a right is dependant on the circumstances. Yes, you have a right to a jury trial. That right is only applicable when you are charged with a crime, at a certain time during the proceedings. This time in the proceedings is the only time during which exercizing (or not exercizing) this right is applicable.

I consider this similar to the right to self defense. We all have the right to defend ourselves. The exercizing of this right is applicable only when there is a grevious threat. If we attempt to exercize this right at a different time (such as when helping a little old lady accross the street) it is inapplicable, and makes no sense.


I'm not sure if that explaination makes sense, but it's the best I can come up with at the present.

 

[Bikeguy]

I think the central point you are trying to make is that even if you "waive" a right, you can (generally) in the future change your mind and exercise that right. And this is true. I also see your point about only being able to exercise a right when it is appropriate. However, I think we then are just getting into semantics. Continuing with the right to trial example, You say that the right never is waived, but you can only exercise it within certain limited parameters and that if you fail to do so, then you are SOL. And that is exactly what I am calling a waiver of the right to trial.

In the above situation, the individual still retains a general right to be tried for any criminal offense he is charged with. However, in regard to the charge which he pleads guilty to, he can no longer exercise that right. Therefore, for that particular charge, he has waived his right to trial.

 

[atk]

Bikeguy,

I think you hit the nail on the head: we've gotten into a debate on sematincs


Now, I am curious, what is the law's position on all this; can we be punished for exercizing rights, after choosing to waive them? (my guess would be no, but I'd like to hear from lawyer types).

Thanks!

 

[Raymond VanDerLinden]

atk you make good Guesses

There is no legal way to punish you if you waive a right and later think better of it and exercise that right.

4th Ammendment example would be. You give the LEO permission to search your car for drugs. This applies to your house. You can resind that permission at any time. Also be advised any contraband he might find while looking for X is considered plain view if X could have been hiden there. Also if the LEO has found enough to or establish propable cause, then he'll get a search warrant and impound your car.

5th Ammendment You can stop answeering questions at anytime even if you have been answering questions. You can answer only the questions that you wish to answer, what you don't say can't be held against you in Court. However what you refuse to answer ( if you are answering some questions) can be used as a key for what to investigate further. Note: If you are arrested on most if not all states that questions on a Booking form can't be used against you in court (ask the Booking Officer) but until you answer most to those questions you are not eligable for bond/bail.

Hope that helps

 

[buzz_knox]

There is no legal way to punish you if you waive a right and later think better of it and exercise that right.

Yes and no. If the effect of the waiver is still ongoing (i.e. a search) then you can reassert your rights. Anything which occurred during the waiver is, of course, perfectly useable by the gov't. If the effect of the waiver is past (i.e. you waived a jury trial and assert it just as the bench trial begins or you plead guilty and waive your right to a trial altogether) you're probably up the creek. Barring proof of deception, coercion, or incapacity, those rights are still waived and you still suffer the burden of the waiver.

 

[Bikeguy]

Raymond and Buzz pretty much covered it!