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(The New York Times)   New Miranda warning: "You're not under arrest and you're free to go at any time, therefore your refusal to speak with us now can be used at trial as evidence that you're guilty"   (nytimes.com) divider line 140
    More: Asinine, false confessions, self-incriminations, Fifth Amendment, oral arguments, guilty, Texas Court of Criminal Appeals  
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16506 clicks; posted to Main » on 21 Apr 2013 at 3:49 PM (52 weeks ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2013-04-21 01:36:06 PM
Wow, that's egregious. The solution of course is to never answer a single question, so you are consistently.
 
ZAZ [TotalFark]
2013-04-21 02:22:29 PM

Hardly a new principle. The Massachusetts model jury instruction on the general subject dates back at least to the 1980s:

ADMISSION BY SILENCE

You have heard testimony suggesting that [speaker] allegedly (told the defendant) (said in the defendant's presence and hearing) that __________ . You have also heard testimony that the defendant allegedly (offered no response or explanation) (replied by saying that __________ ).

The Commonwealth is suggesting that the defendant's (silence) (reply was evasive or ambiguous and therefore it) amounts to a silent admission by the defendant that the accusation was true. If you believe the testimony, you will have to decide whether or not that is a fair conclusion.

Sometimes, when a direct accusation against a person is made to his face, you might naturally expect him to deny or correct the accusation if he is innocent of it. But that is not always true. Under some circumstances, it might not be reasonable to expect a routine denial.

You must be cautious in this area to be sure that any conclusions you draw are fair ones. First of all, you must be certain that the defendant heard any accusation and understood its significance.

You must also be satisfied that it is a fair conclusion that a person would always speak up in a situation like this if he were innocent. After all, no one is required to respond to every negative comment that is made about him. And there may be other factors in a given situation, apart from guilt or innocence with respect to the particular accusation, that might explain why a person did not choose to respond.

On the other hand, some accusations may be of such a nature, or come from such a source, that it may be natural to expect an innocent person to protest when such an accusation is made to his face if there are no other explanations for his silence.

If you accept the testimony about the defendant's alleged (silence) (reply), then you will have to look to your common sense and experience to determine how to interpret the defendant's (silence) (answer) in this particular case.

If you conclude that the defendant did silently admit that the accusation was true, you may give that whatever significance you feel it is fairly entitled to receive in your deliberations. If you are uncertain whether the defendant's alleged (silence) (reply) amounted to a silent admission, then you should disregard it entirely and go on to consider the other evidence in this case.
 
2013-04-21 02:56:39 PM
And yet, I don't hear much from the white knights of the 2nd Amendment crying foul over the erosion of the 5th and 4th...
 
2013-04-21 03:54:13 PM
I don't even have a GED in law, but shouldn't your fifth amendment rights be in effect 24/7, with the Miranda Warning only serving as a legally required reminder?
 
2013-04-21 03:55:04 PM
Once again, don't tell the cops ANYTHING even if you're innocent.  Nothing in those miranda rights states that what you say can be used for you in court.
 
2013-04-21 03:56:20 PM

Arumat: I don't even have a GED in law, but shouldn't your fifth amendment rights be in effect 24/7, with the Miranda Warning only serving as a legally required reminder?


I'm not even sure it's a legal requirement, akin to the myth that police must state they are indeed police if asked.
 
2013-04-21 03:57:16 PM
I've been advised by an attorney DON'T TALK TO POLICE
 
2013-04-21 03:59:53 PM
Can someone post the "Never talk to the police" video from YouTube?

/Also this is similar to the caution in the UK where saying something later that you did not say when first questioned could be suggested to be suspicious by the prosecution.
 
2013-04-21 03:59:58 PM

doyner: And yet, I don't hear much from the white knights of the 2nd Amendment crying foul over the erosion of the 5th and 4th...


Yet I don't hear much from gay marriage advocates either.  Ya, people only care about what effects them.  It has to hit critical mass *then* it's important.
 
2013-04-21 04:00:18 PM
24.media.tumblr.com
 
2013-04-21 04:00:29 PM
lets not forget this part of the story....

 "A ballistics analysis later matched the shotgun with the casings left at the murder scene. Subsequent investigation led police to a witness who stated that the appellant had admitted murdering the victims."

while the concept needs to be debated, the guilt of the scumbag in questionshould not be
 
2013-04-21 04:01:16 PM

Arumat: I don't even have a GED in law, but shouldn't your fifth amendment rights be in effect 24/7, with the Miranda Warning only serving as a legally required reminder?


That's the thing about this... since 9/11, the 5th itself is being undermined and rewritten.
 
2013-04-21 04:01:46 PM

wildcardjack: I've been advised by an attorney DON'T TALK TO POLICE


Beat me to it.
 
2013-04-21 04:01:53 PM
blogs.smithsonianmag.com
"LOOK OUT! This shiat's BANANAS!"
 
2013-04-21 04:02:18 PM

wildcardjack: I've been advised by an attorney DON'T TALK TO POLICE


Yeah!  I should have just posted that link.
Also, the same applies to CPS.  Can't lose your kids if they don't have a warrant/police escort and you let them in anyway like a dumbass.
I'd say they're nastier than the 5-Os based on the stories and research I've done.
 
2013-04-21 04:02:38 PM
A lot of states already do something similar to this when it comes to DWI refusal...they'll use your refusal to blow into the magic box with the secret source code as evidence at trial that you must be guilty. Doesn't surprise me that they'll try and extend that to other things.
 
2013-04-21 04:03:08 PM

Frosty_Icehole: Arumat: I don't even have a GED in law, but shouldn't your fifth amendment rights be in effect 24/7, with the Miranda Warning only serving as a legally required reminder?

I'm not even sure it's a legal requirement, akin to the myth that police must state they are indeed police if asked.


It's a legal requirement that police have to inform you of your rights upon arrest. Has been since the Supreme Court said it was in... drumroll please... Miranda v. Arizona.


Arumat: I don't even have a GED in law, but shouldn't your fifth amendment rights be in effect 24/7, with the Miranda Warning only serving as a legally required reminder?


That would be the 'not clinically insane and trying to strip people of their constitutional rights because we don't like them very much' interpretation, yes.
 
2013-04-21 04:03:31 PM

divx88: doyner: And yet, I don't hear much from the white knights of the 2nd Amendment crying foul over the erosion of the 5th and 4th...

Yet I don't hear much from gay marriage advocates either.  Ya, people only care about what effects them.  It has to hit critical mass *then* it's important.


I'm not sure how many same-sex proponents say that the right to same-sex marriages protects all other constitutional rights, though.
 
2013-04-21 04:04:27 PM
Don't answer any questions and or make any statements. Request an attorney. Until attorney arrives "I have been instructed not to answer any questions or make a statement without my attorney present". If pressed "Please direct that question to my attorney".
 
2013-04-21 04:05:03 PM

cptjeff: Frosty_Icehole: Arumat: I don't even have a GED in law, but shouldn't your fifth amendment rights be in effect 24/7, with the Miranda Warning only serving as a legally required reminder?

I'm not even sure it's a legal requirement, akin to the myth that police must state they are indeed police if asked.

It's a legal requirement that police have to inform you of your rights upon arrest. Has been since the Supreme Court said it was in... drumroll please... Miranda v. Arizona.


Arumat: I don't even have a GED in law, but shouldn't your fifth amendment rights be in effect 24/7, with the Miranda Warning only serving as a legally required reminder?

That would be the 'not clinically insane and trying to strip people of their constitutional rights because we don't like them very much' interpretation, yes.


That's only if you're going to be subject to questioning though, right?  Although I'd say that most arrests do typically lead to that anyway.
 
2013-04-21 04:06:52 PM
i499.photobucket.com
 
2013-04-21 04:08:29 PM

Frosty_Icehole: Arumat: I don't even have a GED in law, but shouldn't your fifth amendment rights be in effect 24/7, with the Miranda Warning only serving as a legally required reminder?

I'm not even sure it's a legal requirement, akin to the myth that police must state they are indeed police if asked.


as long as I still get my one free phone call.

and now I have to hit people over the head... YOU DO NOT HAVE THE 'RIGHT' TO ONE FREE PHONE CALL!!!

that is a Hollywood fabrication. if you are arrested and the police allow you a phone call, that is a COURTESY that they are extending to you, not a 'right' of yours.
 
2013-04-21 04:09:14 PM

DerpHerder: Don't answer any questions and or make any statements. Request an attorney. Until attorney arrives "I have been instructed not to answer any questions or make a statement without my attorney present". If pressed "Please direct that question to my attorney".


This
 
2013-04-21 04:09:23 PM

buzzcut73: A lot of states already do something similar to this when it comes to DWI refusal...they'll use your refusal to blow into the magic box with the secret source code as evidence at trial that you must be guilty. Doesn't surprise me that they'll try and extend that to other things.


In Michigan, refusal to blow into the magic box is all they need for a warrant for your blood. It's the automatic next step here.
 
2013-04-21 04:09:58 PM
Apparently subby doesn't understand that you don't need to be Mirandarized to be placed under Arrest or subpoenaed to face charges.

Miranda only protects against self criminalization, much like pleading the 5th.  If they're not going to use his own testimony against him, they never need to Miranda him.

Seeing as they have video of him dropping the bomb and it exploding, I doubt they much care what he has to say besides for intelligence.
 
2013-04-21 04:12:28 PM

fortheloveofgod: buzzcut73: A lot of states already do something similar to this when it comes to DWI refusal...they'll use your refusal to blow into the magic box with the secret source code as evidence at trial that you must be guilty. Doesn't surprise me that they'll try and extend that to other things.

In Michigan, refusal to blow into the magic box is all they need for a warrant for your blood. It's the automatic next step here.


I think it's like that in most states.
 
2013-04-21 04:13:54 PM

cman: [i499.photobucket.com image 500x333]


I suppose you'll tell us how Obama can currently influence the Supreme Court's decision on Salinas v. Texas.
 
2013-04-21 04:14:13 PM

cptjeff: It's a legal requirement that police have to inform you of your rights upon arrest. Has been since the Supreme Court said it was in... drumroll please... Miranda v. Arizona.


Better get a refund on that Law Degree, then.

SCOTUS has been going along with eliminating the Miranda protections for a while:
* Howes v. Fields (2012), 10-680
* Berghuis v. Thompkins (2010), 08-1470
* Maryland v. Shatzer (2010), 08-680
etc.
 
2013-04-21 04:14:25 PM
cptjeff:

It's a legal requirement that police have to inform you of your rights upon arrest. Has been since the Supreme Court said it was in... drumroll please... Miranda v. Arizona.

No it's not.  It's a legal requirement that they need to inform you first of your rights if they expect to use anything you say in trial against you.  Don't need you testimony? don't need to read you your rights.
 
2013-04-21 04:14:52 PM

doyner: And yet, I don't hear much from the white knights of the 2nd Amendment crying foul over the erosion of the 5th and 4th...


It's no surprise that the neofascist liberals at the New York times are advocating for stripping the 5th Amendment. They also strongly oppose the 2nd Amendment and believe the 1st Amendment should only apply to some (them) and not others (the NRA.) And after Obama was elected, they curbed their 4th Amendment outrage editorials. Not much on warrantless wiretapping from them these days - can't be too critical of Dear Leader. The New York Times editors want a world where individual citizens have absolutely no basic rights and all power is concentrated with the geniuses in government, in other words, a fascist state. Some of us have a problem with that.

Happy now?
 
2013-04-21 04:15:57 PM

cptjeff: Frosty_Icehole: Arumat: I don't even have a GED in law, but shouldn't your fifth amendment rights be in effect 24/7, with the Miranda Warning only serving as a legally required reminder?

I'm not even sure it's a legal requirement, akin to the myth that police must state they are indeed police if asked.

It's a legal requirement that police have to inform you of your rights upon arrest. Has been since the Supreme Court said it was in... drumroll please... Miranda v. Arizona.


Arumat: I don't even have a GED in law, but shouldn't your fifth amendment rights be in effect 24/7, with the Miranda Warning only serving as a legally required reminder?

That would be the 'not clinically insane and trying to strip people of their constitutional rights because we don't like them very much' interpretation, yes.


Wrong, it's a legal requirement that police advise you of your Miranda Rights upon two conditions 1) in custody and 2) interrogation.  You may be arrested, without interrogation, and the police need not read you your rights.  Period.  Once again, the media and television have made people think that if the officer doesn't immediately read you your rights, or he's not dramatically stating them as you'r ebeing handcuffed, that you' can't be tried or convicted.

In this case, the person was free to leave.  He was not detained, he was under no obligation to ansewr questions, and went willingly to the police station.  He answered every question up to that point, yet when they got to one where he knew his goose would be cooked, he remained silent.  There is literally no reason why a Prosecuting attorney whouldn't be allowed to bring that up in trial.  Especially when there is a landslide of evidence burying the defendant.

Now, if it were a situation where no questions were answered at all and he said "i want an attorney" there are already rulings detailing that you can't use a person's refusal to testify against him.  in fact, that's in a very specific jury instruction in every single jury trial I've ever seen.

This is a non-issue.  Even if the court throws out that part of the record, there's STILL overwhelming evidence of his guilt.
 
2013-04-21 04:16:06 PM

divx88: doyner: And yet, I don't hear much from the white knights of the 2nd Amendment crying foul over the erosion of the 5th and 4th...

Yet I don't hear much from gay marriage advocates either.  Ya, people only care about what effects them.  It has to hit critical mass *then* it's important.


Uh, there's a major overlap between gay rights activists and tokers. I just would like to point that out. :)
 
2013-04-21 04:16:06 PM

Arumat: I don't even have a GED in law, but shouldn't your fifth amendment rights be in effect 24/7, with the Miranda Warning only serving as a legally required reminder?


It is in effect 24 7. However statements you make (or don't make) are treated differently if you are in a non-custodial situation. This guy answered a bunch of questions, clammed up for one question by biting his lip a d looking down, and then answered a bunch more questions. That is much different than the prosecutor inferring you did it because you refused to take the stand at your trial.
 
2013-04-21 04:16:18 PM

fortheloveofgod: buzzcut73: A lot of states already do something similar to this when it comes to DWI refusal...they'll use your refusal to blow into the magic box with the secret source code as evidence at trial that you must be guilty. Doesn't surprise me that they'll try and extend that to other things.

In Michigan, refusal to blow into the magic box is all they need for a warrant for your blood. It's the automatic next step here.


I don't have much of a problem with them getting a warrant for a blood draw, as long as it isn't one of those no-refusal checkpoint rubber stamp things issued by a judge that's been hanging out and drinking coffee with the requesting officers all evening. I do take issue with them using a refusal as evidence at trial, or in the case of New Mexico, charging you with a greater crime (aggravated DWI) for simply refusing a breath test.
 
2013-04-21 04:17:22 PM
Not to mention the right-wing war cheerleaders who want to declare the surviving bomber an enemy combatant so they can torture him because that will make him really sorry.
 
2013-04-21 04:18:02 PM
Hey, since you guys appear to be concerned about this whole 5th Amendment thingy, is it cool if I plea the 5th on my tax returns next year?

<crickets>

Hey, where'd you all go? I thought you had my back?

/pro 5th-amenment
 
2013-04-21 04:19:16 PM

doyner: And yet, I don't hear much from the white knights of the 2nd Amendment crying foul over the erosion of the 5th and 4th...


Here you go:  I believe in maintaining a responsible protection of the right to keep and bear arms, and I also despise the steady erosion of the protections afforded by the 4th and 5th over the last 30-some years.
 
2013-04-21 04:19:46 PM

WhoopAssWayne: doyner: And yet, I don't hear much from the white knights of the 2nd Amendment crying foul over the erosion of the 5th and 4th...

It's no surprise that the neofascist liberals at the New York times are advocating for stripping the 5th Amendment. They also strongly oppose the 2nd Amendment and believe the 1st Amendment should only apply to some (them) and not others (the NRA.) And after Obama was elected, they curbed their 4th Amendment outrage editorials. Not much on warrantless wiretapping from them these days - can't be too critical of Dear Leader. The New York Times editors want a world where individual citizens have absolutely no basic rights and all power is concentrated with the geniuses in government, in other words, a fascist state. Some of us have a problem with that.

Happy now?


You are completely out of touch with reality.
 
2013-04-21 04:21:19 PM

calbert: if you are arrested and the police allow you a phone call, that is a COURTESY that they are extending to you, not a 'right' of yours.


Really? Then how am I supposed to call my lawyer?
 
2013-04-21 04:21:45 PM

HairBolus: Not to mention the right-wing war cheerleaders who want to declare the surviving bomber an enemy combatant so they can torture him because that will make him really sorry.


Yeah, thats farked up.

Lindsey Graham is a boot licking fascist.  This kid is a citizen, he will be tried by our justice system.  Besides, making exceptions only elevates these worthless POS.  They're no different than gang bangers and mass murderers.  Treat them the same, and don't give them recruiting material.
 
2013-04-21 04:22:56 PM

ZAZ: Hardly a new principle. The Massachusetts model jury instruction on the general subject dates back at least to the 1980s:ADMISSION BY SILENCE

You have heard testimony suggesting that [speaker] allegedly (told the defendant) (said in the defendant's presence and hearing) that __________ . You have also heard testimony that the defendant allegedly (offered no response or explanation) (replied by saying that __________ ).

The Commonwealth is suggesting that the defendant's (silence) (reply was evasive or ambiguous and therefore it) amounts to a silent admission by the defendant that the accusation was true. If you believe the testimony, you will have to decide whether or not that is a fair conclusion.

Sometimes, when a direct accusation against a person is made to his face, you might naturally expect him to deny or correct the accusation if he is innocent of it. But that is not always true. Under some circumstances, it might not be reasonable to expect a routine denial.

You must be cautious in this area to be sure that any conclusions you draw are fair ones. First of all, you must be certain that the defendant heard any accusation and understood its significance.

You must also be satisfied that it is a fair conclusion that a person would always speak up in a situation like this if he were innocent. After all, no one is required to respond to every negative comment that is made about him. And there may be other factors in a given situation, apart from guilt or innocence with respect to the particular accusation, that might explain why a person did not choose to respond.

On the other hand, some accusations may be of such a nature, or come from such a source, that it may be natural to expect an innocent person to protest when such an accusation is made to his face if there are no other explanations for his silence.

If you accept the testimony about the defendant's alleged (silence) (reply), then you will have to look to you ...


Generally speaking, it's not a bad inference. People normally deny things they're falsely accused of, especially if they're serious. Maybe I don't give a sh*t if my office neighbor falsely accuses me of farting. But if someone asks if I own a gun used in a murder, and I don't, you're damn right I say no.

But it's different when police do it, because it gives them a mechanism to evade the Miranda warning just by holding non-custodial interrogations.  A decision that this is acceptable will effectively nullify the Miranda right for many many defendants. Of course, the conservative members of the court probably want to get rid of the MIrdana right anyway. This case gives them a path to seriously undermine it without having to overturn any precedent.
 
2013-04-21 04:23:09 PM

doyner: And yet, I don't hear much from the white knights of the 2nd Amendment crying foul over the erosion of the 5th and 4th...


I'm pro-second amendment, and a few days ago, here on Fark, I made the comment of on if we got rid of the Second Amendment, what protects the rest of the Bill of Rights from getting the very same treatment?  Because it seems logical to me that if you can get rid of one, you can get rid of them all, something that I am very opposed to.  Someone responded to my comment by saying that there is no legal distinction between the first ten amendments and the rest of the Constitution, and this Farker continued to tell me that the Constitution needs to have the ability to grow and if needed, to restrict our rights lined out in the Bill of Rights.

Don't blame the pro-Second Amendment people for only focusing on one aspect of the Constitution and thinking that they want to get rid of the rest or even care if the rest goes away.  That's not 100% true.  I don't own a gun, I have considered it, but there is a good chance that I never will.  The reason why I support the Second Amendment is because if it goes away, if it gets repealed, then what makes the rest of the Bill of Rights so important that it can't be repealed?  Every right we have in the Bill of Rights needs to be protected and viewed in the light that gives the PEOPLE the most freedom, not in the view that gives the GOVERNMENT the most control.  Get rid of our rights to own guns, see how fast we lose our right to follow the religion that we choose to believe in.  See how fast we go to prison for speaking out against the party in power.  See how fast we can no longer plead the fifth.  This isn't a slippery slope argument, it's a real issue.  Once you create the precedent to do something, you open the door for similar things to happen in the future.
 
2013-04-21 04:23:34 PM
He didn't answer the question, not because he was asserting a 5th Amendment right, but because he was stumped.  Nothing wrong with allowing the prosecutor to point that out to the jury.
 
2013-04-21 04:23:44 PM

Frosty_Icehole: wildcardjack: I've been advised by an attorney DON'T TALK TO POLICE

Yeah!  I should have just posted that link.
Also, the same applies to CPS.  Can't lose your kids if they don't have a warrant/police escort and you let them in anyway like a dumbass.
I'd say they're nastier than the 5-Os based on the stories and research I've done.


Hmmm, I was going to have a sit down with the front office about the trailer trash living in the one bedroom apartment across the way but CPS might be the better route. I know they'll flub any CPS encounter BECAUSE THEY WON'T SHUT THE fark UP.
 
2013-04-21 04:25:32 PM

WhoopAssWayne: It's no surprise that the neofascist liberals at the New York times are advocating for stripping the 5th Amendment.


Dude they aren't liberals, they just don't care about sodomy and going to church.
 
2013-04-21 04:27:12 PM

cman: [i499.photobucket.com image 500x333]


Yeah, because everyone knows that Texas is a bastion of Obama supporters.
 
2013-04-21 04:30:27 PM
It's wise to not speak to the police, but don't forget that you have to actively invoke your Fifth Amendment right to remain silent.
 
2013-04-21 04:31:00 PM
Last week, the Supreme Court heard oral argument in
 
2013-04-21 04:31:21 PM
Use of silence as evidence of guilt at trial will be forbidden. It still may be allowed as probable cause for arrest or a warrant, though.  It doesn't look like SCOTUS is being asked to rule on those scenarios.

The only time I was arrested, the cops opened with,

"You know why you're being arrested, right?"

"I want a lawyer," is all I said.  They fell silent and stayed that way.

/case dismissed
 
2013-04-21 04:31:47 PM

Lawyers With Nukes: Hey, since you guys appear to be concerned about this whole 5th Amendment thingy, is it cool if I plea the 5th on my tax returns next year?

<crickets>

Hey, where'd you all go? I thought you had my back?

/pro 5th-amenment


It's been awhile, but I'm pretty sure the Court has held that you cannot be prosecuted for failing to report or pay tax on income from criminal activity, unless the state offers ways to do so in non-incriminating ways. This resulted in some states a few years back enacting things like tax on marijuana sales, and creating special offices where dealers could pay them anonymously.

I suppose you'd get like a "marijuana tax paid" stamp if you paid it. Then, if later you were caught dealing, but couldn't produce your stamps, could be prosecuted for failing to report and pay tax on your marijuana sails.

Although I disagree with that kind of a law as regards marijuana, because I'm pro-marijuana legalization, I do think it's a rather clever idea, and I'd support it for harder drugs and other contrband. There's no reason the crack economy should go untaxed. Nor the child porn economy, nor the illegal gun economy, etc.
 
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