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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 137
    More: Asinine, false confessions, self-incriminations, Fifth Amendment, oral arguments, guilty, Texas Court of Criminal Appeals  
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16522 clicks; posted to Main » on 21 Apr 2013 at 3:49 PM (2 years ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



137 Comments   (+0 »)
   
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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.
 
2013-04-21 04:33:04 PM  
There is nothing you can say to the police that can help you.  Keep your mouth shut.  Yes, even if you are innocent.
 
2013-04-21 04:33:11 PM  
The proper thing to do when questioned:DO NOT LISTEN
 
2013-04-21 04:36:48 PM  

Cataholic: 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.


Alright, that makes a twisted sort of sense.  I wasn't aware there was a legal distinction between being questioned while in custody/not in custody.
 
2013-04-21 04:40:22 PM  

fredklein: 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?


You give the phone number to the cops and they'll call him for you... eventually.
 
2013-04-21 04:43:09 PM  

BarkingUnicorn: Use of silence as evidence of guilt at trial will be forbidden... It doesn't look like SCOTUS is being asked to rule on those scenarios.


Use of silence as evidence of guilt at trial is exactly what is at issue in this case. The only wrinkle here is that the interrogation was non-custodial.
 
2013-04-21 04:43:11 PM  
They want to use this guy's silence as an admission of guilt?  Over whether the shotgun shells found at the scene of a crime would 'match' his shotgun at home?

I'm not very gun savvy, but how much of a 'match' can you get with a farking shotgun?  It's not like a rifled firearm.  Can the indentation that the firing pin (the only thing that I'd think would leave an intelligible mark) really be accurate enough to tell one shotgun over another of that same model, or different models?

Then again, I guess I could say that maybe the guy could have answered with a flat "No."
 
2013-04-21 04:46:57 PM  

bugontherug: BarkingUnicorn: Use of silence as evidence of guilt at trial will be forbidden... It doesn't look like SCOTUS is being asked to rule on those scenarios.

Use of silence as evidence of guilt at trial is exactly what is at issue in this case. The only wrinkle here is that the interrogation was non-custodial.


he was silent on a particular question and appeared to be trying to deceive the police.
 
2013-04-21 04:47:34 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 can't speak for anyone else, but I'm a gun owner and a strong believer in all rights, not just those explicitly protected by the Constitution.

/member of the NRA, ACLU, and EFF.
 
2013-04-21 04:48:12 PM  
Another good reason to answer no questions at all: so the point at which you decide to stop can't be used to infer anything.
 
2013-04-21 04:48:59 PM  
The revised version:

You have the right to remain guilty.  Anything you say or do can and will be held against you in a court of law.  Anything you don't say or don't do can and will be held against you in the court of public opinion as well as a court of law.  If you ....
 
2013-04-21 04:49:27 PM  

Arumat: Cataholic: 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.

Alright, that makes a twisted sort of sense.  I wasn't aware there was a legal distinction between being questioned while in custody/not in custody.


...except it shouldn't matter. The 5th amendment right to self-incrimination should apply even when you're not accused of something.

/But then, it only applies to people who are either rich, or connected to the rich...like, say, Prenda Law.
 
2013-04-21 04:49:37 PM  

Saberus Terras: Then again, I guess I could say that maybe the guy could have answered with a flat "No."


Actually if he was going to talk to them at all, the answer would be "How the Hell would I know what you consider a match?"
 
2013-04-21 04:52:48 PM  

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


Posts like that make you look like a farking moron.
 
2013-04-21 04:55:42 PM  

bugontherug: BarkingUnicorn: Use of silence as evidence of guilt at trial will be forbidden... It doesn't look like SCOTUS is being asked to rule on those scenarios.

Use of silence as evidence of guilt at trial is exactly what is at issue in this case. The only wrinkle here is that the interrogation was non-custodial.


I have no idea why you did what I see you did there.
 
2013-04-21 04:55:44 PM  

heypete: 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 can't speak for anyone else, but I'm a gun owner and a strong believer in all rights, not just those explicitly protected by the Constitution.

/member of the NRA, ACLU, and EFF.


Count yourself as a member of a proud minority.  I'm right there with you.

My point, which (judging by the responses) is that the binning of political ideologies is at the heart of the overall erosion of our Constitutional rights. The consolidation of all positions held into two distinct and partisan bins IS the problem.  Want the NRA to support your "guy" in congress?  Congratulations, you voted for the dude that wants to restrict gay marriage and extraordinary rendition.  Want to do something about climate change?  Congratulations, gun ownership is now harder.

Effectively, your "one thing" may very well cost you those other ideals you hold dear if they don't fit into the same bundle of ideological views.
 
2013-04-21 04:56:03 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...


You must be deaf, then.
 
2013-04-21 04:56:11 PM  

bugontherug: 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.


4.bp.blogspot.com
 
2013-04-21 04:57:08 PM  

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

Posts like that make you look like a farking moron.


As if there was every any doubt?
 
2013-04-21 04:57:12 PM  

BarkingUnicorn: fredklein: 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?

You give the phone number to the cops and they'll call him for you... eventually.


A cop once explained to me that there is no right to a phone call.  Yes, they have no problem letting you have a phone call at some point, but there is no right to a phone call.  He even went further to say "I"ll hand you a copy of the Constitution and you can read every word of it and you can show me where it says you have a right to a phone call."

He did say that what normally happens is yes, they have no problems giving people their phone call, though they have delayed allowing the phone call if they feel the call may be a warning call to others who they are seeking to arrest.
 
2013-04-21 04:58:00 PM  

TOSViolation: 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...

You must be deaf, then.


So the Ted Cruzes of the world aren't looking to label the Boston Marathon suspect as an enemy combatant?
 
2013-04-21 05:01:13 PM  
but i was always told that i was supposed to wait for my lawyer because i'm obviously guilty to begin with
 
2013-04-21 05:02:21 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?


They convict people all the time on their refusal to take a breathalyzer test.

The Constitution died many many years ago and nobody noticed.
 
2013-04-21 05:04:42 PM  

Warlordtrooper: The Constitution died many many years ago and nobody noticed.


Long before presidents started saying their op priority was keeping the American people safe, and not keeping the Constitution safe.
 
2013-04-21 05:04:54 PM  

BarkingUnicorn: bugontherug: BarkingUnicorn: Use of silence as evidence of guilt at trial will be forbidden... It doesn't look like SCOTUS is being asked to rule on those scenarios.

Use of silence as evidence of guilt at trial is exactly what is at issue in this case. The only wrinkle here is that the interrogation was non-custodial.

I have no idea why you did what I see you did there.


I'm not 100% sure what you're talking about, but I think you may be commenting on the fact that I cut out your middle sentence there. You may have meant "those scenarios" to refer to "scenarios where silence is used for probable cause," and not to "silence as evidence of guilt at trial." If that's the case, there was no malice or deceit on my part. It's just that "those scenarios" could have referred to either to "those two scenarios I mentioned" or "scenarios where silence is used for probable cause to arrest."
 
2013-04-21 05:05:34 PM  
static.ddmcdn.com

"Do you confess?"
"No!"
"Guilty!"

"Do you confess?"
"Yes!"
"Guilty!"

"Do you confess?"
[Remains silent]
"Guilty!"
 
2013-04-21 05:09:17 PM  

Flint Ironstag: 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.


No..The UK caution is "You may not say anything although it may harm your defence if you do not say something you will later rely on in court."
 
2013-04-21 05:10:16 PM  

johnny_vegas: bugontherug: BarkingUnicorn: Use of silence as evidence of guilt at trial will be forbidden... It doesn't look like SCOTUS is being asked to rule on those scenarios.

Use of silence as evidence of guilt at trial is exactly what is at issue in this case. The only wrinkle here is that the interrogation was non-custodial.

he was silent on a particular question and appeared to be trying to deceive the police.


We know he was silent on a particular question from the article. Unless you mean "because he was silent, we know he was trying to deceive police," then I don't know where you get the "trying to deceive the police" part. That's not mentioned in the editorial, though it may have been mentioned elsewhere.

If you do mean "because he was silent, we know he was trying to deceive police," I vigorously dispute that. He may very well have remained silent on that question specifically because he did not want to deceive police, but did not want to make a self-incriminating statement.
 
2013-04-21 05:11:28 PM  
I just assume my Miranda rights are in effect all the time. If an officer were to recite them to me, I'd take that as his acknowledgement that he's also aware of them and understands why I haven't been and won't be answering any of his questions without an attorney present.
 
2013-04-21 05:11:29 PM  

Saberus Terras: I'm not very gun savvy, but how much of a 'match' can you get with a farking shotgun? It's not like a rifled firearm. Can the indentation that the firing pin (the only thing that I'd think would leave an intelligible mark) really be accurate enough to tell one shotgun over another of that same model, or different models?


The firing pin markings may help, as would any other markings on the shotshell itself (assuming the police found expended shells at the scene of the crime). They wouldn't be able to get much of anything from the pellets themselves, just the expended slug.

It might also be useful for the policy to just match brand/type: "Suspect had Remington reduced-recoil buckshot in his gun cabinet, which is the same brand and type as the shells found at the scene." It might not be enough to convict solely on that, but it'd certainly narrow things down a bit.
 
2013-04-21 05:14:13 PM  

Saberus Terras: They want to use this guy's silence as an admission of guilt?  Over whether the shotgun shells found at the scene of a crime would 'match' his shotgun at home?

I'm not very gun savvy, but how much of a 'match' can you get with a farking shotgun?  It's not like a rifled firearm.  Can the indentation that the firing pin (the only thing that I'd think would leave an intelligible mark) really be accurate enough to tell one shotgun over another of that same model, or different models?

Then again, I guess I could say that maybe the guy could have answered with a flat "No."


Tool marks on the brass part of the shell, assuming it was a pump or semiautomatic.
 
2013-04-21 05:15:10 PM  

IlGreven: Arumat: Cataholic: 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.

Alright, that makes a twisted sort of sense.  I wasn't aware there was a legal distinction between being questioned while in custody/not in custody.

...except it shouldn't matter. The 5th amendment right to self-incrimination should apply even when you're not accused of something.

/But then, it only applies to people who are either rich, or connected to the rich...like, say, Prenda Law.


That isn't quite how it works.  The prohibition in the Fifth states, "nor shall be compelled in any criminal case to be a witness against himself."  That's all it says.  If you aren't in custody, you aren't very well being compelled to do anything.  If you are being questioned and remain absolutely silent answering nothing, they would have a hard time using that against you.  But once you start picking and choosing which questions you wish to answer, it becomes easier to have your reactions and lack of cooperation introduced as evidence.
 
2013-04-21 05:16:02 PM  

bugontherug: johnny_vegas: bugontherug: BarkingUnicorn: Use of silence as evidence of guilt at trial will be forbidden... It doesn't look like SCOTUS is being asked to rule on those scenarios.

Use of silence as evidence of guilt at trial is exactly what is at issue in this case. The only wrinkle here is that the interrogation was non-custodial.

he was silent on a particular question and appeared to be trying to deceive the police.

We know he was silent on a particular question from the article. Unless you mean "because he was silent, we know he was trying to deceive police," then I don't know where you get the "trying to deceive the police" part. That's not mentioned in the editorial, though it may have been mentioned elsewhere.

If you do mean "because he was silent, we know he was trying to deceive police," I vigorously dispute that. He may very well have remained silent on that question specifically because he did not want to deceive police, but did not want to make a self-incriminating statement



Sorry for the confusion, i had read the pertinent parts I mentioned from the appeal decision.

http://www2.bloomberglaw.com/desktop/public/document/Salinas_v_State _3 69_SW3d_176_Tex_Crim_App_2012_Court_Opinion
 
2013-04-21 05:17:19 PM  

Arumat: Cataholic: 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.

Alright, that makes a twisted sort of sense.  I wasn't aware there was a legal distinction between being questioned while in custody/not in custody.


In the UK the police must caution you (our Miranda warning) the moment they have reason to believe you have committed an offence. They can happily talk to you as a witness but as soon as you say something that makes them have reason to suspect you they must caution you, whether you are in custody or not. The only exception are routine traffic offences like speeding.
 
2013-04-21 05:19:39 PM  
So the lesson here kids is....if you aren't under arrest, don't say anything, you have the right to leave at anytime. If you ARE under arrest, don't say shiat and get a lawyer. Pretty much, don't say anything anytime.. Despite them trying to "be your friend and help you out".
 
2013-04-21 05:19:47 PM  
If you are not under arrest and you are free to go, stfu and leave.
 
2013-04-21 05:22:51 PM  

doyner: Count yourself as a member of a proud minority. I'm right there with you.


Excellent. :)

My point, which (judging by the responses) is that the binning of political ideologies is at the heart of the overall erosion of our Constitutional rights. The consolidation of all positions held into two distinct and partisan bins IS the problem. Want the NRA to support your "guy" in congress? Congratulations, you voted for the dude that wants to restrict gay marriage and extraordinary rendition. Want to do something about climate change? Congratulations, gun ownership is now harder.

Effectively, your "one thing" may very well cost you those other ideals you hold dear if they don't fit into the same bundle of ideological views.


Yup. The binning is definitely an issue. On the gun-related message boards, forums, and blogs I occasionally participate in there's a fair bit of discussion about pro-gun-rights politics being increasing associated with right-wing politics. This is of concern for a lot of gun owners, as the gun-owning community can't just be limited to old guys, farmers, and Republicans. I know some Democrats who've held their nose and become (or continue to be) NRA members even with their raving about "liberals" because they are the 800lb gorilla in the room when it comes to defending that particular right., but I think the gun culture would do a lot better if it was more welcoming to (or at least less hostile toward) non-right-wing people who are interested in guns. Most of the gun owners I know are -- myself and a few others, most of us certified instructors, used to run informal range trips for university students who were curious about shooting, would teach them the safety rules, basic shooting techniques, etc. -- but I realize that there's quite a lot of "good ol' boys" out there.

I'm not really sure what can be done to disentangle party politics from people's rights, but I'm open for suggestions.

/that reminds me, I need to re-up my ACLU membership
 
2013-04-21 05:23:24 PM  
 
2013-04-21 05:24:35 PM  

sephjnr: Flint Ironstag: 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.

No..The UK caution is "You may not say anything although it may harm your defence if you do not say something you will later rely on in court."


Isn't that what I said? The CPS (prosecutor) can tell the court "He now says he was covered in blood because he helped a friend slaughter a pig but when the police arrested him he didn't say that. Doesn't that suggest he made that up after talking with his friend?" That's what it means by harming your defence, saying something after you have had weeks to think of something and talk with friends is not as believable as saying something at the time of arrest when the cops can go straight to your friend and talk to him, and see if he has a pig carcass lying around.
 
2013-04-21 05:28:49 PM  

Hermione_Granger: If you are not under arrest and you are free to go, stfu and leave.


And be sure to

johnny_vegas: orry for the confusion, i had read the pertinent parts I mentioned from the appeal decision.

http://www2.bloomberglaw.com/desktop/public/document/Salinas_v_State _3 69_SW3d_176_Tex_Crim_App_2012_Court_Opinion


Thank you for the link.
 
2013-04-21 05:31:51 PM  

sephjnr: Flint Ironstag: 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.

No..The UK caution is "You may not say anything although it may harm your defence if you do not say something you will later rely on in court."


Did Meow_said_the_dog write that?

How in Hell could you rely on something that never happened?
 
2013-04-21 05:34:44 PM  
If you're such a paranoid nutbag that your first and only instinct is to treat normal police procedures with suspicion and contempt, then you probably have something in your seedy past that very well explains your behaviour.

I have *NEVER* met a so-called libertarian who didn't.
 
2013-04-21 05:42:33 PM  

BarkingUnicorn: sephjnr: Flint Ironstag: 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.

No..The UK caution is "You may not say anything although it may harm your defence if you do not say something you will later rely on in court."

Did Meow_said_the_dog write that?

How in Hell could you rely on something that never happened?


The exact wording is "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence." (Although they do not have to stick precisely to that wording).
It just means that if they don't explain something at the time of arrest, when the police have the chance to collaborate it, but then come up with an explanation in court months later, after you've had the chance to come up with a story with your friends, they can put to the jury that that could be viewed as suspicious.
 
2013-04-21 05:43:39 PM  
I got nothing to do with this!!! Leave me out of it!

upload.wikimedia.org
 
2013-04-21 05:47:21 PM  

letrole: If you're such a paranoid nutbag that your first and only instinct is to treat normal police procedures with suspicion and contempt, then you probably have something in your seedy past that very well explains your behaviour.


Or maybe you have past experience with police that makes you feel that way.
 
2013-04-21 05:54:00 PM  
Nobody is convicted of a DUI crime for refusing an alcohol test, breath or blood.  Driver's licenses are suspended for refusals.  Suspension hearings are civil matters separate from criminal proceedings.  "Refusal penalties"  may be added to license reinstatement fees, along with other onerous conditions to restore the driving privilege.

The consequences are heavy but do not include a criminal  conviction or prison sentence.
 
2013-04-21 05:59:59 PM  

johnny_vegas: 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


I haven't read anything about this particular case, and you might be absolutely correct, but "a witness who stated that the appellant had admitted murdering" could be a jailhouse snitch who tells the police anything they tell him to tell them for whatever compensation they give him.
 
2013-04-21 06:00:02 PM  

MrEricSir: cman


Sock Ruh Tease: cman


Mock26: cman


Sock Ruh Tease: cman


My apologies. I made an assumption that this was about the Boston Bombers due to the headline. You are correct that I am in the wrong on this.
 
2013-04-21 06:03:35 PM  

BarkingUnicorn: Nobody is convicted of a DUI crime for refusing an alcohol test, breath or blood.  Driver's licenses are suspended for refusals.  Suspension hearings are civil matters separate from criminal proceedings.  "Refusal penalties"  may be added to license reinstatement fees, along with other onerous conditions to restore the driving privilege.

The consequences are heavy but do not include a criminal  conviction or prison sentence.


Maybe where you live, but that isn't the case in New Mexico, along with some other states that are trending in the same direction.



This article sums it up nicely.
 
2013-04-21 06:11:35 PM  

bugontherug: 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.


You absolutely can be prosecuted for not paying tax, you just don't have to tell the IRS where the money came from.  "[T]he amount of a taxpayer's income is not privileged even though the source of income may be, and Fifth Amendment rights can be exercised in compliance with the tax laws 'by simply listing his alleged ill-gotten gains in the space provided for 'miscellaneous' income on his tax form.'"
 
2013-04-21 06:16:14 PM  

buzzcut73: BarkingUnicorn: Nobody is convicted of a DUI crime for refusing an alcohol test, breath or blood.  Driver's licenses are suspended for refusals.  Suspension hearings are civil matters separate from criminal proceedings.  "Refusal penalties"  may be added to license reinstatement fees, along with other onerous conditions to restore the driving privilege.

The consequences are heavy but do not include a criminal  conviction or prison sentence.

Maybe where you live, but that isn't the case in New Mexico, along with some other states that are trending in the same direction.

This article sums it up nicely.


The article says exactly what I said.  "Charged" is not "convicted."

A driver who refuses to blow is automatically charged with aggravated DWI, the same charge that very drunk drivers face.

Under New Mexico law, drivers also sign off on taking a blood test or breath alcohol test just by getting a driver's license. Licenses are automatically revoked if drivers refuse the breath test.

"If you win, you're off scot-free, and if you lose, you're getting a much more severe sentence," said Serna.
 
2013-04-21 06:17:22 PM  

Great Janitor: A cop once explained to me that there is no right to a phone call. Yes, they have no problem letting you have a phone call at some point, but there is no right to a phone call. He even went further to say "I"ll hand you a copy of the Constitution and you can read every word of it and you can show me where it says you have a right to a phone call."


So, that cop is of the opinion that the Constitution is the ONLY law of the land, and if it's not written in there, it doesn't exist??

/WTF do they teach in police academy?
 
2013-04-21 06:22:57 PM  

fredklein: /WTF do they teach in police academy?


Steroid injection technique?
 
2013-04-21 06:27:26 PM  

Great Janitor: A cop once explained to me that there is no right to a phone call. Yes, they have no problem letting you have a phone call at some point, but there is no right to a phone call. He even went further to say "I"ll hand you a copy of the Constitution and you can read every word of it and you can show me where it says you have a right to a phone call."


http://answers.yahoo.com/question/index?qid=20090304123344AAY4ts4
"In most states, there is a Code of Regulations that stemmed from the Supreme Court case of Miranda v Arizona. While there is no federal law that requires any law enforcement agency to grant a phone call to those arrested, each state has a way of determining how to regulate procedure. California, Illinois, New York, Virginia and the District of Columbia offer the right to a phone call. Defense attorneys can usually argue that denying a person who has been arrested a phone call is equivalent to not allowing the person the right to counsel and could motion to dismiss"

http://www.legalupdateonline.com/4th/277#cont281
Right to Telephone Calls, per P.C. § 851.5: An arrested person has the right, immediately after booking and, except when physically impossible, no later than three (3) hours after arrest, to make at least three (3) completed telephone calls. The calls are to be free if completed in the local calling area, and are at the arrestee's expense if outside the local area. The calls must be allowed immediately on request, or as soon as practicable. The calls may be made to:

An attorney of the arrestee's choice, public defender, or other attorney assigned to assist indigents (which may not be monitored).
A bail bondsman.
A relative or other person.

This information, including the phone number of the public defender or other attorney assigned to assist indigent defendants, must be posted.
...
Case Law:

Plaintiff's civil rights were violated by denying her access to a telephone while she was jailed after her arrest on charges of driving while under the influence of alcohol. The state right to a post-booking telephone call (P.C. § 851.5) creates a liberty interest protected by the Fourteenth Amendment of the United States Constitution; and due process protections of prisoners' liberty rights were clearly established long before plaintiff was arrested in 1991. (Carlo v. City of Chino, supra.)



...so, yeah, it's not "in the Constitution", but if you're arrested, you do have the right to a phone call.
 
2013-04-21 06:29:41 PM  

Great Janitor: 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.


No, as you've phrased it here it is literally a slippery slope argument.
 
2013-04-21 06:31:16 PM  
How did I know it was Texas?
 
2013-04-21 06:32:20 PM  

Great Janitor: 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.


I couldn't have said it better myself. The Constitution was written as a framework of only what the federal government was allowed to do. If it wasn't in there, it was reserved to the states and the people to do. There was a process put into place to add things to the Constitution, and it required a rather hefty majority of both the Congress AND the people/states to approve it. The Commerce clause has been stretched and warped to cover anything, which is beyond the initial intent. There have been so many sketchy interpretations that give the federal government more power than it ever should have had. It disgusts me.

And I wholeheartedly agree with you on the removal of one of the Amendments in the Bill of Rights leading to an erosion of the rest. I truly believe they are all inextricably linked to each other, and if one falls, so do the rest, likely in short order.
 
2013-04-21 06:38:39 PM  
I wonder how much good the right to a phone call does people who put all their memories in smartphones.
 
2013-04-21 06:45:03 PM  

Warlordtrooper: 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?

They convict people all the time on their refusal to take a breathalyzer test.

The Constitution died many many years ago and nobody noticed.


"convict?"

No....

They will revoke you license for refusing to comply, but NO ONE has a Constitutionally protected right to drive.  It's a privileged.

That's what happens when you refuse.
 
2013-04-21 07:15:51 PM  

bugontherug: 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.


bugontherug: 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.


Look, I'm not being a spelling Nazi here, but marijuana sails caught my eye.  Picture a yacht with giant hemp leaves used for propulsion.  Breathe deeply as you savor the aroma that permeates the sea air while exploring new worlds.   You start the voyage weighing a lean 160 lbs., but those rations conspire to turn you into ballast as your crew is slowly influenced by the hypnotic power of those sails...  In spite of your determined efforts, you cannot hide that New England heritage with your cheap shoes and Chanel bag that conceal the extra portions you stole acquired pilfered as your mates slept.  Your cunning plan unraveled as you approached 350 lbs. while others struggled to avoid scurvy... As you lie awake pondering your future, thoughts of ice cream castles lightly coated with skittles tease your imagination as the restless sea transforms itself into torrents of chocolate.

Moral of the story:

Sails - as in sailboat
Sales - as in cha-ching!
Cells - as in I'll lock yo ass up if you use the wrong word again

/Marijuana Sails would make one hell of a band name
 
2013-04-21 07:16:42 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...


Then you are deaf or willfully ignorant.
 
2013-04-21 07:30:59 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...


If you assholes weren't so eager to remove the 2nd Amendment, we'd have time to worry about the others.
 
2013-04-21 07:39:37 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...


Because you have your ears plugged.  What makes you think those supporting the 2nd aren't supporting the 4th and 5th?  Is that something you tell yourself to justify your own biases?
 
2013-04-21 07:45:28 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.


I would love to see the citation on a GOP senator/legislator calling for torture of him.
 
2013-04-21 07:48:40 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...


Another 2nd Amendment "white knight" checking in, to point out that I'm just as angry about the erosion of the 4th and 5th as I am the 2nd. I know it's shocking to some people, but lots of people get upset when any Constitutional Rights are actively whittled away, and  I'm even crazy enough that I get pissed off when people attack the Amendments that I don't even personally use, like the 2nd and 5th. Bizarre idea, I know, in our culture of "fark everything I don't like."
 
2013-04-21 07:49:36 PM  

MyRandomName: 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.

I would love to see the citation on a GOP senator/legislator calling for torture of him.


He might be referring to the people calling for the public safety exception to be applied, allowing interrogation without Miranda.
 
2013-04-21 07:54:49 PM  

mattharvest: MyRandomName: 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.

I would love to see the citation on a GOP senator/legislator calling for torture of him.

He might be referring to the people calling for the public safety exception to be applied, allowing interrogation without Miranda.


He's referring to Lindsey Graham and his minions, who indeed want the survivor treated as an enemy combatant.
 
2013-04-21 07:56:22 PM  
Boo Hoo. I don't see the House or Senate accepting the judicial definition of the fifth amendment right to not self incriminate. When you're called to testify you can't send them a nice little card that says I invoke my fifth amendment right. No, you get sworn, they ask you questions and if you want to invoke your fifth amendment right you have to say it in the public hearing.

There was one crusty old gangster from the glory years of the Pendergast Kansas City gang when Truman set it up to allow the mob to use union pension funds to build casinos in Vegas and he was subpoenaed in the late 80s to a House or Senate hearing. He showed up, got sworn in and took the fifth to every question they asked him including his name which they asked three times. They were mad as hell but couldn't do anything because he didn't perjure himself and he didn't show any contempt so they had to let hem go.
 
2013-04-21 08:07:05 PM  

letrole: If you're such a paranoid nutbag that your first and only instinct is to treat normal police procedures with suspicion and contempt, then you probably have something in your seedy past that very well explains your behaviour.

I have *NEVER* met a so-called libertarian who didn't.


Libertarian philosophy is pretty simple, and in many regards can be summed up by the following: Don't bully others. Don't do it personally, and don't do it through the apparatus of the State.

Now that you understand things a little better, perhaps you'll understand my concern when I ask: How is a refusal to bully others a sign of deeper character flaws?

/not a libertarian
 
2013-04-21 08:07:54 PM  
The correct move is pretty obvious. You say, "I'm going to go discuss the case with several lawyers getting second and third opinions. If they advise me it is in my best interest to talk to you then I will have you send them a list of questions you'd like answered and then I will have them fax or email back the answers. Good day sir."
 
2013-04-21 08:55:37 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. One only needs to be Mirandized when 1.) they are believed to have committed a crime and 2.) the arresting officer intends to question them regarding their involvement in said crime. Mere arrest alone does not trigger the Miranda requirement.
 
2013-04-21 08:57:47 PM  

doyner: heypete: 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 can't speak for anyone else, but I'm a gun owner and a strong believer in all rights, not just those explicitly protected by the Constitution.

/member of the NRA, ACLU, and EFF.

Count yourself as a member of a proud minority.  I'm right there with you.

My point, which (judging by the responses) is that the binning of political ideologies is at the heart of the overall erosion of our Constitutional rights. The consolidation of all positions held into two distinct and partisan bins IS the problem.  Want the NRA to support your "guy" in congress?  Congratulations, you voted for the dude that wants to restrict gay marriage and extraordinary rendition.  Want to do something about climate change?  Congratulations, gun ownership is now harder.

Effectively, your "one thing" may very well cost you those other ideals you hold dear if they don't fit into the same bundle of ideological views.


This, but on Fark you mention that the Democrats don't eat coal and shiat diamonds, and you get a reply from some Democrat nut-hugger mouthbreather with "BOTH SIDES ARE BAD SO VOTE REPUBLICAN!"
 
2013-04-21 09:33:39 PM  

95BV5: 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. One only needs to be Mirandized when 1.) they are believed to have committed a crime and 2.) the arresting officer intends to question them regarding their involvement in said crime. Mere arrest alone does not trigger the Miranda requirement.


Wrong.  There is a two prong test for Miranda.  Custody and interrogation.  Period.  I can suspect person A of murder, and question them, and as long as they're not in custody (free to leave at anytime) they do not need to be read Miranda.
 
2013-04-21 09:39:23 PM  

calbert: 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.


actually, you have a right to pretty much unlimited calls if you're trying to get a lawyer.  Even Canada acknowledges this in a unique way:  http://www.cbsnews.com/8301-202_162-57570343/canadian-court-finds-def e ndants-have-the-right-to-google/
 
2013-04-21 09:39:32 PM  

fredklein: Great Janitor: A cop once explained to me that there is no right to a phone call. Yes, they have no problem letting you have a phone call at some point, but there is no right to a phone call. He even went further to say "I"ll hand you a copy of the Constitution and you can read every word of it and you can show me where it says you have a right to a phone call."

So, that cop is of the opinion that the Constitution is the ONLY law of the land, and if it's not written in there, it doesn't exist??

/WTF do they teach in police academy?


He should have given it back to the cop and said "Show me where it says DWI/Speeding/etc are not allowed"
 
2013-04-21 10:12:57 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 Georgia, refusal of a blood test is an automatic 120 day license suspension.
 
2013-04-21 10:19:39 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...


The irony has not been lost on me lately that the people who scream so loudly about their 2nd Amendment rights just don't give a flying fark about the rights of ANYONE else.
 
2013-04-21 10:56:23 PM  

heypete: doyner: Count yourself as a member of a proud minority. I'm right there with you.

Excellent. :)

My point, which (judging by the responses) is that the binning of political ideologies is at the heart of the overall erosion of our Constitutional rights. The consolidation of all positions held into two distinct and partisan bins IS the problem. Want the NRA to support your "guy" in congress? Congratulations, you voted for the dude that wants to restrict gay marriage and extraordinary rendition. Want to do something about climate change? Congratulations, gun ownership is now harder.

Effectively, your "one thing" may very well cost you those other ideals you hold dear if they don't fit into the same bundle of ideological views.

Yup. The binning is definitely an issue. On the gun-related message boards, forums, and blogs I occasionally participate in there's a fair bit of discussion about pro-gun-rights politics being increasing associated with right-wing politics. This is of concern for a lot of gun owners, as the gun-owning community can't just be limited to old guys, farmers, and Republicans. I know some Democrats who've held their nose and become (or continue to be) NRA members even with their raving about "liberals" because they are the 800lb gorilla in the room when it comes to defending that particular right., but I think the gun culture would do a lot better if it was more welcoming to (or at least less hostile toward) non-right-wing people who are interested in guns. Most of the gun owners I know are -- myself and a few others, most of us certified instructors, used to run informal range trips for university students who were curious about shooting, would teach them the safety rules, basic shooting techniques, etc. -- but I realize that there's quite a lot of "good ol' boys" out there.

I'm not really sure what can be done to disentangle party politics from people's rights, but I'm open for suggestions.

/that reminds me, I need to re-up my ACLU membership


As a gun owner (NRA member, instructor, standing offer to first-time shooters that the expenses of the first trip are on me) that believes in all ten Amendments, I occasionally have very difficult conversations with my allies about how we're screwing ourselves.

Sadly, they usually don't see it.
 
2013-04-22 02:00:38 AM  

Your Average Witty Fark User: 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...

The irony has not been lost on me lately that the people who scream so loudly about their 2nd Amendment rights just don't give a flying fark about the rights of ANYONE else.


That is strange because I don't know of anyone who strongly supports the 2nd amendment who doesn't care deeply about the rights of EVERYONE else.
 
2013-04-22 02:10:11 AM  
Was that article worded and written terribly or did I have a stroke while reading it?
 
2013-04-22 03:38:44 AM  

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...


Like we needed proof you don't listen.
 
2013-04-22 04:12:50 AM  

letrole: If you're such a paranoid nutbag that your first and only instinct is to treat normal police procedures with suspicion and contempt, then you probably have something in your seedy past that very well explains your behaviour.

I have *NEVER* met a so-called libertarian who didn't.


Damned right! Nor a communist. Nor a Democrat. Nor Republicans or independents. And let's not forget priests, nuns, librarians, lawyers, programmers, authors, actors, beekeepers, carpetlayers, ...

We're an imperfect species, Mr. Trole.
 
2013-04-22 05:06:57 AM  

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


You didn't understand the article, did you?

WhoopAssWayne: They also strongly oppose the 2nd Amendment and believe the 1st Amendment should only apply to some (them) and not others (the NRA.)


Citation needed. Everything else in your post was barely coherent gibberish. Per usual.
 
2013-04-22 05:23:18 AM  

Sgt.Zim: As a gun owner (NRA member, instructor, standing offer to first-time shooters that the expenses of the first trip are on me) that believes in all ten Amendments, I occasionally have very difficult conversations with my allies about how we're screwing ourselves.

Sadly, they usually don't see it.


You know, there are actually more than that.
 
2013-04-22 05:30:21 AM  

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...


Actually, I think it's deplorable!  They got him, the "Immediate threat to the public" is over.  They should have read him his rights.  Thanks to the Patriot Act and the following BS laws, this is another display of the Gov't wiping their collective asses with the Constitution for "our safety".  And no, I'm not remotely standing up for the POS either.
 
2013-04-22 10:41:25 AM  

Abacus9: Sgt.Zim: As a gun owner (NRA member, instructor, standing offer to first-time shooters that the expenses of the first trip are on me) that believes in all ten Amendments, I occasionally have very difficult conversations with my allies about how we're screwing ourselves.

Sadly, they usually don't see it.

You know, there are actually more than that.


Pardon my tablet-induced typo; that was supposed to say "all ten Amendments of the Bill of Rights", since that was the topic of discussion.

To answer your question, yes, I am aware that there are more than that. Your point was?
 
kgf
2013-04-22 12:17:31 PM  
We're gonna need a Texas tag soon.
 
2013-04-23 12:01:29 AM  

Sgt.Zim: Abacus9: Sgt.Zim: As a gun owner (NRA member, instructor, standing offer to first-time shooters that the expenses of the first trip are on me) that believes in all ten Amendments, I occasionally have very difficult conversations with my allies about how we're screwing ourselves.

Sadly, they usually don't see it.

You know, there are actually more than that.

Pardon my tablet-induced typo; that was supposed to say "all ten Amendments of the Bill of Rights", since that was the topic of discussion.

To answer your question, yes, I am aware that there are more than that. Your point was?


Just checking. There are a lot of "patriots" around here that don't know the first damn thing about their own country.
 
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