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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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16516 clicks; posted to Main » on 21 Apr 2013 at 3:49 PM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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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 04:39:27 PM  

Saturn5: There is nothing you can say to the police that can help you.  Keep your mouth shut.  Yes, even if you are innocent.


 Especially if your innocent. They have to produce evidence that you committed a crime, don't give them a chance to twist your words and convict you of something you didn't do.
 
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 05:45:35 PM  

AndreMA: 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.


Also wasn't it decided a few years back that just being silent wasn't good enough and you had to actually say that you were invoking your right to remain silent?
 
2013-04-21 05:46:50 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.


I know in GA that when you get you licences you have to sign an agreement that refusing to take the breathalyzer is an admission of guilt of DUI.
 
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.
 
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