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(Above the Law)   Supreme Court amends Miranda: you have a right to remain silent, unless you're remaining silent. Then you need to speak up to say that you're remaining silent   (abovethelaw.com) divider line 193
    More: Asinine, Justice Kennedy, good citizen, fifth amendment rights, civil litigation, Fifth Amendment, majority opinion, Alito  
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14310 clicks; posted to Main » on 17 Jun 2013 at 2:37 PM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2013-06-17 12:56:01 PM  
Any lawyer worth his salt will instruct his client in no uncertain terms to make no statement to the police under any circumstances.  -  Justice Robert Jackson
 
2013-06-17 12:59:41 PM  

nekom: Any lawyer worth his salt will instruct his client in no uncertain terms to make no statement to the police under any circumstances.  -  Justice Robert Jackson


Could refusal to answer questions during an investigation be considered obstruction of justice? And with this new ruling could total silence without a plea of the fifth be used as evidence of total guilt of something.

/ruling just seems soooo wrong
 
2013-06-17 01:02:11 PM  
Here's the easy way to understand this.  You've got Adam, and he killed Brian.  At some point after Adam kills Brian (with no witnesses), Adam is talking to Caleb it goes like this:
ADAM:  You know, I was involved in some stuff with Brian before Brian died.
CALEB: You were there?
ADAM: Yeah.
CALEB: [other questions about the scene]
ADAM: [other responsive answers]
CALEB: You know, they're doing ballistics analysis on the gun impacts where Brian was killed. You have a gun, right?  Do you think they'll match it to you?
ADAM: [first silence of the day]

If Caleb is a private citizen, it is indisputable  - and long settled law - that Caleb could come to court and testify to this conversation.  It's hearsay, but it's admitted to evidence under the long-standing rule of "Admission Against Interest" (which exists in all US jurisdictions, including federal, in criminal cases).

If Caleb is a police officer, however, it depends.  If Caleb has Adam in custody (not even necessarily arrest), then there are more specific questions that need to be answered, because the Court has routinely recognized (and reaffirmed in today's decision) that custody is intrinsically coercive.  If Caleb doesn't have Adam in custody, though, then it's no different than if Caleb were not a police officer at all.

Here, 'Adam' went to 'Caleb' voluntarily.  He was not detained or arrested.  He was free to leave at any time, and hadn't been placed in any restricted situation.  Moreover, the questioning was initiated when 'Adam' brought himself to the police.  In other words, there was nothing coercive about his circumstances.  As a result, it fell under the more general concept of 'admission against interest'.

Moreover, the Court reiterated a principle that has existed since Miranda itself: that to be shielded by the 5th Amendment, you must invoke it.  There's no magic phrase, but something must be said to indicate that your silence is because you feel it would incriminate you as opposed to just not wanting to answer.  The court - if you actually read the opinion - lays out all the reasons this limitation has been in place for so long.

This case doesn't make new law, it just reiterates existing law.
 
2013-06-17 01:02:31 PM  
fif
 
2013-06-17 01:04:37 PM  
elysive:
Could refusal to answer questions during an investigation be considered obstruction of justice? And with this new ruling could total silence without a plea of the fifth be used as evidence of total guilt of something.

/ruling just seems soooo wrong


The ruling is BS, but if you simply make no statement whatsoever under ANY circumstances, you'll be fine.

we have emphasized that one of the Fifth Amendment's "basic functions ... is to protect innocent men ... 'who otherwise might be ensnared by ambiguous circumstances.' " Grunewald v. United States, 353 U.S. 391, 421 (1957) as cited in Ohio v. Reiner.  In short, claiming innocence does not invalidate your right to STFU.
 
2013-06-17 01:06:19 PM  

elysive: nekom: Any lawyer worth his salt will instruct his client in no uncertain terms to make no statement to the police under any circumstances.  -  Justice Robert Jackson

Could refusal to answer questions during an investigation be considered obstruction of justice? And with this new ruling could total silence without a plea of the fifth be used as evidence of total guilt of something.

/ruling just seems soooo wrong


No; you have no obligation to speak (generally) to the police at all.  There are limited exceptions (e.g. you must provide your name at a traffic stop) but those are tied to special circumstances (e.g. that you're driving using a state-issued Driver's License).  Giving  false information can be a crime (in some states, e.g. here in MD, it's a crime to give a false identity to avoid prosecution, as well as being a crime to file a 'false alarm' with the police to cause alarm, for example).

Moreover, your question is precisely the one answered by this ruling (which, as I note above, doesn't create new law): if you invoke the 5th, then your invocation (and silence) cannot be admitted at trial absent other crucial characteristics.  For example, if you're talking freely with the police (but in custody) and suddenly invoke the 5th, it's  possible that silence could be admitted (but unlikely).  If you're not in custody (as in this case), then you need to invoke the 5th or else your silence most definitely will be admissible.

I'm not giving legal advice, but if you think you might  ever want to invoke the 5th in a case, you're better off doing it first and foremost.  Otherwise, every word you say to the police endangers the success of your invocation.
 
2013-06-17 01:07:14 PM  

mattharvest: Here's the easy way to understand this.  You've got Adam, and he killed Brian.  At some point after Adam kills Brian (with no witnesses), Adam is talking to Caleb it goes like this:
ADAM:  You know, I was involved in some stuff with Brian before Brian died.
CALEB: You were there?
ADAM: Yeah.
CALEB: [other questions about the scene]
ADAM: [other responsive answers]
CALEB: You know, they're doing ballistics analysis on the gun impacts where Brian was killed. You have a gun, right?  Do you think they'll match it to you?
ADAM: [first silence of the day]

If Caleb is a private citizen, it is indisputable  - and long settled law - that Caleb could come to court and testify to this conversation.  It's hearsay, but it's admitted to evidence under the long-standing rule of "Admission Against Interest" (which exists in all US jurisdictions, including federal, in criminal cases).

If Caleb is a police officer, however, it depends.  If Caleb has Adam in custody (not even necessarily arrest), then there are more specific questions that need to be answered, because the Court has routinely recognized (and reaffirmed in today's decision) that custody is intrinsically coercive.  If Caleb doesn't have Adam in custody, though, then it's no different than if Caleb were not a police officer at all.

Here, 'Adam' went to 'Caleb' voluntarily.  He was not detained or arrested.  He was free to leave at any time, and hadn't been placed in any restricted situation.  Moreover, the questioning was initiated when 'Adam' brought himself to the police.  In other words, there was nothing coercive about his circumstances.  As a result, it fell under the more general concept of 'admission against interest'.

Moreover, the Court reiterated a principle that has existed since Miranda itself: that to be shielded by the 5th Amendment, you must invoke it.  There's no magic phrase, but something must be said to indicate that your silence is because you feel it would incriminate you as opposed to just not wanting to answer.  The court - if you actually read the opinion - lays out all the reasons this limitation has been in place for so long.

This case doesn't make new law, it just reiterates existing law.


But how should I be outraged by this?
 
2013-06-17 01:07:50 PM  
Important details that this headline leaves out;

The defendant voluntarily went to the police station
He chose to speak to the police officers
He was not in custody, and therefore Miranda did not apply
He began speaking about some details but clammed up after police officers asked him about others.

This case is not about Miranda. It is about the right to remain silent and whether you have to affirmatively invoke that right. Total silence is almost always considered invoking the right to remain silent.

This case was about what happens before Miranda, when a person is not in custody. The court held that prosecutors were allowed to mention the defendant's silence during that initial interview when he was not in custody and thus legitimately had not had his Miranda rights read yet. Basically, they said that rather than just being allowed to shut up at random times when talking to authority figures in a non-coercive setting and then later claim you were using the right to remain silent, you have to do something to positively inform the police that you are taking the 5th. Or you could just leave the room too, I guess.
 
2013-06-17 01:11:18 PM  

nekom: The ruling is BS,


Why?

To quote literally the first paragraphs of the decision:

"Petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege against self incrimination in response to the officer's question. It has long been settled that the privilege "generally is not self executing" and that a witness who desires its protection "'must claim it.'" Minnesota v. Murphy, 465 U. S. 420, 425, 427 (1984) (quoting United States v. Monia, 317 424, 427 (1943)). Although "no ritualistic formula is necessary in order to invoke the privilege," Quinn v. United States, 349 U. S. 155, 164 (1955), a witness does not do so by simply standing mute."

The Court's argument is that according to cases dating back to 1943, there must be some invocation of the Fifth Amendment when the person isn't in custody.  Do you dispute that?

The Court's reasoning here is that the suspect wasn't in custody, based on the totality of his circumstances (he wasn't under arrest, he wasn't in a closed/locked room, he was free to leave, he voluntarily brought himself to the police, etc.).  Do you dispute that?

The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it.  If you cannot dispute the previous two points, how can you dispute their conclusion?
 
2013-06-17 01:12:26 PM  

elysive: nekom: Any lawyer worth his salt will instruct his client in no uncertain terms to make no statement to the police under any circumstances.  -  Justice Robert Jackson

Could refusal to answer questions during an investigation be considered obstruction of justice?


Generally speaking, no, it cannot.  If it is custodial interrogation, you have Miranda rights.  If merely an interview, you have no obligation to speak to the police.  The problem is when being interviewed as a witness morphs into becoming an interview of a suspect.  There's probably no bright line there in every situation, but I think the appropriate thing to do in that context would have been to Mirandize him at the point he clammed up if you wanted to keep pressing the issue.
 
2013-06-17 01:12:50 PM  

Lost Thought 00: But how should I be outraged by this?


It's funny how many people will - without being able to articulate why the case is wrongly decided - will feel exactly the joking question you're presenting, but entirely without humor or irony.  Just look at this thread (and the redlighted threads before it) for easy examples.

Sometimes people  want their anger so bad that they don't bother even trying to explain it.
 
2013-06-17 01:15:26 PM  

mattharvest: nekom: The ruling is BS,

Why?

To quote literally the first paragraphs of the decision:

"Petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege against self incrimination in response to the officer's question. It has long been settled that the privilege "generally is not self executing" and that a witness who desires its protection "'must claim it.'" Minnesota v. Murphy, 465 U. S. 420, 425, 427 (1984) (quoting United States v. Monia, 317 424, 427 (1943)). Although "no ritualistic formula is necessary in order to invoke the privilege," Quinn v. United States, 349 U. S. 155, 164 (1955), a witness does not do so by simply standing mute."

The Court's argument is that according to cases dating back to 1943, there must be some invocation of the Fifth Amendment when the person isn't in custody.  Do you dispute that?

The Court's reasoning here is that the suspect wasn't in custody, based on the totality of his circumstances (he wasn't under arrest, he wasn't in a closed/locked room, he was free to leave, he voluntarily brought himself to the police, etc.).  Do you dispute that?

The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it.  If you cannot dispute the previous two points, how can you dispute their conclusion?


I guess I'll repeat my question from the other thread...why is the privilege self-executing in the case of Miranda warnings? Why not make people in custody invoke their own Fifth Amendment rights? If its not an inherent right, idiots in custody should have to speak up before shutting up.
 
2013-06-17 01:15:32 PM  

Lost Thought 00: But how should I be outraged by this?


This being FARK, I recommend simply scanning the names of the Justices, and base all of your arguments on attacking them without really articulating any coherent legal argument of this particular issue and pepper it with buzzwords you've learned on this and other websites, but don't entirely understand.  I love a good con crim pro discussion, but this will get pooped on soon enough when it hits the main page.
 
2013-06-17 01:15:36 PM  

Nabb1: There's probably no bright line there in every situation, but I think the appropriate thing to do in that context would have been to Mirandize him at the point he clammed up if you wanted to keep pressing the issue.


Here, though, he was  never interviewed as anything but a suspect.  When they arrived at his home, they saw a car matching that of the get-away vehicle for the killer.  Before any discussion of substance, the suspect offered to them that he had a shotgun (as had been used in the murder), and gave it over for analysis.  There was no 'morphing'.  He was always a suspect.
 
2013-06-17 01:15:40 PM  
mattharvest:
The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it.  If you cannot dispute the previous two points, how can you dispute their conclusion?

I personally believe that declining to answer a question and answering no further questions should be taken as invoking the 5th.  Just my personal opinion.

The takeaway from this is that it's best to simply never answer any questions under any circumstances, then you avoid any and all confusion in the first place.
 
2013-06-17 01:17:38 PM  

elysive: I guess I'll repeat my question from the other thread...why is the privilege self-executing in the case of Miranda warnings? Why not make people in custody invoke their own Fifth Amendment rights? If its not an inherent right, idiots in custody should have to speak up before shutting up.


As the court explains: custody is inherently coercive, and so absent evidence to the contrary it is assumed that any right you give up while in custody wasn't voluntary.  The Miranda rights (and the completion of a Miranda waiver) are evidence of that voluntariness, allowing the statement to be admitted.  Here is the Court's explanation of that same concept (in this very decision):

"[W]e have held that a witness' failure to invokethe privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary.Thus, in Miranda, we said that a suspect who is subjectedto the "inherently compelling pressures" of an unwarned custodial interrogation need not invoke the privilege. 384 U. S., at 467-468, and n. 37. Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege "unless [he] fails to claim [it] after being suitably warned."   Murphy, supra, at 429-430. "
 
2013-06-17 01:17:39 PM  

mattharvest: Nabb1: There's probably no bright line there in every situation, but I think the appropriate thing to do in that context would have been to Mirandize him at the point he clammed up if you wanted to keep pressing the issue.

Here, though, he was  never interviewed as anything but a suspect.  When they arrived at his home, they saw a car matching that of the get-away vehicle for the killer.  Before any discussion of substance, the suspect offered to them that he had a shotgun (as had been used in the murder), and gave it over for analysis.  There was no 'morphing'.  He was always a suspect.


Ah, I should have read the whole opinion first.  Dammit.
 
2013-06-17 01:21:24 PM  

Nabb1: I recommend simply scanning the names of the Justices, and base all of your arguments on attacking them without really articulating any coherent legal argument of this particular issue and pepper it with buzzwords you've learned on this and other websites, but don't entirely understand


Ipso facto, I think that you are prima faciaing all over the establishment clause, ergo post hoctum ad reducto as established in Marbury v. Madison. Ad hoc, my compos mentis and habeus corpus is in flagrante delicto because of the post mortem veto of second amendment jurisprudence. Et tu, Brute.
 
2013-06-17 01:21:57 PM  

nekom: mattharvest:
The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it.  If you cannot dispute the previous two points, how can you dispute their conclusion?

I personally believe that declining to answer a question and answering no further questions should be taken as invoking the 5th.  Just my personal opinion.

The takeaway from this is that it's best to simply never answer any questions under any circumstances, then you avoid any and all confusion in the first place.


Considering how ignorant the general population is, I suspect a lot of people don't know what the Fifth Amendment is, so I agree. However, I wouldnt want to get in the way of the police's ace evidence gathering!
 
2013-06-17 01:23:25 PM  

Pocket Ninja: Nabb1: I recommend simply scanning the names of the Justices, and base all of your arguments on attacking them without really articulating any coherent legal argument of this particular issue and pepper it with buzzwords you've learned on this and other websites, but don't entirely understand

Ipso facto, I think that you are prima faciaing all over the establishment clause, ergo post hoctum ad reducto as established in Marbury v. Madison. Ad hoc, my compos mentis and habeus corpus is in flagrante delicto because of the post mortem veto of second amendment jurisprudence. Et tu, Brute.


Don't forget, "Scalia is just an originalist when it suits him and Thomas is his lawn jockey, as usual. I bet Thomas didn't even say anything in oral argument!"
 
2013-06-17 01:23:31 PM  

Nabb1: Lost Thought 00: But how should I be outraged by this?

This being FARK, I recommend simply scanning the names of the Justices, and base all of your arguments on attacking them without really articulating any coherent legal argument of this particular issue and pepper it with buzzwords you've learned on this and other websites, but don't entirely understand.  I love a good con crim pro discussion, but this will get pooped on soon enough when it hits the main page.


Noted.

F*CKING SCALIA THOMAS ALITO!
 
2013-06-17 01:24:28 PM  

elysive: nekom: mattharvest:
The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it.  If you cannot dispute the previous two points, how can you dispute their conclusion?

I personally believe that declining to answer a question and answering no further questions should be taken as invoking the 5th.  Just my personal opinion.

The takeaway from this is that it's best to simply never answer any questions under any circumstances, then you avoid any and all confusion in the first place.

Considering how ignorant the general population is, I suspect a lot of people don't know what the Fifth Amendment is, so I agree. However, I wouldnt want to get in the way of the police's ace evidence gathering!


The cops knew exactly what they were doing.  I'm not sure why this guy chose to start talking in the first place.
 
2013-06-17 01:25:50 PM  

nekom: I personally believe that declining to answer a question and answering no further questions should be taken as invoking the 5th.  Just my personal opinion.


I'd recommend you read this opinion, as it specifically addresses this concern.  In short, they explain that (a) this fact has been true at  least since the 50s if not the 20s, based on existing case law; (b) the express invocation requirement facilitates the need for the Court (and State) to be aware of the defendant's intent to invoke the Fifth at trial so it can be dealt with.  Bear in mind that you cannot invoke the Fifth unless, in fact, it  would incriminate you.  In other words, it must be verifiable to a certain degree.  This prevents, e.g., a witness from refusing to testify just to protect a friend while falsely hiding behind the Fifth (e.g. where you know your friend committed a crime but don't want to admit it).

Here, at length, is their reply:

"That requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, see Hoffman v. United States, 341 U. S. 479, 486 (1951), or cure any potential self-incrimination through a grant of immunity, see Kastigar v. United States, 406 U. S. 441, 448 (1972). The express invocation requirement also gives courts tasked with evaluating a Fifth Amendment claim a contemporaneous record establishing the witness' reasons for refusing to answer. See Roberts v. United States, 445 U. S. 552, 560, n. 7 (1980) ("A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give"); Hutcheson v. United States, 369 U. S. 599, 610- 611 (1962) (declining to treat invocation of due process as proper assertion of the privilege). In these ways, insisting that witnesses expressly invoke the privilege "assures that the Government obtains all the information to which it is entitled." Garner, supra, at 658, n. 11."

Moreover, the petitioner himself recognized (through counsel) that existing case law didn't protect him; far from it, he explicitly asked the Court to create a new "general" rule for witnesses remaining silent in this way.  They decline to do so quite explicitly.

"We therefore decline petitioner's invitation to craft a new exception to the "general rule" that a witness must assert the privilege to subsequently benefit from it. Murphy, 465 U. S., at 429."

They then proceed to list a number of cases - all still good and binding law - that make it clear no such "general rule" has ever existed, nor can it exist in under Fifth Amendment precedent.
 
2013-06-17 01:28:37 PM  

mattharvest: elysive: I guess I'll repeat my question from the other thread...why is the privilege self-executing in the case of Miranda warnings? Why not make people in custody invoke their own Fifth Amendment rights? If its not an inherent right, idiots in custody should have to speak up before shutting up.

As the court explains: custody is inherently coercive, and so absent evidence to the contrary it is assumed that any right you give up while in custody wasn't voluntary.  The Miranda rights (and the completion of a Miranda waiver) are evidence of that voluntariness, allowing the statement to be admitted.  Here is the Court's explanation of that same concept (in this very decision):

"[W]e have held that a witness' failure to invokethe privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary.Thus, in Miranda, we said that a suspect who is subjectedto the "inherently compelling pressures" of an unwarned custodial interrogation need not invoke the privilege. 384 U. S., at 467-468, and n. 37. Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege "unless [he] fails to claim [it] after being suitably warned."   Murphy, supra, at 429-430. "


I suppose I understand the distinction, but I still disagree with the ruling. Either there as citizens we have the right to silence with the police and the right against self incrimination, or we dont. Fortunately, silence about a gun is a pretty shaky evidence of guilt in my book. Maybe the guy didnt commit the crime but he knew his weapon was used?

If the cops were competent enough to go and retrieve physical evidence, it seems this would have been a non-issue.
 
2013-06-17 01:30:57 PM  

Nabb1: The cops knew exactly what they were doing.  I'm not sure why this guy chose to start talking in the first place.


A very good question; I suspect (though I cannot  know) that it's something along the lines of "No one saw me do it, so if I cooperate they won't realize it was me.  Lots of people have dark cars and shotguns".

I think this because he only clammed up when they talked about being able to - via forensics - tie a particular shotgun to particular shotgun shells.  Not everyone is aware that this can be done.  I think he thought he was in the clear if he didn't given them reason to suspect him.
 
2013-06-17 01:32:22 PM  

elysive: Not unless you are under an obligation to talk to the police, as with someone under supervision of probation or parole. Protection agaisnt self-incrimination still applies. 
nekom: Any lawyer worth his salt will instruct his client in no uncertain terms to make no statement to the police under any circumstances.  -  Justice Robert Jackson

Could refusal to answer questions during an investigation be considered obstruction of justice?


Not unless you are under an obligation to talk to the police, as with someone under supervision of probation or parole. Protection agaisnt self-incrimination still applies.

And with this new ruling could total silence without a plea of the fifth be used as evidence of total guilt of something.

No.

mattharvest: nekom: I personally believe that declining to answer a question and answering no further questions should be taken as invoking the 5th.  Just my personal opinion.

I'd recommend you read this opinion, as it specifically addresses this concern.  In short, they explain that (a) this fact has been true at  least since the 50s if not the 20s, based on existing case law; (b) the express invocation requirement facilitates the need for the Court (and State) to be aware of the defendant's intent to invoke the Fifth at trial so it can be dealt with.  Bear in mind that you cannot invoke the Fifth unless, in fact, it  would incriminate you.  In other words, it must be verifiable to a certain degree.  This prevents, e.g., a witness from refusing to testify just to protect a friend while falsely hiding behind the Fifth (e.g. where you know your friend committed a crime but don't want to admit it).

Here, at length, is their reply:

"That requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, see Hoffman v. United States, 341 U. S. 479, 486 (1951), or cure any potential self-incrimination through a grant of immunity, see Kastigar v. United States, 406 U. S. 441, 448 (1972). The express invocation requirement also gives courts tasked with evaluating a Fifth Amendment claim a contemporaneous record establishing the witness' reasons for refusing to answer. See Roberts v. United States, 445 U. S. 552, 560, n. 7 (1980) ("A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give"); Hutcheson v. United States, 369 U. S. 599, 610- 611 (1962) (declining to treat invocation of due process as proper assertion of the privilege). In these ways, insisting that witnesses expressly invoke the privilege "assures that the Government obtains all the information to which it is entitled." Garner, supra, at 658, n. 11."
...


This. If there is any branch of reporting that is worse than that of science, it is law. Reporters (with rare exceptions) have not studied law and therefore quite often misrepresent the decisions of appeals courts.
 
2013-06-17 01:32:42 PM  

Nabb1: elysive: nekom: mattharvest:
The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it.  If you cannot dispute the previous two points, how can you dispute their conclusion?

I personally believe that declining to answer a question and answering no further questions should be taken as invoking the 5th.  Just my personal opinion.

The takeaway from this is that it's best to simply never answer any questions under any circumstances, then you avoid any and all confusion in the first place.

Considering how ignorant the general population is, I suspect a lot of people don't know what the Fifth Amendment is, so I agree. However, I wouldnt want to get in the way of the police's ace evidence gathering!

The cops knew exactly what they were doing.  I'm not sure why this guy chose to start talking in the first place.


The guy in this case is an idiot...I suppose that if this ruling only affects idiots we should count ourselves lucky.
 
2013-06-17 01:33:55 PM  

elysive: I suppose I understand the distinction, but I still disagree with the ruling. Either there as citizens we have the right to silence with the police and the right against self incrimination, or we dont. Fortunately, silence about a gun is a pretty shaky evidence of guilt in my book. Maybe the guy didnt commit the crime but he knew his weapon was used?

If the cops were competent enough to go and retrieve physical evidence, it seems this would have been a non-issue.


(a) We have the right to remain silent, but we can waive it.  Here, he was talking with them for around  an hour before he suddenly fell silent on this one question.  It was extremely ambiguous why he was being silent, at best . The idea that he was invoking his Fifth Amendment right didn't appear until  trial.  There was nothing about his circumstances that rendered his waiver involuntary.  In other words; no one is denying he had the right to remain silent, but rather arguing about the fact that he waived that right.

(b) It wasn't silence about a gun; it was silence about whether his gun would match the shells they did recover (on top of his vehicle matching the getaway car).

(c) The cops  did retrieve physical evidence: the shell casings from the murder weapon.  This fact is what made the suspect clam up, realizing his weapon was going to be tied to the crime.
 
2013-06-17 01:34:50 PM  

elysive: The guy in this case is an idiot...I suppose that if this ruling only affects idiots we should count ourselves lucky.


The smartest criminals don't get caught, I suppose.
 
2013-06-17 01:35:49 PM  
How hard is it to say "I'm invoking my 5th Amendment right to remain silent"  - BOOM - done deal
 
2013-06-17 01:36:31 PM  

elysive: Nabb1: elysive: nekom: mattharvest:
The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it.  If you cannot dispute the previous two points, how can you dispute their conclusion?

I personally believe that declining to answer a question and answering no further questions should be taken as invoking the 5th.  Just my personal opinion.

The takeaway from this is that it's best to simply never answer any questions under any circumstances, then you avoid any and all confusion in the first place.

Considering how ignorant the general population is, I suspect a lot of people don't know what the Fifth Amendment is, so I agree. However, I wouldnt want to get in the way of the police's ace evidence gathering!

The cops knew exactly what they were doing.  I'm not sure why this guy chose to start talking in the first place.

The guy in this case is an idiot...I suppose that if this ruling only affects idiots we should count ourselves lucky.


I got my feet wet in the courtroom defending indigent criminal defendants.  The vast majority of criminals are, in fact, idiots.  They, do, however, develop a remarkable knowledge of valid and invalid searches.
 
2013-06-17 01:39:51 PM  
There is a difference betwixt remaining silent and telling a cop to go fark themselves.

One of them is very suspicious, the other is a normal reaction of being accused of a crime that you didnt commit.

You can con your way out of anything
 
2013-06-17 01:41:09 PM  

mattharvest: elysive: The guy in this case is an idiot...I suppose that if this ruling only affects idiots we should count ourselves lucky.

The smartest criminals don't get caught, I suppose.


There was a book I read a while back that claimed that criminology is misnamed, since the truly competent criminals don't get caught and the only ones available for study are the criminals who f*cked up. Hence, it should be called f*ckupology.
 
2013-06-17 01:41:57 PM  

mattharvest: elysive: The guy in this case is an idiot...I suppose that if this ruling only affects idiots we should count ourselves lucky.

The smartest criminals don't get caught, I suppose.


The smartest criminals wear a suit and tie to work every day.
 
2013-06-17 01:42:32 PM  

nekom: mattharvest: elysive: The guy in this case is an idiot...I suppose that if this ruling only affects idiots we should count ourselves lucky.

The smartest criminals don't get caught, I suppose.

The smartest criminals wear a suit and tie to work every day.


Or get elected.
 
2013-06-17 01:45:12 PM  

mattharvest: This case doesn't make new law, it just reiterates existing law.


Which is why you never answer a policeman's questions voluntarily. Even if they start innocent they may be trying to build a rapport and lead you into this situation where your sudden silence could be used against you.

"Can we ask you a few questions?"
"Sorry officer, no."
 Also, while we're on the subject of not trusting cops, and admission of evidence, if you ever answer the door and a cop is there, step outside and close the door behind you before talking to him or her.
 
2013-06-17 01:50:48 PM  
Is somebody going to link the "Never talk to the cops" videos?
Youtube is blocked here.
 
2013-06-17 01:51:30 PM  
"looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, [and] began to tighten up."

If that is true, (and the cops could have just made that up) - the guy's body language spoke for him.

Police are trained to spot those "tells" in your behavior.
 
2013-06-17 01:52:25 PM  

vernonFL: "looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, [and] began to tighten up."

If that is true, (and the cops could have just made that up) - the guy's body language spoke for him.

Police are trained to spot those "tells" in your behavior.


Anne Frank could have spotted those kinds of "tells."
 
2013-06-17 01:54:04 PM  

vernonFL: "looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, [and] began to tighten up."

If that is true, (and the cops could have just made that up) - the guy's body language spoke for him.

Police are trained to spot those "tells" in your behavior.


Yes, they are, but my two-year-old daughter could spot body language that obvious.  "But Daddy, you bought cookies and hit them up there."  I mean, how the hell does she know this stuff?  Daddy needs to take his little girl to see the horseys down at the track some time.
 
2013-06-17 01:54:51 PM  

vernonFL: "looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, [and] began to tighten up."

If that is true, (and the cops could have just made that up) - the guy's body language spoke for him.

Police are trained to spot those "tells" in your behavior.


Hence the difference between the words "explicit" and "implicit".  You'll note that  explicit invocation is required, albeit not by any specific language, while  implicitinvocation isn't sufficient.  The entire discussion of the 'general rule' requested by the petitioner/convict was that he wanted  implicit invocation to be allowed, but the Supreme Court explains that this is not only contrary to decades-old law, but absurd in and of itself with regards to practice.
 
2013-06-17 01:55:43 PM  

mattharvest: A very good question; I suspect (though I cannot  know) that it's something along the lines of "No one saw me do it, so if I cooperate they won't realize it was me.  Lots of people have dark cars and shotguns".

I think this because he only clammed up when they talked about being able to - via forensics - tie a particular shotgun to particular shotgun shells.  Not everyone is aware that this can be done.  I think he thought he was in the clear if he didn't given them reason to suspect him.


I think this nails it. He wanted to look innocent by cooperating. He didn't shut up until he realized his cunning plan wasn't working.

Criminals will also talk to the cops because they want to find out what evidence the cops have against them.
 
2013-06-17 01:57:39 PM  

Nabb1: nekom: mattharvest: elysive: The guy in this case is an idiot...I suppose that if this ruling only affects idiots we should count ourselves lucky.

The smartest criminals don't get caught, I suppose.

The smartest criminals wear a suit and tie to work every day.

Or get elected.


Some are Nigerian princes.
 
2013-06-17 02:01:26 PM  

CruiserTwelve: Criminals will also talk to the cops because they want to find out what evidence the cops have against them.


I have a statement from a case of mine from  years ago where the defendant did just this.  It was a simple theft case, but the suspect had gotten away.  Cops ID'd him from a witness who turned up, and they basically only had the word of the witness combined with the general description by the victim (it was here in an area of Maryland where about 3/4ths of cases charged involve a black male of about 5'10" in dark clothes).  The suspect literally did the cartoonish thing of asking about details he couldn't know.  I'd have to go find it in my files, but I believe he said something along the lines of "Did they recover the DVDs" or something when the police had just talked about shoplifting.

Made for a fun plea hearing.
 
2013-06-17 02:09:25 PM  

vernonFL: "looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, [and] began to tighten up."

If that is true, (and the cops could have just made that up) - the guy's body language spoke for him.

Police are trained to spot those "tells" in your behavior.


Yep, and to what extent should that be evidence to convict a person of murde, manslaughter, or whatever in a court of law?

mattharvest: elysive: I suppose I understand the distinction, but I still disagree with the ruling. Either there as citizens we have the right to silence with the police and the right against self incrimination, or we dont. Fortunately, silence about a gun is a pretty shaky evidence of guilt in my book. Maybe the guy didnt commit the crime but he knew his weapon was used?

If the cops were competent enough to go and retrieve physical evidence, it seems this would have been a non-issue.

(a) We have the right to remain silent, but we can waive it.  Here, he was talking with them for around  an hour before he suddenly fell silent on this one question.  It was extremely ambiguous why he was being silent, at best . The idea that he was invoking his Fifth Amendment right didn't appear until  trial.  There was nothing about his circumstances that rendered his waiver involuntary.  In other words; no one is denying he had the right to remain silent, but rather arguing about the fact that he waived that right.

(b) It wasn't silence about a gun; it was silence about whether his gun would match the shells they did recover (on top of his vehicle matching the getaway car).

(c) The cops  did retrieve physical evidence: the shell casings from the murder weapon.  This fact is what made the suspect clam up, realizing his weapon was going to be tied to the crime.


This is making my head hurt. If the cops did match his gun to the crime and they have physical evidence linking him to the crime, who cares if he freaked out and deuced his pants about the question? It's true as you suggest no one can mind read why exactly a person is silent at any moment. he should have pleaded the fifth as he was guilt of something but maybe he was having a stroke. It just seems like sloppy evidence in this case. I hate criminals...I'm even pro corporal punishment, but I think the police should have to work for convictions and its not uncommon for people to freak out and act weird around police.

My problems with the ruling include: 1) if a person can be convicted based on silent inference of physical evidence when physical forensicevidence could instead be obtained (if they couldnt actually match the weapon, why not?), 2) if this ruling is used to ask random people point blank if they commited crimes and then to prosecute them on the basis of their silence alone...who needs a full investigation...and 3) if the ruling is abused and used for fishing expeditions like asking about tax compliance while interviewing someone about their neighbor's suspicious behavior. I've already objected that a lot of people are so ignorant they dont know about the Fifth Amendment.

It just seems that anything that makes the police's job too easy (foregoing searches of hard evidence in favor of flimsy silent admissions of guilt), especially when it is against the spirit of the Fifth, seems unnecessary and bad.
 
2013-06-17 02:12:16 PM  

nekom: mattharvest:
The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it.  If you cannot dispute the previous two points, how can you dispute their conclusion?

I personally believe that declining to answer a question and answering no further questions should be taken as invoking the 5th.  Just my personal opinion.


But what about adoptive admissions as an exception to hearsay under FRE 801(d)(2)? If you haven't yet been Mirandized and arguably aren't even under custody, then you're at liberty to respond, and depending on how the question is asked - or stated, rather - it may call for such a response. For example, the opinion says:
But when asked whether his shotgun "would match the shells
recovered at the scene of the murder," App. 17, petitioner
declined to answer. Instead, petitioner "[l]ooked down at 
the floor, shuffled his feet, bit his bottom lip, cl[e]nched his
hands in his lap, [and] began to tighten up." Id., at 18.


Note that the  question isn't quoted - Alito adds the "asked whether" part. It could have been an implied question, such as:
Cop: "You know we're on to you, right? We've got your DNA all over the scene. We've got fifteen witnesses including your mom and Jesus Christ himself swearing that they saw you. And I bet if we check that your shotgun  would match the shells recovered at the scene of the murder."
Suspect: "..." vs. Reasonable person: "Of course not."

Doesn't it seem that, in such a circumstance, the adoptive admission exception would apply and the Officer's statement could be used as an admission by the suspect that his shells would match the shotgun?
 
2013-06-17 02:21:29 PM  

elysive: Yep, and to what extent should that be evidence to convict a person of murde, manslaughter, or whatever in a court of law?


I don't think body language should be limited at all for probable cause - of course the police will abuse it and say they saw something suspicious - but generally if something is in plain sight and obvious to even someone not trained in reading body language - it should be used.
 
2013-06-17 02:28:27 PM  

elysive: My problems with the ruling include: 1) if a person can be convicted based on silent inference of physical evidence when physical forensicevidence could instead be obtained (if they couldnt actually match the weapon, why not?), 2) if this ruling is used to ask random people point blank if they commited crimes and then to prosecute them on the basis of their silence alone...who needs a full investigation...and 3) if the ruling is abused and used for fishing expeditions like asking about tax compliance while interviewing someone about their neighbor's suspicious behavior. I've already objected that a lot of people are so ignorant they dont know about the Fifth Amendment.


Your problem is that none of those are valid legal questions, frankly.

1. The State is under no obligation to get the evidence  you want to prove guilt; if we have five paths to prove guilt, we can pick one and run with it.  This is the standard CSI problem: if jurors expect every case to have every bit of possible evidence, it's an unreasonable standard.  You wouldn't require that in anything else in your life, but you want to do it here?  The question isn't "beyond all doubt", it's "beyond a  reasonable doubt."  Besides, your complaint misses the point entirely: even if he could have been convicted without the silence, that doesn't change whether or not it was legal to comment on it.  The Court here - in reaffirming nearly a CENTURY of case law - just explains it again.  If you have this problem with this decision, why didn't you have it with the last CENTURY of cases?

2. Your second fear - that random people will be questioned and then prosecuted - borders on farce.  That wouldn't make any sense.  It also wouldn't match the facts of this case, or the reasoning of the Court.  This whole discussion is about the fact that he made all these statements voluntarily (and waived his Fifth Amendment rights voluntarily) by virtue of how he chose to speak to the police.  Your scenario of a randomly interrogatory cop has nothing to do with it.

3. Your third fear, of ignorance of Miranda (which isn't even relevant to this case since no one was ever in custody), has been routinely dismissed by the Court for the last forty years or more.  In a 74 decision (cited in this opinion, in fact), the Court remarked that anyone who watched TV (in 1974 even!) knew their Fifth Amendment right against self-incrimination.  Ignorance of the law is no excuse, despite the whingey tone of this Above the Law article.
 
2013-06-17 02:40:41 PM  
Makes sense.  Sometimes you gotta post a bill that says "Post No Bills".
 
2013-06-17 02:47:26 PM  

elysive: nekom: Any lawyer worth his salt will instruct his client in no uncertain terms to make no statement to the police under any circumstances.  -  Justice Robert Jackson

Could refusal to answer questions during an investigation be considered obstruction of justice? And with this new ruling could total silence without a plea of the fifth be used as evidence of total guilt of something.


No
 
2013-06-17 02:49:22 PM  

mattharvest: Here's the easy way to understand this.  You've got Adam, and he killed Brian.  At some point after Adam kills Brian (with no witnesses), Adam is talking to Caleb it goes like this:
ADAM:  You know, I was involved in some stuff with Brian before Brian died.
CALEB: You were there?
ADAM: Yeah.
CALEB: [other questions about the scene]
ADAM: [other responsive answers]
CALEB: You know, they're doing ballistics analysis on the gun impacts where Brian was killed. You have a gun, right?  Do you think they'll match it to you?
ADAM: [first silence of the day]

If Caleb is a private citizen, it is indisputable  - and long settled law - that Caleb could come to court and testify to this conversation.  It's hearsay, but it's admitted to evidence under the long-standing rule of "Admission Against Interest" (which exists in all US jurisdictions, including federal, in criminal cases).

If Caleb is a police officer, however, it depends.  If Caleb has Adam in custody (not even necessarily arrest), then there are more specific questions that need to be answered, because the Court has routinely recognized (and reaffirmed in today's decision) that custody is intrinsically coercive.  If Caleb doesn't have Adam in custody, though, then it's no different than if Caleb were not a police officer at all.

Here, 'Adam' went to 'Caleb' voluntarily.  He was not detained or arrested.  He was free to leave at any time, and hadn't been placed in any restricted situation.  Moreover, the questioning was initiated when 'Adam' brought himself to the police.  In other words, there was nothing coercive about his circumstances.  As a result, it fell under the more general concept of 'admission against interest'.

Moreover, the Court reiterated a principle that has existed since Miranda itself: that to be shielded by the 5th Amendment, you must invoke it.  There's no magic phrase, but something must be said to indicate that your silence is because you feel it would incriminate you as opposed to just not wa ...


Sorry, but I can't make a good soundbite or Facebook comment with that analysis...so I'm gonna go with "OMG, the Supreme court says you can't remain silent anymore!"

KTHXBY
 
2013-06-17 02:50:09 PM  

mattharvest: 3. Your third fear, of ignorance of Miranda (which isn't even relevant to this case since no one was ever in custody), has been routinely dismissed by the Court for the last forty years or more.  In a 74 decision (cited in this opinion, in fact), the Court remarked that anyone who watched TV (in 1974 even!) knew their Fifth Amendment right against self-incrimination.


It sure is a good thing that everyone who gets arrested is a native English speaker who has been here since 1974 then, and that no one ever shuts up immediately after getting their Miranda warning.

Ignorance of the law is no excuse, despite the whingey tone of this Above the Law article.

Ignorance of the law is no excuse  when you break that law. Conversely, your ignorance of your  constitutional rights is no excuse for prosecutors to ignore them.
 
2013-06-17 02:50:18 PM  

mattharvest: elysive: My problems with the ruling include: 1) if a person can be convicted based on silent inference of physical evidence when physical forensicevidence could instead be obtained (if they couldnt actually match the weapon, why not?), 2) if this ruling is used to ask random people point blank if they commited crimes and then to prosecute them on the basis of their silence alone...who needs a full investigation...and 3) if the ruling is abused and used for fishing expeditions like asking about tax compliance while interviewing someone about their neighbor's suspicious behavior. I've already objected that a lot of people are so ignorant they dont know about the Fifth Amendment.

Your problem is that none of those are valid legal questions, frankly.

1. The State is under no obligation to get the evidence  you want to prove guilt; if we have five paths to prove guilt, we can pick one and run with it.  This is the standard CSI problem: if jurors expect every case to have every bit of possible evidence, it's an unreasonable standard.  You wouldn't require that in anything else in your life, but you want to do it here?  The question isn't "beyond all doubt", it's "beyond a  reasonable doubt."  Besides, your complaint misses the point entirely: even if he could have been convicted without the silence, that doesn't change whether or not it was legal to comment on it.  The Court here - in reaffirming nearly a CENTURY of case law - just explains it again.  If you have this problem with this decision, why didn't you have it with the last CENTURY of cases?

2. Your second fear - that random people will be questioned and then prosecuted - borders on farce.  That wouldn't make any sense.  It also wouldn't match the facts of this case, or the reasoning of the Court.  This whole discussion is about the fact that he made all these statements voluntarily (and waived his Fifth Amendment rights voluntarily) by virtue of how he chose to speak to the police.  Your scenario of a randoml ...


I never claimed to be a legal expert. I can read and as such I will point out my third list item was not about ignorance. I mentioned ignorance because it was a previous point and a valid one when it comes to protection of civil liberties.

My main objection to the ruling is that such legal interpretations can be abused by police and as such the court should have made it illegal. I didnt think I was trying to make a legal argument.

As for your objection to my first point, if the police had physical evidence, prosecution could have just withdrawn the defendant's "silence as evidence" unless it really was a cornerstone of their case or the goal was really to tie up the case in court for years. Though I hear it's such a speedy process, getting a viewing with SCOTUS!

/and if it's a murder case where the death penalty is even on the table, physical evidence should be a requirement
 
2013-06-17 02:50:28 PM  
Do you have to start all protected speech with, "I invoke the First Amendment?"
Do you have to high a sign on your house that says, "no unreasonable search and seizure per the Fourth Amendment?"

Though, as luck would have it for the NRA folks, they already walk around constantly saying "Second Amendment, Second Amendment."
 
2013-06-17 02:51:14 PM  

ProfessorOhki: Do you have to start all protected speech with, "I invoke the First Amendment?"
Do you have to high hang a sign on your house that says, "no unreasonable search and seizure per the Fourth Amendment?"

Though, as luck would have it for the NRA folks, they already walk around constantly saying "Second Amendment, Second Amendment."

 
2013-06-17 02:52:09 PM  

Lost Thought 00: But how should I be outraged by this?


  You could always try the "This is just more proof that there are so many Exceptions to the Hearsay Rule as to render it a nullity!" angle.

  That always goes over well.
 
2013-06-17 02:53:54 PM  

ProfessorOhki: Do you have to high a sign on your house that says, "no unreasonable search and seizure per the Fourth Amendment?"


cf2.fancyimgs.com
 
2013-06-17 02:55:19 PM  
Don't invoke silence anyway, they can come at you for different crimes.  Invoke right to attorney and that stops all questions until they get you one.  Of course you may sit there for a good long time, but at least you won't incriminate yourself.
 
2013-06-17 02:57:46 PM  
So he must express his invocation of his right against self incrimination during non-custodial interrogation, yet he had no idea he was a suspect (based on the cops' finding out about his shotgun and car) until after he'd tried invoking his 5A rights by clamming up?

The voluntary nature of his submission to questioning in the first place doesn't give him the right to answer only those questions he feels like answering? Could the cops have arrested him for obstruction if they felt that his (totally voluntary) answers weren't as complete as the cops assumed? Does a person not retain the privilege of non-compelled speech once they agree to be interviewed by the cops - like, could someone leave a non-custodial interview to pick up their kids, or would the cops be allowed to assume they're evading questioning and arrest them on the spot?
 
2013-06-17 02:58:20 PM  
I kinda thought that POS Berghuis v. Thompkins already laid this principle out.  Damn, now i gotta read the opinion.
 
2013-06-17 02:58:26 PM  

mattharvest: elysive: My problems with the ruling include: 1) if a person can be convicted based on silent inference of physical evidence when physical forensicevidence could instead be obtained (if they couldnt actually match the weapon, why not?), 2) if this ruling is used to ask random people point blank if they commited crimes and then to prosecute them on the basis of their silence alone...who needs a full investigation...and 3) if the ruling is abused and used for fishing expeditions like asking about tax compliance while interviewing someone about their neighbor's suspicious behavior. I've already objected that a lot of people are so ignorant they dont know about the Fifth Amendment.

Your problem is that none of those are valid legal questions, frankly.

1. The State is under no obligation to get the evidence  you want to prove guilt; if we have five paths to prove guilt, we can pick one and run with it.  This is the standard CSI problem: if jurors expect every case to have every bit of possible evidence, it's an unreasonable standard.  You wouldn't require that in anything else in your life, but you want to do it here?  The question isn't "beyond all doubt", it's "beyond a  reasonable doubt."  Besides, your complaint misses the point entirely: even if he could have been convicted without the silence, that doesn't change whether or not it was legal to comment on it.  The Court here - in reaffirming nearly a CENTURY of case law - just explains it again.  If you have this problem with this decision, why didn't you have it with the last CENTURY of cases?

2. Your second fear - that random people will be questioned and then prosecuted - borders on farce.  That wouldn't make any sense.  It also wouldn't match the facts of this case, or the reasoning of the Court.  This whole discussion is about the fact that he made all these statements voluntarily (and waived his Fifth Amendment rights voluntarily) by virtue of how he chose to speak to the police.  Your scenario of a randoml ...



You basically have the long and the short of it here.  What really gets me is that this basic layman's understanding of common law and precedent is considered statism these days.  Too much libertarianism on the internet.
 
2013-06-17 02:59:20 PM  
One of the times my 12 yr. old made me laugh the hardest is when the teacher sent home a note that read "...the visiting officer was not amused by the entire class refusing to speak to him. I later learned (your son) convinced the class to remain silent. When I asked him if it was true, he responded, "I want a lawyer"."
 
2013-06-17 02:59:49 PM  

Daedalus27: Don't invoke silence anyway, they can come at you for different crimes.  Invoke right to attorney and that stops all questions until they get you one.  Of course you may sit there for a good long time, but at least you won't incriminate yourself.


unless you start talking.  even after asking for a lawyer, you can still resurrect the interview by continuing to talk
 
2013-06-17 03:00:03 PM  

mattharvest: Moreover, the Court reiterated a principle that has existed since Miranda itself: that to be shielded by the 5th Amendment, you must invoke it. There's no magic phrase, but something must be said to indicate that your silence is because you feel it would incriminate you as opposed to just not wanting to answer. The court - if you actually read the opinion - lays out all the reasons this limitation has been in place for so long.


This is in fact somewhat wrong with regard to how Miranda originally worked.  In the original instance there was the required principle that you actually understood your rights and that until you indicated that you did , there could be no proceeding.

This of course was gutted rather early on.
 
2013-06-17 03:00:49 PM  
How many liberals does it take to screw in a light bulb?

Zero. They have their gay sex and abortions in the dark!
 
2013-06-17 03:01:26 PM  

vernonFL: How many liberals does it take to screw in a light bulb?

Zero. They have their gay sex and abortions in the dark!


Oh fark. Sorry.
 
2013-06-17 03:02:20 PM  

Gig103: mattharvest: This case doesn't make new law, it just reiterates existing law.

Which is why you never answer a policeman's questions voluntarily. Even if they start innocent they may be trying to build a rapport and lead you into this situation where your sudden silence could be used against you.

"Can we ask you a few questions?"
"Sorry officer, no."
 Also, while we're on the subject of not trusting cops, and admission of evidence, if you ever answer the door and a cop is there, step outside and close the door behind you before talking to him or her.


Uh, wut?  Step outside and close the door before telling him you're not going to talk to him?
 
2013-06-17 03:07:04 PM  

nekom: Any lawyer worth his salt will instruct his client in no uncertain terms to make no statement to the police under any circumstances.  -  Justice Robert Jackson


And unfortunately, most people will or can retain a lawyer either when it's too late or they can afford for the state to give them one.
 
2013-06-17 03:07:24 PM  
I am OK with this.  Best to explicitly clear about choosing to not say anything than leave room for doubt.
 
2013-06-17 03:10:27 PM  

nekom:   In short, claiming innocence does not invalidate your right to STFU.

I do not agree with that, just like I don't agree with the premise behind the ruling. The underlying question at the heart of this dispute is "What does silence mean?" and I believe it doesn't mean anything at all (at law). Notice I did not say that I think silence is ambiguous. I think silence is a nullity. Any interpretation of silence by anyone is inherently wrong.

And I think that is what drives some people up the wall. They do not know how to deal with silence and they want it to mean something, anything. I'd argue that the headline is exactly right. By forcing one to speak when one does wish to speak even to say I do not wish to speak is a coercive action by the state. In fact, the Court has just held that. One branch of the State (the judicial system) has said that I cannot maintain my silence in the face of pressure from another branch of the state (the executive)

.mattharvest: If Caleb doesn't have Adam in custody, though, then it's no different than if Caleb were not a police officer at all.


Yes, that is the law. And it is contrary to all human experience.  It is a moral outrage and a cruel legal fiction.
 
2013-06-17 03:10:58 PM  

Nabb1: I'm not sure why this guy chose to start talking in the first place.


Most likely they assured him that not talking would make him look guilty.

Some people will believe anything.
 
2013-06-17 03:11:32 PM  

Theaetetus: ProfessorOhki: Do you have to high a sign on your house that says, "no unreasonable search and seizure per the Fourth Amendment?"

[cf2.fancyimgs.com image 540x640]


Amusingly, one of the PDs in this office has that exact door mat at the entrance to her office.
 
2013-06-17 03:15:56 PM  

Rincewind53: Theaetetus: ProfessorOhki: Do you have to high a sign on your house that says, "no unreasonable search and seizure per the Fourth Amendment?"

[cf2.fancyimgs.com image 540x640]

Amusingly, one of the PDs in this office has that exact door mat at the entrance to her office.


There was a judge in Albuquerque that had that doormat at the front door of his house.
 
2013-06-17 03:19:23 PM  
Actually, the Supreme Court's opinions are split and none were held completely by a majority, so this ruling is pretty weak. The only thing the majority held was that this guy is screwed.
 
2013-06-17 03:23:19 PM  

elysive: As for your objection to my first point, if the police had physical evidence, prosecution could have just withdrawn the defendant's "silence as evidence" unless it really was a cornerstone of their case or the goal was really to tie up the case in court for years. Though I hear it's such a speedy process, getting a viewing with SCOTUS!


You really ought to familiarize yourself with the actual case: at issue was the Prosecution's mentioning it during closing.
 
2013-06-17 03:26:19 PM  

worlddan: Yes, that is the law. And it is contrary to all human experience.  It is a moral outrage and a cruel legal fiction.


To be frank, "Seyz you."  You say it's contrary to 'human experience', I say the opposite.  If you don't think you're in custody - if you have no reasonably belief you're being restrained or otherwise being forced to do something against your will - then it's no different than any normal conversation.  There is no moral outrage or legal fiction.

As they say: if you can't pound the facts or law, pound the table.  That's all you're doing.
 
2013-06-17 03:27:35 PM  

mattharvest: elysive: As for your objection to my first point, if the police had physical evidence, prosecution could have just withdrawn the defendant's "silence as evidence" unless it really was a cornerstone of their case or the goal was really to tie up the case in court for years. Though I hear it's such a speedy process, getting a viewing with SCOTUS!

You really ought to familiarize yourself with the actual case: at issue was the Prosecution's mentioning it during closing.


I didnt think they allowed lawyers to introduce new evidence during final statements.
 
2013-06-17 03:27:40 PM  

mattharvest: nekom: The ruling is BS,

Why?

To quote literally the first paragraphs of the decision:

"Petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege against self incrimination in response to the officer's question. It has long been settled that the privilege "generally is not self executing" and that a witness who desires its protection "'must claim it.'" Minnesota v. Murphy, 465 U. S. 420, 425, 427 (1984) (quoting United States v. Monia, 317 424, 427 (1943)). Although "no ritualistic formula is necessary in order to invoke the privilege," Quinn v. United States, 349 U. S. 155, 164 (1955), a witness does not do so by simply standing mute."

The Court's argument is that according to cases dating back to 1943, there must be some invocation of the Fifth Amendment when the person isn't in custody.  Do you dispute that?

The Court's reasoning here is that the suspect wasn't in custody, based on the totality of his circumstances (he wasn't under arrest, he wasn't in a closed/locked room, he was free to leave, he voluntarily brought himself to the police, etc.).  Do you dispute that?

The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it.  If you cannot dispute the previous two points, how can you dispute their conclusion?


This. And in addition, the "right to remain silent" may be the chosen verbiage for the official Miranda warning, but is not what the 5th Amendment protects. As others have pointed out, the protection is against self-incrimination, and is usually exercised by being silent.

Therefore, I call "meh" on this entire topic.
 
2013-06-17 03:28:42 PM  

pueblonative: nekom: Any lawyer worth his salt will instruct his client in no uncertain terms to make no statement to the police under any circumstances.  -  Justice Robert Jackson

And unfortunately, most people will or can retain a lawyer either when it's too late or they can afford for the state to give them one.


And once they do, they will understand why there are so many lawyer jokes. Then they will realize they aren't really jokes.
 
2013-06-17 03:30:23 PM  

mattharvest: elysive: nekom: Any lawyer worth his salt will instruct his client in no uncertain terms to make no statement to the police under any circumstances.  -  Justice Robert Jackson

Could refusal to answer questions during an investigation be considered obstruction of justice? And with this new ruling could total silence without a plea of the fifth be used as evidence of total guilt of something.

/ruling just seems soooo wrong

No; you have no obligation to speak (generally) to the police at all.  There are limited exceptions (e.g. you must provide your name at a traffic stop) but those are tied to special circumstances (e.g. that you're driving using a state-issued Driver's License).  Giving  false information can be a crime (in some states, e.g. here in MD, it's a crime to give a false identity to avoid prosecution, as well as being a crime to file a 'false alarm' with the police to cause alarm, for example).

Moreover, your question is precisely the one answered by this ruling (which, as I note above, doesn't create new law): if you invoke the 5th, then your invocation (and silence) cannot be admitted at trial absent other crucial characteristics.  For example, if you're talking freely with the police (but in custody) and suddenly invoke the 5th, it's  possible that silence could be admitted (but unlikely).  If you're not in custody (as in this case), then you need to invoke the 5th or else your silence most definitely will be admissible.

I'm not giving legal advice, but if you think you might  ever want to invoke the 5th in a case, you're better off doing it first and foremost.  Otherwise, every word you say to the police endangers the success of your invocation.


Sound advice. And since you can't be sure that any true statements you made to the police won't be misinterpreted as false, remaining silent is absolutely a means of avoiding self-incrimination even if you are 100% innocent.
 
2013-06-17 03:33:04 PM  

studs up: One of the times my 12 yr. old made me laugh the hardest is when the teacher sent home a note that read "...the visiting officer was not amused by the entire class refusing to speak to him. I later learned (your son) convinced the class to remain silent. When I asked him if it was true, he responded, "I want a lawyer"."


This is awesome.  Even if it ain't true, I'm going to believe it because of how awesome it is.
 
2013-06-17 03:34:21 PM  

Dr Dreidel: Does a person not retain the privilege of non-compelled speech once they agree to be interviewed by the cops - like, could someone leave a non-custodial interview to pick up their kids, or would the cops be allowed to assume they're evading questioning and arrest them on the spot?


IANAL, but I would hope that in such a case the entire interview would then be held as custodial.
 
2013-06-17 03:34:48 PM  
This whole thing is much ado about nothing.  This issue had been settled for years. In order to preserve your 5th amendment rights during a non custodial interrogation (since Miranda doesn't apply unless your in custody) you need to go ahead an invoke the Fif.

What you should be concerned about is Thomas's concurring oppinion.  Again he and Scalia head to crazy town on crim procedure issues.

Here's a helpful primer to get everyone up to speed : http://www.comedycentral.com/video-clips/3vk26x/chappelle-s-show-tron - carter-s-law---order

/its the Chappelle show so it may or may not be NSFW dependant upon your work place
 
2013-06-17 03:38:56 PM  
Huh. Amazing that basic constitutional rights are now "opt-in", rather than having to opt out to waive them.
 
2013-06-17 03:39:08 PM  

mattharvest: Thread-long snip.


You mistake  disagreement with the law, and this ruling, as ignorance of it. One doesn't agree with the law by merit of it being the law. Some of us are distressed by this trajectory, and the future rulings it can set up. This decision is a violation of the  spirit and principleof the Fourth and Fifth Amendments, if not the  letter.  The Supreme Court reinforces that indeed, silence absent an explicit invocation of Fifth Amendment protection is, itself, self-incriminating. That's the crux of this case. You yourself said the Fifth Amendment may only be invoked in the case of actual or potential self-incrimination.

What's next, an argument that to invoke the Fifth Amendment  itself in a non-coercive setting constitutes probable cause? An argument that to remain silent absent explicit Fifth Amendment invocation is tantamount to contempt or obstruction? In which case, the Fifth is no longer in factthe protection against self-incrimination it was intended to be, but rather the very noose around a suspect's neck.

You say "no, that's not the case" today, but today isn't about what many of us worry -- the cases down the line which may use this as precedent, are. You don't get from  Mapp v. Ohio to  Hudson v. Michigan, or from  Katz v. United States to  Maryland v. King (and yes, I'd argue they are connected at the idea of a person has a reasonable expectation of privacy to their own bodies at a level inaccessible to plain-view) at the drop of a hat. It's a slow evolution, over time, from one narrowly-ruled decision to another.
 
2013-06-17 03:39:33 PM  

mattharvest: worlddan: Yes, that is the law. And it is contrary to all human experience.  It is a moral outrage and a cruel legal fiction.

To be frank, "Seyz you."  You say it's contrary to 'human experience', I say the opposite.  If you don't think you're in custody - if you have no reasonably belief you're being restrained or otherwise being forced to do something against your will - then it's no different than any normal conversation.  There is no moral outrage or legal fiction.


Your position is based on a false behaviorism. Let me ask you this question: Why do police have badges? Why do they wear uniforms? Badges and uniforms are the acme of concrete facts. The police wear badges and uniforms because appearances matter. The law promulgates a decisive social evil when it pretends that the citizen is free to move about (non-custodial) while the lawful authority is free to create an illusion of the opposite. The fact of the matter is that if Caleb were my friend he's look just like my friend.

The current law is the equivalent of saying that one can jump off a 100 foot cliff but hey one is free because one can flap their arms. Nonsense. Any interaction with any officer of the state in any official capacity is inherently coercive.
 
2013-06-17 03:39:57 PM  
1.bp.blogspot.com
 
2013-06-17 03:40:10 PM  

evaned: Dr Dreidel: Does a person not retain the privilege of non-compelled speech once they agree to be interviewed by the cops - like, could someone leave a non-custodial interview to pick up their kids, or would the cops be allowed to assume they're evading questioning and arrest them on the spot?

IANAL, but I would hope that in such a case the entire interview would then be held as custodial.


Seems so, but in light of this decision, it looks like the cops could use your "refusal to answer further questions" as probable cause to detain you to compel those answers. (Lawyers, please tell me where I'm wrong.)

One more reason the only thing I'll ever say to cops is "Here is my license and registration" (if I'm feeling polite) and "I do not consent to a search of my person, vehicle or effects". This kind of shiat makes "Stop Snitchin'" possible - if people know you're generally not trustworthy, they won't trust you even if it behooves them to do so.
 
2013-06-17 03:40:24 PM  

mattharvest: Ignorance of the law is no excuse, despite the whingey tone of this Above the Law article.


If people weren't ignorant of the law, there would be no demand for lawyers.

\and very few lawyers practice in all areas of the law
\\so the "Ignorance of the law is no excuse" statement, while glib, isn't even practiced by lawyers
\\\the guys paid for law-talking stuff
 
2013-06-17 03:44:56 PM  

that bosnian sniper: What's next, an argument that to invoke the Fifth Amendment itself in a non-coercive setting constitutes probable cause? An argument that to remain silent absent explicit Fifth Amendment invocation is tantamount to contempt or obstruction? In which case, the Fifth is no longer in factthe protection against self-incrimination it was intended to be, but rather the very noose around a suspect's neck.


I read this in the voice of Fred Thompson as Law & Order District Attorney Arthur Branch.

/apologies if it was supposed to be Jack McCoy
 
2013-06-17 03:46:36 PM  

elysive: nekom: Any lawyer worth his salt will instruct his client in no uncertain terms to make no statement to the police under any circumstances.  -  Justice Robert Jackson

Could refusal to answer questions during an investigation be considered obstruction of justice? And with this new ruling could total silence without a plea of the fifth be used as evidence of total guilt of something.

/ruling just seems soooo wrong


LOL, my co-worker just pretty much said the same thing:

"you have to tell us you want to remain silent, but the minute you open your mouth youve waived your right to remain silent and thus must answer our questions"or ill taser you for obstruction of justice.

Gah.. this is such a stupid ruling.
 
2013-06-17 03:47:17 PM  
If you catch a police investigator in a lie, does that constitute breach of trust, thereby nullifying any obligation on honesty on your part?
 
2013-06-17 03:48:07 PM  
And furthermore, what in the  blue blazes were the cops doing with this guy calling him in for an "interview" when they already had ballistic evidence, other than trying to get him to incriminate himself in a "non-coercive" setting absent Miranda rights? Sheesh.
 
2013-06-17 03:48:24 PM  
When it comes to communication, positive signals are good!

Man: can I have sex with you now?
Woman: -silence-

Is that silence a no or a yes?
 
2013-06-17 03:49:52 PM  

elysive: I guess I'll repeat my question from the other thread...why is the privilege self-executing in the case of Miranda warnings? Why not make people in custody invoke their own Fifth Amendment rights? If its not an inherent right, idiots in custody should have to speak up before shutting up.


Let me turn your question around: why should I specifically have to invoke ANY right?  Why aren't all rights self-executing?  And if it has something to be with being a "privilege" rather than a right, how is that so?  Why is "the right to remain silent" not actually a right?

There may be a very good reason I don't know of, but on the surface, the claim that a right has to be invoked before one gets to have it sounds pretty absurd.
 
2013-06-17 03:50:27 PM  
All children and prior to anyone becoming an America citizen. Should be taught and know their Miranda rights. Almost everyone over 14 knows them now and any criminal that doesn't is lying. If they were taught this in school the possible criminal could be held accountable if they pretended not to know the Miranda.
It's not like teachers couldn't take a few hours a year to teach the Miranda rights. It would be very helpful to law enforcement and inner city kids.
 
2013-06-17 03:50:35 PM  

Dr Dreidel: Seems so, but in light of this decision, it looks like the cops could use your "refusal to answer further questions" as probable cause to detain you to compel those answers. (Lawyers, please tell me where I'm wrong.)


...and there we have the problem with this opinion. I'd lay money that's next on the docket, here in two or three years' time when the police try to pull it in light of  this decision.
 
2013-06-17 03:51:05 PM  

HAMMERTOE: If you catch a police investigator in a lie, does that constitute breach of trust, thereby nullifying any obligation on honesty on your part?


Yes, but then you'd end up shot while resisting arrest some time later.
 
2013-06-17 03:51:37 PM  

garkola: When it comes to communication, positive signals are good!

Man: can I have sex with you now?
Woman: -silence-

Is that silence a no or a yes?


Under common law, it's a yes.
 
2013-06-17 03:52:22 PM  
It seems to me now that guilty or innocent the best strategy is to not talk to law enforcement at all, or only with a lawyer. It seems too complex for a lay person to handle how their statements or silence could be interpreted and used against them.

Am I wrong? Are their situations where it is advantageous to talk to the police? Beyond some vague "civic duty"?
 
2013-06-17 03:52:30 PM  
garkola:
Man: can I have sex with you now?
Woman: -silence-

Is that silence a no or a yes?


This is what is called operating from a false premise or asking a leading question. Silence is neither a no or a yes. It is silence. It means silence.  It means nothing more nor anything less.
 
2013-06-17 03:53:52 PM  

HAMMERTOE: If you catch a police investigator in a lie, does that constitute breach of trust, thereby nullifying any obligation on honesty on your part?


No, they have no obligation to tell the truth. They can mislead you in any way they feel they need to. They will tell you they have evidence they don't to see if it gets you to stop claiming innocence and start explaining mitigating circumstances in a heartbeat. If you are at all guilty of what you are charged with do not ever talk to police except, in accordance with this ruling, to tell them you want a lawyer to speak for you.
 
2013-06-17 03:54:05 PM  
I only read this mess once, but was Miranda actually ammended? Is there any change to fifth ammendment protections? It seems that this 'speak up to remain silent' deal is a minority opinion.
I'll not read the article again. I'll wait for a better one.

The fifth always seemed like an admission of guilt, but after reading Leonard Levy's Origins of the 5th ammendment, it seems outrageous that The Man would ever lean on someone for a confession.

Better invocation of the 5th ammendment: Are you accusing me? Then prove it.
 
2013-06-17 03:54:55 PM  

HazMatt: Are their situations where it is advantageous to talk to the police?


Absent an attorney? Not one. Not even if you're the victim, because in many cases so much as an inconsistent or incomplete statement can dive bomb an investigation, or worse get you labeled a suspect.
 
2013-06-17 03:56:14 PM  

pute kisses like a man: Daedalus27: Don't invoke silence anyway, they can come at you for different crimes.  Invoke right to attorney and that stops all questions until they get you one.  Of course you may sit there for a good long time, but at least you won't incriminate yourself.

unless you start talking.  even after asking for a lawyer, you can still resurrect the interview by continuing to talk


The cops had better not ask any questions, though.
 
2013-06-17 04:00:37 PM  

Dear Jerk: I only read this mess once, but was Miranda actually ammended?


By word? Not so much. In fact...well, most likely. This case involved the guilty party volunteering to "interview" with the police (i.e. in a setting absent Miranda rights), then turning silent (without explicitly asserting his Fifth Amendment rights) when it became obvious he was being questioned as a suspect. The prosecutor used his silence, absent asserting his rights, as evidence against him.  SCOTUS upheld that admission, on the grounds the Fifth Amendment is not self-executing.

So, this is a major feather in the cap for police circumventing Miranda rights altogether.
 
2013-06-17 04:01:07 PM  

HAMMERTOE: If you catch a police investigator in a lie, does that constitute breach of trust, thereby nullifying any obligation on honesty on your part?


shiat, dude, why the fark are you playing THAT game?  The police are highly trained, highly skilled.  If you talk with them, they'll run you.  It doesn't matter how smart you are, what sort of law degree you have, whatever.  If you talk, they'll run you.  Of course, you have the trump card:

"I want a lawyer" + STFU
 
2013-06-17 04:01:27 PM  

worlddan: garkola:
Man: can I have sex with you now?
Woman: -silence-

Is that silence a no or a yes?

This is what is called operating from a false premise or asking a leading question. Silence is neither a no or a yes. It is silence. It means silence.  It means nothing more nor anything less.


But in the case of reading someone their Miranda rights silence could mean that they do not understand their rights.
 
2013-06-17 04:01:52 PM  

This text is now purple: garkola: When it comes to communication, positive signals are good!

Man: can I have sex with you now?
Woman: -silence-

Is that silence a no or a yes?

Under common law, it's a yes.


Enjoy your prison time for rape.
 
2013-06-17 04:05:34 PM  

mattharvest: There's no magic phrase, but something must be said to indicate that your silence is because you feel it would incriminate you as opposed to just not wanting to answer.


IANAL but I have extreme difficulty believing this. I'm silent because I think cops are farking dicks and that should be enough.
 
2013-06-17 04:06:52 PM  

BarkingUnicorn: Gig103: mattharvest: This case doesn't make new law, it just reiterates existing law.

Which is why you never answer a policeman's questions voluntarily. Even if they start innocent they may be trying to build a rapport and lead you into this situation where your sudden silence could be used against you.

"Can we ask you a few questions?"
"Sorry officer, no."
 Also, while we're on the subject of not trusting cops, and admission of evidence, if you ever answer the door and a cop is there, step outside and close the door behind you before talking to him or her.

Uh, wut?  Step outside and close the door before telling him you're not going to talk to him?


Do this especially if you're drunk.  By stepping out without being asked to do so (which would, in most states, shield a drunk person from a BS public intox charge), the cop is allowed to arrest you for public intoxication.
 
2013-06-17 04:07:08 PM  

meanmutton: This text is now purple: garkola: When it comes to communication, positive signals are good!

Man: can I have sex with you now?
Woman: -silence-

Is that silence a no or a yes?

Under common law, it's a yes.

Enjoy your prison time for rape.


Could always go with "Say Yes, or stay silent*, if you want to have sex now."
(*Does NOT count if there is tape involved)
 
2013-06-17 04:09:07 PM  

that bosnian sniper: HazMatt: Are their situations where it is advantageous to talk to the police?

Absent an attorney? Not one. Not even if you're the victim, because in many cases so much as an inconsistent or incomplete statement can dive bomb an investigation, or worse get you labeled a suspect.


OK, given that, what's the best method for a regular schmoe that doesn't have (or regularly need) an attorney to go about getting one if the cops insist on talking? Is there some kind of attorney that's "good enough" to make sure you have a business card from? In the vein of how I carry a card for a towing service, even though I maintain my car and drive safely.
 
2013-06-17 04:09:40 PM  

HazMatt: It seems to me now that guilty or innocent the best strategy is to not talk to law enforcement at all, or only with a lawyer. It seems too complex for a lay person to handle how their statements or silence could be interpreted and used against them.

Am I wrong? Are their situations where it is advantageous to talk to the police? Beyond some vague "civic duty"?


meanmutton: HAMMERTOE: If you catch a police investigator in a lie, does that constitute breach of trust, thereby nullifying any obligation on honesty on your part?

shiat, dude, why the fark are you playing THAT game?  The police are highly trained, highly skilled.  If you talk with them, they'll run you.  It doesn't matter how smart you are, what sort of law degree you have, whatever.  If you talk, they'll run you.  Of course, you have the trump card:

"I want a lawyer" + STFU


Don't talk To the Police obligatory video.

Surprised it hasn't been posted already.
 
2013-06-17 04:10:44 PM  
And by the way making an "I'm not talking to you without a lawyer" statement is the right one to do anyway. If you remain mute then the cops can continue to question you until something they say irritates you and you blurt something out which gives up your right to silence. Making a positive "I'm not talking without representation" statement means that continuing to question you opens the police up to harassment charges and makes it unlikely that anything you were to blurt out if they do continue questioning you would be allowed in court.
 
2013-06-17 04:13:37 PM  

meanmutton: This text is now purple: garkola: When it comes to communication, positive signals are good!

Man: can I have sex with you now?
Woman: -silence-

Is that silence a no or a yes?

Under common law, it's a yes.

Enjoy your prison time for rape.


It didn't really work out for Thomas More, either.
 
2013-06-17 04:14:02 PM  

HazMatt: that bosnian sniper: HazMatt: Are their situations where it is advantageous to talk to the police?

Absent an attorney? Not one. Not even if you're the victim, because in many cases so much as an inconsistent or incomplete statement can dive bomb an investigation, or worse get you labeled a suspect.

OK, given that, what's the best method for a regular schmoe that doesn't have (or regularly need) an attorney to go about getting one if the cops insist on talking? Is there some kind of attorney that's "good enough" to make sure you have a business card from? In the vein of how I carry a card for a towing service, even though I maintain my car and drive safely.


If you are arrested and in custody they have to provide a lawyer if you exercise your right. They won't be Perry Mason but they will be able to do the very basic, ie tell you to say nothing, tell the cops you are saying nothing and getting you released. If the police want to charge you you will have time to find a lawyer if you want someone else.
The lawyer they get for you is like the paramedic who gives you first aid in the car wreck. Their job is to stabilise you and stop you bleeding to death. They won't be the surgeon who fixes you in theatre.
 
2013-06-17 04:17:18 PM  

another cultural observer: Do this especially if you're drunk. By stepping out without being asked to do so (which would, in most states, shield a drunk person from a BS public intox charge), the cop is allowed to arrest you for public intoxication.


The advantage of an arts&crafts house with an enclosed porch -- your porch is within the confines of the footprint of your house.
 
2013-06-17 04:18:57 PM  

Digitalstrange: And by the way making an "I'm not talking to you without a lawyer" statement is the right one to do anyway. If you remain mute then the cops can continue to question you until something they say irritates you and you blurt something out which gives up your right to silence. Making a positive "I'm not talking without representation" statement means that continuing to question you opens the police up to harassment charges and makes it unlikely that anything you were to blurt out if they do continue questioning you would be allowed in court.


Not quite. IIRC, they can keep badgering you - making you feel bad about "wasting everyone's time/money getting a lawyer involved", they can berate your style of dress, they can ask you about {$local_sports_franchise}, they can even keep asking you about the issue at hand (though your responses are possibly inadmissible) - even after you ask for an attorney. The rules are different, and you have a good chance of getting that interrogation tossed (certainly, everything after your request for legal help), but there are very narrow conversations the cops can legally have.

// not a lawyer
 
2013-06-17 04:24:21 PM  

Flint Ironstag: If you are arrested and in custody they have to provide a lawyer if you exercise your right. They won't be Perry Mason but they will be able to do the very basic, ie tell you to say nothing, tell the cops you are saying nothing and getting you released. If the police want to charge you you will have time to find a lawyer if you want someone else.
The lawyer they get for you is like the paramedic who gives you first aid in the car wreck. Their job is to stabilise you and stop you bleeding to death. They won't be the surgeon who fixes you in theatre.


LOL no they don't. They give you a form to fill out to prove you're indigent and if you pass THAT test you get a lawyer on the house, if charges are brought against you. Most times you don't pass the 'packet test' but can't REALLY afford a lawyer so you're screwed.

If you are arrested and the police question you, and you don't have a lawyer and request one, its the same thing, except they wont question you and will build their case around you, instead of relying on your statements. But you aint getting a lawyer for questioning unless you've been in custody a while. Charged.
 
2013-06-17 04:26:10 PM  

Dr Dreidel: Digitalstrange: And by the way making an "I'm not talking to you without a lawyer" statement is the right one to do anyway. If you remain mute then the cops can continue to question you until something they say irritates you and you blurt something out which gives up your right to silence. Making a positive "I'm not talking without representation" statement means that continuing to question you opens the police up to harassment charges and makes it unlikely that anything you were to blurt out if they do continue questioning you would be allowed in court.

Not quite. IIRC, they can keep badgering you - making you feel bad about "wasting everyone's time/money getting a lawyer involved", they can berate your style of dress, they can ask you about {$local_sports_franchise}, they can even keep asking you about the issue at hand (though your responses are possibly inadmissible) - even after you ask for an attorney. The rules are different, and you have a good chance of getting that interrogation tossed (certainly, everything after your request for legal help), but there are very narrow conversations the cops can legally have.

// not a lawyer


In the event of murder, they love to play with a suspect's emotions.

Suspect arrested on suspicion of murder.

He immediately invokes miranda.

The two officers driving back to the county jail strike up a conversation with themselves.... "Too bad we couldn't find the gun.  With that park nearby, some kid is gonna find it and god knows what'll happen."   "Yeah, someone else is going to have a really bad holiday."

Suspect (feeling bad because he's stupid, and kids might get hurt): "It's in the garbage can next to the McDonald's"

statement is likely admissible (since he wasn't being questioned), and he's screwed.

based on a true story.
 
2013-06-17 04:26:59 PM  

mattharvest: vernonFL: "looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, [and] began to tighten up."

If that is true, (and the cops could have just made that up) - the guy's body language spoke for him.

Police are trained to spot those "tells" in your behavior.

Hence the difference between the words "explicit" and "implicit".  You'll note that  explicit invocation is required, albeit not by any specific language, while  implicitinvocation isn't sufficient.  The entire discussion of the 'general rule' requested by the petitioner/convict was that he wanted  implicit invocation to be allowed, but the Supreme Court explains that this is not only contrary to decades-old law, but absurd in and of itself with regards to practice.


And yet, prima facie Bullshiat.  If you have the right against self incrimination, silence in any interview with an armed man (police) should be inadmissible.  The law, and its interpretation, can be wrong (Plessy vs. Ferguson).
 
2013-06-17 04:31:06 PM  
Four words.... "I want a lawyer".

But also this; a friend of mine who used to be a States Attorney, and now is a judge. " Never talk to the police, with the exception you witness a crime or car accident."
 
2013-06-17 04:33:56 PM  

thetubameister: mattharvest: vernonFL: "looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, [and] began to tighten up."

If that is true, (and the cops could have just made that up) - the guy's body language spoke for him.

Police are trained to spot those "tells" in your behavior.

Hence the difference between the words "explicit" and "implicit".  You'll note that  explicit invocation is required, albeit not by any specific language, while  implicitinvocation isn't sufficient.  The entire discussion of the 'general rule' requested by the petitioner/convict was that he wanted  implicit invocation to be allowed, but the Supreme Court explains that this is not only contrary to decades-old law, but absurd in and of itself with regards to practice.

And yet, prima facie Bullshiat.  If you have the right against self incrimination, silence in any interview with an armed man (police) should be inadmissible.  The law, and its interpretation, can be wrong (Plessy vs. Ferguson).


It  can be, but there is zero argument that it is.

The fact is that for the last century, non-custodial interrogation has been treated as being no different from any other conversation.  If you can explain why a century of Justices are all wrong, and you're right, knock yourself out.  I'm sure the Law Reviews will clamour for your words.

You don't appear to have even read the opinion, much less understood the law of the case, so why do you feel so confident speaking about something you're clearly not an expert (or apparently even educated) on?
 
2013-06-17 04:35:54 PM  

Madbassist1: mattharvest: There's no magic phrase, but something must be said to indicate that your silence is because you feel it would incriminate you as opposed to just not wanting to answer.

IANAL but I have extreme difficulty believing this. I'm silent because I think cops are farking dicks and that should be enough.


What do you mean, 'believing this'?  I've quoted - repeatedly - where the Court has explicitly said this.  They literally just, today, reaffirmed this century-old principle of American law.  This is as closed to indisputable as American law gets.
 
2013-06-17 04:36:09 PM  

another cultural observer: Dr Dreidel: Digitalstrange: And by the way making an "I'm not talking to you without a lawyer" statement is the right one to do anyway. If you remain mute then the cops can continue to question you until something they say irritates you and you blurt something out which gives up your right to silence. Making a positive "I'm not talking without representation" statement means that continuing to question you opens the police up to harassment charges and makes it unlikely that anything you were to blurt out if they do continue questioning you would be allowed in court.

Not quite. IIRC, they can keep badgering you - making you feel bad about "wasting everyone's time/money getting a lawyer involved", they can berate your style of dress, they can ask you about {$local_sports_franchise}, they can even keep asking you about the issue at hand (though your responses are possibly inadmissible) - even after you ask for an attorney. The rules are different, and you have a good chance of getting that interrogation tossed (certainly, everything after your request for legal help), but there are very narrow conversations the cops can legally have.

// not a lawyer

In the event of murder, they love to play with a suspect's emotions.

Suspect arrested on suspicion of murder.

He immediately invokes miranda.

The two officers driving back to the county jail strike up a conversation with themselves.... "Too bad we couldn't find the gun.  With that park nearby, some kid is gonna find it and god knows what'll happen."   "Yeah, someone else is going to have a really bad holiday."

Suspect (feeling bad because he's stupid, and kids might get hurt): "It's in the garbage can next to the McDonald's"

statement is likely admissible (since he wasn't being questioned), and he's screwed.

based on a true story.


I hate Miranda (or 4th amendment) threads because they make me so unhappy.  For example, now i am remembering  Rhode Island v. Innis, which is the "true story" you referenced and I find myself wanting to punch something.
 
2013-06-17 04:37:28 PM  

HAMMERTOE: If you catch a police investigator in a lie, does that constitute breach of trust, thereby nullifying any obligation on honesty on your part?


Nope. They are legally allowed to lie.
 
2013-06-17 04:42:51 PM  

mattharvest: worlddan: Yes, that is the law. And it is contrary to all human experience.  It is a moral outrage and a cruel legal fiction.

To be frank, "Seyz you."  You say it's contrary to 'human experience', I say the opposite.  If you don't think you're in custody - if you have no reasonably belief you're being restrained or otherwise being forced to do something against your will - then it's no different than any normal conversation.  There is no moral outrage or legal fiction.

As they say: if you can't pound the facts or law, pound the table.  That's all you're doing.


Bullshiat, anyone who has been approached on the street by police knows it does not feel like a normal conversation between equals and asserting otherwise is ludicrous.

Do the police say you have the right to remain silent or do they say you have the right to assert verbally your right to not speak? Words matter, and what they mean matters, and when you change that meaning with lengthy legal definitions you make it impossible for anyone not a lawyer to really know what the law says.

The real reason for this conversation is that the legal realities are very different from the common understanding and word definitions.  How are the common people without legal training supposed to know, understand, and follow laws that have such cryptic meanings? Answer: They aren't.
 
2013-06-17 04:44:26 PM  
abovethelaw.com
abovethelaw.com

Actual criminal lawyer's actual business card
 
2013-06-17 04:45:34 PM  

Teiritzamna: I hate Miranda (or 4th amendment) threads because they make me so unhappy.  For example, now i am remembering  Rhode Island v. Innis, which is the "true story" you referenced and I find myself wanting to punch something.


Why?  Because a murderer thought some murders were okay but not others, so he told the police - who weren't talking to him - where he hid a murder weapon?  The same murderer who put the murder weapon where kids might find it?

Would you have it that police cannot have any conversation whatsoever in front of a person who has indicated they want to remain silent?  In other words, would police have to be deathly silent in such situations?  What if, while transporting him, dispatch had put something out over the radio about a child in fact finding the weapon and killing someone; would that have violated his Miranda rights?

Of course, the funniest thing is that this thread is neither about Miranda nor the Fourth Amendment: there was no custody, so Miranda is uninvolved, and there was no search nor seizure at all since the suspect  volunteered his gun.
 
2013-06-17 04:48:33 PM  

UseLessHuman: Do the police say you have the right to remain silent or do they say you have the right to assert verbally your right to not speak? Words matter, and what they mean matters, and when you change that meaning with lengthy legal definitions you make it impossible for anyone not a lawyer to really know what the law says.


Did you  read the opinion?  There is - as quoted here - quite a bit of discussion of the difference between implicit and explicit invocations, and why the difference matters.  If you're prepared to explain why the Court's reasoning on those issues is invalid, go for it.

Moreover,  Miranda waivers aren't involved here! He was never in custody when any of the statements occurred.  As such, he hadn't been told "you have the right to remain silent" at all, because that is only a part of Miranda advice.  So, when you ask that question, why do you think it has anything to do with this case or this area of law?

Miranda is not just another name for Fifth Amendment rights; your Miranda rights are a subset of those rights, and only apply in certain situations.
 
2013-06-17 04:58:18 PM  

Lost Thought 00: But how should I be outraged by this?


Don't be outraged by this, be outraged by Thomas's complete disregard for personal liberty and human rights in his concurrence, citing laws and rulings that have previously been found multiple time to not apply in this kind of case, and Scalia's preference for it. Those two are dangerous idiots, the rest have strong but logical opinions that may not match ours but make sense.

Also be outraged by a rather hysterical and emotional summary of a case by a legal blogger who should know better.
 
2013-06-17 05:01:23 PM  

Shostie: Nabb1: Lost Thought 00: But how should I be outraged by this?

This being FARK, I recommend simply scanning the names of the Justices, and base all of your arguments on attacking them without really articulating any coherent legal argument of this particular issue and pepper it with buzzwords you've learned on this and other websites, but don't entirely understand.  I love a good con crim pro discussion, but this will get pooped on soon enough when it hits the main page.

Noted.

F*CKING SCALIA THOMAS ALITO!


It all started with Sandra Day, they never should have let a woman onto the Supreme Court!
 
2013-06-17 05:06:21 PM  

foxyshadis: Lost Thought 00: But how should I be outraged by this?

Don't be outraged by this, be outraged by Thomas's complete disregard for personal liberty and human rights in his concurrence,


The person wasn't under arrest or in custody.
They voluntarily talked to the police.

How is that even close to what is covered under the Miranda Warning?
 
2013-06-17 05:07:36 PM  

give me doughnuts: Is somebody going to link the "Never talk to the cops" videos?
Youtube is blocked here.


https://www.youtube.com/watch?v=6wXkI4t7nuc

That one is well articulated.

Here is a direct link:

Link
 
2013-06-17 05:12:35 PM  

HazMatt: OK, given that, what's the best method for a regular schmoe that doesn't have (or regularly need) an attorney to go about getting one if the cops insist on talking? Is there some kind of attorney that's "good enough" to make sure you have a business card from? In the vein of how I carry a card for a towing service, even though I maintain my car and drive safely.


First, IANAL.

Second, without paying retainer fees? You're not terribly in luck. That said, you can  always refuse to answer questions, consent to a search, and/or cooperate so long as you're not in custody, and the police have neither a warrant nor probable cause.  If and  when you are placed in custody, you then have the right to a public defender who still rates as "better than nothing in a pinch".
 
2013-06-17 05:13:54 PM  
www.theblindcard.com
 
2013-06-17 05:15:13 PM  

Farxist: How is that even close to what is covered under the Miranda Warning?


Considering this case is about cops weaseling around Mirandization by "interviewing" suspects rather than placing them in custody, even in the event of incriminating evidence against that suspect, and suspects' rights in that case, I'd say pretty goddamn close.
 
2013-06-17 05:15:36 PM  

meanmutton: HAMMERTOE: If you catch a police investigator in a lie, does that constitute breach of trust, thereby nullifying any obligation on honesty on your part?

shiat, dude, why the fark are you playing THAT game?  The police are highly trained, highly skilled.  If you talk with them, they'll run you.  It doesn't matter how smart you are, what sort of law degree you have, whatever.  If you talk, they'll run you.  Of course, you have the trump card:

"I want a lawyer" + STFU


*snerk* "highly trained, highly skilled" I wouldn't give much credit to your standard officer walking the street. I'm personally well acquainted with a few officers (I play airsoft with them regularly), but they aren't going to ever apply for a MENSA membership.

CSB Time:
I have run a lasertag group for the past eight years with a friend of mine. We use custom equipment, most people have full camouflage, and we like to play out in wooded areas. A few years back, we had about 15 or so of us out on a decommissioned air force base. Fun terrain, lots of overgrown areas, and only a few of the buildings were used by various things such as a kennel club, local plumber's union meeting house, etc. We had permission of the landowners, and were generally having a good time. A police car rolls up to the entrance, flashes its lights and sirens and two officers get out. As one of the guys in charge I tell everybody to drop their equipment, and I approach with my hands well away from anything. A few quick hellos, and the officer tells me they had a report of someone shooting a car with a paintball gun. I show her our equipment, of which, only one has a projectile, a large NERF dart with emitters for lasertag and explain that's our only projectile device. I ask if any of our guys had seen anyone else wandering the property. They all say no. So, I ask the officer where this occurred, etc. She then tells me that it wasn't actually that someone was hit with a paintball, but someone called about guys running around with paintball guns. I show her our equipment, which functions using IR, and once again profess innocence. Well, she says, it turns out the report was only about someone running around with gun-like objects and projectile weapons can't be fired in the county. I point out that we don't have projectile weapons, minus the one NERF missile. The other officer finally asks if we have permission to be there. I said we did. He asked for it in writing, otherwise he'd take us all down for trespassing until we could "clear the matter up." The result was we stayed very amicable, and cleared out of the base.

So, yes, officers are allowed to lie, harass, and get away with a lot. The officers story changed from someone getting hit with a paintball to people with gun-like objects, and finally just resulted in threats to get a bunch of college students to leave. That isn't to say every officer is like that, while running the same club, we had an officer come out because a woman regularly reported that a bunch of guys were running around with weapons. After the third time the officer just came up to us, laughed, and told us he was going to call the woman and tell her she'd be charged with false reporting if she kept calling the police out for us.
 
2013-06-17 05:19:37 PM  

mattharvest: thetubameister: mattharvest: vernonFL: "looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, [and] began to tighten up."

If that is true, (and the cops could have just made that up) - the guy's body language spoke for him.

Police are trained to spot those "tells" in your behavior.

Hence the difference between the words "explicit" and "implicit".  You'll note that  explicit invocation is required, albeit not by any specific language, while  implicitinvocation isn't sufficient.  The entire discussion of the 'general rule' requested by the petitioner/convict was that he wanted  implicit invocation to be allowed, but the Supreme Court explains that this is not only contrary to decades-old law, but absurd in and of itself with regards to practice.

And yet, prima facie Bullshiat.  If you have the right against self incrimination, silence in any interview with an armed man (police) should be inadmissible.  The law, and its interpretation, can be wrong (Plessy vs. Ferguson).

It  can be, but there is zero argument that it is.

The fact is that for the last century, non-custodial interrogation has been treated as being no different from any other conversation.  If you can explain why a century of Justices are all wrong, and you're right, knock yourself out.  I'm sure the Law Reviews will clamour for your words.

You don't appear to have even read the opinion, much less understood the law of the case, so why do you feel so confident speaking about something you're clearly not an expert (or apparently even educated) on?


Wow... my throat; it has been jumped down...

I understand that - if you're a lawyer, you are more educated on the subject, but I would guess you have some bias of righteousness, which seem evident in your attack.

I did not read the opinion, I RTFA (most opinions are practically sanscrit pseudo-English; and yes, I've read many...).  And while I understand the assertions you make and the article cites and quotes, I do believe:

1) The Constitution and the Bill of Rights are in plain English.
2) There can be years of case law corrected by common sense or common sensibility.
3) A right should not have to be asserted; it's either a right, or not.  Having to invoke the very document upon which our laws are based is utterly ludicrous, and an assertion only a person parsing the language could manufacture.
4) Finally, I would argue that (presuming the police officer is armed with a firearm), there is an imbalance in the power structure of that conversation, with an implied consequence of not pleasing or complying with said individual (the uniform is the implication of their power over you, and certain behaviors you are not allowed to commit to them compared to other citizens, and their protections against you; not to mention their special privileges this court finds for police rather regularly).

Those in the law I believe tend to find it intellectually challenging to make and prove arguments which parse and interpret the law; for instance the bizarre idea that an amendment asserting "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article" can be questioned in the possible nullification of the voting rights act (WTF... that's the constitution for crisakes...)...

Sure this dude may have clammed up because he's guilty; but silence being interpreted asspeech and/or compelling assertions ofexercising a right isinherently prejudicial to an interviewer, and as such should be ignored and dismissed as protecting oneself from self incrimination.  But common sense, or plain protection, is occluded by overly complicated thinking... or selfish thinking. 

Awaiting another throat jumping...
 
2013-06-17 05:32:11 PM  
upload.wikimedia.org
 
2013-06-17 05:40:50 PM  

Farxist: foxyshadis: Lost Thought 00: But how should I be outraged by this?

Don't be outraged by this, be outraged by Thomas's complete disregard for personal liberty and human rights in his concurrence,

The person wasn't under arrest or in custody.
They voluntarily talked to the police.

How is that even close to what is covered under the Miranda Warning?


Did I mention Miranda? Did Lost Thought 00? I wasn't talking about Miranda OR the main opinion. Thomas only concurred because he posited that the Fifth Amendment - not Miranda - doesn't apply for anyone not under arrest, which is complete police state bullshiat logic that's already been thrown out by the Supreme Court a couple of times.
 
2013-06-17 05:50:54 PM  

garkola: When it comes to communication, positive signals are good!

Man: can I have sex with you now?
Woman: -silence-

Is that silence a no or a yes?


Lawyer snark:

Despite the fact she stated no to the question is not a refusal of consent. When she stated no to the question, it was a lie if you accept her testimony that I did have sex with her. Thus the fact I had sex with her clearly demonstrates that the only true response to the question, 'Can I have sex with you?' Is yes.

Otherwise I would have asked, 'May I have sex with you?'
 
2013-06-17 05:57:48 PM  
Does anyone else feel like Law School is a prerequisite just to comment in any way usefully in these threads? Every time a court thing comes up and I start reading comments, my head starts spinning.
 
2013-06-17 05:59:45 PM  

Flint Ironstag: HazMatt: It seems to me now that guilty or innocent the best strategy is to not talk to law enforcement at all, or only with a lawyer. It seems too complex for a lay person to handle how their statements or silence could be interpreted and used against them.
Am I wrong? Are their situations where it is advantageous to talk to the police? Beyond some vague "civic duty"?
meanmutton: HAMMERTOE: If you catch a police investigator in a lie, does that constitute breach of trust, thereby nullifying any obligation on honesty on your part?
shiat, dude, why the fark are you playing THAT game?  The police are highly trained, highly skilled.  If you talk with them, they'll run you.  It doesn't matter how smart you are, what sort of law degree you have, whatever.  If you talk, they'll run you.  Of course, you have the trump card:
"I want a lawyer" + STFU
Don't talk To the Police obligatory video.
Surprised it hasn't been posted already.



Another good source for videos about protecting your rights
 
2013-06-17 06:00:11 PM  

ajgeek: Does anyone else feel like Law School is a prerequisite just to comment in any way usefully in these threads? Every time a court thing comes up and I start reading comments, my head starts spinning.


Not at all. Consider what makes sense to a normal person. Now if that thing makes sense and is not useful in an authoritarian sense, pretend the opposite.
 
2013-06-17 06:01:35 PM  
Not gillcup?

/call the next deaf end ant
 
2013-06-17 06:10:51 PM  
Look, as far as our justice system is concerned, the US Constitution is just a goddamned piece of paper.  Anymore, it has as much relevance in contemporary law as the Hammurabi's code.

The USA you remember as a kid is Loooooong gone.

$$=Power. Period. End of Discussion.
 
2013-06-17 06:11:11 PM  

thetubameister: I did not read the opinion, I RTFA (most opinions are practically sanscrit pseudo-English; and yes, I've read many...). And while I understand the assertions you make and the article cites and quotes, I do believe:


That's all we need to know.  mattharvest is a lawyer, read the article, read the opinion, AND seems to know what he's talking about since it involves his profession which he had several years of specific training and apparently some experience.  You did read the article and MAY have stayed at a Holiday Inn, however, I would prefer to take his advice/listen to his opinion.  It's not only well-educated, but seems to make sense, too.

I mean, he quoted the written opinion where it stated UPFRONT that this is well established law.
 
2013-06-17 06:17:14 PM  
So the offending bit of the opinion was apparently:

But popular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be "compelled in any criminal case to be a witness against himself "; it does not establish an unqualified "right to remain silent." A witness' constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim. (Alito)

That's.... not really an outrage, and in fact seems fairly reasonable, especially since there was some discussion of implicit invocations as well so it's not like they're banning them entirely.
 
2013-06-17 06:41:55 PM  

mattharvest: nekom: The ruling is BS,

Why?

To quote literally the first paragraphs of the decision:

"Petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege against self incrimination in response to the officer's question. It has long been settled that the privilege "generally is not self executing" and that a witness who desires its protection "'must claim it.'" Minnesota v. Murphy, 465 U. S. 420, 425, 427 (1984) (quoting United States v. Monia, 317 424, 427 (1943)). Although "no ritualistic formula is necessary in order to invoke the privilege," Quinn v. United States, 349 U. S. 155, 164 (1955), a witness does not do so by simply standing mute."

The Court's argument is that according to cases dating back to 1943, there must be some invocation of the Fifth Amendment when the person isn't in custody.  Do you dispute that?

The Court's reasoning here is that the suspect wasn't in custody, based on the totality of his circumstances (he wasn't under arrest, he wasn't in a closed/locked room, he was free to leave, he voluntarily brought himself to the police, etc.).  Do you dispute that?

The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it.  If you cannot dispute the previous two points, how can you dispute their conclusion?


Because the right to remain silent can be invoked at anytime, even halfway though the questioning and any idiot with common sense can tell you that saying nothing is an implicit evocation of the 5th.
 
2013-06-17 06:43:50 PM  
Spouse and I both carry business cards for our (take no prisoners) attorney. Any law enforcement official stops us, questions us, comes to the ranch ... anything ... we both know to produce the card and say "I speak only with my attorney present and only  through him"
 
2013-06-17 06:51:35 PM  
5th Amendment: You tell me why you think I'm guilty... I'm not going to help you.

But I will let you know how you're wrong while you do.  And you have to tell me anything that might exonerate me or mitigate the crime.  The point is, you are the State, and the State has a history of...FOREVER... of abusing its power even when there's a document like the Constitution or Magna Carta in place.  We can see that when decade-old cases aren't reviewed now that DNA evidence will show innocence... "They prolly did something else, dammit!" kind of mentality.  We are better than that.
 
2013-06-17 07:08:38 PM  

Clemkadidlefark: Spouse and I both carry business cards for our (take no prisoners) attorney. Any law enforcement official stops us, questions us, comes to the ranch ... anything ... we both know to produce the card and say "I speak only with my attorney present and only  through him"


wfiles.brothersoft.com
So he's the front person in your human centipede?
 
2013-06-17 07:11:55 PM  

Magnus: thetubameister: I did not read the opinion, I RTFA (most opinions are practically sanscrit pseudo-English; and yes, I've read many...). And while I understand the assertions you make and the article cites and quotes, I do believe:

That's all we need to know.  mattharvest is a lawyer prosecutor, read the article, read the opinion, AND seems to know what he's talking about since it involves his profession which he had several years of specific training and apparently some experience.


Although his analysis and citations are certainly correct, take some of his opinions with a grain of salt. For example:
mattharvest: 2.  Your second fear - that random people will be questioned and then prosecuted - borders on farce.  That wouldn't make any sense...

3. Your third fear, of ignorance of Miranda (which isn't even relevant to this case since no one was ever in custody), has been routinely dismissed by the Court for the last forty years or more.  In a 74 decision (cited in this opinion, in fact), the Court remarked that anyone who watched TV (in 1974 even!) knew their Fifth Amendment right against self-incrimination.  Ignorance of the law is no excuse, despite the whingey tone of this Above the Law article.


In particular, a defense attorney would disagree with both of those opinions.
 
2013-06-17 07:14:15 PM  
I have nothing to say.
I want my lawyer.

/That is all
 
2013-06-17 07:30:07 PM  
I suppose there is some logic to it. And I hope every American understands this logic going forward:

Arrestee: What is the purpose here?
Cop: You are under arrest.
Arrestee: Why?
Cop: How about you tell us what really happened. From the start.
Arrestee: I want a lawyer. And I'm invoking my right to remain silent.
Cop: Ok.
(Cops mount a passive-aggressive campaign to elicit a confession from the now-silent Arrestee)
Arrestee: I don't remember exactly. It was a long time ago.

Guess what, jackass! You're literally FARKED at that point! If you invoke the right to remain silent, then you must speak no words. The only job the cops have is to trip you up, and they will. Justice is blind after all.
 
2013-06-17 07:30:22 PM  
So now we have to invoke our Constitutional rights for them to be valid? How quaint.
 
2013-06-17 07:34:52 PM  
Never talk to the police.
Never let them into your house without a warrant.
Never let them search your vehicle.

The police are not your friends. Their sole purpose of existence is to make arrests. The prosecutor is not your friend. His/her sole purpose of existence is to get convictions.

First words you should say when arrested are "I want a lawyer", then shut your mouth.

/Not a lawyer
//Obligatory, "Why You Should Never Talk to the Police"
 
2013-06-17 07:39:17 PM  

Nabb1: elysive: nekom: Any lawyer worth his salt will instruct his client in no uncertain terms to make no statement to the police under any circumstances.  -  Justice Robert Jackson

Could refusal to answer questions during an investigation be considered obstruction of justice?

Generally speaking, no, it cannot.  If it is custodial interrogation, you have Miranda rights.  If merely an interview, you have no obligation to speak to the police.  The problem is when being interviewed as a witness morphs into becoming an interview of a suspect.  There's probably no bright line there in every situation, but I think the appropriate thing to do in that context would have been to Mirandize him at the point he clammed up if you wanted to keep pressing the issue.


It would be, unless the goal of the interviewer had been to extract an admission by entrapment.
 
2013-06-17 07:43:53 PM  
www.theblindcard.com
 
2013-06-17 07:45:19 PM  

Magnus: thetubameister: I did not read the opinion, I RTFA (most opinions are practically sanscrit pseudo-English; and yes, I've read many...). And while I understand the assertions you make and the article cites and quotes, I do believe:

That's all we need to know.  mattharvest is a lawyer, read the article, read the opinion, AND seems to know what he's talking about since it involves his profession which he had several years of specific training and apparently some experience.  You did read the article and MAY have stayed at a Holiday Inn, however, I would prefer to take his advice/listen to his opinion.  It's not only well-educated, but seems to make sense, too.

I mean, he quoted the written opinion where it stated UPFRONT that this is well established law.


All lawyers and scientists should be required to speak about these topics in latin, so as to differentiate these subjects from real english.
 
2013-06-17 07:49:19 PM  

BarkingUnicorn: Uh, wut? Step outside and close the door before telling him you're not going to talk to him?


You're going to get a beatdown for "annoying an officer" either way.  This way, you might save the door repair bill.
 
2013-06-17 08:04:49 PM  

Madbassist1: If you are arrested and the police question you, and you don't have a lawyer and request one, its the same thing, except they wont question you and will build their case around you, instead of relying on your statements. But you aint getting a lawyer for questioning unless you've been in custody a while. Charged.


And there have been recent cases where they pretend to give you a lawyer, but it's actually another Officer trying to get evidence from you.

Back to HazMatt's question, is there any way for people like me -- not a multimillionaire, but can certainly afford a few days of attorney time here and there -- to actually have access to one without spending hundreds of thousands to keep an attorney on retainer?
 
2013-06-17 08:30:49 PM  

The Southern Dandy: Look, as far as our justice system is concerned, the US Constitution is just a goddamned piece of paper.  Anymore, it has as much relevance in contemporary law as the Hammurabi's code.

The USA you remember as a kid is Loooooong gone.

$$=Power. Period. End of Discussion.



img.photobucket.com
 
2013-06-17 08:31:32 PM  
I suggest we learn to love
ourselves before it's made illegal.
 
2013-06-17 08:54:34 PM  

CruiserTwelve: mattharvest: A very good question; I suspect (though I cannot  know) that it's something along the lines of "No one saw me do it, so if I cooperate they won't realize it was me.  Lots of people have dark cars and shotguns".

I think this because he only clammed up when they talked about being able to - via forensics - tie a particular shotgun to particular shotgun shells.  Not everyone is aware that this can be done.  I think he thought he was in the clear if he didn't given them reason to suspect him.

I think this nails it. He wanted to look innocent by cooperating. He didn't shut up until he realized his cunning plan wasn't working.

Criminals will also talk to the cops because they want to find out what evidence the cops have against them.


Ohhhhhh there you are.

Why am I not surprised? I find the choice of threads you post in (and do not post in) very interesting.

Of course, he won't talk to the police, so he MUST be guilty.

You're part of the problem, not the solution.
 
2013-06-17 09:02:07 PM  

mattharvest: CruiserTwelve: Criminals will also talk to the cops because they want to find out what evidence the cops have against them.

I have a statement from a case of mine from  years ago where the defendant did just this.  It was a simple theft case, but the suspect had gotten away.  Cops ID'd him from a witness who turned up, and they basically only had the word of the witness combined with the general description by the victim (it was here in an area of Maryland where about 3/4ths of cases charged involve a black male of about 5'10" in dark clothes).  The suspect literally did the cartoonish thing of asking about details he couldn't know.  I'd have to go find it in my files, but I believe he said something along the lines of "Did they recover the DVDs" or something when the police had just talked about shoplifting.

Made for a fun plea hearing.


I really hope that that was a recorded conversation, not the cops stating that the suspect asked about the DVDs and therefore incriminated himself by asking about information that wasn't public knowledge.
 
2013-06-17 09:16:26 PM  

Resident Muslim: mattharvest: CruiserTwelve: Criminals will also talk to the cops because they want to find out what evidence the cops have against them.

I have a statement from a case of mine from  years ago where the defendant did just this.  It was a simple theft case, but the suspect had gotten away.  Cops ID'd him from a witness who turned up, and they basically only had the word of the witness combined with the general description by the victim (it was here in an area of Maryland where about 3/4ths of cases charged involve a black male of about 5'10" in dark clothes).  The suspect literally did the cartoonish thing of asking about details he couldn't know.  I'd have to go find it in my files, but I believe he said something along the lines of "Did they recover the DVDs" or something when the police had just talked about shoplifting.

Made for a fun plea hearing.

I really hope that that was a recorded conversation, not the cops stating that the suspect asked about the DVDs and therefore incriminated himself by asking about information that wasn't public knowledge.


Enough guilty black people out there to keep cops busy for years. no need to invent new ones.
 
2013-06-17 09:22:38 PM  

Theaetetus: In particular, a defense attorney would disagree with both of those opinions.


To be fair, in all my time around attorneys, I don't think I've ever met one defense attorney worth his or her weight in horse puckey that would agree with it. Though to be fair, most of my time around attorneys has been around criminal defense, civil liberties, and constitutional lawyers with a good number of appellate specialists, so what do I know right? Most would say something akin to,

"Oh, dammit all to hell. This is why we can't have nice things. Idiots who don't know their rights in the first place, do dumb crap and ruin it by putting cases before the court that can be used to chip away civil liberties piecemeal. It's their own fault for being stupid, and we all now have to pay for it."

Now, prosecutors on the other hand? In the face of a Supreme Court ruling that incontrovertibly holds silence absent an explicit Fifth Amendment invocation is admissable as evidence in a criminal trial? Break out the Kleenex and KY, because it's party-time. Who's ready for a big ol' bump in conviction rates? It's not like that big gravy train of non-violent offenses and plea bargains to feed the growing prison-industrial complex can hold out forever! It only comes at the cost of a precedent that's only one step away from not chucking that pesky old Fifth Amendment out the window, but turning it in our favor! What's not to love? We got political campaigns for which to gear up!
 
2013-06-17 09:24:19 PM  

Yogimus: Enough guilty black people out there to keep cops busy for years. no need to invent new ones.


But finding the right guilty black person is sooo hard.
 
2013-06-17 09:43:20 PM  

Warlordtrooper: mattharvest: nekom: The ruling is BS,

Why?

To quote literally the first paragraphs of the decision:

"Petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege against self incrimination in response to the officer's question. It has long been settled that the privilege "generally is not self executing" and that a witness who desires its protection "'must claim it.'" Minnesota v. Murphy, 465 U. S. 420, 425, 427 (1984) (quoting United States v. Monia, 317 424, 427 (1943)). Although "no ritualistic formula is necessary in order to invoke the privilege," Quinn v. United States, 349 U. S. 155, 164 (1955), a witness does not do so by simply standing mute."

The Court's argument is that according to cases dating back to 1943, there must be some invocation of the Fifth Amendment when the person isn't in custody.  Do you dispute that?

The Court's reasoning here is that the suspect wasn't in custody, based on the totality of his circumstances (he wasn't under arrest, he wasn't in a closed/locked room, he was free to leave, he voluntarily brought himself to the police, etc.).  Do you dispute that?

The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it.  If you cannot dispute the previous two points, how can you dispute their conclusion?

Because the right to remain silent can be invoked at anytime, even halfway though the questioning and any idiot with common sense can tell you that saying nothing is an implicit evocation of the 5th.


That's not responsive to my question.  You cannot just declare, by fiat, that implicit invocation is acceptable.  The Court wrote out a variety of reasons why explicit invocation is required.  If you cannot be bothered to specifically reply to their reasoning (much of which I've already reposted here, not to mention explained), why should we be concerned with you and your inability to distinguish evocation from invocation?
 
2013-06-17 09:44:13 PM  

Resident Muslim: mattharvest: CruiserTwelve: Criminals will also talk to the cops because they want to find out what evidence the cops have against them.

I have a statement from a case of mine from  years ago where the defendant did just this.  It was a simple theft case, but the suspect had gotten away.  Cops ID'd him from a witness who turned up, and they basically only had the word of the witness combined with the general description by the victim (it was here in an area of Maryland where about 3/4ths of cases charged involve a black male of about 5'10" in dark clothes).  The suspect literally did the cartoonish thing of asking about details he couldn't know.  I'd have to go find it in my files, but I believe he said something along the lines of "Did they recover the DVDs" or something when the police had just talked about shoplifting.

Made for a fun plea hearing.

I really hope that that was a recorded conversation, not the cops stating that the suspect asked about the DVDs and therefore incriminated himself by asking about information that wasn't public knowledge.


I had the written statement; given that the defendant pleaded - and admitted at sentencing the whole thing - I'm fairly certain they didn't make it up.
 
2013-06-17 09:46:08 PM  

that bosnian sniper: Now, prosecutors on the other hand? In the face of a Supreme Court ruling that incontrovertibly holds silence absent an explicit Fifth Amendment invocation is admissable as evidence in a criminal trial? Break out the Kleenex and KY, because it's party-time. Who's ready for a big ol' bump in conviction rates? It's not like that big gravy train of non-violent offenses and plea bargains to feed the growing prison-industrial complex can hold out forever! It only comes at the cost of a precedent that's only one step away from not chucking that pesky old Fifth Amendment out the window, but turning it in our favor! What's not to love? We got political campaigns for which to gear up!


I keep saying this, and people like you keep ignoring this:  this is not new law.  The Court reiterated  existing law.

In fact, the Court made this explicit, and the petitioner/convict said so too: his own briefs explicitly asked the court to  create a new exception to the requirement for explicit invocation (calling it a "general rule").  In fact, even if you didn't read the opinion or article,  I already quoted their language on this issue.

There will be no change in conviction rates, because this doesn't change the law one iota.
 
2013-06-17 09:50:21 PM  

Theaetetus: Magnus: thetubameister: I did not read the opinion, I RTFA (most opinions are practically sanscrit pseudo-English; and yes, I've read many...). And while I understand the assertions you make and the article cites and quotes, I do believe:

That's all we need to know.  mattharvest is a lawyer prosecutor, read the article, read the opinion, AND seems to know what he's talking about since it involves his profession which he had several years of specific training and apparently some experience.

Although his analysis and citations are certainly correct, take some of his opinions with a grain of salt. For example:
mattharvest: 2.  Your second fear - that random people will be questioned and then prosecuted - borders on farce.  That wouldn't make any sense...

3. Your third fear, of ignorance of Miranda (which isn't even relevant to this case since no one was ever in custody), has been routinely dismissed by the Court for the last forty years or more.  In a 74 decision (cited in this opinion, in fact), the Court remarked that anyone who watched TV (in 1974 even!) knew their Fifth Amendment right against self-incrimination.  Ignorance of the law is no excuse, despite the whingey tone of this Above the Law article.

In particular, a defense attorney would disagree with both of those opinions.


To be clear: I'm not claiming that police don't need to give Miranda warnings; they absolutely do.  I'm merely explaining that while as a formal matter they need be given, the practical reality is that everyone knows them.  However, it's absolutely a fair point to say that as a prosecutor, I might view these issues slightly differently than a defense attorney.  However, as I've had to say many times so far today, this doesn't change the law at all.  No defense attorney who can read will say this is a change in the law.  As such, any 'concerns' are specious in that if the concerns were valid then they'd already.

In other words: if the concerns raised are valid, why haven't they happened in the last century (since these questions were answered as early as the 20s)?
 
2013-06-17 09:58:12 PM  

Warlordtrooper: mattharvest: nekom: The ruling is BS,

Why?

To quote literally the first paragraphs of the decision:

"Petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege against self incrimination in response to the officer's question. It has long been settled that the privilege "generally is not self executing" and that a witness who desires its protection "'must claim it.'" Minnesota v. Murphy, 465 U. S. 420, 425, 427 (1984) (quoting United States v. Monia, 317 424, 427 (1943)). Although "no ritualistic formula is necessary in order to invoke the privilege," Quinn v. United States, 349 U. S. 155, 164 (1955), a witness does not do so by simply standing mute."

The Court's argument is that according to cases dating back to 1943, there must be some invocation of the Fifth Amendment when the person isn't in custody.  Do you dispute that?

The Court's reasoning here is that the suspect wasn't in custody, based on the totality of his circumstances (he wasn't under arrest, he wasn't in a closed/locked room, he was free to leave, he voluntarily brought himself to the police, etc.).  Do you dispute that?

The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it.  If you cannot dispute the previous two points, how can you dispute their conclusion?

Because the right to remain silent can be invoked at anytime, even halfway though the questioning and any idiot with common sense can tell you that saying nothing is an implicit evocation of the 5th.


You are right, any idiot with common sense can tell that saying nothing is an implicit evocation of the 5th.  Of course, being an idiot they are too farking stupid to realize that it has to be an explicit evocation of the 5th.
 
2013-06-17 09:59:35 PM  

mattharvest: I keep saying this, and people like you keep ignoring this:  this is not new law.  The Court reiterated  existing law.


Yet as I said, and you conveniently ignored,

You mistakedisagreement with the law, and this ruling, asignorance of it. One doesn't agree with the law by merit of it being the law. Some of us are distressed by this trajectory, and the future rulings it can set up. This decision is a violation of thespirit andprincipleof the Fourth and Fifth Amendments, if not theletter.  The Supreme Court reinforces that indeed, silence absent an explicit invocation of Fifth Amendment protection is, itself, self-incriminating. That's the crux of this case. You yourself said the Fifth Amendment may only be invoked in the case of actual or potential self-incrimination.

What's next, an argument that to invoke the Fifth Amendmentitself in a non-coercive setting constitutes probable cause? An argument that to remain silent absent explicit Fifth Amendment invocation is tantamount to contempt or obstruction? In which case, the Fifth is no longerin factthe protection against self-incrimination it was intended to be, but rather the very noose around a suspect's neck.

You say "no, that's not the case" today, but today isn't about what many of us worry -- the cases down the line which may use this as precedent, are. You don't get fromMapp v. Ohio toHudson v. Michigan, or fromKatz v. United States toMaryland v. King (and yes, I'd argue they are connected at the idea of a person has a reasonable expectation of privacy to their own bodies at a level inaccessible to plain-view) at the drop of a hat. It's a slow evolution, over time, from one narrowly-ruled decision to another.
 
2013-06-17 10:08:20 PM  

HoustonNick: How hard is it to say "I'm invoking my 5th Amendment right to remain silent"  - BOOM - done deal


Cop: "Your Honor, the defendant spoke to us, thereby waiving his right to remain silent."

Judge: "What did he say?"

Cop: "I dunno, something about his right to remain silent. It was practically  an admission of guilt."
 
2013-06-17 10:17:34 PM  

mattharvest: That's not responsive to my question.  You cannot just declare, by fiat, that implicit invocation is acceptable.


He certainly can.  You don't have to like it, or consider it a very good argument.
 
2013-06-17 10:40:01 PM  

mattharvest: Theaetetus: Magnus: thetubameister: I did not read the opinion, I RTFA (most opinions are practically sanscrit pseudo-English; and yes, I've read many...). And while I understand the assertions you make and the article cites and quotes, I do believe:

That's all we need to know.  mattharvest is a lawyer prosecutor, read the article, read the opinion, AND seems to know what he's talking about since it involves his profession which he had several years of specific training and apparently some experience.

Although his analysis and citations are certainly correct, take some of his opinions with a grain of salt. For example:
mattharvest: 2.  Your second fear - that random people will be questioned and then prosecuted - borders on farce.  That wouldn't make any sense...

3. Your third fear, of ignorance of Miranda (which isn't even relevant to this case since no one was ever in custody), has been routinely dismissed by the Court for the last forty years or more.  In a 74 decision (cited in this opinion, in fact), the Court remarked that anyone who watched TV (in 1974 even!) knew their Fifth Amendment right against self-incrimination.  Ignorance of the law is no excuse, despite the whingey tone of this Above the Law article.

In particular, a defense attorney would disagree with both of those opinions.

To be clear: I'm not claiming that police don't need to give Miranda warnings; they absolutely do.I'm merely explaining that while as a formal matter they need be given, the practical reality is that everyone knows them.


Why? Assuming arguendo that you are correct that "everyone knows their Miranda rights," then why waste time giving the warnings? A mere formality? A legal-religious invocation?

However, it's absolutely a fair point to say that as a prosecutor, I might view these issues slightly differently than a defense attorney.  However, as I've had to say many times so far today, this doesn't change the law at all.  No defense attorney who can read will say this is a change in the law. As such, any 'concerns' are specious in that if the concerns were valid then they'd already.

On the contrary, I believe that since most defense attorneys tell (potential) clients to STFU and not say anything to the cops, this represents a change - now they're supposed to  explicitly say "I wish to exercise my right to remain silent" as opposed to merely remaining silent.
This case does erode civil rights, and it's tough to argue against it: this guy sucks, from a defense standpoint... He talks about everything, clams up on one question, and then continues answering other questions. It's at least an adoptive admission. So, this asshole doesn't get his conviction overturned... but what about the next guy who is questioned by cops and simply stands mute - i.e. the one who follows the advice (repeated in this very thread) to not say anything?

Nearly all prosecutors have your mindset - "we don't need to worry so much about protecting civil rights, because we're stopping criminals, and they don't deserve rights. Rights may be for honest, innocent citizens, but by the time you get to trial, you're almost certainly guilty, and we need every tool possible to keep these dastardly criminals from being set loose on the streets."
For example:
mattharvest:  Teiritzamna: I hate Miranda (or 4th amendment) threads because they make me so unhappy.  For example, now i am remembering  Rhode Island v. Innis, which is the "true story" you referenced and I find myself wanting to punch something.

Why?  Because a murderer thought some murders were okay but not others, so he told the police - who weren't talking to him - where he hid a murder weapon?  The same murderer who put the murder weapon where kids might find it?


"Murderer-murder-murder-murder? Murderer-murderer! And think of the children!"

But I disagree... Criminals are the (unfortunate) test cases for civil rights, because when the government turns on innocent citizens for various political reasons, we need to be able to point to violations of those rights as evidence of their corruption and tyranny. Maybe no one disagrees with torturing a serial child rapist to death... but if we don't blink at that, then will we be as quick to blink when they torture a political prisoner? Or an opposition candidate?

In other words: if the concerns raised are valid,why haven't they happened in the last century (since these questions were answered as early as the 20s)?
Yeah, you're right... Random people don't get questioned and then prosecuted... (note: all links unique)
 
2013-06-17 11:11:14 PM  

Your Average Witty Fark User: You're part of the problem, not the solution.


I rarely post in cop threads because, as in this very thread, I posted a very neutral observance in response to another post, and I get your post in response.
 
2013-06-17 11:39:07 PM  
I've always been told that you say you are invoking your right to remain silent and your right to a lawyer and then shut up.
 
2013-06-18 12:07:30 AM  

mattharvest: Resident Muslim: mattharvest: CruiserTwelve: Criminals will also talk to the cops because they want to find out what evidence the cops have against them.

I have a statement from a case of mine from  years ago where the defendant did just this.  It was a simple theft case, but the suspect had gotten away.  Cops ID'd him from a witness who turned up, and they basically only had the word of the witness combined with the general description by the victim (it was here in an area of Maryland where about 3/4ths of cases charged involve a black male of about 5'10" in dark clothes).  The suspect literally did the cartoonish thing of asking about details he couldn't know.  I'd have to go find it in my files, but I believe he said something along the lines of "Did they recover the DVDs" or something when the police had just talked about shoplifting.

Made for a fun plea hearing.

I really hope that that was a recorded conversation, not the cops stating that the suspect asked about the DVDs and therefore incriminated himself by asking about information that wasn't public knowledge.

I had the written statement; given that the defendant pleaded - and admitted at sentencing the whole thing - I'm fairly certain they didn't make it up.


Ah, ok. Cool.
 
2013-06-18 12:20:56 AM  
I'm a little late to the game here, but the headline is misleading. In the decision they state Salinas was answering questions "without being placed in custody or receiving Miranda warnings." So, while this is a 5th amendment case it doesn't have anything to do with Miranda because at the time the defendant had not been arrested and therefore had not been Mirandized.
 
2013-06-18 12:25:51 AM  

RedVentrue: Nabb1: elysive: nekom: Any lawyer worth his salt will instruct his client in no uncertain terms to make no statement to the police under any circumstances.  -  Justice Robert Jackson

Could refusal to answer questions during an investigation be considered obstruction of justice?

Generally speaking, no, it cannot.  If it is custodial interrogation, you have Miranda rights.  If merely an interview, you have no obligation to speak to the police.  The problem is when being interviewed as a witness morphs into becoming an interview of a suspect.  There's probably no bright line there in every situation, but I think the appropriate thing to do in that context would have been to Mirandize him at the point he clammed up if you wanted to keep pressing the issue.

It would be, unless the goal of the interviewer had been to extract an admission by entrapment.


In the UK the law is Police must read you your rights the moment they have reason to believe you have committed an offence. So they can talk to you as a witness but the moment you say something that makes them think you may have broken the law they must caution you before further questioning. This applies whether you are under arrest or not or at the police station or on the street.

/The exception is routine traffic stops for speeding etc.
//Also they're not allowed to lie to you during questioning, like the old "Your buddy has already confessed" trick.
 
2013-06-18 12:51:59 AM  

Theaetetus: Clemkadidlefark: Spouse and I both carry business cards for our (take no prisoners) attorney. Any law enforcement official stops us, questions us, comes to the ranch ... anything ... we both know to produce the card and say "I speak only with my attorney present and only  through him"

[wfiles.brothersoft.com image 850x637]
So he's the front person in your human centipede?


I'm forwarding this to my attorney.
 
2013-06-18 01:18:15 AM  
I still think have the right to remain silent forever though.

i295.photobucket.com
 
2013-06-18 04:01:37 AM  
Didn't see that the very last sentance in the 5th amendment was "Only if invoked."
 
2013-06-18 09:43:41 AM  

mattharvest: Why? Because a murderer thought some murders were okay but not others, so he told the police - who weren't talking to him - where he hid a murder weapon? The same murderer who put the murder weapon where kids might find it?


1) Never been a particularly big fan of the "think of the children!" arguments to rolling back rights 2) not particularly important with regard to Innis as it is fairly obvious this was an attempt at "non interrogatory"interrogation.  however 3) as a fellow practitioner i respect your attempt at re-branding the facts, but i don't really buy them.

Would you have it that police cannot have any conversation whatsoever in front of a person who has indicated they want to remain silent? In other words, would police have to be deathly silent in such situations? What if, while transporting him, dispatch had put something out over the radio about a child in fact finding the weapon and killing someone; would that have violated his Miranda rights?

I actually would say yes to the first few - but then again crim pro is one of the places where i approach crazy lefty.  As to the dispatch hypo, i would say that my feelings on the pretrial crim pro rights is that there should be some subjective analysis rather than the very constrained pseudo-objective review presently granted.  As such, I think there would be a distinction between an untargeted and accidental broadcast and two cops who just "happen" to have a conversation in front of a suspect that just "happens" to get him to talk.  As i said, I kinda push towards the crazy wall on these issues.
 

Of course, the funniest thing is that this thread is neither about Miranda nor the Fourth Amendment: there was no custody, so Miranda is uninvolved, and there was no search nor seizure at all since the suspect volunteered his gun.

No.  The opinion is not about Miranda.  The thread at least in part is.  As someone who has tried to wrangle a thread on copyright back on topic as the article was about trademark, i feel your pain. But I was discussing the various Miranda bits and how they make me sad.  My mention of the Fourth, btw, was more that similar threads about the fourth make me think of Terry and Leon and also give me a sad.
 
2013-06-18 10:04:34 AM  

mattharvest: Madbassist1: mattharvest: There's no magic phrase, but something must be said to indicate that your silence is because you feel it would incriminate you as opposed to just not wanting to answer.

IANAL but I have extreme difficulty believing this. I'm silent because I think cops are farking dicks and that should be enough.

What do you mean, 'believing this'?  I've quoted - repeatedly - where the Court has explicitly said this.  They literally just, today, reaffirmed this century-old principle of American law.  This is as closed to indisputable as American law gets.


Its bullshiat though. I also dispute your statement 'centuries old'. Saying you don't want to incriminate yourself is pretty incriminating, dont ya think?

Silence should be taken exactly as it is...silence.

Having said that, this guy's body language gave him away. I have no problem with that, except the prosecutors complete supposition in his closing statement...
 
2013-06-18 10:11:10 AM  

CruiserTwelve: Your Average Witty Fark User: You're part of the problem, not the solution.

I rarely post in cop threads because, as in this very thread, I posted a very neutral observance in response to another post, and I get your post in response.


Now that's some funny shiat, right there. Yessirre.
 
2013-06-18 10:33:09 AM  

mattharvest: This case doesn't make new law, it just reiterates existing law.


You sir, keep your damned dirty FACTS out of our rambling incoherent outrage! Away with you! Just because your OPINION happens to coincide with REALITY, that doesn't make you right!

Hmm... well actually I guess it does. Carry on then.
 
2013-06-18 10:42:27 AM  

Teiritzamna: No.  The opinion is not about Miranda.  The thread at least in part is.


This is just me, but this is in fact indirectly connected to Miranda, and that alone is enough (for me) to enter into a discussion on the implications for Miranda rights.

I say this, because this "police interview" crap by which this guy is hanged is  already the police's way of circumventing Miranda rights. As  mattharvest himself was the first to say, the police  already had evidence sufficient to get a search warrant and/or take the suspect into custody -- but they didn't, most likely because investigators figured they could get him to hang himself in an "interview" absent his Miranda rights.  It's a disarmament tactic; police know that if they take a suspect into custody, they're going to assert their rights which makes their job harder. Meanwhile, if they "interview" a suspect in a non-coercive setting, suspects are less likely to know, or assert, their rights, or worse...which is what this guy did, and he clammed up as soon as he realized he was actually being interrogated as a suspect, albeit in a non-coercive setting.

Is it stupid? Yes. Is it a case example of why no one should ever speak to the police? Absolutely. Was it eminently avoidable by any semblance of critical thought on this guy's behalf? Sure.  It's also a way for police to weasel around the Fourth and Fifth Amendments, Miranda rights included, and the legal and political principles that support them. Unfortunately, stupid criminals doing stupid things is generally the test bed for the scope of the Fourth through Eighth Amendments, and the applicability of the Fourteenth to those five; stupid or not, even criminals are entitled to civil liberties.

Especially since the crux of this case was  not whether the Fifth Amendment is self-executing. As  mattharvesthimself was the first to say, that's settled law. The crux was whether the defendant's silence  itselfin this circumstance is an admission against interest, and therefore admissable as evidence -- upon which, by the way, the Court punted and tacitly affirmed.
 
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