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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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14293 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 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"?
 
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