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 ...
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.
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 ...
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."
Lost Thought 00: But how should I be outraged by this?
ProfessorOhki: Do you have to high a sign on your house that says, "no unreasonable search and seizure per the Fourth Amendment?"
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.
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.
vernonFL: How many liberals does it take to screw in a light bulb?Zero. They have their gay sex and abortions in the dark!
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.
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
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.
Nabb1: I'm not sure why this guy chose to start talking in the first place.
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]
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.
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!
worlddan: Yes, that is the law. And it is contrary to all human experience. It is a moral outrage and a cruel legal fiction.
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.
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?
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 JacksonAnd 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.
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"."
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?
mattharvest: Thread-long snip.
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.
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.
mattharvest: Ignorance of the law is no excuse, despite the whingey tone of this Above the Law article.
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.
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 JacksonCould 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
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.
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.)
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?
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?
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