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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 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.
 
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