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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
    More: Asinine, Justice Kennedy, good citizen, fifth amendment rights, civil litigation, Fifth Amendment, majority opinion, Alito  
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14325 clicks; posted to Main » on 17 Jun 2013 at 2:37 PM (3 years ago)   |   Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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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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