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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 27
    More: Asinine, Justice Kennedy, good citizen, fifth amendment rights, civil litigation, Fifth Amendment, majority opinion, Alito  
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14320 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 01:02:11 PM  
12 votes:
Here's the easy way to understand this.  You've got Adam, and he killed Brian.  At some point after Adam kills Brian (with no witnesses), Adam is talking to Caleb it goes like this:
ADAM:  You know, I was involved in some stuff with Brian before Brian died.
CALEB: You were there?
ADAM: Yeah.
CALEB: [other questions about the scene]
ADAM: [other responsive answers]
CALEB: You know, they're doing ballistics analysis on the gun impacts where Brian was killed. You have a gun, right?  Do you think they'll match it to you?
ADAM: [first silence of the day]

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

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

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

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

This case doesn't make new law, it just reiterates existing law.
2013-06-17 12:59:41 PM  
5 votes:

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


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

/ruling just seems soooo wrong
2013-06-17 01:07:50 PM  
4 votes:
Important details that this headline leaves out;

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

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

This case was about what happens before Miranda, when a person is not in custody. The court held that prosecutors were allowed to mention the defendant's silence during that initial interview when he was not in custody and thus legitimately had not had his Miranda rights read yet. Basically, they said that rather than just being allowed to shut up at random times when talking to authority figures in a non-coercive setting and then later claim you were using the right to remain silent, you have to do something to positively inform the police that you are taking the 5th. Or you could just leave the room too, I guess.
2013-06-17 01:06:19 PM  
4 votes:

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

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

/ruling just seems soooo wrong


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

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

I'm not giving legal advice, but if you think you might  ever want to invoke the 5th in a case, you're better off doing it first and foremost.  Otherwise, every word you say to the police endangers the success of your invocation.
2013-06-17 02:50:09 PM  
2 votes:

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


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

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

Ignorance of the law is no excuse  when you break that law. Conversely, your ignorance of your  constitutional rights is no excuse for prosecutors to ignore them.
2013-06-17 01:12:50 PM  
2 votes:

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


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

Sometimes people  want their anger so bad that they don't bother even trying to explain it.
2013-06-17 12:56:01 PM  
2 votes:
Any lawyer worth his salt will instruct his client in no uncertain terms to make no statement to the police under any circumstances.  -  Justice Robert Jackson
2013-06-17 10:08:20 PM  
1 votes:

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 07:30:22 PM  
1 votes:
So now we have to invoke our Constitutional rights for them to be valid? How quaint.
2013-06-17 07:14:15 PM  
1 votes:
I have nothing to say.
I want my lawyer.

/That is all
2013-06-17 06:10:51 PM  
1 votes:
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 04:58:18 PM  
1 votes:

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 04:45:34 PM  
1 votes:

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 04:37:28 PM  
1 votes:

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 04:09:40 PM  
1 votes:

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 04:00:37 PM  
1 votes:

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 03:40:24 PM  
1 votes:

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


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

\and very few lawyers practice in all areas of the law
\\so the "Ignorance of the law is no excuse" statement, while glib, isn't even practiced by lawyers
\\\the guys paid for law-talking stuff
2013-06-17 02:59:20 PM  
1 votes:
One of the times my 12 yr. old made me laugh the hardest is when the teacher sent home a note that read "...the visiting officer was not amused by the entire class refusing to speak to him. I later learned (your son) convinced the class to remain silent. When I asked him if it was true, he responded, "I want a lawyer"."
2013-06-17 02:50:28 PM  
1 votes:
Do you have to start all protected speech with, "I invoke the First Amendment?"
Do you have to high a sign on your house that says, "no unreasonable search and seizure per the Fourth Amendment?"

Though, as luck would have it for the NRA folks, they already walk around constantly saying "Second Amendment, Second Amendment."
2013-06-17 02:40:41 PM  
1 votes:
Makes sense.  Sometimes you gotta post a bill that says "Post No Bills".
2013-06-17 02:28:27 PM  
1 votes:

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


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

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

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

3. Your third fear, of ignorance of Miranda (which isn't even relevant to this case since no one was ever in custody), has been routinely dismissed by the Court for the last forty years or more.  In a 74 decision (cited in this opinion, in fact), the Court remarked that anyone who watched TV (in 1974 even!) knew their Fifth Amendment right against self-incrimination.  Ignorance of the law is no excuse, despite the whingey tone of this Above the Law article.
2013-06-17 02:12:16 PM  
1 votes:

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

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


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


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

Doesn't it seem that, in such a circumstance, the adoptive admission exception would apply and the Officer's statement could be used as an admission by the suspect that his shells would match the shotgun?
2013-06-17 01:52:25 PM  
1 votes:

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

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

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


Anne Frank could have spotted those kinds of "tells."
2013-06-17 01:42:32 PM  
1 votes:

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

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

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


Or get elected.
2013-06-17 01:15:32 PM  
1 votes:

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


This being FARK, I recommend simply scanning the names of the Justices, and base all of your arguments on attacking them without really articulating any coherent legal argument of this particular issue and pepper it with buzzwords you've learned on this and other websites, but don't entirely understand.  I love a good con crim pro discussion, but this will get pooped on soon enough when it hits the main page.
2013-06-17 01:12:26 PM  
1 votes:

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

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


Generally speaking, no, it cannot.  If it is custodial interrogation, you have Miranda rights.  If merely an interview, you have no obligation to speak to the police.  The problem is when being interviewed as a witness morphs into becoming an interview of a suspect.  There's probably no bright line there in every situation, but I think the appropriate thing to do in that context would have been to Mirandize him at the point he clammed up if you wanted to keep pressing the issue.
2013-06-17 01:11:18 PM  
1 votes:

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?
 
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