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The Courts Crime United States

Supreme Court Decides Your Silence May Be Used Against You 662

Posted by Unknown Lamer
from the should-have-just-left dept.
crackspackle writes "The Supreme Court ruled in favor of the State of Texas earlier today in a murder trial where the defendant, prior to be taken into custody, had been questioned by the police and chose to remain silent on key questions. This fact was bought up at trial and used to convict him. Most of us have seen at least enough cop shows to know police must read a suspect their Miranda rights when placing them in custody. The issue was a bit murkier here in that the defendant had not yet been detained and while we all probably thought the freedom from self-incrimination was an implicit right as stated in the Constitution, apparently SCOTUS now thinks you have to claim that right or at least be properly mirandized first." It appears that if you are "free to leave at any time" you lose a few rights. Fancy trick, up there with getting kids to write apology letters.
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Supreme Court Decides Your Silence May Be Used Against You

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  • wtf (Score:5, Insightful)

    by cosm (1072588) <thecosm3@EEEgmail.com minus threevowels> on Monday June 17, 2013 @07:05PM (#44034601)
    so if the police dont read you your rights, you lose them? land of the...fuck it
    • Re:wtf (Score:5, Interesting)

      by DaHat (247651) on Monday June 17, 2013 @07:09PM (#44034625) Homepage

      You always have your rights... it's just a question of if and how you exercise them.

      The difference here is the guy who went to talk to the police on his own (ie voluntarily) vs being arrested (ie unwillingly).

      The court ruled that in the prior, you have to make an affirmative statement as to you exercising your 5a rights.

      • Re:wtf (Score:5, Insightful)

        by cosm (1072588) <thecosm3@EEEgmail.com minus threevowels> on Monday June 17, 2013 @07:32PM (#44034803)

        You always have your rights... it's just a question of if and how you exercise them.

        The difference here is the guy who went to talk to the police on his own (ie voluntarily) vs being arrested (ie unwillingly).

        The court ruled that in the prior, you have to make an affirmative statement as to you exercising your 5a rights.

        Still bullshit to me. The fact that not explicitly stating that one is exercising one's rights implicitly means forgoing them? Does this mean that if I don't affirm my right to free speech or a fair trial that I cannot speak freely or will not get a fair trial? From the article:

        Prosecutors argued such silence does not have constitutional protection because of the other questions Salinas had answered and since he was not under arrest and was not compelled to speak. A plurality of the Supreme Court affirmed for Texas Monday, noting that Salinas never expressly invoked the privilege when the officer asked about the shells. It has long been settled that the privilege 'generally is not self-executing' and that a witness who desires its protection 'must claim it...

        So rights are a privilege now to be dictated by loose wording and interpretation...fuck. that. shit....oh wait...should be old news in light of all the other bullshittery USDOJ spews.

        • Re:wtf (Score:5, Funny)

          by Rob the Bold (788862) on Monday June 17, 2013 @07:44PM (#44034907)

          Still bullshit to me. The fact that not explicitly stating that one is exercising one's rights implicitly means forgoing them? Does this mean that if I don't affirm my right to free speech or a fair trial that I cannot speak freely or will not get a fair trial?

          Dammit, man. What if they hadn't thought of those already? Stop giving them ideas!

        • Re:wtf (Score:5, Interesting)

          by Burz (138833) on Monday June 17, 2013 @08:00PM (#44035075) Journal

          So rights are a privilege now to be dictated by loose wording and interpretation...fuck. that. shit....oh wait...should be old news in light of all the other bullshittery USDOJ spews.

          Not only that... Rights are a privilege to be handed out by the police.

          Texas justice comes to the rest of the USA.

          • Re:wtf (Score:5, Interesting)

            by Anonymous Coward on Monday June 17, 2013 @08:51PM (#44035421)

            Tex-ASSholes fucking our rights up again.

            Guess it means you have to be an asshole about your rights.

            What this really means?

            If the cops come up, tell them GO AWAY. Refuse to talk to them. Say "5th Amendment, go away" until they leave.

            If they refuse to leave, tell them to leave your property as they have no right to be there.

            If they refuse to leave still, and you're not in your own home, walk away. If they decide to detain you, it's on them.

            Your answer to them at ALL TIMES, even if they ask your name, is "5th Amendment."

            Sucks, but that's what the Supreme Court has given us. Either be an asshole about protecting your rights, or you'll lose your rights.

            • by Marrow (195242) on Tuesday June 18, 2013 @01:33AM (#44036705)

              Certain predators get triggered when you try to flee. Its better to say in a very soft voice "Am I free to go now officer" while backing away. Keep your hands away from your clothing and move slowly. Dont stare, because that can trigger an attack. Brightly colored garments or low hanging denim can incite an attack.
              Remember, if you are not inside your home with the door safely locked, you are in their territory. Be smart / Be safe.

        • Re:wtf (Score:5, Insightful)

          by dwillden (521345) on Monday June 17, 2013 @08:03PM (#44035107) Homepage
          It would be BS had he chosen to simply stop answering questions period, but by selectively answering then not and then answering other questions he made a statement as clear as if he'd blurted out his guilt. If you claim the right to remain silent, do so, shut up and stop talking period. If you speak again, your selective silence is a clear statement. If anything it looks to me like this guy was trying to taint the entire interview. I think there is really no other way to rule on this. He was willingly answering questions, he could have claimed the right without speaking by simply shutting up, but as seen again those who break the law often lack the ability to remain silent, even though they have the right.

          Had he shut up at the uncomfortable question and remained silent his silence would not be admissible, but by then continuing to answer questions has has by his actions if not statement waived his rights.
          • Re: (Score:3, Informative)

            by Aryden (1872756)
            Incorrect, you are allowed to answer some questions while taking the 5th on others. You see this in congressional hearings all the time.
            • Re:wtf (Score:5, Informative)

              by im_thatoneguy (819432) on Monday June 17, 2013 @10:10PM (#44035897)

              I don't believe that's true. To quote Findlaw.com

              Witnesses who are called to the witness stand can refuse to answer certain questions if answering would implicate them in any type of criminal activity.

              But unlike defendants, witnesses who assert this right may do so selectively and do not waive their rights the moment they begin answering questions.

              You have the right to shut up at any point but I don't believe you can shut up and then start talking and then shut up again. This was the point of debate in the IRS congressional hearing where the manager made a statement and then plead the 5th.

            • He wasn't charged with falling to answer, nor was he beaten until he did. The court and jury were simply informed of his answering pattern and it convinced them to find him guilty.
              We've got the same crap in the UK, they can now tell the jury that you remained silent and doesn't that look guilty?
              The solution is now not to say 'no comment pig', but to say, 'on the advice of my lawyer, no comment pig'! This way you have an excuse in court. You point at your lawyer and claim he told you to.

      • Re:wtf (Score:5, Funny)

        by Anonymous Coward on Monday June 17, 2013 @09:40PM (#44035723)

        Cop: How's the weather?
        Person: Bit cold.
        Cop: Did you kill that guy?
        Person blinks in stupefied silence.
        SCOTA: GUILTY!

      • by hairyfeet (841228)

        Bullshit, its giving cops more fucking loopholes is what it is. After all how many hours can they keep you before they have to fish or cut bait? Something like 3 fricking days? Well this gives them 3 days to sweat the hell out of any peasant that doesn't know the "mother may I" catch phrase to stop 'em.

        Welcome to the USSA, where only the rich have rights.

      • Re: (Score:3, Insightful)

        by Anonymous Coward

        You always have your rights...

        you have to make an affirmative statement as to you exercising your 5a rights.

        So in other words, you don't always have them. "Always" suggests even those people who are unaware of their rights, still receive their benefit by default. This is the opposite - if you don't know you have the right, and don't deliberately exercise it, you aren't protected by it. Which is bullshit.

    • Re:wtf (Score:5, Informative)

      by cfsops (2922481) on Monday June 17, 2013 @07:21PM (#44034717)

      so if the police dont read you your rights, you lose them?

      No. The article explains that the person in question had NOT been arrested, had been freely answering other questions, but refused to answer one that concerned shotgun shells found at the murder scene.

      The ACLU [aclu.org] has a "bust card" [aclu.org] that helps clarify the matter. The person in the article should have kept his fucking mouth shut, period.

      • Re:wtf (Score:5, Insightful)

        by cosm (1072588) <thecosm3@EEEgmail.com minus threevowels> on Monday June 17, 2013 @07:25PM (#44034747)

        so if the police dont read you your rights, you lose them?

        No. The article explains that the person in question had NOT been arrested, had been freely answering other questions, but refused to answer one that concerned shotgun shells found at the murder scene.

        The ACLU [aclu.org] has a "bust card" [aclu.org] that helps clarify the matter. The person in the article should have kept his fucking mouth shut, period.

        Still befuddles me. So you're telling me if you provide any information whatsoever, you're legally obliged to answer every single question, even if it leads to self incrimination? IANAL so does answering some questions automagically count as forgoing your right to silence blanche carte?

        • by DaHat (247651)

          Still befuddles me. So you're telling me if you provide any information whatsoever, you're legally obliged to answer every single question, even if it leads to self incrimination? IANAL so does answering some questions automagically count as forgoing your right to silence blanche carte?

          Correct... to a point.

          Case in point... Lois Lerner invoked the 5th during her appearance before a congressional panel not long ago... while doing so she also answered some questions and proclaimed her innocence... which effec

        • So you're telling me if you provide any information whatsoever, you're legally obliged to answer every single question, even if it leads to self incrimination?

          No, you're not obliged to do shit. But if you choose not to answer a particular question, they can use that against you. If you get arrested then you have additional rights, but if you're not arrested and just spilling your guts to the police and then clam up on one particular question, they can bring that fact up in court. The moral of the story, obviously, is to not answer any questions.

          • by stanlyb (1839382)
            Nope, the moral of the story is to NEVER go to the police in the first place. WTF? Who, in his mind, would willingly go into the wolf's den! To confess innocence? Don't make me laugh.
            • by X0563511 (793323)

              Gee, maybe to provide information on an actual crime that someone had committed?

              Fuck right off. You've a right to be a citizen, but I don't have to enjoy being one with you.

              • Re:wtf (Score:5, Insightful)

                by hairyfeet (841228) <bassbeast1968@NOsPAM.gmail.com> on Monday June 17, 2013 @10:24PM (#44035979) Journal

                As someone who still has a 4 inch scar on the back of his head because of a cop that said, and I quote "Fucking niggers and God damned long hairs" allow me to say fuck you right back.

                The days of cops being there to "protect and serve" are long gone and you are fucking high if you still believe that, what we have now is gang bangers with badges [youtube.com] and you can stick your "citizen" bullshit straight up your ass, the country my family fought and suffered for? No longer exists.

        • by superwiz (655733)

          Still befuddles me. So you're telling me if you provide any information whatsoever, you're legally obliged to answer every single question,

          Unless you work for the IRS. In that case, you can go in front of Congress and give a speech proclaiming your innocence, level charges against others and then plead the 5th so that you cannot be questioned any further.

        • You can't selectively apply the 5th amendment, picking and choosing what questions to apply it too. It's an all-or-nothing situation. As sick and tired as I am of this government's shenanigans, even I get this.
      • Re:wtf (Score:5, Informative)

        by Jane Q. Public (1010737) on Monday June 17, 2013 @07:34PM (#44034833)

        "... the person in question had NOT been arrested, had been freely answering other questions, but refused to answer one that concerned shotgun shells found at the murder scene."

        Correct. It was what he did say, combined with what he did not say, that led to his conviction.

        That is why, even if you are "innocent" you should NEVER speak to the police about anything that involves you at all.

        HIGHLY recommended for everybody to watch, which explains why very clearly and in a no-nonsense way, are THIS VIDEO (part 1) [youtube.com] and THIS VIDEO (part 2) [youtube.com]. About 49 minutes total. Very worth it.

        These are not some kind of government-conspiracy nuts but a defense attorney and a police detective.

      • Re:wtf (Score:4, Insightful)

        by gr8_phk (621180) on Monday June 17, 2013 @10:07PM (#44035879)

        No. The article explains that the person in question had NOT been arrested, had been freely answering other questions, but refused to answer one that concerned shotgun shells found at the murder scene.

        The problem with that is they should have read him his rights prior to a question like that. So they failed to read him his rights before questioning and then questioned him and use his response against him. On top of all this stupid logic about when you do and do not have rights.

        From what I read, on the surface it seems quite likely he was guilty and ruling in his favor may change that outcome, but that is not supposed to be a consideration when dealing with constitutional issues. If the ruling on constitutional rights ruins the case one guy walks, but if the ruling erodes our constitutional rights, we all lose. One hopes the outcome of the case doesn't influence the decisions about the rules used to decide the case.

  • by aristotle-dude (626586) on Monday June 17, 2013 @07:10PM (#44034631)
    When you remain silent, that is an action rather than a statement. Both your statements and actions can be used against you. It's right there in the Miranda rights.
    • by MrEricSir (398214) on Monday June 17, 2013 @07:14PM (#44034669) Homepage

      Miranda rights are only read to you if you're being arrested. But I guess you'd have to read all the way to the fourth sentence in the summary to see that this guy hadn't been arrested at the time his silence was used against him.

      • by aristotle-dude (626586) on Monday June 17, 2013 @07:24PM (#44034737)

        Miranda rights are only read to you if you're being arrested. But I guess you'd have to read all the way to the fourth sentence in the summary to see that this guy hadn't been arrested at the time his silence was used against him.

        So, whether you are arrested or not, your silence can be used against you. What is you point exactly? Have you never heard of the phrase "your silence speaks volumes"? The silence in a specific context can be more incriminating than anything a person might have to say.

      • Does that mean they can put you in prison as long as they don't arrest you and-

        Oh, I see.

    • by g01d4 (888748)
      Once during jury selection I got into an argument w/the judge about this. I felt as a juror I reserved the right to weigh a defendant's refusal to testify against him, i.e. the lack of testimony could be construed as circumstantial evidence. That my right as a juror had nothing to do with compelling him to testify. The defense lawyer was more calm about this. She asked me whether I'd vote to acquit if the evidence of innocence was overwhelming, even if the defendant didn't testify. Of course. It's not a bin
  • by Areyoukiddingme (1289470) on Monday June 17, 2013 @07:10PM (#44034633)

    The Supreme Court has managed to hold that in order to remain silent, you must speak.

    Oh my people....

    • by AK Marc (707885) on Monday June 17, 2013 @07:33PM (#44034811)
      The issue here was that he did speak. Then didn't. Then did. If he had not ever said anything, then he wouldn't have had that held against him. Instead, he answered 100 (or whatever) questions, and didn't answer a single one of those in the middle. That omission was used against him.If he had the right to remain silent, he didn't exercise it because he kept talking. It he didn't answer a single question after, he likely would have been protected.

      The real issue here isn't the 5th Amendment, but "non-custodial" being everything now. You are under "arrest-lite" when given a ticket on the side of the road. You don't have any rights of an arrestee, but if you drive off, you will be arrested for fleeing or resisting arrest or whatever it is in your jurisdiction, so you are obviously not free to leave. He was interrogated for an hour, but had no rights of an arrestee. The Constitution defines some things, but not others. So "arrest" was re-defined to suit the power-hungry conservatives (sorry, have to toss this in, since it's a conservative court, and this crap keeps coming down, but when a someone is up for election, the liars claim the Republicans are for a smaller non-invasive government).
    • not quite (Score:4, Informative)

      by Chirs (87576) on Monday June 17, 2013 @07:33PM (#44034821)

      To claim your fifth amendment rights to not incriminate yourself, they've decided you need to explicitly claim them.

      Also, there's nothing stopping the person from just not saying anything at all and asking for a lawyer.

      In this case the person answered *some* questions, then didn't answer one, and never explicitly took the fifth.

  • by Anonymous Coward on Monday June 17, 2013 @07:12PM (#44034649)

    Never, under any circumstances, talk to the police. If you are free to go, then leave. If you aren't then ask for a lawyer and shut up.

    • by v1 (525388) on Monday June 17, 2013 @07:21PM (#44034721) Homepage Journal

      I recall debating about that in the past. The question arose:

      Office: "stay here."
      Citizen: "Am I under arrest?"
      Office: "you want to be? no you're not under arrest, not yet. but just stay here for right now."
      Citizen: "Am I free to go?"
      Officer: "What did I just say to you? No, you are not free to go. STAY HERE while we xxxxx"

      this actually happens frequently. And I don't recall the issue being settled. If you can't leave, and aren't free to go, what is your legal status? What happens if you try to leave? (almost certainly bad things, resisting arrest, interfere with official acts, obstruction of justice, failure to obey an officer of the law, disturbing the peace, etc etc justifying arrest)

      So you're kinda in a pickle when they tell you you're not under arrest AND you're not free to leave. Is there a lawyer in the house that can explore this situation, and maybe even suggest some advice? (I know, fat chance, "yes I am a lawyer, NO I am not YOUR lawyer, and this is not legal advice", but do what you can)

      • My thought on that is that if there is an incident in progress the police should have the ability to require you to stay put as a witness or as a safety measure, but if there's no incident in progress the police have no right to require you to stay put unless you are under arrest.

        IANAL and this is my thought on how it SHOULD be, I recognize that the cops will do whatever the hell they want and justify it later (if they even bother).
      • by bondsbw (888959)

        I think this is why in my state (Alabama), being pulled over is legally an arrest. It doesn't really make a difference in 99% of case, but it removes doubt if the situation gets more complicated.

      • by Anonymous Coward on Monday June 17, 2013 @08:06PM (#44035127)

        Not a lawyer, but a former police officer. Still not legal advice.

        The deal is that there is an intermediate state, typically referred to as "investigative detention." In short, you're not under arrest (in the handcuffs-go-to-jail sense), but neither are you free to go. An individual can be detained pursuant to an investigation. Once involvement (or lack thereof) is determined, then the person is dealt with in the appropriate manner (arrested or released). There are limits for how long a person can be detained this way, and as I recall, it is a "seizure" in the fourth amendment sense, so there needs to be reasonable suspicion in order for the police to detain an individual.

        Reasonable suspicion means "facts and circumstances that would lead a reasonable officer to believe that a crime has been, is being, or will be committed." It lacks anything about a particular person, which is what distinguishes reasonable suspicion from probable cause (the standard for an arrest, which is similar, except that it's "... believe that a particular person has committed, is committing, or will commit a crime.")

      • by immaterial (1520413) on Monday June 17, 2013 @08:07PM (#44035135)
        There is a level between being free to go and being arrested: being detained. That is the status of the citizen in your hypothetical. There is a lower burden of proof for an officer to detain you, but the loss of freedom is smaller in scope.

        Say for example you're in a bar and a fight breaks out in which you aren't involved, injuries occur, and the police show up. They can detain you (and everyone else in the vicinity) for a brief period while they talk to witnesses and sort things out. They aren't arresting you. They have no cause (yet) to arrest you. They DO have cause to restrict your freedom for a brief period while they determine who what happened and who (if anyone) should actually be arrested.

        As it says in TFS, is the guy in question WAS NOT being detained.
    • Just say "I'm not sure whether or not I can be compelled to say anything about this (or surrender that item in my possession) or not". Authorities will instantly know that due process is the only way to go from there. Also, don't be rude to officers or play dumb about it. One line to stick to is all that's needed.
  • You are wrong (Score:5, Interesting)

    by Anonymous Coward on Monday June 17, 2013 @07:14PM (#44034661)

    This is not a new right. I just passed CA Bar exam, so I can tell you -- police cannot use post-Miranda silence against you, but they can use pre-Miranda silence against you, and it has been this way for a long time.

    But this is a matter of the prosecution can bring it up and ask you -- "Hey you were talking and talking to the police about the murder, but when they asked you if ballistics tests would link your shotgun to the murder you suddenly got quiet, why is that?" -- which is what happened here.

    • Re:You are wrong (Score:4, Interesting)

      by bobbied (2522392) on Monday June 17, 2013 @08:25PM (#44035253)

      SO this guy who willingly started answering questions and got to the one he didn't want to answer should do what? Get up and say he has to go now?

      I don't go around breaking the law, so I'm not predisposed to think the police are out to get *me* but suppose they are? I'm having a willing conversation with them and I realize that they suspect me of a crime and let's say it's a bad one. What do you do? Start asking for a lawyer? Simply leave?

      Obviously, if you did the crime, SHUT UP from the start, don't volunteer to answer questions, don't go to the police station, find yourself a lawyer and keep his number on speed dial. IF/WHEN the police come calling, ignore any questions and tell them you need to leave right now. If they won't let you leave, go into the "Am I under arrest?" mode. If they don't say "yes" then tell them you need to leave if you are not under arrest. If they say you are under arrest, ask for your lawyer to be present for any further questions. But what do you do if you have nothing to hide?

      In these days, you don't consent to searches, you don't invite officers into your home, you don't open your trunk so they can see in, you don't offer information or volunteer to be questioned unless you are simply a witness to something. Even then, be VERY careful and be totally sure you don't have something to worry about, even unrelated to the topic at hand.

      But remember, you can still claim the 5th and refuse to answer the question AND they can then tell the jury that you refused to answer that question. If you started talking to them, this is your situation. If you cannot live with that, best to not talk to them in the first place.

      • by Darinbob (1142669)

        Maybe this is part of the problem. Defendants don't know this stuff, and the dissenting opinions in this case bring up this point too. Not everyone is trained in the law and it shouldn't be a burden on them to know if this is pre-miranda vs post-miranda or that there's some obscure new rule that you have to state your intention to exercise a right.

      • Re: (Score:3, Informative)

        by Anonymous Coward

        In these days, you don't consent to searches, you don't invite officers into your home, you don't open your trunk so they can see in, you don't offer information or volunteer to be questioned unless you are simply a witness to something.

        Those of us who carry firearms have become aware of one trick to watch out for during traffic stops: the officer takes your gun "for officer safety" (BS on its own in most cases) and when the stop is concluding, proposes to return it to you by placing it in your trunk. The reality is he wants an opportunity to see what's in the trunk, not that he is concerned about your access to the firearm.

        Also never forget that police are allowed to lie to you.

  • Wow (Score:3, Insightful)

    by squidflakes (905524) on Monday June 17, 2013 @07:14PM (#44034665) Homepage

    Ok, first off it's the Miranda Warning, not the Miranda Rights. You have them at all times, read to you or not. The warning is there to remind you that you have the option not to incriminate yourself.

    Or, at least it was until this decision. Ahh, The Roberts Court, whittling our rights down one 5-4 at a time.

  • Bad Summary (Score:5, Informative)

    by Aranykai (1053846) <slgonserNO@SPAMgmail.com> on Monday June 17, 2013 @07:14PM (#44034667)

    The client did not answer one of several questions, and the prosecutor simply stated he had no response when asked a particular question. He was not charged with a crime for not responding, and he was not convicted of a crime for not responding. The ruling here was that the prosecution could admit as evidence that he did not answer a particular question during a conversation with a detective. Completely different things.

    This is why you DO NOT SAY ANYTHING to ANY QUESTION if you are being detained by the police. Be polite, request a lawyer and state frankly you are not answering any questions until you have counsel.

  • by erroneus (253617) on Monday June 17, 2013 @07:34PM (#44034835) Homepage

    No one understands the constitution and what it is for.

    While it may be common practice for people to assert their 5th amendment rights, I fail to see how stating that assertion is a requirement. And problems with this ruling are glaringly obvious. What if someone merely doesn't understand the question being asked?!

    If I were in the same position and someone asked me if my shotgun would match the bullistics of some-such, I would not answer either. Why? Because the question doesn't make sense!!!! We're talking about a shotgun -- a scatter-gun if you will. That's the awesome thing about those weapons. They don't HAVE ballistics, Shotguns are not rifles. They don't leave marks on their projectiles which could trace a shot back to the shotgun that fired it. The closest they could come to connecting the two is GSR and that's just matching brands of shotgun shells.

    What could have been going through this guy's mind when they asked him the question? "Is this a trap? Why would they ask me this stupid question? If I tell them I think the question is stupid, will they become hostile to me? I don't want to provike them! My mom used to say 'If you can't say anything nice, say nothing!' What are these people trying to do?! Oh thank god they moved on to another question..."

    The government is now stating that a person much know their rights for their rights to exist. And this same government threatens all manner of trouble for anyone who teaches and explains to people what their rights are. Can we finally all agree that government is fully and generally opposed to people having any rights at all?

    • The government is now stating that a person much know their rights for their rights to exist. And this same government threatens all manner of trouble for anyone who teaches and explains to people what their rights are. Can we finally all agree that government is fully and generally opposed to people having any rights at all?

      Since they seem to keep violating them at will, they probably feel it's better if we're in the dark on that point.

      Here are some other fun facts:
      1. Officers can arrest you without

    • "Where were you when you killed your girlfriend?"

      Your honor, the suspect failed to answer the question. Clearly they are guilty!!!!

  • by the eric conspiracy (20178) on Monday June 17, 2013 @07:40PM (#44034871)

    The Fifth Amendment protects witnesses from being forced to incriminate themselves. It doesn't protect you from being tricked into incriminating yourself.

    There are specific requirements for Miranda to apply, and for exclusion to be in play.

    Evidence must have been gathered.
    The evidence must be testimonial.
    The evidence must have been obtained while the suspect was in custody.
    The evidence must have been the product of interrogation.
    The interrogation must have been conducted by state-agents.
    The evidence must be offered by the state during a criminal prosecution.

    So basically yes, your rights are lower if you are not in the custody of the state. Compulsion is not in play.

    • by sjames (1099)

      Don't forget, on even days your rights are void unless you stick your index finger up your butt and hop backwards in a clockwise ciorcle. On odd days, your rights are void unless you stand on a stool with knees bent and cluck like a chicken while patting your head

      Note that if the cops whistle the Star Spangled Banner backwards, all bets are off.

  • by Zamphatta (1760346) on Monday June 17, 2013 @08:01PM (#44035087) Homepage

    If speaking and not speaking can both result in incriminating yourself, then would this mean that the only way to use your 5th amendment right of not incriminating yourself, be to lie to the police & court?

    That would make things insane, 'cause if you get busted for perjury, you can claim innocence 'cause you did it under your 5th amendment right since it's the only way to avoid incriminating yourself. Then they legally can't prosecute you for it without going against the constitution. I'm sure they'll probably still try to prosecute you.

    If you have a decent enough lawyer to get you off, then could it mean a mistrial in the original court case where you perjured, since none of the testimony from you (or anyone else) could be considered legitimate? After all, the people testifying against you could also be lying in order to avoid incriminating themselves.

    This could get really sticky really fast.

  • by Connie_Lingus (317691) on Monday June 17, 2013 @08:03PM (#44035103) Homepage

    ...why soooo many people ever EVER talk to the police if the are even the least bit guilty of a crime...just shut up from the start.

    i live in florida and have had my issues with law enforcement. what people don't really understand about the Casey Anthony case is that SHE NEVER NEVER INCRIMINATED herself...ever! Its the main reason she got away with it...the prosecution was so used to having someone ANYONE sit on the stand and say "yes SHE DID IT and I saw it" that they hardly knew how to proceed without that bullet in their gun. I've seen the state drop serious felony charges against folks because they just didn't say a word when arrested, even with damning physical evidence!

    Don't you all know that 95% of all cases that go to trial are won by the prosecution on eyewitness testimony and self-incriminating statements? In other words, informants and defendants statements...not super-CSI high tech gadgets that network primetime TV likes to brainwash the...well, whoever it is who still watches that stuff...idk anymore who the heck that is.

    Oh well...i could go on about personal experiences in this matter but...i would DEFINITELY be incriminating myself...

  • Once again... (Score:5, Informative)

    by FuzzNugget (2840687) on Monday June 17, 2013 @08:44PM (#44035365)
    NEVER, EVER, EVER FUCKING TALK TO THE MOTHERFUCKING POLICE [youtube.com]

    No, you don't even answer questions you think couldn't possibly incriminate you -- YOU DON'T ANSWER SHIT.

    There is absolutely nothing you could tell, say, state, offer, claim, express, suggest, proffer, conceptualize, indicate, discuss, confirm, deny, explain, confer, describe, disclose or elaborate that will help you in any way. Ever. Not ever.

    Because, with everything, not anything, *EVERY-FUCKING-THING* you say, they will manipulate, contort, pervert, twist, conjure, fabricate, invent, expropriate, conflate, decontextualize, recontextualize, repurpose, malform, conveniently misrecollect and abuse to mold your profile before a court into whatever preconceived concept of you was in their mind before they were ever aware you existed.

    The thing that almost no one seems to get is that cops live in their own delusional world where there are two types of people: cops and suspects. If you are not on their side, you are, by definition, on the side against them. It doesn't matter how innocent you are in actual fact and truth, you are a suspect, who cares if you're the wrong one?

    They do not work for the public, they work for their inflated ego, the department's revenue stream and the chain of command corrupted from the top down.

    Your right not to incriminate yourself is about the only defensive weapon you have against the might and resource of the police, prosecution and co. Use, assert and exploit it excessively and without relent.
  • by Darkness404 (1287218) on Monday June 17, 2013 @08:58PM (#44035479)
    So in other words, we have no rights. Rights are absolutes, if they can be defined or narrowed down to nothingness (like the Supreme Court has enjoyed doing) they cease to become rights and merely exist as privileges to be taken away at will.

    Really, what enumerated rights do we in the US have left? I guess we have the third amendment still?
  • by itwasgreektome (785639) on Monday June 17, 2013 @09:12PM (#44035573)
    "Most of us have seen at least enough cop shows to know police must read a suspect their Miranda rights when placing them in custody."

    Wrong!

    Most of us have seen enough TV to make us MISINFORMED about the world and what really happens.

    To set the record straight, reading of Miranda rights is only MANDATORY when you have arrested someone (or have custody of them and enough evidence to arrest them) and you are interrogating them about the crime. Before you have enough evidence to arrest someone you can continue to question them without mirandizing them until you reasonably believe you have enough information to arrest them. Once this happens, further interrogation only admissible in court if the suspect has been mirandized (read their rights). If an officer arrests someone but does not desire to question them about their crime that officer need not mirandize their suspect. Mathematically, as they teach in police academy:

    Miranda= Custody + Interrogation.

    Absence of both of those factors, Miranda not necessary.
  • by Freddybear (1805256) on Monday June 17, 2013 @10:22PM (#44035969)

    Orin Kerr has the usual detailed and insightful analysis of the case here (long, worth reading):

    http://www.volokh.com/2013/06/17/do-you-have-a-right-to-remain-silent-thoughts-on-the-sleeper-criminal-procedure-case-of-the-term-salinas-v-texas/ [volokh.com]

    tl;dr - Don't talk to the police.

(1) Never draw what you can copy. (2) Never copy what you can trace. (3) Never trace what you can cut out and paste down.

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