Supreme Court Decides Your Silence May Be Used Against You 662
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.
wtf (Score:5, Insightful)
Re:wtf (Score:5, Interesting)
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)
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)
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!
Comment removed (Score:5, Insightful)
Re:wtf (Score:5, Interesting)
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)
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.
Walking away, not such a good idea (Score:5, Informative)
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)
I am not a lawyer and this is not legal advice:
Oh, definitely. You always want to be very polite to the police, obey their lawful orders and never physically resist them in the lawful course of their duties (what's lawful? well, I suspect all you have to do is think about whether you'd like to end up in a court/hospital/coffin). Know your 4th and 5th Amendment rights (if you're in America) and how and when to use the phrases, "I do not consent to a search", "Am I being detained?" and "Am I free to go?" (again, if you're in America).
This isn't a bad thing. After all, if you're a law-abiding citizen with nothing to hide, anything else'd be wasting the cop's time on your own taxpayer dime.
But if you do ever happen to be in a casual conversation with an officer (I've known a few - good people), and you happen to tell them, "I have been advised by a police officer not to talk to the police," [1] and they say, "But that makes our job difficult!" you might reply, politely, "Sorry, blame the politicians and their endless tougher-on-crime-than-the-last-guy laws, putting more people in prison than Russia and China combined. That's what's making all our lives difficult." [2]
(but be careful about talking about any of those endless laws in particular, it could be a trap)
[1] http://www.youtube.com/watch?v=6wXkI4t7nuc [youtube.com]
[2] http://en.wikipedia.org/wiki/List_of_countries_by_incarceration_rate [wikipedia.org]
Re:wtf (Score:5, Insightful)
"I am not a lawyer" and yet under law you are deemed to have full and total knowledge of the law and ignorance is no excuse.
Re:wtf (Score:4, Insightful)
If we treat them all as sub-human scumbags, then with very few exceptions all we'll get back is the same attitude. Classic us-vs-them polarisation, which is already a bad enough risk in the profession. Remain strictly polite in person, even friendly if you can manage it, and (if you're lucky enough to have the time/resources) work to change/prevent the causes (e.g. tough-on-crime political spirals) rather than scratch at the symptoms - that just makes it bleed more.
Re:wtf (Score:5, Insightful)
Let me see: Carrying lethal weapons amongst an unarmed populace, lying to individuals of said populace and possibly to a judge, turning 'privileged' confessions into evidence, depriving individuals of their liberty without arrest, hiding evidence or 'forgetting' testimony, using hearsay as evidence. Now polite conversation becomes evidence of criminal behaviour. Yeah, I wonder why cops are so misunderstood. Shows like 'CSI' and 'Law and order' really teach us the law doesn't apply to cops and criminals have no rights.
Being a dick is unproductive, but that doesn't change the facts:
A cop is looking for a criminal; you will help him or you won't: In case of refusal, blackmail or false arrest can change that. An 'interview' is a weasel word for interrogation, which is a cop blackmailing you (via deprivation of liberty) to provide evidence. Anything you say or write to your family, priest, or alleged victim is evidence against you. Cops have illegally taped a conversation with the lawyer to blackmail the criminal into a legal confession!
Do not talk about yourself to any cop!
Re:wtf (Score:5, Informative)
When speaking to a police officer, there are only two things to say:
(1) "Am I Under Arrest"
Which will generate either a yes or no. Any answer other than "Yes" prompts the following question:
(2) "Can I Go Now?"
Which will generate either a yes or no. Any answer other than "Yes" prompts the following question:
(1) "Am I Under Arrest"
repeat....
Re:wtf (Score:5, Insightful)
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)
Re:wtf (Score:5, Informative)
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.
Re: wtf (Score:3)
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:4, Insightful)
Better analogy. The police knock at your door asking to take a look around, you allow them in and in the conduct of their permitted search, they find illegal drug paraphernalia on a table. They ask you "Is this yours?" and in response you ask them to leave.
The 4th amendment doesn't apply (as the 5th in this case doesn't)... because said right was waved through the actions of the person involved.
By allowing the police to search your home, you waved 4th amendment rights to the search (such as when/where it can end)... just as the person involved in this case did by opening his mouth in the first place.
The difference... is that the person in this case had the ability to say "I'm done answering questions and choose to remain silent per my 5th amendment rights"... while in the case of your home being searched, criminal activity has been found that can be pinned on you so it's much harder to go back.
Re:wtf (Score:5, Insightful)
Inalienable (Adj): - Unable to be taken away from or given away by the possessor: "inalienable human rights".
If you convince someone to sell themselves into slavery to you, you can't enforce the contract because they can't "waive" their 13th amendment rights.
Re:wtf (Score:4, Insightful)
Clearly then the NDA I signed on my first day of work is unconstitutional as it violates my first amendment rights as I clearly have the right to go to the local media and spill my guts as to what my employer is building in secret (all legal projects, just not yet publically known).
Ditto for the millions of smokers in this country who have sold themselves into a type of slavery based on their dependence on nicotine!
Silliness aside... if we accepted your view that the 4th & 5th amendment rights were inalienable (or unalienable)... then what of those who 'wave' their Miranda rights and choose to talk to police? Surely too any kind of arrest or detention is illegal as it deprives them of their rights... even if said rights are limited by courts.
I don't think you quite understand natural law.
Re:wtf (Score:5, Informative)
Of course you have that right.... but your employer also has the legal right to sue you, and the NDA that you signed would ensure that he would win.
But you wouldn't go to jail for it... nor would you necessarily be breaking any laws by divulging such information unless it involved state secrets of national security.
Re: (Score:3)
You clearly didn't what I read above (or further above)... because if you had you'd understand that I am arguing that one can wave certain rights.
Just as an employee of a private company can agree not to disclose confidential information... so too can a government employee agree not to disclose classified inform
Re:wtf (Score:4, Funny)
You keep using that word. I do not believe it means what you think it means.
Re:wtf (Score:4, Funny)
You've never seen someone waving the bill of rights around?
Re:wtf (Score:5, Informative)
Re:wtf (Score:5, Interesting)
While I totally agree with the meaning of this post, ie, a person can't lose their rights just because they didn't specifically say that they were using them, or they were tricked into somehow bypassing them... how does this work with say, a confession?
If the rights of the person not to incriminate themselves cannot be taken/waived away, then surely no confession could EVER be admissable in a court of law? The courts would have to rule that the confession would breach their rights and therefore be thrown out?
Re:wtf (Score:5, Insightful)
In many countries, you can retract a confession, and it can then not be used as evidence against you. This safeguards against confessions given under pressure.
After being sleep deprived and harassed non-stop by the police, people can confess to the damdest things, whether true or not. And it's sad that this practice goes on in some countries that call themselves civilized.
Re:wtf (Score:5, Insightful)
No, the Bill of Rights is a codification of the "god" given or natural rights every human possesses, regardless their tyrannical state interpretation. These are not rights GRANTED, but are rights enumerated among an infinite list of natural rights, these being the most important to put in to law (supposedly). Governments do not grant rights, they only take them away.
Re:wtf (Score:5, Funny)
Cop: How's the weather?
Person: Bit cold.
Cop: Did you kill that guy?
Person blinks in stupefied silence.
SCOTA: GUILTY!
Re: (Score:3)
Re: (Score:3, Insightful)
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: (Score:3)
Re:wtf (Score:5, Informative)
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)
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?
Re: (Score:3)
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
Re: (Score:3)
She has the right to not incriminate herself PERIOD.
How hard is this to understand?
It's almost like we need the Ten Commandments on courtroom walls just to give morons a good example of a categorical imperative.
Re: (Score:3)
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.
Re: (Score:3)
Re: (Score:3)
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.
Comment removed (Score:5, Insightful)
Comment removed (Score:5, Interesting)
Re: (Score:3)
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.
Re: (Score:3)
Re: (Score:3)
Re:wtf (Score:5, Informative)
"... 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: (Score:3)
"You ARE required to identify yourself, dont'cha know, in the Land of the Formerly Free."
Not necessarily. It depends on the circumstances.
In my state, the police cannot stop you (either in an automobile or on foot) for just any reason and ask who you are, what your business there is, etc. They have to have "reasonable suspicion" before they can do even that.
I should amend that: they can ask, but you are not obligated to answer.
And you are not required to produce ID (verbal or otherwise) unless they have enough probable cause to detain you. Which, in this case, does include legitimate t
Re:wtf (Score:5, Insightful)
Re: (Score:3)
"Jane," you're skipping past an important point.
True. But what this decision is saying is that, in a non-custodial interview, if you don't answer, and furthermore, if you don't specifically announce that the reason you are not answering is because you are asserting your right to remain silent, then a jury is permitted to infer guilt from your silence.
So, from now on, it's essentially, whatever you say or don't say may be used against you in a court of law,
Re: (Score:3)
#2 because there is always a report, and your information will go into it.
#3 because they have no legal right to stop and question someone that is not suspected of committing a crime.
#4 because any real officer worth his salt will actually commend you for NOT speaking to them. ( I have been several times )
#5 because ID checks are faulty.. all.. the... time... just ask any of the thousands of people that get arrested for other's warrants. #6 because ANY information you give to
Re:wtf (Score:4, Insightful)
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.
Re: (Score:3)
This is all weird law anyway. The rights should apply automatically, without being told them and without having to claim them. However there's been this dividing line for a long time about what you say before a statement of rights were read out versus what happens after, which I think is BS. The whole point of reading the Miranda stuff is not to grant the rights but to inform the defendant of rights that already exist.
Which is probably one reason why police like to question someone before officially arre
Re:wtf (Score:5, Interesting)
Re:wtf (Score:5, Insightful)
First of all, I would like to formally invoke my First Amendment Privilege. For any dim-witted law and order types let me rephrase this: Don't taze me, bro!
It is true that there is no country that respects natural rights or any sort of real freedom, at least officially. However, as an on again off again expat myself and someone who plans to leave the US within the next year and probably never return, I'll let you in on the secret. Most other countries are not quite so efficient at actually stomping on the rights of its citizens. I'd like to say, "Nobody does it better" but there are probably a handful of countries which do. Laws on paper are one thing. How the human beings in charge of things choose to enforce them is another. In my own personal experience people in positions of power in the other countries I have lived in are just plain nicer, are less likely to be sociopaths or sadists or bullies. Are less likely to take pleasure from making you miserable or ruining your life. Think Carmen Ortiz. In many ways she is America. Or just search for police brutality on youtube. We may have a piece of paper which talks about freedom, real freedom, but our culture is intensely anti-intellectual, glorifies stupidity and violence and arrogance and selfishness and greed and might makes right. We invented the Dunning-Kruger Effect [wikipedia.org]. More of us are behind bars than any other country in the world. We stand for punishment and revenge and bloodlust far more than we do for freedom. Here in the US I am afraid to even drive down the street. I might hit a roadblock which puts me into contact with some of the scariest, most violent, sadistc, and out of control police in the world. I believe we can compete with any country in that regard. Breaking even the most minor traffic law can put you into contact with these people.
The worst part about having grown up in the US is that we are taught that we have these things called "rights". Some 18th century Libertarian extremists (what we would call terrorists today) decided that they were no longer the property of their king, that they would break free of their chains (typical terrorists). They read a cheeky, British phiosopher named John Locke and liked his idea of natural rights, that human beings inherently had the right to be left alone to live their lives in peace without being the property of anyone. That violating these rights was wrong. Full stop. That must have seemed like an awfully good place from which to begin a new social experiment, a new kind of Government-No-Government. A sort of Anti-Government Government where the thirst for power and the intense human need to enslave and control others would be reigned in as had never been done before in all of human history. Never even tried. So, due to our history and immense cultural denial, of all people I think it is most disorienting and uncomfortable for us when we realize that our government has no respect for our so called rights. [Sorry. SCOTUS doesn't like that term. Privileges, I mean. Generously granted to us by our kind, thoughtful masters.]
It helps a lot to live abroad for a while. It sometimes allows the spell to be broken. It doesn't take long to realize that most other places just feel freer. It is realizing that you have a greater sense of freedom even in some communist countries that really tends to shock your monkey.
When we finally free ourselves from the cultural brainwashing we start to see that we are really no more free than the vast majority of human beings on the planet regardless of our silly slogans that ceased to have meaning long ago, and that constantly repeating to ourselves, like a mantra, that we are free, that we represent liberty and individualism doesn't make it so.
Re:wtf (Score:5, Insightful)
Exactly my thought. Whatever happened to my right to murder someone and get away with it because of technicalities!
Really? You're going there?
"It is better that ten guilty persons escape than that one innocent suffer". ...as expressed by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England. It is commonly known as "Blackstone's Formulation".
Benjamin Franklin stated it as, "it is better 100 guilty Persons should escape than that one innocent Person should suffer".
John Adams also expanded upon the rationale behind Blackstone's Formulation when he stated:
"It is more important that innocence should be protected, than it is, that guilt be punished; for guilt and crimes are so frequent in this world, that all of them cannot be punished.... when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, 'it is immaterial to me whether I behave well or ill, for virtue itself is no security.' And if such a sentiment as this were to take hold in the mind of the subject that would be the end of all security whatsoever."
Tyrannies have excellent conviction rates.
Strat
Re:wtf (Score:4, Insightful)
Maybe not hard if one is educated, with a measure of economic security, perhaps belonging to the ethnic group that holds local community power, or simply among those who are good at keeping their heads in stressful situations. Maybe more difficult if one is poorly uneducated, perhaps somebody who both respects and fears authority, who doesn't have much economic cushion that might embolden them to assert their rights because they actually *could* call a lawyer, who has skin color different from the interrogating officers, or is just plain scared of police for whatever reason at the time.
The law has to work even for (and especially for) those who don't know their rights, or who can't for whatever reason of circumstance assert them. Regardless of whether you're scared, intimidated, stupid, ignorant, or disenfranchised, you've got rights under the law. It's better for all of us when that's how our justice system operates.
Anything you say or do. (Score:3, Insightful)
Re:Anything you say or do. (Score:4, Informative)
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.
Re:Anything you say or do. (Score:4, Insightful)
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.
Re: (Score:3)
Does that mean they can put you in prison as long as they don't arrest you and-
Oh, I see.
Re: (Score:3)
Black is white. War is peace. (Score:5, Informative)
The Supreme Court has managed to hold that in order to remain silent, you must speak.
Oh my people....
Re:Black is white. War is peace. (Score:5, Interesting)
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).
Re:Black is white. War is peace. (Score:5, Interesting)
I'm going to drop this [lawcomic.net] here.
It's a wonderful introduction to the issues at play, simplified enough to be easily understood, but not so simple as to be irrelevant.
not quite (Score:4, Informative)
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.
How many times does it need to be repeated ? (Score:5, Informative)
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.
Re:How many times does it need to be repeated ? (Score:5, Insightful)
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)
Re: (Score:3)
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).
Re: (Score:3)
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.
Re:How many times does it need to be repeated ? (Score:5, Interesting)
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.")
Re:How many times does it need to be repeated ? (Score:5, Interesting)
Generally, they'll try really hard not to actually answer that question. You can also just ask "Am I free to go?" and if the answer is "no", or anything but "yes", you should assume that you are under suspicion and are being detained. That's a big clue that it's time to Shut Up.
Re:How many times does it need to be repeated ? (Score:4, Informative)
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.
Re:How many times does it need to be repeated ? (Score:5, Interesting)
Can you outline the differences in scope / freedom between being detained and under arrest?
I am not a laywer, but I was once on a jury which had to determine whether a man had been arrested without probable cause which basically hung on this very question (got to hear really interesting expert testimony from several police consultants).
Suppose you're walking down the street, and a police car drives by and notices that your appearance and attire matches those of a suspect in a recent and nearby serious crime. The officer pulls up and stops you and asks you what you're up to. Then the officer asks you to hold up your arms while he pats you down (but he does not reach into your pockets). All of that is considered legal (look up Terry Stop on Wikipedia). He can even make you stand there for a little while until they drive over a witness to try to make an identification or otherwise make inquiries.
However, they cannot force you to come with them, or detain you there for an excessive period of time. Basically it is an administrative procedure to allow the police time to sort things out. They're allowed to pat you down for weapons to ensure their personal safety, and they can confiscate anything that is identifiable from a pat down.
In the case I served as a juror for a suspect was placed into a van and transported a few blocks away for identification, allegedly because the police were concerned about a news van in the area and did not want a potentially innocent suspect to end up on TV. The issue was whether this legally constituted an arrest (at which time there was not probable cause to do so). The ruling in the end (as far as THAT particular issue went) was that it did not, because the movement was minimally intrusive and was justifiable. The police messed up a bunch of other stuff in that case, but alas so did the plaintiff's counsel suing them so there wasn't much we could do for him.
The only way you should be able to end up being detained in a police station is if you walked in voluntarily, or under unusual circumstances (you're being detailed and hail starts falling and the station is next door, etc).
A simple statement is all it takes... (Score:3, Interesting)
You are wrong (Score:5, Interesting)
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)
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.
Re: (Score:3)
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)
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)
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)
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.
Re:Bad Summary (Score:5, Insightful)
I know I didn't kill someone with a shotgun.
I don't know that.
And I might be on your jury.
Re: (Score:3, Insightful)
Or, alternatively, don't commit crimes.
The cops can ask me any question they want. I know I didn't kill someone with a shotgun.
You probably have already committed at least one felony today, and you probably weren't even aware of it. Our laws are so complex, and many of them so outdated, that it is nearly impossible to go about your daily life, upstanding citizen or not, without breaking at least one law.
The reason why you shouldn't talk to the police isn't because "you haven't done anything wrong", it's because you don't know whether or not you've done anything wrong. If the police are not, and never have been, on your side; it
Well there you have it! (Score:5, Insightful)
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?
Re: (Score:3)
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
Example (Score:3)
"Where were you when you killed your girlfriend?"
Your honor, the suspect failed to answer the question. Clearly they are guilty!!!!
Re: (Score:3)
http://www.crime-scene-investigator.net/collect.html [crime-scen...igator.net]
Even this says that shotgun shells vary greatly in terms of quality of evidence.
5th Amendment (Score:3)
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.
Re: (Score:3)
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.
Well then... (Score:3)
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.
ill never understand... (Score:4, Informative)
...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)
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.
So in other words... (Score:3)
Really, what enumerated rights do we in the US have left? I guess we have the third amendment still?
Wrong! When arrested, Miranda is not mandatory! (Score:3, Informative)
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.
Detailed analysis by Orin Kerr (Score:4, Interesting)
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.
Re: (Score:3)
What happened to the spirit of the law vs. letter of the law? Isn't it why there are judges?
No. Judges will usually side with the law, either because that's their job, or because that's what keeps Big Legal in business (depending on who you ask). (IMHO it's because Judges often worry about being seen as "soft on crime" and losing re-election.)
Spirit vs. letter of the law is what juries are there for [wikipedia.org]. Judges and lawyers often suppress this information from jurors, though.
Re: (Score:3)
No, I don't think any of this is about the artificial distinction between liberal and conservative. We've lumped a wide variety of political thought into a simplistic binary choice. This also in turn tends to make people think about everything in binary terms. So someone may think "I'm liberal, and I believe the spirit of the law is very important, therefore all true liberals will think the same way", which is faulty logic. This binary view leaves no room for political candidates whom you can agree with
Re:Rights for the innocent (Score:5, Insightful)
"If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him." -- Cardinal Richilieu
Re:Typical Slashdot (Score:5, Insightful)
His guilt, sir or madam, is irrelevant. This is a change in case law, which concerned citizens need to share with others: If you say anything but the legal minimum, you're giving away an advantage to the prosecution which can be used against you even if innocent.
Re: (Score:3)
Of course he's guilty. Why else would the police have arrested him? :p
Re:Hey.. would ya pass me the constitution.. (Score:5, Informative)
As much bad news about the Constitution as we've had lately, here's the sitch from TFA:
On the morning of December 18, 1992, two brothers were shot and killed in their Houston home. There were no witnesses to the murders, but a neighbor who heard gunshots saw someone run out of the house and speed away in a dark-colored car. Police recovered six shotgun shell casings at the scene. The investigation led police to petitioner, who had been a guest at a party the victims hosted the night before they were killed. Police visited petitioner at his home, where they saw a dark blue car in the driveway. He agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning.
Petitioner's interview with the police lasted approximately one hour. All agree that the interview was noncustodial, and the parties litigated this case on the assumption that he was not read Miranda warnings. For most of the interview, petitioner answered the officer's questions. But when asked whether his shotgun "would match the shells recovered at the scene of the murder," 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." After a few moments of silence, the officer asked additional questions, which petitioner answered [citations omitted by me].
He wasn't under arrest and was voluntarily answering questions. Then not. Then was. He just shouldn't have talked to or gone with the cops in the first place.
Re:You guys are missing the point. (Score:4, Funny)
You're a motherfucking retarded cunt, you know that? Did you even bother to read the motherfucking ruling you retarded shitbag?
I'm confused. Is the ac a cunt or a shitbag? Or are you suggesting they're one in the same? If so, how exactly does that work? Do you use a funnel? Or do you shit in a bag and then pipe it in like icing on a cake? Or is it a one-person thing where you construct a curved trough sort of thing that fits nicely over the crotch and directs the shit forward to its receptacle? How long is it expected to remain in there, just a few minutes or do you leave it there overnight to allow the different flavors to merge and mingle? In other words, do you consider this an eat-it-now, or eat-it-later thing?
I'm also not clear on the "retarded" part. Since that term is traditionally applied in the context of intelligence, are you suggesting that cunts and/or shitbags are typically possessive of intelligence, but in the case of the ac, that intelligence has not "properly" formed? Or is this simply a reflection of position, i.e. not advanced, like the way advanced and retarded are used in relation to the throttle in an airplane?