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The Courts Crime United States

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.
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Supreme Court Decides Your Silence May Be Used Against You

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  • 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.

  • 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:wtf (Score:0, Interesting)

    by Anonymous Coward on Monday June 17, 2013 @07:17PM (#44034687)

    You have the right to remain silent, however choosing to use that right only on one specific question, and looking all fucked up whilst doing so, does not have to be magically forgotten.

  • by PairOfBlanks ( 2952901 ) on Monday June 17, 2013 @07:31PM (#44034789)
    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.
  • 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).
  • by Sarten-X ( 1102295 ) on Monday June 17, 2013 @07:45PM (#44034927) Homepage

    I'm going to drop this [] 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.

  • Re:wtf (Score:2, Interesting)

    by Anonymous Coward on Monday June 17, 2013 @07:46PM (#44034933)

    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?

    You didn't ask for your Fourth Amendment rights so you've also relinquished your rights against unreasonable searches and seizures, not to mention the requirement of a warrant or probable cause. Huzzah!

  • Re:wtf (Score:5, Interesting)

    by Burz ( 138833 ) on Monday June 17, 2013 @08:00PM (#44035075) Homepage 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 fredgiblet ( 1063752 ) on Monday June 17, 2013 @08:03PM (#44035109)
    I think pretty much every country is moving towards "Security" over all else, it's a question of how fast.
  • 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.")

  • 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.

  • Re:wtf (Score:5, Interesting)

    by Fluffeh ( 1273756 ) on Monday June 17, 2013 @08:35PM (#44035307)

    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, 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 Rich0 ( 548339 ) on Monday June 17, 2013 @09:22PM (#44035635) Homepage

    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).

  • 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): []

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

  • Re:wtf (Score:2, Interesting)

    by hairyfeet ( 841228 ) <bassbeast1968 AT gmail DOT com> on Monday June 17, 2013 @10:27PM (#44035997) Journal

    Did the public pretender tell you to plead guilty? Because in my experience a public pretender is worse than no lawyer at all, as all they are gonna do is tell you to plead guilty no matter what.

    For those that don't believe me look up the conviction rate for those with public pretenders, last i checked it was even worse than for those that represented themselves.

  • Re:wtf (Score:3, Interesting)

    by Anonymous Coward on Monday June 17, 2013 @10:57PM (#44036121)

    You shut the fuck up.. if they try to detain you, ask if you're under arrest.. if not, shut the fuck up, except to ask if you're free to go. []

    Remember this:

    The police are not your friend.
    There are quite a few asshole cops.
    There are quite a few crooked cops.
    You very well might be smarter than they are; in my neck of the woods most of them are associate degree wielding ex-jock types.. but.. they are practiced in this game whereas you are not.

    Shut. The. Fuck. Up.

  • Re:wtf (Score:2, Interesting)

    by Anonymous Coward on Monday June 17, 2013 @11:18PM (#44036223)

    Now, I am not an American, but I thought your free-speech right was a right to criticise the government. You've never had the 'right' to say whatever you like in any circumstances. An NDA with a private employer does not interfere with this right in any way. Being bound not to disclose classified information when employed by a government agency may infringe that right, in a way that is being played out right now.

  • 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:wtf (Score:5, Interesting)

    by hairyfeet ( 841228 ) <bassbeast1968 AT gmail DOT com> on Tuesday June 18, 2013 @04:48AM (#44037245) Journal

    I think the late George Carlin said it best when he said "You know why America never gets any better? because the OWNERS don't want it to" and he is right, you follow the money and you'll see the same handful of names over and over, they just keep twisting things to take ever bigger chunks (what is it up to now? Something like 74% of the wealth held by something like 5% of the population?) and as they do the country just rots, ruined by the never ending greed.

    As for the one that said I was lying? Grow your hair long and then allow a black man to be in your car and drive through MS or AL and see how far your ass gets boy, driving while black is still an offense in the deep south and a long hair having a nigger in the car, even though it is a baptist minister you are giving a ride to? They ain't putting up with that shit boy, you shoulda done known better.

    So if you want a shot at lawsuit lotto and don't mind risking your life there ya go, just be a long hair with a black in your car in MS,AL,GA,or WV and see how far your ass gets before you see flashing lights, you can bet your last buck it sure as fuck won't be very far, they don't cotton no salt and pepper friendships down there..

When a fellow says, "It ain't the money but the principle of the thing," it's the money. -- Kim Hubbard