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Subject: You have the right to be annoyed as hell... rss

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...and you don't have to say so.

Come on! Seriously? The police actually found it confusing that after telling suspects for decades that they have the right to remain silent that they're not speaking meant they chose to actually remain silent? Now you have to speak up and tell them you don't want to talk as opposed to just, you know, NOT TALKING!?

I cannot believe how quickly our rights as citizens have been flushed down the toilet after 9/11 and how cheerful we are as citizens to let it happen.

The number of things wrong with this decision and all of the arguments for it are just mind-boggling. So I come here to beg for someone to help clarify this for me. Make this decision make sense, please!
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Not to be insensitive but it doesn't effect me at all since I already know my rights. It * obviously * doesn't effect you either!
 
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I don't think it's so clear cut. You're informed that you have the right to remain silent and that you can have an attorney. If you actually want an attorney, you have to say so -- once you do, the police have to stop interrogating you until your attorney is present. The SJC has ruled that the right to remain silent works in much the same way -- you can just be silent, but if you want to invoke it (i.e. end interrogation) then you have to say so.

I get the irony that Sotomayor referred to -- that you have to speak up in order to invoke a right to silence -- but her alternative requires the police to infer when a suspect is invoking a right. That seems extremely subjective and likely to create a lot of "motions to dismiss" with arguments about a suspect's implied intent.

If the right to remain silent really means ending interrogation altogether (i.e. you're not only silent but you can't be spoken to by the police) then the Miranda warning should say so. If you tell me I can be silent, I take that to mean I don't have to talk -- not that you have to leave me alone.
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You are blowing this WAY out of proportion. You should check the source of the articles or forums you have aquired this info from and see if it is really worth your time or just some persons rant using their site to vent since they had a run in with the police. Good luck and have a nice day./DOCarrrh
 
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Koldfoot wrote:
What does this refer to?


The SJC just ruled 5-4 on a case in which a suspect remained silent for an extended period during questioning before finally implicating himself in the crime. The question was whether his incriminating statement was admissible and the argument was that his prolonged silence clearly indicated that he was invoking his right to remain silent.

What I didn't know (and someone please correct me if I'm wrong) is that if you formally state that you are invoking your right to remain silent, the police actually have to stop questioning you.
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Yes we do have to stop questioning you in the field and in the confines of a station without your lawyer present. The circumstances that are different relate to life and death situations.

Most people lawyer up fast and that sends guilty flags flying on the ramparts.

It is all based on the persons guilt and in this case it is just another fool caught in something trying to sue his way out. What a waste of our tax dollars and the reporters time that made the article.

BP oil spill crisis, crappy government figures we have in office, people dying, NASA plans to stop line or fleet of shuttles, world hunger, morons in the movie or music industry that think because they act they are now politically influential, War, and once again stupid pet tricks on David letterman.....these are headlines worth someones time./DOCarrrh
 
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Koldfoot wrote:
The right to remain silent is after you are placed under arrest.


Actually, a smart cop will inform you of your rights the moment he thinks that there's a possibility of placing you under arrest. I think that's policy for most/all police departments because it avoids due process issues altogether. If they don't, there aren't many courts that'll buy "But we hadn't arrested him/her yet."

I agree that the right not to incriminate yourself doesn't extend to provide pretty basic information, though. You've the right to say to the officer "Before I answer, can you tell me what this is about?" and expect an answer. But you don't get to pass on answering the question when you get an answer to that.
 
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Chad_Ellis wrote:
What I didn't know (and someone please correct me if I'm wrong) is that if you formally state that you are invoking your right to remain silent, the police actually have to stop questioning you.


This is true. Continuing to question a suspect who invokes their right to shut up often gets treated as coercion.
 
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perfalbion wrote:
Chad_Ellis wrote:
What I didn't know (and someone please correct me if I'm wrong) is that if you formally state that you are invoking your right to remain silent, the police actually have to stop questioning you.


This is true. Continuing to question a suspect who invokes their right to shut up often gets treated as coercion.


I don't think that is right. They can continue questioning.

1. You have a right to remain silent

but

2. Anything you say can and will be used against you.


As long as you are aware that you don't have to say shit during the questioning, as long as you "remain" silent, you're golden. But they can continue questioning.
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Docsven wrote:
Yes we do have to stop questioning you in the field and in the confines of a station without your lawyer present.


Actually, the point of this case (which I hadn't realized) is that when you invoke your right to remain silent the police can't keep questioning you at all. It's not just that you can have a lawyer present -- you can end the questioning altogether.

As for guilty flags flying up the ramparts, I'd ask for a lawyer and/or invoke my right to remain silent the moment I thought I was a suspect in a crime, even if I was innocent. If that makes someone in the police department think I'm guilty, I can live with that...I care a lot more about making sure there's no chance that a jury decides that I am.
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MWChapel wrote:
perfalbion wrote:
Chad_Ellis wrote:
What I didn't know (and someone please correct me if I'm wrong) is that if you formally state that you are invoking your right to remain silent, the police actually have to stop questioning you.


This is true. Continuing to question a suspect who invokes their right to shut up often gets treated as coercion.


I don't think that is right. They can continue questioning.

1. You have a right to remain silent

but

2. Anything you say can and will be used against you.


As long as you are aware that you don't have to say shit during the questioning, as long as you "remain" silent, you're golden. But they can continue questioning.


That's what I thought, but apparently it's not correct. Remember, the full sentence of #2 starts, "If you give up that right..." It's sort of like the right to a lawyer -- once you say you want one, they have to stop questioning you until your lawyer arrives. If you invoke the right to remain silent, the interrogation ends.
 
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Chad_Ellis wrote:


That's what I thought, but apparently it's not correct. Remember, the full sentence of #2 starts, "If you give up that right..." It's sort of like the right to a lawyer -- once you say you want one, they have to stop questioning you until your lawyer arrives. If you invoke the right to remain silent, the interrogation ends.


I don't think there is any such thing as "invoking", as I read:

In the U.S., the only way for one to protect one's rights fully is to refuse answering any questions beyond giving one's name and identifying papers if requested and to refuse giving consent to anything (such as a search) prior to one's arrest.[10]. Law enforcement officials do not have to tell civilians the truth on any subject. They can make any promises and claims they like in order to induce a person to incriminate herself or himself or to allow the officer to perform a search, and law enforcement officials are not bound by anything they promise to suspects or witnesses (i.e. promises of aid or protection).

I'm not sure how they think a person can "invoke" silence. Silence is a state, not a declaration. I've never heard of the police stopping questioning once it's been "invoked". It's not a spell.
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MWChapel wrote:
As long as you are aware that you don't have to say shit during the questioning, as long as you "remain" silent, you're golden. But they can continue questioning.


They really can't. And I got this from two cops I knew in CA. The courts have chucked cases where a witness told them "I don't want to talk to you anymore" and the police continued the interrogation until they got a confession. Even if the witness isn't talking, the police can apply pretty enormous psychological pressure by continuing. They may take a stab or two at "are you sure you don't want to talk?" They may say "tell you what, let me lay out what's going on so you can think about that a bit more." But if they continue an interrogation very long, they're opening up any evidence to be challenged in court or chucked on appeal.

Smart cops will be very careful about continuing to interrogate for those reasons. Smart police departments will train their cops to be that way.

And if the suspect asks for a lawyer and they ignore that or interrogate the suspect without the lawyer present, all bets are off.

Miranda isn't as broad as it's often made out to be, but it's potent stuff.
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Chad_Ellis wrote:
I don't think it's so clear cut. You're informed that you have the right to remain silent and that you can have an attorney. If you actually want an attorney, you have to say so -- once you do, the police have to stop interrogating you until your attorney is present. The SJC has ruled that the right to remain silent works in much the same way -- you can just be silent, but if you want to invoke it (i.e. end interrogation) then you have to say so.

I get the irony that Sotomayor referred to -- that you have to speak up in order to invoke a right to silence -- but her alternative requires the police to infer when a suspect is invoking a right. That seems extremely subjective and likely to create a lot of "motions to dismiss" with arguments about a suspect's implied intent.

If the right to remain silent really means ending interrogation altogether (i.e. you're not only silent but you can't be spoken to by the police) then the Miranda warning should say so. If you tell me I can be silent, I take that to mean I don't have to talk -- not that you have to leave me alone.


So true. The irony is that it would be 10 times more confusing and prone to abuse by both sides her way... and not at all more fair or just to anybody, unless you want to just throw out every case... ever. Unless you're gonna put some sort of time limit on it, which isn't their place. I'm surprised this was a 5-4 decision.
 
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As for guilty flags flying up the ramparts, I'd ask for a lawyer and/or invoke my right to remain silent the moment I thought I was a suspect in a crime, even if I was innocent.


This is one of the things that really grinds me: if you want a lawyer, then you must be guilty, as an innocent person would have no problem answering questions. This is a myth that TV shows love to perpetuate (especially NCIS). If I'm innocent of a crime, and I have the slightest inkling that they suspect me, it's lawyer time.
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MWChapel wrote:
Chad_Ellis wrote:


That's what I thought, but apparently it's not correct. Remember, the full sentence of #2 starts, "If you give up that right..." It's sort of like the right to a lawyer -- once you say you want one, they have to stop questioning you until your lawyer arrives. If you invoke the right to remain silent, the interrogation ends.


I don't think there is any such thing as "invoking", as I read:

In the U.S., the only way for one to protect one's rights fully is to refuse answering any questions beyond giving one's name and identifying papers if requested and to refuse giving consent to anything (such as a search) prior to one's arrest.[10]. Law enforcement officials do not have to tell civilians the truth on any subject. They can make any promises and claims they like in order to induce a person to incriminate herself or himself or to allow the officer to perform a search, and law enforcement officials are not bound by anything they promise to suspects or witnesses (i.e. promises of aid or protection).

I'm not sure how they think a person can "invoke" silence. Silence is a state, not a declaration. I've never heard of the police stopping questioning once it's been "invoked". It's not a spell.

You're invoking your rights, not silence.
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perfalbion wrote:


They really can't. And I got this from two cops I knew in CA. The courts have chucked cases where a witness told them "I don't want to talk to you anymore" and the police continued the interrogation until they got a confession. Even if the witness isn't talking, the police can apply pretty enormous psychological pressure by continuing. They may take a stab or two at "are you sure you don't want to talk?" They may say "tell you what, let me lay out what's going on so you can think about that a bit more." But if they continue an interrogation very long, they're opening up any evidence to be challenged in court or chucked on appeal.

Smart cops will be very careful about continuing to interrogate for those reasons. Smart police departments will train their cops to be that way.

And if the suspect asks for a lawyer and they ignore that or interrogate the suspect without the lawyer present, all bets are off.

Miranda isn't as broad as it's often made out to be, but it's potent stuff.


This case:


In June 2010 the U. S. Supreme Court announced its decision in Berghuis v. Thompkins, holding that a suspect's mere "silence during the interrogation did not invoke his right to remain silent."[14] [15] This decision was the third time in the same term that the Supreme Court placed limits on Miranda rights. In the dissenting opinion, Justice Sotomayor called the majority's dec1ision, "a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided during custodial interrogation."


The guy started talking during questioning after "remaining silent" for over three hours....BUT then he wasn't silent. Therefore, he did not "remain silent". At which point anything he says can and will be used against him, and was.

The supreme court upheld this. so I think it's been clearly defined.


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berserkley wrote:
Quote:
As for guilty flags flying up the ramparts, I'd ask for a lawyer and/or invoke my right to remain silent the moment I thought I was a suspect in a crime, even if I was innocent.


This is one of the things that really grinds me: if you want a lawyer, then you must be guilty, as an innocent person would have no problem answering questions. This is a myth that TV shows love to perpetuate (especially NCIS). If I'm innocent of a crime, and I have the slightest inkling that they suspect me, it's lawyer time.

Much of our youth are educated by the TV, so they put that stuff in there so when they grow up to be criminals, they believe all that stuff. Most criminals are stupid.
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berserkley wrote:
Quote:
As for guilty flags flying up the ramparts, I'd ask for a lawyer and/or invoke my right to remain silent the moment I thought I was a suspect in a crime, even if I was innocent.


This is one of the things that really grinds me: if you want a lawyer, then you must be guilty, as an innocent person would have no problem answering questions. This is a myth that TV shows love to perpetuate (especially NCIS). If I'm innocent of a crime, and I have the slightest inkling that they suspect me, it's lawyer time.


Slightly less popular than the myth that almost all guilty people will admit to their crime after a few minutes of clever unlawyered questioning.

On a serious note. I doubt I'll ever have the chance, but if I'm a person of interest in a case, I'm not talking to anybody without a lawyer. Not even a friendly chat. That's how innocent people end up in jail. The police are very good at coercing confessions or otherwise twisting innocent statements into "evidence". It may not ultimately lead to a conviction, but it would certainly prolong the hell significantly, as well as cost a lot more.
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This attorney says all you need to know in the first 90 seconds. The rest of the video is more like a pitch to call him.



And this video has been posted a couple of times before and is worthy of reviewing every year or so:



I will say this about what Mr. Duane, the law professor, says... my good ol' blue collar dad and his college-educated brother both instructed me (and my useless brother) in our teens about never, ever, under any circumstance "talking to the police". Even if the cop was friendly or seemingly just gathering information about something someone else did.

That was the best legal advice I was ever given and it served me well in my wild-ass teenage days and into my early twenties. Not that I ever did anything even remotely wrong mind you.

When I get stopped in a routine traffic stop I always provide license, insurance card, registration and my CWP and location of any weapon I have... if I have one in the vehicle. That's it.
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MWChapel wrote:
The supreme court upheld this. so I think it's been clearly defined.


No, you're missing an important point. He specifically didn't ask for the interrogation to end or request a lawyer. He just sat there being silent.

Had this guy said "I don't want to talk to you anymore, stop," the police would have either had to stop or risked having any evidence gathered throw out as coerced.

Since he didn't tell him he was exercising that right, they didn't need to stop. That's where the decision squarely comes down, and it is clearly defined. If you say "I'm done talking to you now - leave me alone" they can arrest you and hold you (presuming sufficient cause), but they can't continue questioning you. What the case you're citing states is that if you don't want to be questioned/talk you've a positive requirement to say so.
 
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MWChapel wrote:
The guy started talking during questioning after "remaining silent" for over three hours....BUT then he wasn't silent. Therefore, he did not "remain silent". At which point anything he says can and will be used against him, and was.

The supreme court upheld this. so I think it's been clearly defined.


Right, but unless I'm misunderstanding you I think you're missing a key point. The Court held that merely remaining silent didn't constitute invoking the right to remain silent and because of this the police could continue to interrogate the suspect and his eventual incriminating statement was admissible as evidence.

If, instead of merely being quiet for a few hours, he had said, "I wish to remain silent" then they would have had to end the interrogation. From the SJC decision at hand:

The Supreme Court, ruling in Berghuis, Warden v. Thomkins wrote:

Thompkins’ silence during the interrogation did not invoke his right to remain silent. A suspect’s Miranda right to counsel must be invoked "unambiguously." Davis v. United States, 512 U. S. 452,
459. If the accused makes an "ambiguous or equivocal" statement orno statement, the police are not required to end the interrogation, ibid., or ask questions to clarify the accused’s intent, id., at 461–462. There is no principled reason to adopt different standards for deter-mining when an accused has invoked the Miranda right to remain si-lent and the Miranda right to counsel at issue in Davis. Both protectthe privilege against compulsory self-incrimination by requiring an interrogation to cease when either right is invoked. (emphasis added)


What the Court upheld was not the right of police to continue questioning when the right to remain silent has been invoked but rather the idea that the right can only be invoked explicitly; that the police need not infer that it has been invoked merely because a defendent is silent for some period of time.
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Chad_Ellis wrote:
Docsven wrote:
Yes we do have to stop questioning you in the field and in the confines of a station without your lawyer present.


Actually, the point of this case (which I hadn't realized) is that when you invoke your right to remain silent the police can't keep questioning you at all. It's not just that you can have a lawyer present -- you can end the questioning altogether.

As for guilty flags flying up the ramparts, I'd ask for a lawyer and/or invoke my right to remain silent the moment I thought I was a suspect in a crime, even if I was innocent. If that makes someone in the police department think I'm guilty, I can live with that...I care a lot more about making sure there's no chance that a jury decides that I am.


I can agree with. That is a good answer./DOC
 
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Chad_Ellis wrote:


The Supreme Court, ruling in Berghuis, Warden v. Thomkins wrote:

Thompkins’ silence during the interrogation did not invoke his right to remain silent. A suspect’s Miranda right to counsel must be invoked "unambiguously." Davis v. United States, 512 U. S. 452,
459. If the accused makes an "ambiguous or equivocal" statement orno statement, the police are not required to end the interrogation, ibid., or ask questions to clarify the accused’s intent, id., at 461–462. There is no principled reason to adopt different standards for deter-mining when an accused has invoked the Miranda right to remain si-lent and the Miranda right to counsel at issue in Davis. Both protectthe privilege against compulsory self-incrimination by requiring an interrogation to cease when either right is invoked. (emphasis added)


What the Court upheld was not the right of police to continue questioning when the right to remain silent has been invoked but rather the idea that the right can only be invoked explicitly; that the police need not infer that it has been invoked merely because a defendent is silent for some period of time.


YES, but this is a brand new thing. This is something the supreme court just pulled out of their ass. I don't like the whole "invoking" silence. Silence is silence. If he would have "remained" silent, they would have had nothing on this guy.
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MWChapel wrote:
YES, but this is a brand new thing. This is something the supreme court just pulled out of their ass. I don't like the whole "invoking" silence. Silence is silence. If he would have "remained" silent, they would have had nothing on this guy.


I dunno. All of the rights that I have under the Constitution require me to participate in exercising them. So I can't say I see requiring someone to say "I don't want to talk to you" as being all that onerous. It also requires the police to play psychic if someone is just being silent.

I've few problems requiring people to have enough sense to speak up when they expect to take advantage of one of their rights. I mean, you can't show up the Wednesday after election day and demand that your intent to vote be counted, can you?
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