Silence is not an option, you must invoke 5th amendment now!

[eye95]

The whole key is government using a person's own statements or comments against him...

Sorry, but that is just wrong.

The 5A clearly says that a person may not be compelled to testify against himself. It does not say that he cannot at all. It does not say that he cannot willfully. It does not say that he cannot foolishly. It does not say that the government may not use a person's own statements against him.

Even the Miranda warning (which contains the invented right to remain silent) recognizes that whatever a defendant says may be used against him in a court of law.

You cannot be compelled to be a witness against yourself.
According to Miranda, while in custody, you have the additional right to remain silent.
By court interpretation, you must you must be told of your right to remain silent before a custodial interview.
By court interpretation, you need not be warned that you have a right to remain silent if you are not in custody.
The government may use one's own statements against him as long as they were not compelled.

The court rulings merely deal with under which circumstances are the statements against interest compelled. In custody, they are assumed to be unless the defendant has been warned. Not in custody, they are assumed not to be. I am sure, as with all such gray areas, there are other things the police might do in a non-custodial situation that would cause any statements to be seen as compelled, just like the totality of the circumstances can be used to determine whether a reasonable person would believe that he is being detained.

The government may indeed use one's statements against him in court.

 

[Superlite27]

The enumerated rights are actually much broader than what the constitution merely says.

Exactly.

I'm no constitutional scholar like our illustrious President, but even I know that there were arguments both for, and against, enumerating our rights in a list, or "Bill of Rights".

Enumerate. As in stating what already exists for posterity. If I remember correctly, many were against a bill of listed rights as a list could be interpreted as something finite; ONLY the things on this list are protected. Since folks were wise enough to realize that, at some point in the future, a right might be thought of that wasn't put on the list, it would be excluded from protection by the fact that a list was made at a point in time before the right was able to be enumerated. Therefore, no "Bill of Rights", no finite list of things that could be construed to be the only rights protected.

If I'm not mistaken, I believe this is what led to the inclusion of an amendment process. A means to add to the list in order to mollify those against enumeration of a finite list. "TA-DA! We have included a process to add to the list in recognition that MORE FREEDOMS may be included that we haven't written down, yet."

Therefore, one can reason from this process that, just because something is written in law: One cannot be compelled to testify against one's self, it doesn't mean that the respected right isn't broader, just that the broadness of it hasn't been enumerated.

However, this brings up a rather grey area: How can a nation founded on law distinguish what is enforceable and non-enforceable if people have rights that aren't clearly and completely written down for posterity? After all, the law is concrete: Here is what is enforceable. Here is what is not. There has to be a point in which to distinguish it.

Haven't we always determined that law is interpreted by what is written? "The letter of the law"? Where else can you draw the line other than a finite list of enforceable/not enforceable? If it is on the list: it is law. If it is not on the list: Not law.

While I agree that a list of enumerated rights is not all inclusive, there has to be a point at which the enforcement of them has to take place.



Therefore, the question is: Even though you may, or may not have the right to not incriminate yourself beyond compulsory testimony, at what point is this enforceable?

Isn't it reasonable to assume that incriminating information you voluntarily disclose can be held against you (and, most likely WILL BE), and only that which is coerced from you should be governed by rules restricting its use by the government?

This brings up an entirely new can of worms: If you have the right not to incriminate yourself, why is there a need by the government to finagle it out of you in the first place? Why suspect someone, fish for evidence, and then, after securing "probable cause" read them their rights......only to immediately try to hornswaggle the accused into slipping up and provide incriminating evidence after being read his rights?

More succinctly: If you have the right to remain silent in order to not incriminate yourself, wouldn't this right be more accurately enumerated by stating: "You have the right to not have anything you say held against you."? Wouldn't this statement more accurately define your right? It would eliminate the entire questionable and idiotic process of excluding incriminating statements made before the point at which you are simply reminded that you have a right that exists....but only a right that exists after you have been reminded of it, and can now voluntarily discard.

After all, if authorities have probable cause to make an arrest, why do they require you to play a game in which they need to trick you into forfeiting a right in order to gain more evidence? They already have enough evidence to convict, right? No? Then why did they make the arrest?

Simply rephrasing your "right to remain silent" into a "right to not incriminate yourself" would solve this Miranda game playing entirely.

 

[countryclubjoe]

Pick up Alan M. Dershowitz book-- IS THERE A RIGHT TO REMAIN SILENT? COERCIVE INTERROGATION AND THE FIFTH AMENDMENT AFTER 9/11.

Very informative reading about Your right to remain silent.

Best regards.

CCJ

 

[eye95]

You do NOT have the right to not have anything you say held against you. That is NOT what the Constitution says.

You have the right not to be compelled to testify against yourself. If the courts hold that you were compelled to say what you did, it is inadmissible. If you voluntarily say it, it will be held against you. Thus spaketh Miranda.


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[countryclubjoe]

Every year millions and millions of Americans give up there right to not incriminate themselves when filing an income tax return with the IRS.

Something to think about.

TIA

CCJ

 

[eye95]

Every year millions and millions of Americans give up there right to not incriminate themselves when filing an income tax return with the IRS.

Something to think about.

TIA

CCJ

www.fairtax.org

Get rid of the income tax. Get rid of the IRS.

 

[joanie]

I've tried both, saying nothing, and being more vocal. In my cases, nither seems to make a diffrence far as going to jail, or in court, or other actions. There was the time I wouldn't even speak to say I'm not speaking, only handed over my DL, and said nothing. This was in Upper Arlington, and the "Nice polite carring and generious" LEO said he was on the clock and didn't mind one bit keeping me out in the cold weather freezing (winter time) all night. I guess he was dressed for it and I was shivering with no coat. Alarm went off in a matress store and he kept asking me if I seen something or what I seen, I would not say a thing. I guess I should kiss his boots that he didn't take me to jail though. That might have been a good time to have a voice recorder, there were better times to have had one, I gotta get one of those. I'm past due for another, umm, pleasent experance.

 

[KBCraig]

I agree that compulsion is the key issue in 5A law.

I disagree about the right to silence being "invented". If we don't hav the right to say nothing at all, then we can be compelled to speak. If we can be compelled to speak unless it would be evidence against us, then we create the situation this case s not about: silence being the sole evidence of guilt.

 

[Ca Patriot]

I haven't dived into the full opinion yet, but I believe this is being misconstrued in the news.

The core of the ruling is that pre-Miranda silence may be used to infer guilt in light of the circumstances.

In this case, the suspect was initially cooperative and talkative, then refused to answer certain questions before being taken into custody, mirandized, and interrogated. It was that change in behavior that was used to infer guilt -- the jury saw it as guilty behavior.

I haven't yet seen if the ruling covers simply refusing to talk to police. If you don't talk from the beginning, mirandized or not, it would make absolutely no sense to allow an inferrence of guilt, when doing exactly the same thing after being mirandized would be protected behavior.

I agree that this ruling is being mischaracterized by many people.

The subject willingly went to a police station when he didn't have to. The subject willingly engaged in conversation with police for apparently at least an hour. The subject was answering every question and was very talkative. At some point the police asked questions about his involvement in certain criminal matters and the subject refused to answer or was evasive and so forth.

The police wanted to submit into evidence this conversation and his actions.

I believe the subject did not have a 5th amendment objection this being submitted as evidence because he was NOT in custody and he could have refused to go to the police station and he could have walked out at anytime.

Many police get mad at me because I wont talk to them about even the smallest and most insignificant details. I would point to this ruling as proof as to why you should NEVER speak to police.

Watch my latest video and see how this cop wanted to bait me into speaking with him about cameras.

http://www.youtube.com/watch?v=NpfR26Ywq30

Police are only out to steal your freedom. Don't help them. Offend them. Anger them. Remain silent.

 

[eye95]

I agree that compulsion is the key issue in 5A law.

I disagree about the right to silence being "invented". If we don't hav the right to say nothing at all, then we can be compelled to speak. If we can be compelled to speak unless it would be evidence against us, then we create the situation this case s not about: silence being the sole evidence of guilt.

Consider this: if you have a right to remain silent, how is it that you can be legally compelled, under penalty of criminal proceeding against you for not doing so, to state your name, address, and date of birth when you have been arrested? (Disclaimer, I am talking about Ohio, although almost all States have an equivalent law.)

The right is not to be compelled to testify against oneself, not a right to remain silent. Miranda warnings really need to be reworded.


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[Citizen]

Consider this: if you have a right to remain silent, how is it that you can be legally compelled, under penalty of criminal proceeding against you for not doing so, to state your name, address, and date of birth when you have been arrested? (Disclaimer, I am talking about Ohio, although almost all States have an equivalent law.)

The right is not to be compelled to testify against oneself, not a right to remain silent. Miranda warnings really need to be reworded.


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Thank you for reminding me of something.

During our colonial period or ratification, I forget which, one of the founders or framers pointed out that simple folk such as woodsmen would be lost when it came to legal niceties and could be taken advantage of when it came to rights.

The Miranda warning is simplified such that even an immigrant like Miranda can understand it, such that even a low-IQ person can understand it, such that even an uneducated or poorly educated person can understand it.

In fact, if I recall, the Miranda Warning as given in Miranda v Arizona even tells the suspect he can stop answering questions and call for a lawyer at any point.



Some of y'all are arguing the government's case against rights.

 

[johnfenter]

After the arrest: at the jail...

SCOTUS has just ruled in a 5-4 decision that you must "invoke" your 5th amendment rights immediately if a cop starts to "interregate" you. Otherwise they can now use "your silence" against you in a court. This is a stupid ruling, that will get more uneducated people thrown in jail, as they will not know that their rights are not in effect until you tell the police that you actually are using your rights.

http://www.csmonitor.com/USA/2013/0...o-remain-silent-a-suspect-must-speak/(page)/2

This has been percolating in my mind for a little while, probably after viewing some episodes of "Jail" on television. Let's say that, for some reason, the police have decided to give you the "ride" because they are punishing you for "contempt of cop". You have, up to this point, been exercising your rights; maybe you weren't even carrying ID, you shut up until your attorney can arrive, etc. Now, you have been divested of your gun, ammo, etc. and your pockets are empty. Your recorder has been seized. You arrive at the jail in cuffs in the back seat. From what I have seen, there are a BUNCH of rules at a jail that you can be punished for breaking, like refusing to walk from the car to the door, not answering questions at jail check-in, not answering medical/psych questions from the nurse, etc. So here's the question - once arrested, how does one practice rights at the jail? If you answer their questions, they will turn around and give those answers to the arresting officers for their reports. WHAT am I required to provide as a jail inmate? If I refuse to answer questions, will I get my phone call? Attorneys, feel free to opine...

 

[eye95]

Thank you for reminding me of something.

During our colonial period or ratification, I forget which, one of the founders or framers pointed out that simple folk such as woodsmen would be lost when it came to legal niceties and could be taken advantage of when it came to rights.

The Miranda warning is simplified such that even an immigrant like Miranda can understand it, such that even a low-IQ person can understand it, such that even an uneducated or poorly educated person can understand it.

In fact, if I recall, the Miranda Warning as given in Miranda v Arizona even tells the suspect he can stop answering questions and call for a lawyer at any point.



Some of y'all are arguing the government's case against rights.

Not arguing the government's case against rights. Just pointing out that the oversimplification (of something that is already pretty danged simple) can lead to falsities. Miranda notwithstanding, there is NO right to remain silent. There never has been. There is a right not to be compelled to testify against oneself. The idiot in this case was not compelled, but chose to interact with the police. Once he foolishly did this, everything in the conversation, including that last question he chose not to answer, and the fact that he stopped the interview was admissible as not compelled.


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[eye95]

Arrest or incarceration deprive one of rights. To what extent is a matter of jurisprudence. Compare and contrast non-consensual psychiatric evaluation's effect on rights.

The person in this case was neither arrested nor incarcerated. Nor was he detained, nor seized, nor in custody, nor in any of those other circumstances that the courts already see as compulsion absent a Miranda warning.


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[Citizen]

Eye,

I have repeatedly pointed out that I am talking about the cluster of rights surrounding and connected to the text in the 5th Amendment, including rights the government still refuses to recognize. That is to say, I've made it fairly clear I am talking about the actual rights, not the government's version of them.

Please do me the courtesy of doing the same in return. If you want to assert the government's version of a right, fine. But, please don't argue to me--after I have cited historical example after historical example--that the current government's version of the right is the right.

 

[eye95]

The right as ruled upon by the court is the version of the right I am discussing. If you don't like it, change the Constitution. The court made a reasonable ruling based on black-letter law and previous rulings.

This thread is about the ruling. I am commenting (and will continue to comment) on that in the context of how existing law should have shaped it--not on one's opinion of what those rights should be, but decidedly are not.

The right upon which the ruling is based is the right not to be compelled to self-incriminate. The person in question was not compelled. There is no right to remain silent and never has been. That is a misnomer that derives from the poor wording of the Miranda warnings.

If you believe that there should be a right to remain silent, change the Constitution, cuz it ain't in there.


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[Citizen]

Here is the syllabus of Miranda v Arizona. A syllabus is a kind of summary. In this syllabus, the page numbers in the opinion where the original information can be found are given. Just look at the top of the page for the link to version of the opinion you prefer, HTML, pdf, etc.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0384_0436_ZS.html



An important thing to keep in mind is that Miranda was written to ensure police procedures conform to the requirements of the right. That is to say, if Right X exists, then it follows that Rights Y and Z must necessarily exist; otherwise Right X can be made a nullity. A good example is the courts refusing to allow evidence obtained in violation of the 4th Amendment. If the police violated your 4A right against search and seizure, you would necessarily have the right to have the evidence disallowed at trial; otherwise the 4A right becomes a nullity, especially when government won't allow you to civilly sue for the 4A violation until the criminal matter is settled.


For example, from the syllabus:

(e) If the individual indicates, prior to or during questioning, that he wishes to remain silent, the interrogation must cease; if he states that he wants an attorney, the questioning must cease until an attorney is present. Pp. 473-474.

Here is the relevant text from the opinion:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point, he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.

Notice that it says "right to remain silent."

The whole thing reduces to an absurdity if you pretend that invoking a right midway through questioning can be used against you. Its like saying "you have this right, but we're going to arrange things to nullify it. Nyah, nyah. You'd better invoke it at the very beginning, or else. If you waive it, even out of social convention to talk to people you believe are trustworthy and good guys (police), then you can never get it back. Even just shutting up or being at a loss for words will be used against you if we can figure out a way to do that."

 

[Citizen]

The right as ruled upon by the court is the version of the right I am discussing. If you don't like it, change the Constitution. The court made a reasonable ruling based on black-letter law and previous rulings.

This thread is about the ruling. I am commenting (and will continue to comment) on that in the context of how existing law should have shaped it--not on one's opinion of what those rights should be, but decidedly are not.

The right upon which the ruling is based is the right not to be compelled to self-incriminate. The person in question was not compelled. There is no right to remain silent and never has been. That is a misnomer that derives from the poor wording of the Miranda warnings.

If you believe that there should be a right to remain silent, change the Constitution, cuz it ain't in there.


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<o>

Oh, good grief. What a buncha grumpy short-sightedness.

There has been a right to remain silent for over 300 years. A defendant or suspect had every right to just keep his mouth shut, every step of the way from first interview through trial.

As far as "change the constitution because it ain't in there" goes, that's your lack of familiarity with the historical record. Stop pretending the constitution is only what you know. I'm not even close to being a rights scholar and I'm more familiar that you are, meaning your silly reliance on the text of the hint of the right given the 5th Amendment is founded on ignorance of simple facts you could have learned long ago had you a mind to.

Your argument about this thread being about the ruling falls short. And, is disingenuous. The thread is about the ruling, and the ruling is about the right. Its fair game for me to talk about the right. I'm not the one pounding the inference that the right is only what the government says it is.

And, there is nothing reasonable about government backing up on rights. They (and you) have access to the same historical record I do. Even if there is a gray-area question, which I do not concede is the case here, they can side with rights and freedom just as easily as siding with government.


Now that I've disposed of your arguments (some more than once), I am going to move on.

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[eye95]

I looked through the entire excerpt of Miranda that you provided and could not notice the words "right to remain silent," despite your claim that I should see them there.

Anyway, here is Miranda's entire effect on the discussion: The Miranda warning claims that there is a "right to remain silent." [The ruling may have those words, but you failed to quote them despite having claimed you did.] However, that "right" is limited to custodial interrogations. The interview in this case was NOT custodial.

THIS CASE HAS NOTHING TO DO WITH MIRANDA!!! Miranda is about involuntary questioning while in custody. When a person is in custody, they may mistakenly think that answering questions is compulsory. Miranda says that such is not, and the warning contains the unfortunate wording that is causing all the confusion here--implying that there is an over-arching right to remain silent, not just the right not to answer questions while in custody.

THE SUBJECT OF THIS CASE WAS NOT IN CUSTODY (hence Miranda not applying). There is no right to remain silent and never has been. The Miranda warning uses those inaccurate words, but, again, does not apply in this case.

I don't know how to communicate this any more plainly.


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[eye95]

Kind'a like the elites would have the Second Amendment, a right to arms only borne responsibly and with training.

The two are not analogous at all. I am arguing for what the 5A actually says. What you are comparing it to would be arguing for what the 2A does not say.

BTW, reread the post in question. Despite his claiming that I should notice the ruling says the "right to remain silent," nothing in what he quoted says those words. Somewhere in Miranda, it may use those words, however, as folks keep ignoring, MIRANDA DOES NOT APPLY IN THIS CASE as this was not a custodial interrogation. The appellant in this case voluntarily went down to the police station to make statements. The whole conversation, up to the point where he finally decided to shut up is admissible, including the last question and the fact that he stopped answering questions at that point.


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