Supreme Court Decides Your Silence May Be Used Against You

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.

Comments

wtf

[cosm]

so if the police dont read you your rights, you lose them? land of the...fuck it

Re:wtf

[DaHat]

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

[cfsops]

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

Re:wtf

[cosm]

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 has a "bust card" 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:wtf

[silviuc]

You can always answer "I do not remember".

Re:wtf

[DaHat]

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

Correct... to a point.

Case in point... Lois Lerner invoked the 5th during her appearance before a congressional panel not long ago... while doing so she also answered some questions and proclaimed her innocence... which effectively waved her right to plead the 5th related to those things she spoke about.

If Issa had any real courage, he would have dragged her back the next week, compelled her to answer and if she refused... held her in contempt.

Re:wtf

[fustakrakich]

Hey, c'mon... We walked right into this as soon as the peace treaty with Great Britain was signed. Everybody jus' noddin' their heads, sayin', "I'm cool..."

Re:wtf

[cosm]

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

[Jane Q. Public]

"... 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) and THIS VIDEO (part 2). About 49 minutes total. Very worth it.

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

Re:wtf

[amicusNYCL]

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:wtf

[LandGator]

Absolutely correct. Name, Rank and serial number from now on. You ARE required to identify yourself, dont'cha know, in the Land of the Formerly Free.

Re:wtf

[amicusNYCL]

You can always answer "I do not remember".

I don't really think that would help.

"Will the shotgun shells found at the scene of the murder match the shotgun found at your house?"

"I don't remember."

You'd think that if he didn't shoot someone with his shotgun, he would probably be aware of that fact.

Re:wtf

[Rob the Bold]

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

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

Re:wtf

[Anonymous Coward]

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

[arbiter1]

4 words to remember when talking to the police, "I Want My Lawyer".

Re:wtf

[meta-monkey]

No. First, if you're lying (which you probably are) they can now charge you with that, too. Also, if it seems odd that you don't remember, the prosecutor can use that, as well.

Re:wtf

[stanlyb]

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

Re:wtf

[DaHat]

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!

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

[gatkinso]

Brilliant. If they can prove that you do in fact remember, then they caught you lying, which is a crime, and you are now fucked on two counts.

Re:wtf

[Jane Q. Public]

"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 traffic stops, since they have to have probable cause to do that anyway. No random checkpoints here. And in fact I won't willingly live in a state that does have them.

Re:wtf

[Jane Q. Public]

"Brilliant. If they can prove that you do in fact remember, then they caught you lying, which is a crime, and you are now fucked on two counts."

Correct. See those videos I linked to below. They cover that point in detail.

Re:wtf

[bigstrat2003]

Out of curiosity, where did you go? Lord knows I hate the crap that the government here is doing, but it seems like other countries are also keen to trample freedom, just like we are. I'd love to be wrong though.

Re:wtf

[Burz]

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

[dwillden]

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

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

Re:wtf

[fredgiblet]

I think pretty much every country is moving towards "Security" over all else, it's a question of how fast.

Re:wtf

[fredgiblet]

"Well the fact that he refused to identify himself made me suspicious..."

Re:wtf

[X0563511]

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

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

Re:wtf

[dwillden]

No but once he chose to remain silent he should have remained silent. His choice to resume answering other questions made it admissible. Anything you say or do will be used against you in a court of law. Talk freely but once you decide to clam up, do so and remain clammed up. Or had he fully implemented his rights by calling for a Lawyer the interview would have had to stop until he had representation.

Re:wtf

[khallow]

Congress has that power as well.

Re:wtf

[X0563511]

What harm is providing your name or identification going to cause? It's one thing to answer actual questions, but knowing your name and seeing your ID is in itself harmless is it not?

If I put myself in an officer's shoes - withholding that information would tickle my spidey-sense.

Re:wtf

[pla]

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

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

[uvajed_ekil]

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.

So when exactly do you forfeit your Constitutional rights these days? If a cop says, "Come here, I need to ask you some questions", then asks my name and where I'm going, and I answer, am I no longer protected by the Fifth Amendment if I don't want to answer any other questions? What if the next question is, "Did you stop beating your wife?" What if I answer dishonestly and say, "I'm Joe Shmoe, and going to bang your wife right now because I've never gotten married." We have to STFU to even simple, obvious, or harmless questions, just so we can refuse to answer once the questions become more significant or accusatory? Do I have to explicitly state that I wish to be protected by the Constitution, and can the timing of that be used against me? What a crock. As far as reality goes, immediately refusing to answer simple questions when you HAVEN'T even been arrested is a great way to get yourself arrested in a hurry.

How long then until we have to request, explicitly claim, or be offered other constitutionally guaranteed protections in order to retain them, like those guaranteed under the first, fourth, eighth, 13th, 15th, and 19th amendments? We already have to file paperwork (voter registration form) to request rights guaranteed by the 26th, which can be problematic for some people (just ask Latinos in Arizona, for example), and the second amendment (according to some people, who I happen to disagree with).

Re:wtf

[Mitreya]

No. The article explains that the person in question had NOT been arrested

The lesson could not be clearer

If you are not under arrest, get the hell out of the police station instead of doing anything else (being silent, answering questions, etc).

Re:wtf

[DaHat]

Except it wasn't a court proceeding and she wasn't testifying in a trial

As mentioned above... congress does have that authority.. but you are also taking too literal of a reading of the relevant portion of the 5th amendment, which is:

nor shall be compelled in any criminal case to be a witness against himself

No, I'm not claiming that the 5th doesn't apply to her because she is not a he... instead, the origination point for the applicability of the 5th has been pushed back quite a bit.

It's easy to imagine someone on the stand at a trial refusing to testify... similarly so for someone who has been arrested (ie well in advance of a criminal trial)... it also applies to just about every level... most only assume it applies to sitting in a court room per the written amendment... which has been expanded quite a bit by the courts.

Re:wtf

[superwiz]

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:wtf

[DaHat]

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.

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

[Fluffeh]

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

[Aryden]

Incorrect, you are allowed to answer some questions while taking the 5th on others. You see this in congressional hearings all the time.

Re:wtf

[mark-t]

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).

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:wtf

[Aryden]

#1 because it is your right
#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 the police can be used against you. (You show your ID, oh you live on the street where the crime was committed, meanwhile a neighbor, when asked, says they think they saw you or someone resembling you leaving the scene of the crime.)

If you do not believe any of these, please watch this video: Why you do not talk to the police

Re:wtf

[Anonymous Coward]

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.

Re:wtf

[interval1066]

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

Re:wtf

[UltraZelda64]

That is pretty interesting, especially the first part. Where are mod points when you need them?

Re:wtf

[s.petry]

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!

WHAT? You do realize that the Bill of Rights are those rights granted to all Peoples as defined by the Constitution. Please go read the dictionary and make note of what "right" means when applied as a "noun" dealing with morals. Maybe you were just trying to play the role of devil's advocate.

Re:wtf

[mark-t]

How do they prove that you remember, exactly?

They might be able to prove that you knew... at one time, perhaps. But they would *NOT* be able to prove that you had not actually forgotten the specific details they were asking for at the time that they asked them.

Re:wtf

[Darinbob]

I think it's messed up too. So does the dissenting opinion which supposes that the person being questioned shouldn't have to know that there's a linguistic test involved before the rights will apply.

Ultimately though in this case it wouldn't have mattered I don't think. The case didn't hinge on his silence, the police ultimately tested the shells and got their answer.

Re:wtf

[DaHat]

your breach would be a civil tort. not a federal offence.

Thanks to incorporation... both the 4th & 5th amendments apply to the several states... so the risk of a federal offense is (mostly) out... but depending on the state laws, as well as what is disclosed then yes... jail time could/would be a real possibility.

While I do not work for government, nor in a national security area (nor for any government)... just as the leaker of the PRISM program... who will be spending some quality time in jail thanks to his exercising of his first amendment rights if he thinks he's safe from jail time for speaking out.

Re:wtf

[Darinbob]

Congressional rules aren't the same as criminal law rules. So you should be able to answer some questions and refuse others while sitting in front of congress in a hearing, even if there are criminal law precedents that say otherwise.

Re:wtf

[DaHat]

At your first point, signing an NDA does NOT void your First Amendment rights, because, of course, you signed the NDA, not the Federal government. I don't think you quite understand how nouns work...

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 information. In both cases the agree-or gives up certain rights and risks harsh penalties should they do wrong. This also applies to a private citizen who talks to the police or allows them to search their property without a warrant... as is the case in this case.

Re:wtf

[Darinbob]

That didn't happen in this case. The police came to his house, he handed over the shotgun and agreed to come to the police station with them.

Re:wtf

[Anonymous Coward]

NDA's aren't worth the paper they are written on. If more than 2 people have information and said information is leaked, it's impossible to prove who leaked it (unless you go on record with the Guardian).

Re:wtf

[Darinbob]

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 arresting them shortly afterwords, because they know that person will likely talk and they may be able to squeeze something out then, whereas after the arrest they'll get nothing.

The whole thing is a bit silly because they likely had plenty of evidence to convict anyway without bringing up the fact that he went quiet at that statement. I think it's a case of law enforcement once again testing to see just how far they can go; they seem incapable of working well within the boundaries on their own volition.

Re:wtf

[vux984]

It's an all-or-nothing situation. As sick and tired as I am of this government's shenanigans, even I get this.

Ah, so...

Officer: Hi there, do you work here?
You: Yes.
Officer: Ok, so did you kill Fred?
You: ??? Uh... I should probably talk to a lawyer before I answer any more questions. I have the right to remain silent. 5th amendment.
Officer: You can't selectively apply the 5th amendment, picking and choosing what questions to apply it to. Its an all or nothing situation.

It's an all-or-nothing situation. As sick and tired as I am of this government's shenanigans, even I get this.

I was not aware of this inability to answer a question, and have that mean you can't stop answering questions in the future.

It seems truly ridiculous as demonstrated above. Similarly ridiculous situations apply to interrogation or even on the stand...

Prosecutor: So, you are Jane Doe, that is correct?
You: Yes, that is my name.
Prosecutor: And you've lived here in [city] how many years now?
You: 14
Prosecutor: Did you purchase the knife used to kill Fred?
You: I invoke my 5th...
Prosecutor: Oh... no... gotcha.. You can't start answering some questions and then clam up!
Judge: Answer the question or be held in contempt...

The rest of the country: WTFBBQ?!

Re:wtf

[interval1066]

I was arrested for identity theft. They asked me I wanted to answer any questions. I said "Not without a lawyer in my corner present." They shut up, and so did I, until I was interviewed by my public defender a few weeks later. End of story. Not too sure how your little missive applies.

Re:wtf

[Anonymous Coward]

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

Re:wtf

[hairyfeet]

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

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

Re:wtf

[hairyfeet]

Too late, we already have free speech zones and nearly two thirds of America lives in constitution free zones so we passed that part of the slope a while back.

Anybody who doubted we were going back to "the age of the robber barons" and one set of laws for the rich and one for the poor? Here ya go, if your ass don't have a lawyer on speed dial you be fucked.

Re:wtf

[sockman]

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

[gr8_phk]

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

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

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

Re:wtf

[0111 1110]

They asked me [something].

So they asked you a question and you cooperated fully by answering. You chose to start answering questions about some things but not about others. Then you did not even explicitly invoke your 5th amendment privilege. If you want them to grant you the privilege you gotta ask for it and you didn't. Also, you didn't say,"pretty please". Privilege REVOKED.

Sounds to me like they could have used the fact that you chose to remain silent without explicitly invoking the 5th amendmant privilege and after already answering one of their questions to imply that your choice to remain silent is a pretty obvious sign of guilt.

Re:wtf

[KingMotley]

Perhaps you need to read the 1st amendment, because it has absolutely nothing to do with private citizens and non-governmental entities, nor is the 1st amendment a blanket that trumps all other rights.

Re:wtf

[Pulzar]

Nope, the moral of the story is to NEVER go to the police in the first place.

Ok, am I the only one that's considering the fact that this guy committed murder? The moral of the story is primarily "do not kill others", and then "if you do kill others, don't go to the police to talk to them about it".

Re:wtf

[im_thatoneguy]

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

[rmdashrf]

Because of: 'Ausweiss bitte'. Look it up if you don't get the reference. Any society where you are required to identify yourself is not free.

Re: wtf

[rnicey]

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

[Aryden]

That may be true, I did not differentiate between witness and defendant.

Re: wtf

[Aryden]

You're first and only statement when questioned should be "I wish to speak with my legal counsel".

Re:wtf

[__aaltlg1547]

Time to impeach five "Justices."

Re:wtf

[xigxag]

"Jane," you're skipping past an important point.

They can ask, but you are not obligated to answer.

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, unless you are being held in involuntary custody (or you invoke the 5th amendment.)

Thomas and Scalia would take things even further, naturally, and strike the portion of the above statement in parentheses. Thomas says that in any non-custodial situation, you are under no compulsion to speak and therefore your invocation of the Fifth is essentially a meaningless gesture. And although not specifically addressing the issue, he even seems to be implying that under any situation, custodial or not, the jury should be able to draw whatever inference it likes from your silence. Yes, he seems to be saying, you have the "right" to remain silent, but if the jury nonetheless believes your silence implies guilt, so be it. Fortunately for what remains of our tattered rights, the "Marks" rule applies here: In a plurality decision such as this, only the narrowest commonly held majority view becomes binding opinion. For now, only when not in custody does your silence condemn you.

 

Re:wtf

[hairyfeet]

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

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

Re:wtf

[hairyfeet]

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

[Anonymous Coward]

You always have your rights...

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

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

Re:wtf

[cpotoso]

This is EXACTLY the point of this lesson (and many others). Simply NEVER TALK TO THE POLICE. It will NEVER do you any good. Americans are decades behind the rest of the world in learning this lesson. Simply put: you can't trust them. Lesson learned in decades of living in the 3rd world, which the US has joined about 10 years ago (at least).

Re:wtf

[__aaltlg1547]

Just wait. The Supremes will find a way to take that away too.

Re: wtf

[s.petry]

Wrong. Of the criminal used Remmington shells, and you have the same shells: you are now a liar and defending yourself. If you gave shells to a neighbor, had hunting stolen, etc.. You could be labelled a liar or guilty by weak circumstances. There are countless scenarios in which you would not want to answer a question on these lines. Do not forget that a fundamental component of our justice system is that a person is innocent until proven guilty. Eric.. I guess you already forgot that,

Re:wtf

[DaHat]

NDA's aren't worth the paper they are written on

Care to cite an authoritative source to support that claim?

Re:wtf

[Dare nMc]

FYI, The US Constitution is defining the rights of the government; with few exceptions, it doesn't apply to any private party, or any civil court actions between non government entities. So you can sign away constitutional rights in a NDA, and a civil court judge can order you to pay up on that NDA, even if the NDA violation would be protected by the constitution. Now many of the constitutional rights have also been codified into contract law; in that case it is the contract law that is giving you rights, not the constitution...

Re:wtf

[router]

Oh yes you can be arrested and jailed for theft of trade secrets.

andy

Re:wtf

[Culture20]

Technically, they don't take rights away either. They either recognize or fail to recognize inalienable rights.

Re:wtf

[Anonymous Coward]

100% absolutely correct! Thank you for posting this and please mod parent up. If this is what things are coming to, then absolutely never, ever say a word about anything, ever to anyone in a position of "authority". (quotes because I don't recognize their authority) They are hired goons by the state. He with the biggest gun (or set of guns) controls the crown. You can call it laws all you want, I call it the law of the jungle. Because that is exactly what it is.

Re:wtf

[jedidiah]

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:wtf

[Anonymous Coward]

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

[anagama]

Your NDA is a civil contract. Technically, the only consequence you should face is monetary (maybe injunctive if they could get around the 1st Amendment). Though in the modern world, who knows. Soon as the Feds make breaking a contract a crime, we can reopen the debtors' prisons. Imagine the profit potential for the prison industry. Won't that be great. /sarcasm

Re:wtf

[camperdave]

Taken away, no. Waived, yes.

Re:wtf

[ridgecritter]

If authorities can make it sufficiently complicated to assert your rights effectively, then effectively you don't have them.

Re:wtf

[Dare nMc]

>point of debate in the IRS congressional hearing

From what they constitutional lawyer said on the news that I was watching during discussion of that event, that anyone (including the IRS lawyer) could, even as a defendant, assert the 5th at any time, but the jury/court could use that unwillingness to answer to prejudice the testimony they gave before/after pleading the fifth. So if the subject matter changes, you could plead the fifth without self incriminating. But if you tried defending your self, then refuse to clarify statements you made, then the jury could re-interrupt your earlier statements against you.

Re:wtf

[Anonymous Coward]

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.

Re:wtf

[lightknight]

Thank you. There is just far too much stupidity / evil in the human race for certain things to ever be on the table.

Re:wtf

[poetmatt]

This isn't difficult. If you're being questioned, you say "I'm exercising my right to remain silent" and don't say a fucking word.

how can that befuddle you? that's literally it, at the end of the day. Whether you're in a traffic stop or being arrested, it applies the same at all times. If you're being arrested, you ask to speak to your lawyer. Are you really that daft?

you're not obligated to respond to any question as soon as you state you intend to remain silent.

Re:wtf

[poetmatt]

while I'm not happy about this in general, how hard is it to simply state "I'm exercising my right to remain silent" and say nothing else afterwards?

Re:wtf

[mark-t]

Violation of an NDA is considered breach of contract, which in the case of two private parties, is generally settled via a civil court, not a criminal one.

If there are extenuating damages that extend beyond the private party harmed by the release of such information, then the matter may fall before criminal court... but this is not generally the case.

So... unless your employer is the government, or some branch thereof, you cannot go to jail simply for revealing trade secrets of your employer. Your life, as you know it, may still be over, however... unless you are living a life where you have absolutely nothing to lose (but that's incredibly unlikely, given the employment circumstances under which an employer would require an NDA in the first place).

Re:wtf

[bill_mcgonigle]

You're not smarter than the presenters in those videos, nor, unless you're a hot-shot constitutional attorney, are you smarter than a police apparatus that's trying to frame you. Here, in geek terms:

10 PRINT "DON'T TALK TO COPS"
20 GOTO 10

Re:wtf

[Kleen13]

Good point.

Re:wtf

[AK Marc]

Go to Australia. They want to trample freedom as much as everyone else, but are 10-20 years behind the US. By the time they catch up, move on to somewhere else. I'm planning on somewhere in the EU next.

Re:wtf

[fnj]

one can wave certain rights

You keep using that word. I do not believe it means what you think it means.

Re:wtf

[Jessified]

So the government is probably spying on everyone, but a particular person doesn't have standing unless they can specifically prove they were spied on.

On the other hand, selectively not answering certain questions is now equivalent to answering those questions with whatever answer fits the police officer's narrative.

Interesting what counts as speculation and what doesn't.

Re:wtf

[arth1]

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

[fnj]

Er, that is the exact purpose of the reading of the "Miranda" rights. It is to ensure that the defendant knows he does not have to confess, so that if he then confesses he is doing so deliberately. Assuming he wasn't tortured and undue coercion was not applied, of course his confession will be accepted, because no rights were denied to him. Obviously, the case must still be properly investigated, because simply accepting the first confession received at face value without any supporting evidence whatsoever is considered faulty detective work.

It is called the right not to incriminate oneself, not the prohibition against incriminating oneself.

Now, if you can show that he is brain damaged or profoundly incompetent/stupid, or perhaps temporarily deranged by circumstances, you then still have a case to throw out the confession.

Re:wtf

[dryeo]

Similar situation happened in Canada recently. Cops left and went and got a search warrant for the drugs while leaving a couple of cops guarding the doors. I believe in this case it was a grow-op and perhaps the cops were just being safe but it is simple to get a search warrant in cases like this and ensures legality in the search.

Re: wtf

[amicusNYCL]

Wrong.

Thanks for the 1-word rebuttal. Always appreciate that one.

Of the criminal used Remmington shells, and you have the same shells: you are now a liar and defending yourself. If you gave shells to a neighbor, had hunting stolen, etc.. You could be labelled a liar or guilty by weak circumstances.

OK, then maybe "I don't know" is a better answer than "I don't remember". Some of your reply ignores the fact that, based on the scratches and markings on a given shell casing, they can determine with a high degree of confidence if a specific weapon fired that casing. If he owned that particular weapon, and he already told them that he hadn't loaned it out or let anyone borrow it and that it wasn't stolen, then he's screwed.

There are countless scenarios in which you would not want to answer a question on these lines.

Right. So don't answer questions. Don't say you don't know or you don't remember, just don't answer questions at all. He got into trouble when he started answering questions, not when he failed to answer this one.

Do not forget that a fundamental component of our justice system is that a person is innocent until proven guilty.

Well, they're presumed innocent until found to be guilty (bit of a difference there), but thanks for the reminder.

Re:wtf

[Dr. Spork]

I don't see why you have to be a dick to cops. Why wouldn't you just talk to them like a polite person? They don't have an easy job, and when people think of them the way rebelling teenagers think of their parents, it only makes their job harder to do well. It also increases the chances of them making horrible mistakes. I think we all have a stake in cops having accurate information when they're investigating crimes.

Re:wtf

[dryeo]

You've never seen someone waving the bill of rights around?

Re:wtf

[0111 1110]

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. 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

[dgatwood]

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

The problem is that rulings like this mean that people who have committed a crime (any crime) cannot report other unrelated crimes without putting their own freedom hopelessly at risk. It is cases like this one that are the primary reason why human trafficking still exists in the United States. Because the victims have committed crimes like prostitution, if they cannot plead the 5th at any time and have it actually stick, absent explicit laws to shield them from prosecution, those victims are, in effect, not protected by the law. Illegal immigrant populations are similarly marginalized because they use fake SSNs when applying for jobs and paying taxes. And so on.

Worse, when these people realize that the law cannot help them, they are much more likely to take the law into their own hands. This leads to unnecessary violence. Given enough time, many people will die because of this ruling, all because the Supreme Court decided that the state of Texas's need to convict someone based on his refusal to answer certain questions was more important than defending our Constitution. Bad, bad, bad SCOTUS.

Re:wtf

[s.petry]

I believe we said the same thing, however I try to leave references to "God" out of /. discussions lest I immediately be marked a troll. The definition of "right" is very clear in our Constitution. Obviously you read it, but the person I responded to did not, or simply does not care (perhaps hoping the masters give him a 2nd helping of rice).

Re:wtf

[_Sharp'r_]

As much as I don't necessarily agree with the logic of this USSC ruling, you've got how it works completely wrong.

If you say "I have the right to remain silent. 5th amendment.", you've invoked your rights, the cops/prosecutor must respect that and it can't be used against you at trial.

What the ruling said was that if you aren't being held (you're answering voluntarily) and you just stay silent in response to a questions, you haven't explicitly invoked your 5th amendment rights and so the prosecutor can bring up your silence to the jury. The opinion specifically says that if you actually invoke your 5th amendment rights, then they can use that invocation, nor the following silence, against you.

"... it did not violate Salinas’s Fifth Amendment right to comment on his silence because he never formally asserted his Fifth Amendment right ..."
  See this from a law professor for a more detailed explanation.

Re:wtf

[hedwards]

Of course you have that right. The 5th amendment only applies to self incrimination. They can force you to testify about other things that wouldn't result in self incrimination. So, if you were on trial for tax evasion, you might be required to answer some questions about how you kept your records, but not the ones that would result in self incrimination. And they wouldn't permit you to leave the stand just because you hit one question for which the 5th applied.

Re: wtf

[s.petry]

Oh, and you are wrong again about what got them in trouble. It was failing to answer questions related to ammo casings found at the scene. So you either ignored the fact, or just argued against yourself with "He got into trouble when he started answering questions, not when he failed to answer this one.".

Re:wtf

[BlueStrat]

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

[ridgecritter]

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.

Re:wtf

[danlip]

The US constitution doesn't use this word. The declaration of independence does but it doesn't say anything about the right to not incriminate yourself, and doesn't have standing as a legal document in the US anyway.

Re:wtf

[ridgecritter]

Sorry...that should have been "...poorly educated...".

Re:wtf

[king neckbeard]

No, criticizing the government is one of the most important uses of free speech, but it extends far beyond that. The reason a NDA could be legally binding is because it's a contract with a private entity. However, it would still have to fall within the bounds of contract law. So, if the terms were unreasonable, such as no disclosure for 50 years, or there was a compelling public interest, like being asked via NDA to cover over up a crime, the contract would be invalid.

Re:wtf

[king neckbeard]

No, you can lose them if you are tricked into waiving them. That's why cops will try and hassle you as much as they legally can in order to get you to consent to a search.

Re:wtf

[king neckbeard]

It isn't legally binding, but it is one of the most heavily influential documents in interpreting the Constitution. Most of the Constitutional rights are seen as a codification of inalienable rights.

Re:wtf

[Anonymous Coward]

Never talk to cops. Google the phrase and listen to what the man on the video says. Cops are not necessarily Your friends.

Re:wtf

[Anonymous Coward]

https://www.youtube.com/watch?v=6wXkI4t7nuc

Re:wtf

[gd2shoe]

Governments grant "rights" all the time. They do not grant God-given or natural rights, though. Admittedly, they are generally more interested in taking rights away.

Re:wtf

[Sifonki]

What did The Supremes ever do to you? If anything they Don't Take It Away.

Re:wtf

[Sabriel]

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
[2] http://en.wikipedia.org/wiki/List_of_countries_by_incarceration_rate

Re:wtf

[Jane Q. Public]

I didn't miss anything. My comment was intended in the context of the comment to which I was replying. It was about being stopped on the street, in MY state.

Granted, that's slightly off topic, but that's where the discussion led.

Re:wtf

[Sabriel]

Yes, we're behind the US, and yes, sadly, it appears we're following in their footstep. But hey, if you don't like jackboots, do come here. In 10-20 years you could have citizenship and there's more chance in our system of voting the buggers out since we have mandatory preferential voting rather than voluntary first-past-the-post. :)

Re:wtf

[Jane Q. Public]

This.

Thank you for saving me the effort to write that all out.

Re:wtf

[Jane Q. Public]

Also, the question is not whether they can try to pull something anyway; it's whether they can get away with it.

Re:wtf

[gd2shoe]

Ok, am I the only one that's considering the fact that this guy committed murder?

He was convicted of murder. We're only assuming that he actually did it. If the best argument they've got is "See! He wouldn't answer the question!", then they've got a pretty weak case. An unsympathetic jury can declare guilt, but their words do not create guilt.

I've never killed anyone. I don't intend to. If the cops ever accuse me of something heinousness, I certainly intend to exercise my constitutional rights. I'm dismayed that his fifth amendment right was curbed, not for his sake, but for mine, my friends, my neighbors, and all other innocent parties. That is what this conversation is about. Not one man, but all of us, yourself included.

Re:wtf

[rtb61]

"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

[gl4ss]

rights are not supposed to be something you need to exercise... that's like claiming it was ok to rape because the victim didn't claim her right to not be raped soon enough.

Re:wtf

[Anonymous Coward]

... They don't have an easy job ...

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

[gl4ss]

you should be able to plead the fifth to everything.

otherwise combined with this it's pretty useless right. because then it can be used to narrow down and convict. "so you plead the fifth about that, now lets see the next potential crime..."

Re:wtf

[Ziest]

Agree, The America my ancestors fled the Pale of Settlement for is dead and gone, the America my wife and I grew up in is dead and gone. America is dead, killed by the greedy fuckers who are running the show. The downward spiral of this country has begun and it's going to get ugly. To my mind the only course of action now is to turn our backs on this malignant society, withdraw our support, and start building a new country.

Re:wtf

[Patch86]

His example was basically of someone being tricked into answering a question which is innocuous. If someone walks in and says "Did you commit identity theft?", it is easy to answer "I'd like to see my lawyer". If someone walks in and says "Hi, how are you?", you might answer "Fine thanks", and when they then follow it up with "So, did you commit identity theft?", you might have already waived your right to silence.

It's a slightly silly (almost straw man or slippery slope fallacy) example, but when talking about constitutional law it never hurts to work things through to their ludicrous conclusions.

Re:wtf

[SuricouRaven]

That term is from the Declaration of Independance. While an important historical document, it doesn't have any legal power at all.

It's basically just a few influential people in the colony saying 'Fuck you, we're leaving' to the English government. In the impolitest possible manner.

Re:wtf

[mwvdlee]

"Don't talk to police" applies more than ever: http://www.youtube.com/watch?v=6wXkI4t7nuc
I guess if the police puts you in a situation where you are "free to leave at any time", you should leave immediately.

Also, how exactly would you not incriminate yourself (atleast in the eyes of the police) if you have to explicitely state you want to use the right not to incriminate yourself? It's a catch 22 situation.

Re:wtf

[waveman]

> even if you are "innocent"

ESPECIALLY if you are innocent.

http://www.youtube.com/watch?v=6wXkI4t7nuc

Re:wtf

[superwiz]

She has the right to not incriminate herself PERIOD. How hard is this to understand?

No, she has a right to remain silent. She doesn't have the right to tell her side of the story and then to not answer any questions. She can only practice her right not to incriminate herself by not testifying. Once she testifies, she can't invoke a right to not testify. And she REALLY, REEEEALY does not have a right to accuse others of crimes without being cross examined. At the very least, those she accused have a right to question her as their accuser.

Re:wtf

[stenvar]

People don't say "hey, it's such a nice day, I think I'll talk to police about some murder I didn't have anything to do with". The police were talking to him to find out more about a case that they considered him a suspect in. That should be treated like an interrogation.

The fact that they failed to read him his rights before talking to him as a suspect is itself wrong. And anybody who is considered a suspect should be automatically protected from self-incrimination, otherwise you encourage police to explicitly set up vague situations like this where the subject may technically not be protected but is effectively still being interrogated.

Re:wtf

[sociocapitalist]

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?

It does seem to be heading in this direction, yes.

Time for (more) Americans to start standing up and speaking up or all the rights we used to have will be gone forever.

Re:wtf

[stenvar]

No, you are not required to identify yourself (or even carry identification). But if the police have cause to need to know your identity and you refuse to identify yourself, they can hold you until they identify you. It's not an arrest and there is no (other) penalty, it's simply that they need to physically hold you until they figure out who you are. That's nothing new either.

Re:wtf

[sociocapitalist]

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.

For this specific point I blame the supreme court, that should be defending the constitution and not destroying it, more than I blame the state of texas.

Re:wtf

[L4t3r4lu5]

I also am not a lawyer. I'm not even American. Why would you get into casual conversation with someone who, by the very nature of their position, is to be considered hostile at all times?

I am not in the habit of engaging in casual conversation in the presence of to the politically correct nutbag at work because I know they will use anything I say against me, regardless of context. Why shouldn't you treat a police officer (in the US) the same way?

Re:wtf

[L4t3r4lu5]

I immediately envisioned this (SFW)

Re:wtf

[sociocapitalist]

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
[2] http://en.wikipedia.org/wiki/List_of_countries_by_incarceration_rate

This all sounds very good but without oversight the police have a lot of power to abuse. Many of them are good guys but not all and the judges aren't necessarily better.

Three years ago I was arrested for 'reckless driving' (aka driving calmly 20 mph over the 65mph speed limit - with no traffic and in good weather but with a French driver's license) and the guy that arrested me was racist, stupid and quick to abuse his authority.

I behaved perfectly and politely and as a favor for not making me buy another airplane ticket to come back for court the judge eventually only raped me for 900 USD for this infraction. Note that the penalty for speeding 20mph over the limit in NH (yes NH live free or die my ass) is only 100 USD.

I can easily imagine saying "I do not consent to a search" and him saying "you don't have to consent because I see a package of cocaine in your backseat there" or some such bullshit, turning a relatively minor abuse of power into something even bigger.

Re:wtf

[hairyfeet]

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..

Re:wtf

[sociocapitalist]

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.

"...nor shall be compelled in any criminal case to be a witness against himself..."
http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution

I don't see any qualifications in there like "unless it's Thursday" or "unless he starts answering questions and then stops"

Re:wtf

[sociocapitalist]

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

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.

Sure they can - it's called Marriage

Re:wtf

[AK Marc]

Outside the US, you can't easily get a gun, and your daughter could get the abortion pill without your permission, that's unamerican. Please, all Americans stay in America.

Re:wtf

[skegg]

unless it involved state secrets of national security

Opportunity to exploit and expand powers detected. Processing _

Re: wtf

[Dan Dankleton]

In the UK it is "You do not have to say anything. But it may harm your defence if you do not mention when questioned something you later rely on in court." So no comment, whether it's on the advice of a lawyer or not, may still harm your defence in court.

Re:wtf

[skegg]

+1 Cheeky bugger

Re:wtf

[skegg]

Lucky thing.

The right to silence was recently weakened in NSW, Australia.

Thank you, Premier Barry O'Farrell.

Re:wtf

[coId fjord]

but by then continuing to answer questions has has by his actions if not statement waived his rights.

I'll go look for that in the constitution.

Re:wtf

[skegg]

But you wouldn't know that until you stopped the person and asked ...

Ahh, I see what you did there. The sad thing is it would probably work in court.

Re:wtf

[skegg]

Better yet:
if we place the entire country on house arrest, crime rates will plummet. Motor vehicle fatalities will also plummet.

I don't think GP has heard the expression "throwing the baby out with the bath water".

Re:wtf

[delt0r]

Cops are never your friend.

Re:wtf

[delt0r]

Interesting fact. What you say cannot be used to help you.

Re:wtf

[coId fjord]

You can't selectively apply the 5th amendment

Where does it say that?

Re:wtf

[coId fjord]

One can invoke their 5th amendment right at any time, but must state they are doing so. The court says simply remaining silent does not automatically give you 5th amendment protection.

Seems more like they're simply letting their imaginations go wild with regards to what the constitution actually says.

Re:wtf

[Sabriel]

Sorry, I forgot the sarcasm tags.

Re:wtf

[Ihlosi]

It also increases the chances of them making horrible mistakes.

Oh, tryin' to out-cop the cop? Did you miss the fact that the cop has much, much better training and much, much more experience in getting you to make horrible mistakes (like consenting to an otherwise unwarrented search), than you have in getting the cop to make a horrible mistake?

If I were to be, my money would be on the cop.

Re:wtf

[runeghost]

From how I'm understanding this ruling, apparently just answering the question, "what's your name" before the cops have officially detained you and read you your rights, is enough to destroy your 5th Amendment protections. So no, it's not "harmless". Of course, in some jurisdictions, it's also illegal to refuse to provide them with either your name, or some form of ID. So, as other posters have said, to protect yourself you're basically forced to reduce all interactions with law enforcment to name, and "I will say nothing and consent to no searches, I would like to speak to my lawyer" followed by shutting up.

Re:wtf

[Ihlosi]

Also, how exactly would you not incriminate yourself (atleast in the eyes of the police) if you have to explicitely state you want to use the right not to incriminate yourself?

Simple: Can you name each and every criminal law/statue/ordinance that applies in your current location? No, you can't. So you can't be safe not to incriminate yourself with anything you say. Just remain silent.

Re:wtf

[mikelieman]

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

[runeghost]

In jurisdictions where you must identify yourself when asked to do so by law enforcement, pretty damn difficult.

Re:wtf

[Sabriel]

Sometimes you don't find out they're a police officer until after you're in a conversation with them (plainclothes or off-duty). Sometimes they're family or your new in-laws. Sometimes you were friends before they signed up. At least over here (not in the US) you can actually have a pleasant conversation with one, on or off duty. I'd like to presume it's still quite doable in the US, but it's like bobbing for apples - even a few bad apples in the barrel is enough to stop you looking for the good ones.

Re:wtf

[Twinbee]

If that's the video I remember, it was quite irritating, because the cop was seemingly portraying himself (and other cops) in a bad light. There's something quite wrong with the whole system if people can't be themselves and need to treat cops as out to get them. That's NOT how things should be.

Re:wtf

[Sabriel]

If I'm talking about the weight of the apples and you start talking about their flavour, it's not going to change their weight - no matter how much I might agree with you.

Though I will note that in Russia dash-cams have become rather popular with the driving public. With SCOTUS recently upholding the right to record officers in public, and the price of wearables continuing to drop, I would not be at all surprised to see an upsurge in US sousveillance.

Re:wtf

[L4t3r4lu5]

This is exactly my point. I understand that maybe 1%, if not fewer, are the corrupt / abusive PoS that we see in YouTube videos pepper-spraying women sat on the ground or tasering "uncooperative" geriatrics until they wet themselves. However, the risk of harm if you're confronted by one of these assholes is so high that it outweighs the gains, in my opinion, from social interaction with a police officer.

Maybe if we treated all police officers as sub-human scumbags they'd be less likely to defend those who are giving the others a bad reputation.

Re:wtf

[dkleinsc]

Here's another map of what the fans of the police state in Washington, DC want to be the constitution free zone.

Re:wtf

[dkleinsc]

Leave Diana Ross out of this!

Re:wtf

[dywolf]

no, if you read the article it says that his behaviour visibly changed when that one question was asked.

...he looked down at the floor, bit his lip and "began to tighten up...

This is after he had been talkative and cooperative with the police. So this is two very different sets of behaviour.

I bet if we dug further it wasnt his "silence" so much as this change in behaviour that was presented in court.

Re:wtf

[XxtraLarGe]

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).

Wrong. The first amendment only protects you from the government, not from private parties, so signing an NDA has nothing to do with your constitutional rights. Furthermore, the first amendment only prevents prior restraint on freedom of speech and the press. It does not necessarily protect you from the consequences of that speech. The classic example is shouting "fire" in a crowded theater. Slander/libel are also not protected.

Re:wtf

[punker]

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:

This seems precisely correct, and this ruling seems very, very wrong. My understanding is that the law requires an "express waiver" for you to forgo any of your constitutionally declared rights, and there is no indication that he signed any such waiver.

Re:wtf

[DGMavn]

Bye, rights!

Re:wtf

[dywolf]

apparently if you are arrested you must be appraised of your rights. but if you go witht eh police willingly, ie arent under arrested, the assumption is one of implied foreknowledge of your rights, and no appraisal is required. thus removing the miranda requirement. i think that's possibly fishy, but its too fine a point of law for me to make a good determiniation. but the dude's lawyer didnt even contest it, and that I think is the big failure. if it was me, that's what i would have focused my energies on.

Re:wtf

[oh_my_080980980]

You don't read what you write do you? If you always have your right then you do not need to explicitly state that you are invoking your rights. That would mean a cop could break into your house because you did not explicitly say fourth amendment. Moron.

Re:wtf

[oh_my_080980980]

Why is that a better analogy. You said you needed to invoke your constitutional rights. The first example fits the bill nicely.

Re:wtf

[__aaltlg1547]

You realize that's complete nonsense though, don't you? In the real world, rights are the principles that society and the law uphold regarding personal freedom. Anything right someone thinks they have that isn't universally or near-universally respected might as well not exist.

If these things were really natural things that every human being possesses, there would never have been a need to write them down, except as observations of scientists and philosophers who said, "That's funny. Nobody ever tries to limit the free expression of another person. There must be something in human nature that prevents people from doing that.

Re:wtf

[Sabriel]

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

[melstav]

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

Actually, the guy DIDN'T go to the police on his own. The police came to his house and started asking him questions, then they brought him to the station.

The differences between what happened and "an arrest" are that he was not mirandized and (presumably) was not handcuffed. It's still possible that the officers led him to believe he didn't have much choice in the matter.

Re:wtf

[oh_my_080980980]

Apparently you don't understand the Constitution. The first amendment applies to the government. A business can require you not to disclose information to the public. That does not violate the first amendment. The first amendment applies to the government preventing you from speaking not employer.

Re:wtf

[oh_my_080980980]

You really are clueless aren't you. "Under the incorporation doctrine, most provisions of the Bill of Rights now also apply to the state and local governments." http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

That means state governments can't violate your constitutional rights. That does not apply to businesses. An employer can prevent you from speaking to the press and that does not violate your constitutional rights. Learn the law Potsy.

Re:wtf

[martyros]

From the actual ruling (majority opinion):

But the Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself,” not an unqualified “right to remain silent.” In any event, it is settled that forfeiture of the privilege against self-incrimination need not be knowing.

And:

...Although “no ritualistic formula is necessary in order to invoke the privilege,” Quinn v. United States , 349 U. S. 155, 164 (1955), a witness does not do so by simply standing mute. Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner’s Fifth Amendment claim is affirmed.

I agree with the 4 dissenting judges:

Far better, in my view, to pose the relevant question directly: Can one fairly infer from an individual’s silence and surrounding circumstances an exercise of the Fifth Amendment’s privilege? The need for simplicity, the constitutional importance of applying the Fifth Amendment to those who seek its protection, and this Court’s case law all suggest that this is the right question to ask here. And the answer to that question in the circumstances of today’s case is clearly: yes.

But that's the law of the land right now; so make sure everyone you know knows this.

Re:wtf

[dywolf]

supreme court isnt part of the USDOJ. DOJ is part of the executive branch, not judicial.

Re:wtf

[coinreturn]

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..

I have long hair and was pulled over in WV for having no lights on my trailer. The officer was genuinely concerned that someone could rear-end me. He did not cite or warn me. He recommended me using my hazard lights (one brake light was working) until I got home (non-WV plates on car and trailer). Granted, I was with my white daughter, but still the long hair evoked nothing.

Re:wtf

[sociocapitalist]

If I'm talking about the weight of the apples and you start talking about their flavour, it's not going to change their weight - no matter how much I might agree with you.

Though I will note that in Russia dash-cams have become rather popular with the driving public. With SCOTUS recently upholding the right to record officers in public, and the price of wearables continuing to drop, I would not be at all surprised to see an upsurge in US sousveillance.

I did say 'without oversight' - oversight including any type of recorded evidence if the police should abuse their power. Without this, people cannot hope to protect themselves against bad cops.

The weight of an apple is immaterial if it's rotten to the core.

Re:wtf

[kilfarsnar]

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.

Yes, that is unfortunately what the court ruled. From TFA: "Although 'no ritualistic formula is necessary in order to invoke the privilege' ... a witness does not do so by simply standing mute," Alito added.

That still seems like bullshit to me. The right is to remain silent. Saying, "I invoke my 5th amendment right against self-incrimination" is not remaining silent. It is manifestly speaking.

Re:wtf

[hedwards]

It's not a useless right. The 5th only applies to self incrimination, and incrimination of a spouse IIRC, and it's not useless. If you could just refuse to testify about anything at all using the fifth, then court proceedings would often go nowhere as witnesses would refuse to testify about anything that was mildly inconvenient.

Re:wtf

[SecurityTheatre]

In theory....

In practice, I think it's usually a bit more obvious who leaked it.

For example. You go to work for a new employer. New employer turns up with this information days later. Case closed. Remember, it's a civil court ("by a preponderance of evidence") rather than a criminal one ("beyond a reasonable doubt").

Re:wtf

[X0563511]

So you think withholding information about actual fucking crimes is "fucking up the country?" You don't see the irony in this statement?

Re:wtf

[X0563511]

Just because some cops are racist assholes does not mean all cops are racist assholes. I don't blame the profession, I blame the jackass himself. It's a shame you look down on them as a whole over that incident. I'm not going to change your mind about it, so I'll leave it there.

I, personally, have never had a problem with the police nor do I know anyone who has, except for one person who is a repeated drug offender (and I don't mean he got caught with an ounce of weed either) who frankly dove into that trouble head-first whilst knowing better.

I still believe that the police serve a vital function for society. But I'm also one of those people who calls in storm damage, calls in downed trees or lines so they can get taken care of. I've helped redirect traffic away from an accident so a medevac chopper could land and take a passenger in critical condition to the hospital. Hell, I even got a thank you for it from one of the officers.

Maybe I just have a different sense of social responsibility, even though I do see the problems. I just don't let them stop me doing my own part.

Re:wtf

[X0563511]

I live in Georgia, btw. Have a look at my other post, so on top of that I'll mention I've never seen that kind of crap around here, or down in Florida either.

The people who get pulled over have shit cars that aren't taken care of, drive like dumbasses, don't have insurance, and on top of that disrespect the officer right out of the gate. Maybe you just got unlucky, but a lot of the time it's more than that. ... and yes, I know a lot of them don't have insurance, have titles that don't seem right etc - I have a scanner (legally) and I get to hear all the 28s (registration checks) and 29s (warrant checks), as well as some of the reporting prior to their being pulled over. It's not "I have a feeling about this guy" or "This one doesn't look right" but more of "ran a red light a mile back and is encroaching into other lanes" and the like.

I'm sure it happens, but not being a dickbag when you open your mouth would help a lot when it did.

Re: wtf

[nedlohs]

Not really.

If he had have not answered any of the questions and then not answered that one then he wouldn't have "got into trouble" (in terms of his non-answer being usable against him). Thus not answering the question isn't actually the problem. The problem was the answering of the other questions

Re:wtf

[nedlohs]

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

If you are suicidal, sure go ahead.

Those of us with more than a couple of brain cells to rub together, if they haven't already, will be able to understand the example given in this very article and how it clearly shows that you should not in fact talk the police even to provide them such information.

Sure that is going to make it harder for the police to solve crimes, but they made the bed and they get to lie in it.

Of course there's a risk/reward trade off. If their child has been kidnapped then most people will take the risk of talking to the police in order to increase the chances of getting their child back, as just one example.

Re:wtf

[X0563511]

Sorry, but I'm not going to watch that and I'm not going to avoid talking to the police. I find that socially irresponsible.

Re:wtf

[christianT]

I don't think the Bill of Rights refers to any of the rights therein as inalienable (or unalienable for that matter) The Declaration of Independence only lists "Life, Liberty and the pursuit of Happiness" as unalienable. I think we may have managed to give those up too when our country decided to throw out the first half of that sentence.

Re:wtf

[tompaulco]

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.

How can a government court agree with a piece of paper that says that you are not allowed to exercise free speech?

Re:wtf

[L4t3r4lu5]

The day anything said to a police officer can be used by the defense as well as the prosecution (as it is in the UK) is the day I'll agree with you. Until then, absolutely anything I say to a police officer in the USA can only be used to your detriment. I'm not saying that they're incapable of compassion, or "turning a blind eye" every now and then, but do I really want to take the chance that the officer I'm conversing with is one of those 1% who just can't wait to get another notch on his belt?

Until then, I say make them pariahs.

Re:wtf

[tolydude]

So how does the sequence of (1) "Am I Under Arrest", (2) "Can I Go Now?" work during a traffic stop?

Re:wtf

[Anonymous Coward]

Change "Am I Under Arrest" to "Am I being detained?" You can be detained for a certain amount of time without being arrested.

Re:wtf

[tompaulco]

Taken away, no. Waived, yes.

You can't waive an inalienable right.

Re:wtf

[interval1066]

So they asked you a question and you cooperated fully by answering.

Stop semantacizing. I answered no questions without my lawyer. Period. You're pretty much making up the scenario to fit your argument.

Re:wtf

[interval1066]

Because I DID infact invoke my 5th amendment right, regardless of you bozos in the earlier comments, I got off pretty light, and given the circumstances the defender did right by me. Had I spent all my cash and hired a real attorney would I have gotten off better? Possibly. But because I saved my cash and took the defender's advice I spent 5 months in county, not the max of 3 years in state, and landed on my feet when I got out. HAD I blabbed to the cops and took the media up on their constant offers for interviews who knows where I would have landed. In retrospect, given the circumstances and outcomes, I believe I did the right thing. Yes, not committing the crime would have been the best option. But I did, and how I handled the aftermath was probably the best way I could have. I'm a little confused by the comments before; my choices were: "talk", or "not talk". I chose the latter. What were you assholes going on about up there?

Re:wtf

[rickb928]

So her invoking her Fifth Amendment rights was either unnecessary or superfluous?

She thought she was giving testimony in a manner that required either honesty or silence, and could result in penalties or punishment. And she should have been correct in that.

Re:wtf

[Synerg1y]

RTFA dude...

He got convicted then APPEALED based on himself going silent. Basically a legal play. A witness and shotgun shells got him convicted. Also, it's pretty obvious he's guilty of murder. He DID NOT get convicted for not answering a question.

Re:wtf

[vux984]

As much as I don't necessarily agree with the logic of this USSC ruling, you've got how it works completely wrong.

I wasn't really arguing the actual ruling here, I was arguing the poster who asserted that you couldn't invoke the 5th selectively after answering a few questions.

Re:wtf

[Shompol]

Maybe he did, maybe he did not -- that is irrelevant to the discussion of our constitutional rights being stripped away. Too many people have been wrongly accused and sentenced. Neither police not DOJ care if you are the right guy or not, as long as they can prove guilt and send you to prison their job is done.

Re:wtf

[cyberchondriac]

"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.

If we could mod things up to 10 this would be a good candidate, because this is such a poignant statement.
There's something ill in a society where, just to get by lawfully in so many mundane facets of everyday life, one nonetheless requires the services or education of a law specialist (attorney).

Re: wtf

[s.petry]

So either way in your opinion, the person was wrong. Not talking to the police to begin with, he would have been presumed suspicious. Talking to the police, but not answering a question that is obviously a possible incrimination he is guilty.

That is absolutely not how justice is supposed to work. Justice is best defined by Socrates in "The Republic" by Plato. It's easy for us to look at justice through biased eyes, because it's not us under scrutiny. The Government however shows no bias if you become a target of the same treatment your biases allow happen to others. Something to think about, but I'm not confident that you will.

Re: Re:wtf

[SpaceMonkies]

Forget the fact that she is a federal employee whose salary has to be approved by Congress. Forget the fact that she works for an agency whose power is subject for Congressional oversight (so at the very least they can summon her to testify in order to see if her job is worth paying for with the funds they approve). Everyone can be subpoenaed to testify. Everyone can refuse to testify. But no one can refuse to testify after testifying.

Re:wtf

[cyberfringe]

This is correct. They can detain you during the conduct of an investigation. It is also useless to ask, if you are arrested, what the charge is. The copy has no obligation to tell you and may not know. All the police need is a reasonably suspicion that a crime has occurred/is occurring. The Prosecutor is the one that charges you.

Re:wtf

[MondoGordo]

how about ...

"Will the shotgun shells found at the scene of the murder match the shotgun found at your house?"

"I don't know"

"Do you think the shotgun shells found at the scene of the murder will match the shotgun found at your house?"

"I sure hope not"

"Is it possible the shotgun shells found at the scene of the murder will match the shotgun found at your house?"

"Anything is possible"

since he likely hasn't seen the shells found at the scene this would be truthful, responsive, and not an admission of anything ... Still he should've kept his big fat mouth mouth shut in the first place... either that or not killed those two fellers.

Re:wtf

[janimal]

I think you're confusing what is criminal, and what is civil liability. Violating an NDA will not send you to jail, unless you are spying. You are allowed to do it without fear of persecution by the government. Now what you decided that will cost you is another matter.
Freedom of speech lets you say whatever you want and not be criminally liable for it (hopefully), but it does not give you the freedom to slander, for example.

Re:wtf

[EnglishDude]

Is there an equivalent for the UK? I'd really appreciate it. Thanks!

Re: wtf

[amicusNYCL]

Oh, and you are wrong again about what got them in trouble. It was failing to answer questions related to ammo casings found at the scene.

No, it really wasn't. His mistake (you know, other than the actual murder) was agreeing to give the police his shotgun and answer questions when they showed up at his house. He shouldn't have started answering questions in the first place, he should have told them to get a warrant for them, and a lawyer for him. When he decided to answer questions he was already hosed, it was only a matter of time until the police moved their pieces into checkmate and then he's going to be screwed, and that's exactly what happened. He wouldn't have been in that position if he didn't answer questions to start with. The job of the detectives is to gather evidence for a conviction, they aren't there to help the suspect. They aren't asking questions to try and clear his name, they're asking questions to try and get evidence for a conviction. His mistake was answering those questions, not failing to answer one particular question. He obviously didn't have a good answer to the question about whether or not ballistics would link his shotgun to the scene, so he was an idiot for allowing the police to get to the point where they were going to ask that question. It took an hour for them to get to that question, but that was their plan, to catch him in a lie. He wouldn't have been caught in a lie if he wasn't answering questions without a lawyer.

1 word rebuttal?

That's right, starting your rebuttal with a 1-word sentence like "Wrong." is intellectually about on par with "Nope.". Just get to the substance.

Re: wtf

[smaddox]

An NDA is a civil contract. If you break it you can be sued in a civil court - not arrested and thrown in jail. Your first ammenent rights remain intact.

Re:wtf

[TheLink]

Something like 74% of the wealth held by something like 5% of the population

More like top 10%
http://en.wikipedia.org/wiki/File:U.S._Distribution_of_Wealth,_2007.jpg
See also:
https://www.youtube.com/watch?v=QPKKQnijnsM

Re:wtf

[poetmatt]

not really.

"I am runeghost. I am exercising my right to remain silent".

The end. What you are saying is *exactly* what is wrong.

Re:wtf

[rlwhite]

(I am not a lawyer)

Free speech is much broader. For speech to not be free, someone has to show that they were harmed by it. I can disparage you all I want and it be free speech as long as it does not rise to the level of harassment or threats or cross a factual line that would make it slander.

An NDA rests on contract law. Free speech doesn't apply because the private employer would be harmed by the breach of contract.

Oddly enough, leaking classified information is exempt from our whistleblower laws. If Snowden had broken an NDA with a private employer in the public interest, he would have a legal protection, but no such protection applies to classified government info. If he's caught and brought to the US, about the only thing that could save him is a sympathetic jury or a presidential pardon. There seems to be no chance of the latter.

Re: wtf

[nedlohs]

No. Not talking with the police in the first place would be the right choice so I'm not claiming either way is wrong.

In this particular case it should be obvious. He apparently murdered two people. Of course he shouldn't talk to the police. How justice is supposed to work is irrelevant - if you have in fact committed a crime don't talk to the police. That seems pretty obvious to me. Now if he hadn't done anything wrong then you hit the less obvious grounds, though I'm of the opinion that "not talking" is the correct response in 99.9% of cases.

And yes I do consider that a sad state of affairs.

However, we have a system in which the laws are so complicated that highly specialized lawyers with decades of experience disagree with each other on the details, and the sheer volume of things made illegal is astounding, and with a police force that takes pride in its "us versus them" mentality. Combine those and yes you are going to end up with a really crappy system of justice in which you should avoid contact and certainly talking to law enforcement as best you can. You have to play the cards you are dealt even when they are shitty (and folding isn't an option - I guess you could leave the country entirely, but many other places have similar if not worse issues).

Re:wtf

[Zordak]

Of course you have that right. The 5th amendment only applies to self incrimination. They can force you to testify about other things that wouldn't result in self incrimination. So, if you were on trial for tax evasion, you might be required to answer some questions about how you kept your records, but not the ones that would result in self incrimination. And they wouldn't permit you to leave the stand just because you hit one question for which the 5th applied.

No. If you are on trial, or suspected of a crime, you cannot be compelled to answer any questions about anything. You can't even be compelled to get on the witness stand. The only time you can be compelled to answer questions is if the police believe you have information about a crime somebody else committed in which you are not implicated. For example, if I witnessed my best friend commit a crime, the state could subpoena my testimony against him, even though I don't want to implicate him. But if I am accused of being his accomplice, I don't have to say anything about anything.

Of course, more than usual, this is not legal advice and you should not rely on it. Get a lawyer.

Re:wtf

[hairyfeet]

In other words he got you convicted. Like I said you have better odds defending yourself than you have with a public pretender. The fact that you consider doing 5 months a "good deal" just shows the pretender did his job of making the state have an easier time, he sure as fuck wasn't there for YOUR benefit.

Re:wtf

[Zordak]

The right is to remain silent. Saying, "I invoke my 5th amendment right against self-incrimination" is not remaining silent. It is manifestly speaking.

Actually, the right is:

nor shall [any person] be compelled in any criminal case to be a witness against himself

Re:wtf

[interval1066]

Like I said you have better odds defending yourself than you have with a public pretender.

I strongly disagree. Courts have rules and procedures, and prosecutors use those rules to completely decimate legal neophytes all the time, saw it in my own case, read about it in the news all the time. Defending yourself in court is an idiotic move.

The fact that you consider doing 5 months a "good deal"...

seeing what people around me who didn't listen to their council's advice got, yes. I did the best thing possible given the circumstances. Defending myself would have gotten me a year in state, I'm quite sure. But no, let's hear about your own case and how you one the day defending yourself, ace.

Re:wtf

[uncqual]

The problem with that is they should have read him his rights prior to a question like that.

He was free to leave, he wasn't even being temporarily detained, let alone arrested. Miranda, therefore, didn't apply. For example, if you walk into a police station and say "I killed that woman whose head you found last night over at the strip club", that's admissible even though the police didn't Mirandize you before you uttered your confession. Same thing if you walk up to an officer on the street and utter your confession. Same thing if you utter your confession to your buddy and an officer overhears it. If you publish that statement on your blog, the police can also use it against you even though they didn't have a chance to Mirandize you before you clicked [SUBMIT].

I don't care for this decision, and would like to see legislation that extends the situations where you must be Mirandized for your utterances or behaviors to be admissible, but it seems correct constitutionally. Reading of "Miranda Rights" as most people think of them are, of course, not prescribed by the United States Constitution -- they were a remedy imposed by the SCOTUS in the 1960's to give police a safe harbor with respect to a suspect's right to a lawyer and right to not provide testimony that could incriminate them. The so blanket "right to remain silent" which is included in many jurisdictions' "Miranda Rights" doesn't even exist anywhere in the U.S. Constitution -- most obviously, a court can compel you to testify as long as they believe your testimony won't incriminate you or that immunity has been granted that protects you from prosecution.

What we really need is a better public eduction system in the United States that insures that anyone graduating from High School understands the U.S. Constitution and civics better -- then these situations would not be as common.

As many others have said here:

Officer: I need you to answer some questions.
Me: Am I free to leave?
Officer: <mumble 'good citizen' comments>Yes.<mumble threats>
Me: Officer, have a nice afternoon, good bye.

Unless you are the victim of a crime, the downside of talking to the police can be much greater than the upside even if you are completely innocent of any crime. LEOs often make up their mind who is guilty long before the evidence actually supports their hunch and then enter a spiral driven by confirmation bias. As well, if you make an inadvertent misstatements caused by stress, ambiguous questions, or simple human frailty you can then be charged in many jurisdictions with lying or misleading an LEO.

Re:wtf

[X0563511]

No, I am not a cop. Which throws your entire comment out the window.

Re:wtf

[X0563511]

I see a very large difference. I have a feeling is pretty damn unsubstantiated, but running red lights gets people killed.

Re:wtf

[Migraineman]

They set the bar. Read Miranda carefully - anything you say or do may be used against you in a court of law. That's a one-way street biased against us. Should the cops observe something that would exonerate you, they are *not* obligated to present it in court, or do anything that would benefit you.

Re:wtf

[Reziac]

See also
http://codes.lp.findlaw.com/uscode/18/I/13/242

[today's captcha: "falsely"]

Re:wtf

[Jane Q. Public]

"Sorry, but I'm not going to watch that and I'm not going to avoid talking to the police. I find that socially irresponsible."

You can't find it "socially irresponsible" if you don't even know what the hell the subject matter is. No, the title does not adequately describe it.

You are making assumptions based on what you THINK it says, and your assumptions are wrong. Further, you refuse to even look at or hear what it's about... why? Are you afraid of something?

What you are saying is "I've already made up my mind, and I refuse to even listen to any other arguments even though I don't know what the hell they are even about."

Do you honestly think others should give that viewpoint any respect? I'm just curious.

Re:wtf

[Jane Q. Public]

I would like to add: not standing up for your rights is what is socially irresponsible. Letting government walk all over you is socially irresponsible. Letting government walk all over OTHERS is even more socially irresponsible, and every time you don't stand up for YOUR rights, you weaken THEIRS. We've been seeing it all around us these last 13 years or so.

Re:wtf

[Jane Q. Public]

Sigh. No. Not in this state. It has been tried, and it did not work.

Re:wtf

[harl]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The first amendment doesn't apply.

If two private parties agree via contract to not talk about something then it's a contractual issue not a constitutional issue.

Re:wtf

[cfsops]

I think it's a matter of court decisions rather than an explicit assertion. As I understand it, a defendant cannot assert "the 5th" after he/she has begun answering questions. Also, for a defendant, asserting "the 5th" cannot be considered in a criminal case, but it, (silence), can be considered in a civil case. Again, that's for a defendant. A witness in a court proceeding can selectively assert "the 5th", but can be compelled to answer via a contempt charge, an immunity arrangement or maybe just a really nice "pretty please". This appears to be how the Amendment has been interpreted in the Courts.

The situation involving the IRS person testifying before Congress is nuanced: some believe she cannot selectively apply "the 5th", in other words they consider her to be a "defendant", while others believe she is a "witness" and is therefore able to selectively assert "the 5th".

With regard to what this article was about, the person in question - before being arrested - had chosen to answer police questions, until they asked something specific about shotgun shells found at the crime scene. The person would not answer that question and the police used his silence as evidence to pursue an investigation and eventual arrest of the person.

Re:wtf

[aix tom]

Yes, you can. "waive" does not mean that you give a right up it up forever, just that you decide not to exercise it at a specific moment under specific circumstances.

You have the right of "freedom to movement". But you don't HAVE to move all the time. You have to right to keep silent, but you don't HAVE to keep silent.

Re:wtf

[dkleinsc]

I actually pulled that picture off of the ACLU website, originally: It's a map of the entire US.

Re:wtf

[coId fjord]

I think it's a matter of court decisions rather than an explicit assertion.

I know. Just another example of how the government is infringing upon our rights.

Re:wtf

[hairyfeet]

Sorry that I am in the middle of something and don't have time to use my shitty Google fu to muddle through until I could find you the link but last I checked the conviction rate for those that defended themselves? 89%. Those that had a public pretender? 94! And those that could afford a lawyer had a hell of a lot lower number, something like 65%.

So I'm sorry but several years of moonlighting for a bail bondsman let me see how this shit works and a public pretender is there to make the STATE have an easier time,NOT YOU. hell I saw cases where even I could have got them off because the cops made so many rookie mistakes, what did the public pretender say? Plead guilty. That is ALL they say, all they will EVER say, because they work for the STATE and NOT you.

Re:wtf

[stillnotelf]

I understand why you are using the, um, epithet "public pretender"...but when I got to the phrase:

even worse than for those that represented themselves.

I read it as "repretended themselves".

Re:wtf

[chihowa]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It says nothing about being silent or waiving your rights by testifying. If you answer questions that aren't "being a witness against oneself", where does this say that the fifth no longer applies?

Re:wtf

[X0563511]

Alright. Maybe I'll give it a try, because you're right - the expression of my viewpoint was certainly lacking and doesn't really deserve respect.

What I am expecting however, is more of the same shit I hear from people who mouth off or walk around practically broadcasting their drug habits that I'm hardly surprised they attract trouble.

Maybe I've just been lucky, but I've yet to meet someone who's had these sorts of problems who hasn't done something stupid to bring it on themselves, first. I'm not trying to say that it never happens. Getting struck by lightning also happens. Doesn't mean it will happen to you every time you go outside.

Re: wtf

[s.petry]

No. Not talking with the police in the first place would be the right choice so I'm not claiming either way is wrong.

As mentioned, if he immediately plead the 5th he would have been labelled as suspicious and guilty by public view. Let's assume he is innocent, and of course it is you being questioned by the police. (which is the foundation for our justice system)

Cop says "Hey, can we chat?". You being innocent have nothing to hide. "Sure, what's up? Selling fundraiser stuff?" Cop says "Nah, just making the rounds. Chief says we need to interact with the community more. I think he's right, even though he can be a prick at times. You know how bosses are." and nudges you with his elbow to let you know he's joking. You return "Yeah, my boss and every other boss I ever had gets on my nerves sometimes. So what kind of community outreach do you have planned?". Cop returns "Well, we were wondering who had interest in guns and maybe putting on some gun safety classes and shooting range classes for the public.". You "Really? I have a couple shotguns handed down to me when my gramps passed away. Never used them, but it may be fun to try.". Cop "Really, we just had a murder with a shotgun. What kind of shells do you own?" You.. "um, can I get a lawyer?"

Given the above scenario, would it be fair for the cops to haul you in front of a jury and begin telling them how as soon as he asked about ammo you asked for an attorney and refused to answer his question? Absolutely not.

I'm not saying that other evidence did not end up making the difference in conviction. What I'm saying is that the tactic described above should not happen. You became uncomfortable with the officers questions, and decided it best to stop talking. That fact should not be admissible to a jury, as it requires speculation on "why" you plead the 5th and started having concerns with your rights. Also, don't compare this to other shitty things done to get convictions. As they say, two wrongs don't make a right. But we as a people must start standing up when we see obvious wrongs.

To your last paragraph, I agree with what you summarized. That is now how we are supposed to work though. People tend to see no issues with a double set of laws (one for them and one for us) until it's them on the receiving end of the unfavorable rules. That double standard is what we have to start trying to change. Complacency and apathy have never fixed anything.

Re:wtf

[Jane Q. Public]

"What I am expecting however, is more of the same shit I hear from people who mouth off or walk around practically broadcasting their drug habits that I'm hardly surprised they attract trouble."

I understand. But I think you will find that it's not what you were expecting.

Re:wtf

[Anonymous Coward]

You don't have to be under arrest for a cop to detain you briefly. Your little stunt will get you into trouble needlessly if you are pulled over while driving.

Re:wtf

[hairyfeet]

A black guy with his white kid? They won't give a shit, hell I've seen plenty of times when my hair was halfway down my ass and they didn't give me any trouble...as long as there wasn't any blacks in the car.

You see like most of the guys here that are now calling me a liar once upon a time I would have believed as they do, that all that old Mississippi Burning driving while black bullshit was just that, then i spent 5 years being the "reverse oreo" in a black R&B band and i got to see what most white folks don't get to see, and yeah the cops in the south still do by and large, not all, but a hell of a lot of 'em, still hang onto the old hates. and for some reason a black by themselves or a white by themselves? No problem. Put both in the same car? BIG PROBLEM.

It got to the point that Charles handed me the keys to his car and had me and the wives (two of which were white, one black and one Latina) drive together while the rest of the band drove together in the van because in certain areas we were spending more time getting fucked with on the side of the road than we were at the gigs.

As a southern man believe me, this is not something that I care for or am happy to say but I saw what i saw and its really not hard to tell when someone hates your fucking guts and we got that a LOT in the deep south. Race mixing is something some still seem to have a problem with I guess. Also remember this was the late 90s and early 00s, less dash cams made it easier to get away with shit.

And on a less depressing note to end with, everybody remember that scene in 48hrs where Eddie Murphy walks into a hillbilly bar and you could hear a pin drop? That was what I got when we walked into all these all black R&B clubs. I mean picture 4 black guys and 1 big long haired biker. Charles quickly learned how to solve that problem though, he would throw his arm around me and go "What? You folks against affirmative action? This here's our token white boy!" which would always cause the club to bust a gut and there were never any hassles after that.

Re:wtf

[hairyfeet]

Hell even forget what they WANT, just look at what they HAVE NOW already! I mean look at the map I posted, you are talking about just a hair under TWO THIRDS of the entire US population that thanks to the border rules that they passed after 9/11 can have their rights stripped away at ANY time for pretty much ANY cause, all because they live within X miles of a border.

My grandfather fought in WWII and Korea and I'm just glad he isn't here now as you could probably power the entire south on the amount of revs that man is doing spinning in his grave. I am proud to say he taught me the value of free speech and the constitution, because despite the nearly 3 years he spent in a full body cast thanks to Nazis he supported the right of the Illinois Nazis to march. He said "That is what makes us better than them, as everyone here has the right to speak", he would be so saddened to see how far we have fallen.

Re:wtf

[redlemming]

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).

Actually, there's nothing at all silly about this. If the legal profession wants to extend contract law to be able to infringe freedom of speech, the only ethical way to do so is by mean of an Amendment to the Constitution. Anything else creates a contradiction in the legal system, between freedom of speech (the "no law" portion of which applies to the states via the 14 the Amendment) and contract law (which is a law, hence contradicting "no law").

Contradiction makes it difficult for non-legal professionals to understand the legal system, thus artificially increasing the demand for the services of the legal profession. If people are scared of something, they'll naturally tend to want somebody to protect them, and having contradictions in the legal system makes people scared.

I'm not disputing that employers should be able to ask their employees to keep secrets, the point here is that there are ethical and unethical ways of making that happen within the US legal system.

The issue of when it is legitimate for a contract to provide for non-disclosure is actually a fairly tricky issue in itself, as a long term right of public oversight over business can be asserted under the 9th Amendment, and any NDA that fails to acknowledge this should be viewed as illegal.

Re:wtf

[stanlyb]

The most importing thing of requiring attorney is not the he is good or bad in his job, but that you effectively put pretty big firewall between you, and the prosecution. Which is always the best approach. You don't wanna to talk to the police, not, ever. And after this ruling, the first thing i will say if any cops asks me a question is:
1. Are you a cop? ....YES
2.Am i free to go?......
If not, then i will require an attorney, or my lawyer, if i am rich enough to have one.
So, just for the quiz, if a cop wanna to buy a coffee for example from my coffee-shop, what should i do..................

Re:wtf

[Sabriel]

Of course the Miranda is a warning. That's what it's FOR. It's meant to remind you of your rights in a very dangerous situation, because at that moment your brain will be wanting something, anything at all, that will allow it to avoid thinking about the really bad day you're having.

That said, cops ARE obligated to present anything they observe that would exonerate you, otherwise they are illegally aiding and abetting any actual criminal involved and conspiring to falsely convict an innocent party. If you know cops who aren't upholding that obligation, they've betrayed their office and become thugs with badges. And if other cops know and let them continue to wear the badge - well the Australian Chief of Army Lieutenant General David Morrison said it best: "The standard you walk past is the standard you accept."

Re: wtf

[muridae]

You never could take the stand to testify in your own defense, and the just claim the 5th when the other side asked a question you didn't like. The guy apparently went to the police on his own. He answered some questions, then refused to answer more. They used their observation (he practically waived the 5th by just going without a lawyer) to aid in convicting him. The modern interpretation of the 5th is that the police can't use a blanket refusal to talk as evidence, and a jury can't use you not taking the stand against you; this changes neither.

Re:wtf

[RockDoctor]

I thought that the term in your constitution was about "inalienable rights"? Which means that nobody can take them away from you, and you can't give them away either.

But I'm neither American (for which I give thanks) nor a lawyer (for which I give additional thanks). So I'm not going to lose any sleep if I turn out to be wrong.

Re:wtf

[Slashdot Parent]

He was willingly answering questions, he could have claimed the right without speaking by simply shutting up, but as seen again those who break the law often lack the ability to remain silent, even though they have the right.

I see your point, but I'm not comfortable living in a country where one has to have that level of Constitutional knowledge and that level of presence of mind under pressure just to exercise his "inalienable" right against self-incrimination.

If you fall silent in response to police interrogation, it should be assumed that you are exercising your right against self-incrimination without your needing to invoke the Fifth Amendment to the United States Constitution by name. I totally disagree with Alito when he wrote, "It would have been a simple matter for him to say that he was not answering the officer's question on Fifth Amendment grounds."

Re:wtf

[coinreturn]

Just to clarify, I never called you a liar. I also don't doubt your personal anecdotes or that major prejudice is in place. I only pointed out that long hair is not necessarily relevant, as my example showed.

Re:wtf

[Slashdot Parent]

If a cop says, "Come here, I need to ask you some questions", then asks my name and where I'm going, and I answer, am I no longer protected by the Fifth Amendment if I don't want to answer any other questions?

You are still protected by the 5th, but you need to invoke it. If you're in the middle of speaking with law enforcement and they ask you a question that you don't want to answer, your best answer is "I invoke my right to counsel." If the officer keeps asking you, then say it in plain English, "I want a lawyer." Answer every subsequent question with, "I want a lawyer."

If there's one right that the court system hasn't yet eviscerated, it's your right to lawyer up.

Re:wtf

[Slashdot Parent]

while I'm not happy about this in general, how hard is it to simply state "I'm exercising my right to remain silent" and say nothing else afterwards?

What if you were in a foreign country and weren't familiar with the local magic incantation to assert your rights? Would you be so smart then?

Our rights under the Constitution were supposed to be inalienable. We should not require the accused to have that level of Constitutional knowledge in order to exercise those rights.

Re:wtf

[superwiz]

There is a subtle point not covered by the language of the amendment. As written, it can be interpreted either way. In such situations, it is the legislature's prerogative to chose one of the alternatives. The courts', of course, also have the right to make sure that this choice of alternative does not overreach in removing the actual intent of the amendment. The two alternative reading of "shall not be compelled" are (1) will not be forced to start engaging in an activity (2) will have a right to stop engaging in an activity even after starting to engage in the said activity. If the alternative (1) is chosen as the legitimate one (through legislature), then no protection exists after a person voluntarily starts to engage in an activity. Chose (1) is where we are at the moment.

Re:wtf

[alexo]

The days of cops being there to "protect and serve" are long gone

On the contrary. You just didn't realize who exactly they are serving and protecting.

Re:wtf

[superwiz]

It says nothing about being silent or waiving your rights by testifying.

You are putting emphasis on "nor shall be". But it's "nor shall be compelled". If you put emphasis on compelled, it becomes clear that once certain steps are taken voluntarily, one cannot be compelled to take those steps.

Re: wtf

[nedlohs]

Immediately pleading the fifth always makes you look suspicious. But given the police are questioning you they are already suspicious so no loss there.

This particular case just reinforces the "don't talk" mantra. If they can do what they did here then you need to not answer from the very beginning so they can't argue "oh look he clammed up as soon as we mentioned X". Yes they shouldn't be able to do so anyway, but apparently the Supreme Court disagrees (OK there are some circumstances, it would appear he just needed to say some magic words rather than saying nothing) and frankly their opinion is all that matters in a disagreement about the constitution.

Re: wtf

[s.petry]

While I agree with your point that we all must consider behaving that way, I still hold my claim that this is not justice. Also, that we as a society need to speak out against injustice when we see it.

Re:wtf

[dwillden]

You should be right on being able to fall silent. But you can't pick and choose your silence. If you choose to be silent, you must stay silent. This guy tried to be silent on the one damning question and play cooperative on other non-relevant questions. His selective silence effectively waived his earlier choice to be silent. Had he remained silent the fact that he chose to go silent at that question would not have been admissible. But by trying to play the conversation, his action became a statement that was admissible. There was no pressure, he chose to go in and cooperatively talk with the police, he was not in a state of detention, thus the onus was on him to know when and how to invoke his rights. Once an officer tells you that you are not free to leave the Miranda protections are much stronger, they must advise you of your rights, but until they tell you that no such obligation exists and you cooperate at your own risk.

You must also recognize that this (Roberts Court) and the prior (Rehnquist) court have not been friendly to a strong Miranda protection. They have repeatedly weakened the protections given in the Miranda ruling. Simply put, you have the right to remain silent, best to invoke it early and then stay silent. If you choose to cooperate at all you do so at your own risk. The police are not your friends, their job is to find evidence of a crime, talking to them if you have any guilt is not in your best interest. And even if innocent of the crime they are investigating it's not in your best interest to cooperate because anything you say or do can be used against you, so if you admit any wrong doing it can result in charges, and as you are their voluntarily you are responsible to know that you shouldn't incriminate yourself.

Re:wtf

[Slashdot Parent]

I read the article and I think that I have a reasonable understanding of what happened and why it happened. I was merely offering my observation that the fact that it does work that way is bullshit.

You shouldn't need to work so hard in order to retain your so-called "inalienable" rights.

Re:wtf

[kilfarsnar]

Yeah, well, ok...

Re:wtf

[micheas]

Not quite

If you voluntarily go to the police station without being asked. and refuse to answer a question, but don't say that you are invoking the fifth the lack of answer can be used against you.

The theory is that you instigated the conversation, so you had the chance to talk to an attorney before the conversation. (unrealistic for the general population, but the people that made this ruling have never dealt with low level civil law where over 25% of the litigants are self represented, and thus have a warped view of the world)

The big can of worms that this opens is that does it mean that you should not call 911?

Re:wtf

[Jeruvy]

It ust goes to show, that you should 'never' talk to the police, the fact that he did so willingly was his own mistake and undoing.  Hopefully others have learned from this also.

Spirit of the law

[lolococo]

What happened to the spirit of the law vs. letter of the law? Isn't it why there are judges?

Re:Spirit of the law

[Elbereth]

"Spirit of the law" is more of a liberal thing. Our current court leans a bit to the conservative side, and they tend to be more concerned with "letter of the law". Of course, both sides would probably dispute such simplistic characterizations, but that's pretty much how it works out in practice.

Re:Spirit of the law

[The Rizz]

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. Judges and lawyers often suppress this information from jurors, though.

Re:Spirit of the law

[HiThere]

This may, actually, be in keeping with the "spirit of the law". IIUC, "the spirit" of the laws regarding self-incrimination are to prevent confessions being coerced under torture. They haven't been totally effective at that, but they've done a "pretty good" job, and this doesn't seem to be a case that infringes onto that spirit. (Unlike various cases where someone is ordered to decrypt something...which does seem to infringe on that. I count being held in prision as a mild form of torture...which grades into a more extreme form in some cases.)

Re:Spirit of the law

[Anonymous Coward]

Except for the Second Amendment, where the liberals are trying all sorts of interpretations to avoid the spirit it was written in.

--
Posting AC because I just don't want the grief of wounded liberal egos.

Re:Spirit of the law

[fredgiblet]

Butbutbut the spirit of the 2A was CLEARLY for hunting!

Re:Spirit of the law

[LandGator]

Well, there were cannons, bombs, submarines, warships, Greek Fire, and incendiaries in the Revolution, all of which were 'arms'. Nowadays anything bigger than a .50 cal requires registration of the device AND a hefty tax. Seems like a clear subversion of the intent of 'Because we need you to be competent at potting Redcoats, the right to keep and bear arms shall not be infringed.'

Re:Spirit of the law

[Jane Q. Public]

""Spirit of the law" is more of a liberal thing. Our current court leans a bit to the conservative side, and they tend to be more concerned with "letter of the law". Of course, both sides would probably dispute such simplistic characterizations, but that's pretty much how it works out in practice."

But "the letter of the law" has no real legal foundation. The law is all about the "spirit".

---
"The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it." -- James Wilson

---

Re:Spirit of the law

[Darinbob]

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 wholeheartedly on 10 stances but disagree with strongly on 10 different stances.

Re: Spirit of the law

[fredgiblet]

Zealots like yourself overlook grammar.

Re:Spirit of the law

[jedidiah]

Basically, you should be able to show up to your local Army base ready for action armed with your own weapons and trained how to use them.

This means being able to own and operate your own pistol, rifle, or machine gun. It's an expectation similar to what you would expect out of the militia in 1790.

Re: Spirit of the law

[jedidiah]

That means your average redneck being able to shoot better than most professional soldiers.

The colonial militia actually joined the British Army on it's little adventures through North America.

Re:Spirit of the law

[Lumpy]

Which is why as an american citizen it is your DUTY to perform jury nullification if you are ever selected.

Re:Spirit of the law

[Ihlosi]

But "the letter of the law" has no real legal foundation.

Yes it does. It provides a limit to interpretation. If the letter of the law says you're getting up to 40 years for murder, and you're sentenced to 45 years, then quite certainly this would be grounds for an appeal.

Re: Spirit of the law

[Phreakiture]

That's actually kind of funny, seeing as I see no grammatical error in that post, but I do see one in yours . . .

Zealots like you overlook grammar.

Re: Spirit of the law

[fredgiblet]

I was referring to grammar in the 2A.

Re:Spirit of the law

[Jane Q. Public]

Whoosh...

You are even contradicting yourself when you say "interpretation", then give as an example something that simply isn't open to interpretation.

Re:Spirit of the law

[I'm New Around Here]

Do you mean on Second Amendment cases, or on any criminal case you may get?

Re: Spirit of the law

[Phreakiture]

Yeah, I know. I was just pointing out the irony.

Anything you say or do.

[aristotle-dude]

When you remain silent, that is an action rather than a statement. Both your statements and actions can be used against you. It's right there in the Miranda rights.

Re:Anything you say or do.

[MrEricSir]

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.

[aristotle-dude]

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:Anything you say or do.

[gatkinso]

Then let them use your silence. But keep in mind that if they brought you in, they think you are guilty, and they are simply building a case against you. They are not trying to exonerate you. You will not talk your way out. You are not smarter than them and they have the luxury of fucking up: you don't.

Re:Anything you say or do.

[g01d4]

Once during jury selection I got into an argument w/the judge about this. I felt as a juror I reserved the right to weigh a defendant's refusal to testify against him, i.e. the lack of testimony could be construed as circumstantial evidence. That my right as a juror had nothing to do with compelling him to testify. The defense lawyer was more calm about this. She asked me whether I'd vote to acquit if the evidence of innocence was overwhelming, even if the defendant didn't testify. Of course. It's not a binary deal but it's weight on the scales of justice may be greater than zero.

Re:Anything you say or do.

[theedgeofoblivious]

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

Oh, I see.

Re:Anything you say or do.

[camperdave]

Whether you are being arrested or not, you have the right to remain silent, to an attorney, yada, yada, yada (It's been a while since I watched a cop show depicting the reading of the rights. Do they still show that?). Your rights are there for you to claim.

Re:Anything you say or do.

[Anonymous Coward]

Wrong. Silence post-Miranda cannot be used against you in the case in chief. That is, if you remain silent post-Miranda, it cannot be brought up by the prosecution. The prosecution can use silence to rebut a defense, where your silence would have been inconsistent with your alleged defense.

Silence pre-Miranda or pre-arrest was generally thought to be useable against you. This case isn't surprising, it's merely confirmation that conservative justices are more concerned with 18th century notions of justice than actual 21st century abuses by governments.

Re:Anything you say or do.

[aristotle-dude]

Wrong. Silence post-Miranda cannot be used against you in the case in chief. That is, if you remain silent post-Miranda, it cannot be brought up by the prosecution. The prosecution can use silence to rebut a defense, where your silence would have been inconsistent with your alleged defense.

Silence pre-Miranda or pre-arrest was generally thought to be useable against you. This case isn't surprising, it's merely confirmation that conservative justices are more concerned with 18th century notions of justice than actual 21st century abuses by governments.

I think you are missing the point where "anything you say or do" may be used against you. If you choose to not answer any questions without a lawyer present or advice of council then there is nothing really there to use against you.

If, however, you choose to answer some questions but remain silent on others then that can be used against you post miranda. That silence is in the context of some questions answered post miranda. That silence is an action rather that a statement.

A recent example of selective silence would be the IRIS official who made a statement of defence and then refused to answer any questions. Some might argue that they waived their 5th Amendment right when they made their statement of defence. In the same way, if you answer some questions but not others, those statements and the silence on others can be used as evidence.

Re:Anything you say or do.

[aristotle-dude]

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

Oh, I see.

What? You see what exactly? Can I see a quote where anyone says that? If you choose to answer some questions post miranda then those statements and any silence to others can be used against you. If you are concerned about your right to remain silent then you should remain silent instead of selectively answering questions without council present.

Re:Anything you say or do.

[aristotle-dude]

Whether you are being arrested or not, you have the right to remain silent, to an attorney, yada, yada, yada (It's been a while since I watched a cop show depicting the reading of the rights. Do they still show that?). Your rights are there for you to claim.

Right, they are there for you to "claim" but if you choose to answer some questions rather than remain silent, those answers as well as silence on other questions can be used against you.

Re:Anything you say or do.

[Zaelath]

{[changes channels to Sally Jesse Raphael]}
    Woman: {[weeping] I don't know Homer Simpson, I -- I never met Homer
                  Simpson or had any contact with him, but -- [cries
                  uncontrollably] -- I'm sorry, I can't go on.}
    Sally: {That's OK: your tears say more than real evidence _ever_
                  could.}

Insightful, lawl.

Black is white. War is peace.

[Areyoukiddingme]

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

Oh my people....

How many times does it need to be repeated ?

[Anonymous Coward]

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 ?

[v1]

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:How many times does it need to be repeated ?

[fredgiblet]

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

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

Re:How many times does it need to be repeated ?

[Anonymous Coward]

If you are not free to go, you are under arrest.

The instant they say "no," is the instant you start asking "what crime am I suspected of committing?" instead of "am I free to go?"

When they say "nothing," then you go back to asking the first question.

Re:How many times does it need to be repeated ?

[bondsbw]

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 ?

[Anonymous Coward]

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 ?

[immaterial]

There is a level between being free to go and being arrested: being detained. That is the status of the citizen in your hypothetical. There is a lower burden of proof for an officer to detain you, but the loss of freedom is smaller in scope.

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

As it says in TFS, is the guy in question WAS NOT being detained.

Re:How many times does it need to be repeated ?

[Joe U]

'Sorry officer, you questions are too confusing, I need my lawyer now'.

Re:How many times does it need to be repeated ?

[ebno-10db]

IANALBIAAFPO

Re:How many times does it need to be repeated ?

[v1]

There is a level between being free to go and being arrested: being detained. That is the status of the citizen in your hypothetical. There is a lower burden of proof for an officer to detain you, but the loss of freedom is smaller in scope.

Can you outline the differences in scope / freedom between being detained and under arrest? as far as I'm concerned, they appear to be identical. I lose my right to leave. The only other difference I can foresee is arrest requires specific charges. But are they obligated to tell you? If not, it doesn't matter. They could detain you for an hour, or arrest you for an hour (without specifying charges) and then release you (or drop the unknown charges and release you) - and so what was the difference to you? Either way you spent an hour in custody, having temporarily lost your freedom to leave. What other rights would arrest lose you? Hmmm... search I suppose?

And is this "detention" what is exercised at DUI checkpoints? Sounds like it? "you're not under arrest, but you're not allowed to leave. we haven't decided if we're going to arrest or release you yet. Stay here until we decide."

An earlier comment stated:

"facts and circumstances that would lead a reasonable officer to believe that a crime has been, is being, or will be committed."

I don't see how a DUI checkpoint would meet that criteria. Unless "it's 2:15 am" constitutes a fact and "drunks frequently drive home after the bar closes" constitutes a circumstance?

Re:How many times does it need to be repeated ?

[PortHaven]

Well, I would say, ask his "badge #"

Re:How many times does it need to be repeated ?

[Jason Levine]

"Detain" means you will experience a loss of freedom for a bit (can't leave, etc) while the police look into a situation. The police don't need to prove that you did anything to detain you, but they also can't detain you indefinitely. Detain can turn into arrest, however.

"Arrest" means that they plan on charging you with something. You must be read your Miranda rights and will have your case tried before a judge. You will experience greater restrictions on your freedom, but there is more proof that this is justified. (Yes, they might be wrong, but this will be decided in a court.)

Re:How many times does it need to be repeated ?

[Anonymous Coward]

When a reasonable person believes they are not free to leave, they have been arrested, regardless of whether the cop has said "you are under arrest."

Also, in United States v. Hyppolite, the Court of Appeals for the Fourth Circuit considered whether the manner in which a suspect in a criminal investigation asserts his constitutional rights is sufficient to establish probable cause for a warrant to search the suspect's home. Recognizing that citizens should not be penalized for asserting their rights, the court held that the manner in which an individual asserts his rights cannot be the sole basis for probable cause for a search warrant.

I have successfully recovered SIGNIFICANT funds (so significant that I am retired now at the age of 37) from three different police departments under 42 USC 1983 for violation of my civil rights by arrest without probable cause or warrant and an illegal search of my vehicle as a "punishment" tactic for refusing to acquiesce to an illegal request for my driving documents absent any reasonable suspicion of wrongdoing.

Never talk to the police for any reason - not even in a "mere encounter" where they try to strike up casual conversation. Cops don't strike up casual conversation. They try to get you to incriminate yourself, and the only way for you to really do that is to open your pie hole. Keep your pie hole shut if you are near any cops. Period. End of story.

Re:How many times does it need to be repeated ?

[itwasgreektome]

Good answer. I was wanting to see if someone would explain it correctly or I would have to post myself. There's a lot of confusion in mainstream about police procedures and civilian responsibility.

Re:How many times does it need to be repeated ?

[Rich0]

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).

Re:How many times does it need to be repeated ?

[c0lo]

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

So, if my first question is: "Am I detained?" (instead of arrested) what should the officer tell you?

Re:How many times does it need to be repeated ?

[v1]

"Detain" means you will experience a loss of freedom for a bit (can't leave, etc) while the police look into a situation.

also true of arrest.

The police don't need to prove that you did anything to detain you,

also true of arrest. People get arrested on "trumped up charges" all the time. See "officer bubbles" for a good laugh. All they do is drop charges a few hrs later after they're done harassing you. They don't need any proof to arrest you. It's only necessary if they want to keep you there (>24 hrs usually) and successfully prosecute you.

but they also can't detain you indefinitely.

also true of arrest. (without filing charges anyway)

"Arrest" means that they plan on charging you with something.

What anyone means to anyone is irrelevant. It could "mean" they plan on throwing you an aavon party. All that matters are obligations. Anything they "intend" to do but that can change their mind on later is not a defining attribute.

You must be read your Miranda rights

agreed! arrest requires it. but they could probably do it when they are detaining you too. I doubt they do that, since you'd be more likely to clam up, but there's nothing obligating them NOT to for a detention. So that's not as useful as a deciding factor as you might at first expect.

"Unlikely!" you say? I have personal experience here. I was trying to be a helpful citizen many years ago giving a detective information on a theft where I ended up innocently receiving stolen property. I came to the station to give him the details. First thing the prick did was read me my rights. I did not enjoy the experience, and I don't intend on volunteering my assistance to that particular police department again anytime soon. (he apparently marked me as an accomplice and was trying to trick, and I do mean trick, me into incriminating myself) I wasn't under arrest. I wasn't even being detained.

and will have your case tried before a judge

see above on "intent" and "obligation"

You will experience greater restrictions on your freedom

yes and that's what I was hoping someone would actually get specific about instead of repeating "more restrictions" over and over again, which doesn't really tell us anything useful. I see someone else did in another reply though.

but there is more proof that this is justified.

"requires more proof" is no more specific than "more restrictions".

This is the problem that a lot of us are having though, we think we know how to distinguish between "free", "detained", and "arrested", but it's not that simple of a question.

Re:How many times does it need to be repeated ?

[swillden]

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 ?

[Ihlosi]

If you can't leave, and aren't free to go, what is your legal status?

You're being detained. Any time you're not free to leave, you're being detained.

If you're being detained, insist to remain silent and to see a lawyer, with some exceptions. State that you do not consent to searches, but do not resist searches, either. If you're free to leave, leave.

Re:How many times does it need to be repeated ?

[aristotle-dude]

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

So, if my first question is: "Am I detained?" (instead of arrested) what should the officer tell you?

INAL, but if you are not involved in a crime but may have information as a witness, why shouldn't you be willing to do you civic duty? Are you one of those libertarian assholes that want to benefit from everything you can get out of society but not do your fair share?

Try having a better attitude and maybe they will let you go sooner. Don't be an asshole if you want to be treated without suspicion.

I hate to break it to you but the world does not revolve around you. While I generally think less government is better, I believe that we have a responsibility to the society we live in to offer testimony if we actually witnessed something. We should also have enough patience to allow the police to do their jobs effectively.

Do you remember the Superman movie where Peter Parker left the wrestling match without intervening in the robbery and that robber killed his uncle? What if you witnessed a crime but you did not testify and that guy later killed someone you love?

Re:How many times does it need to be repeated ?

[aristotle-dude]

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.

Must be nice to live on an island of your own. I guess you do not benefit from society at all? There are two possible reasons why they want to you stay.

1. You are under suspicion because you near the scene of the crime and you are acting nervous.

2. Are considered a possible material witness.

If you are a potential witness, you should be willing to give up some time and help the police investigate the crime. What if the perp ends up hurting or killing someone you love because you had evidence but decided to keep quiet and they randomly come across your loved one later?

Part of living in a society means that we are willing to help out when there is an immediate need.

If you are under suspicion because you were at the wrong place at the wrong time but you are nervous because you have some pot on you, consider growing the f-up and giving up on your habit.

Re:How many times does it need to be repeated ?

[ImprovOmega]

More to the point with a detention like that where you are not free to go but not under arrest they also typically cannot transport you. However the second you get the "you are not free to go" then your immediate response needs to be "then I am invoking my right to remain silent" (you may be required to identify yourself, depends on jurisdiction). If they then proceed to Mirandize you, then the only other thing out of your mouth will then be "I want a lawyer".

Re:How many times does it need to be repeated ?

[v1]

If you are not free to leave, and you are not under arrest, you have been kidnapped.

The last time I saw "kidnapping" defined, there were two requirements. (1) illegally detained and (2) moved more than 50 feet". This may have been for a specific jurisdiction, but I believe it was federal. Unlawful detention is separate from kidnapping, in that kidnapping requires them to force you to come with them.

Re:How many times does it need to be repeated ?

[c0lo]

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

So, if my first question is: "Am I detained?" (instead of arrested) what should the officer tell you?

INAL, but if you are not involved in a crime but may have information as a witness, why shouldn't you be willing to do you civic duty? Are you one of those libertarian assholes that want to benefit from everything you can get out of society but not do your fair share?

I stopped reading here. To put it in a polite way, you show a "catastrophic failure of imagination".
No, I'm not even a citizen of US. I was fiddling with the idea of travelling there as a tourist, so I was trying to make myself an idea about the "customs of the place". You managed to convince me it's not a place to visit: even ignoring TSA groping, the risk of meeting rabid creatures as yourself seem too high.

Re:How many times does it need to be repeated ?

[swillden]

Must be nice to live in a fantasy world where completely innocent people never get prosecuted. Not having done anything wrong definitely helps, but it's no guarantee. http://www.youtube.com/watch?v=6wXkI4t7nuc

If you're in a position to be a witness, great! Be a good one. But first get your attorney involved. Your attorney will help you decide if it's safe to have a conversation with the police (unlikely), or whether you should just provide a signed statement, or whether you should negotiate a qualified immunity before talking. Yes, this means that doing you part for society will cost you more time and money than just talking... but it could also cost you far, far less than if you talked and got yourself in trouble.

Re:How many times does it need to be repeated ?

[Slashdot Parent]

If you can't leave, and aren't free to go, what is your legal status?

It's a stop.

The police can only arrest you if they have probable cause (meaning it's more likely than not) to believe that you committed a crime. If they don't yet have probable cause, but they do have reasonable suspicion that you committed a crime (specific facts), they can detain you in a "stop" while they investigate those facts to see whether or not they will rise to the level of probable cause. If they do, you will be formally arrested. If they do not, then the stop will end and you are free to go.

A stop cannot last longer than it takes to investigate the facts.

Re:How many times does it need to be repeated ?

[Slashdot Parent]

When you are detained, it really doesn't matter at that point if you are "stopped" or "arrested". You're not free to go (so don't try to flee), and you should not answer any questions beyond identifying yourself. If the police try to ask you any questions, ask to speak with a lawyer.

Re:How many times does it need to be repeated ?

[Slashdot Parent]

As it says in TFS, is the guy in question WAS NOT being detained.

And here is where the injustice was committed. The police managed to confuse the suspect in a cloud of authority, language barrier, and decades of jurisprudence into thinking that he could or should answer questions.

Exercising your "inalienable" rights should not require so much effort and Constitutional knowledge. Salinas had no rights that day, and that's not what the founding fathers intended.

Re:How many times does it need to be repeated ?

[Slashdot Parent]

Can you outline the differences in scope / freedom between being detained and under arrest? as far as I'm concerned, they appear to be identical.

For your purposes, they are identical. Treat them identically. Identify yourself to the officer but don't answer any other questions. Invoke your right to counsel.

The difference between a stop and an arrest are a matter for your attorney in the event that you are formally charged. He or she will use the rules of levels of suspicion and levels of detention to try to get evidence suppressed and so forth.

Re:How many times does it need to be repeated ?

[Slashdot Parent]

I invoke my right to counsel.

Re:How many times does it need to be repeated ?

[vux984]

That kind of raises the same question. Could the police now testify that the moment they arrived, you immediately invoked your right to counsel. Before they'd spoken to you, before you'd been charged,before anything.

Could they suggest to the jury that it speaks to a guilty conscious, seeking a defense lawyer before anything had even been asked?

Re:How many times does it need to be repeated ?

[Slashdot Parent]

I am not a lawyer, so if you want a good answer, ask a competent lawyer in your jurisdiction.

That being said, I believe that the answer is no. The fact that you want to consult with an attorney is not admissible at trial.

What happened with this guy is that he didn't ask for a lawyer. Had the cops asked if the shells would match the gun and he said, "Hey, wait a minute. Am I a suspect?! In that case, I want to speak with a lawyer. Now." that should have ended the questioning, as I understand it. And the fact that he wanted to speak with a lawyer should not have been admissible at trial.

Re:How many times does it need to be repeated ?

[alexo]

I have successfully recovered SIGNIFICANT funds (so significant that I am retired now at the age of 37) from three different police departments under 42 USC 1983 for violation of my civil rights

So let me see if I understand this.
You got "SIGNIFICANT funds" from your fellow taxpayers, while the miscreants that violated your civil rights didn't have to pay a cent of their own money, and most likely got an extra paid vacation (a.k.a "suspended with pat") as a bonus?

Re:How many times does it need to be repeated ?

[aristotle-dude]

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

So, if my first question is: "Am I detained?" (instead of arrested) what should the officer tell you?

INAL, but if you are not involved in a crime but may have information as a witness, why shouldn't you be willing to do you civic duty? Are you one of those libertarian assholes that want to benefit from everything you can get out of society but not do your fair share?

I stopped reading here. To put it in a polite way, you show a "catastrophic failure of imagination". No, I'm not even a citizen of US. I was fiddling with the idea of travelling there as a tourist, so I was trying to make myself an idea about the "customs of the place". You managed to convince me it's not a place to visit: even ignoring TSA groping, the risk of meeting rabid creatures as yourself seem too high.

The irony is delicious. I am not an American or American resident. I am a Canadian who visits the US at least a couple times a year. I am also a european citizen. I really don't care where you are from pal. If you have no interest in stepping forward as a witness to a crime if you have something that could aid in the investigation then you are a waste of space. People like you not only lack imagination but a moral compass. Why would you not want to help out if you can? Countries like Canada and some countries in Europe are civil societies because some people are brave enough to do the right thing. Don't simply be a taker from society. Ask not what your country can do for you, ask what you can do for your country.

It is ironic that you assumed that I was an american. Libertarianism is a political philosophy which I consider to be unrealistic utopian thought where it is assumed the society works without rules and obligations. There are libertarian parties in Canada as well but they only garner a handful of votes.

Re:How many times does it need to be repeated ?

[c0lo]

So, if my first question is: "Am I detained?" (instead of arrested) what should the officer tell you?

INAL, but if you are not involved in a crime but may have information as a witness, why shouldn't you be willing to do you civic duty? Are you one of those libertarian assholes that want to benefit from everything you can get out of society but not do your fair share?

I stopped reading here. To put it in a polite way, you show a "catastrophic failure of imagination". No, I'm not even a citizen of US. I was fiddling with the idea of travelling there as a tourist, so I was trying to make myself an idea about the "customs of the place". You managed to convince me it's not a place to visit: even ignoring TSA groping, the risk of meeting rabid creatures as yourself seem too high.

The irony is delicious. I am not an American or American resident. I am a Canadian who visits the US at least a couple times a year. I am also a european citizen. I really don't care where you are from pal. If you have no interest in stepping forward as a witness to a crime if you have something that could aid in the investigation then you are a waste of space

Asking about what should I expect as an answer to a question implies nothing about my capability or willingness to help or not.

People like you not only lack imagination but a moral compass.

How do you call people keen to jump on building strawmen for the sole reason to throw in some insults? FYI: I call them schmucks.

Why would you not want to help out if you can?

Where did I say something about willingness or unwillingness to help?

Countries like Canada and some countries in Europe are civil societies because some people are brave enough to do the right thing. Don't simply be a taker from society. Ask not what your country can do for you, ask what you can do for your country.

Other assertions on my character... based on what exactly? The simple question I asked? The fact I refused to enter in an argument with you, argument constructed on false premises? The fact that I stopped a dialog at the first offensive phrase?

It is ironic that you assumed that I was an american.

My mistake. This is to show that schmucks are not the monopoly of US. My only excuse: where I live, I forgot this simple truth, it's not thrown in your face too often; besides, I was inquiring about what should I expect in a situation under the laws of US, and I failed to imagine that the rabid creature in my neck may actually not even live there.

Libertarianism is a political philosophy which I consider to be unrealistic utopian thought where it is assumed the society works without rules and obligations. There are libertarian parties in Canada as well but they only garner a handful of votes.

Meh, given the context (my initial question), the subject is absolutely offtopic and I'm not interested in dissecting what libertarianism would mean/imply/etc, much less with a person so willing to make their points by being gratuitous offensive. I'm past the age when ideologies determines my decisions.

You are wrong

[Anonymous Coward]

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

[bobbied]

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:You are wrong

[mrchew1982]

REMEMBER ALWAYS: It is the job of the police to CONVICT people. In general, they don't really care if you're guilty or not. They get atta' boys for putting people behind bars, nothing else. Give them an excuse and they will put you in prison, and get a commendation for doing so. They are not on the hook if they make a mistake or fudge the numbers, so don't expect them to act responsibly. They will pretend to be your friend, they will play the hero, they will mindfuck you, all to get you say something wrong. The only person that you should ever talk to is your lawyer. It is his job to keep you OUT of jail so that you can pay his bills. Let your lawyer answer all of the questions, I don't care if you weren't even born when it happened, let your lawyer do the talking. A few thousand bucks in lawyers fees is well worth the heartache averted. There's no such thing as a simple question, especially coming from a cop.

Re:You are wrong

[Darinbob]

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:You are wrong

[Anonymous Coward]

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

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

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

Re:You are wrong

[poetmatt]

Are you obtuse?

This has nothing to do with what you said. Bobbied is correct.

Look, I hate cops. I think cops are generally corrupt as shit, we have too many, they are paid too well, and in rare cases are unappreciated/underappreciated. We need to get rid of probably 25% cops nationwide, if you ask me. But in this example, it's not the cops at fault. It's the stupid fucking guy who started talking, and then magically only exercised his right to remain silent *after* he started talking. If you don't talk at all? That's fine. If you talk and then shut up on a specific question? That's what the dumbass in question did. And so the court said "yeah, you can't do that".

If you walk around with your mentality - assuming that all cops are out to get you or something? then you deserve being treated like shit when you give cops suspicious glances for daring to walk down the street.

In comparison, I'm not afraid to find a cop and ask for directions. You know, don't treat people like shit or expect them to, and maybe they won't treat you like shit either. Even corrupt cops are not going to just magically come after you if all you do is manage to ask them for directions.

Re:You are wrong

[poetmatt]

obvious anon troll is obvious.

Wow

[squidflakes]

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.

Re:Wow

[__aaltlg1547]

Except according to the Supreme Court, maybe you don't.

Re:Wow

[KGIII]

Since 1948. This is not a new interpretation. Read more than the summary fuckstick.

Re:Wow

[KGIII]

I should have been nicer but I have now read like five articles because there's people (or a person?) posting that this is not new - and they have done so a few times. Sorry about that. But, seriously, this is NOT a new interpretation or the likes. Read more than the summary and click a few links and search the names for more information. It's as if Slashdot has gone insane...

So, yeah, I was a bit frustrated and should have been nicer. Seriously though - this is nothing new. It even kind of makes sense.

Bad Summary

[Aranykai]

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

[cfsops]

This is why you DO NOT SAY ANYTHING to ANY QUESTION if you are being detained by the police.

My understanding, albeit pedestrian, is that you are required to identify yourself, i.e. speak your name, and that some jurisdictions additionally require you to say where you live.

Re:Bad Summary

[Sarten-X]

Your silly rationality means nothing to me! Nothing!

Cops are only allowed to use evidence I give them willingly, and they can't think, and they can't do any sort of investigation unless I tell them to! I am an American, so I have the inherent right to do absolutely anything, and say absolutely anything, to absolutely anyone, and anyone who opposes me is clearly an agent of the oppressive Enemy!

(if the sarcasm here isn't quite thick enough to notice, at least my signature is sincere)

Re:Bad Summary

[pauljlucas]

... state frankly you are not answering any questions until you have counsel.

And even then don't answer any questions directly if you can manage it. Always communicate answers to any questions only to your lawyer who will relay your answers to the police.

Re:Bad Summary

[meta-monkey]

IANALBIPOO/.FWTWWIN (I Am Not A Lawyer But I Play One On /. For What That's Worth, Which Is Nothing)

No, you do not have to identify yourself. You can literally remain absolutely silent. However, when processing you into jail, they have to verify your identity. Telling them your name and address can speed up that process so you can get working on getting bailed out more quickly.

Re:Bad Summary

[vux984]

I know I didn't kill someone with a shotgun.

I don't know that.

And I might be on your jury.

Re:Bad Summary

[ireallyhateslashdot]

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 is their job to find people who have broken the law, and any communication with law enforcement will be used to forward that goal.

Re:Bad Summary

[fredgiblet]

But you don't know whether or not they have evidence that you might have. Even weak evidence can be spun into a convincing story if you give them any extra rope to hang you with.

Re:Bad Summary

[I'm New Around Here]

They may or may not have any such evidence. But if I talk to them, nothing I say, or refuse to say, will implicate me any further than affirming something is my property, which they will be able to prove whether I say so or not.

So, no, I have no qualms about speaking to the cops. If they are so corrupt that they can make me appear guilty from that, that is a separate issue. We were talking about right to remain silent, not cops planting or fabricating evidence.

Re:Bad Summary

[Travelsonic]

So... only criminals stay silent? I bet there are a fair lot of innocent people out there who have been through the process, remaining silent, even in SOME cases wrongly conviction or abused, who would want to call you a fucking moron right about now... and I wouldn't blame them.

Re:Bad Summary

[Slashdot Parent]

I am also not a lawyer, but I think that you do have to identify yourself. Might want to look it up if you plan on giving Uncle LEO the silent treatment.

WTH?

[Anonymous Coward]

What the hell has been going on with the United States these last few years? I'm no conspiracy nut, but the end effect is practically indistinguishable from what you'd get from a concerted effort to do away with the US Constitution.

Damn it, America! You used to be cool.

Re:WTH?

[KGIII]

There's a whole bunch of news articles about this and an AC who's posted about this. How are you guys all missing this? This ruling is NOT new. It's relying on case law from 1948. LOL

Seriously!?! Has Slashdot gone mad?

Re:WTH?

[KGIII]

I quite agree, my point was simply that this isn't a new interpretation and yet people are quite certain it is and that it is defining the times. I noticed an AC posting about it and I'd read a Fark thread about it earlier (there's a guy in the Fark thread who's a lawyer, according to him, and he explains it very well actually). With the AC (or multiple people posting as AC) and all the internet available it seems pretty silly to keep ranting that this is due to the conservative courts of today.

I also believe that one of the cases cited goes back to the 20s. The inter-war period wasn't all that good for legislation either. Anyhow, the law makes sense. It's not the silence that is evidence but how and when the silence was invoked and that it was done during a non-custodial interview, when the interviewee wasn't a suspect, and the 5th hadn't been taken. The evidence, in this case, was his behavior in response to a question. It makes sense and is in accordance with the law.

What we should take away from this is that we should not talk to the police without a lawyer present except in very limited circumstances. It is unfortunate that we can't talk to the police but it is the reality. If you've been involved in a motor vehicle accident you should (must?) talk to the police. If you've been a witness to a crime you should talk to the police but I'd recommend having a lawyer present as they're just as likely to try to find a way to turn you into a suspect. If you wish to report a crime then you must talk to the police, I am not sure if one needs a lawyer for that but I don't see where it would hurt to have one.

I paid my lawyer $500 back a number of years ago to keep him on retainer. Every year I go give him another $500. I don't usually have any need for him so the money adds up and should I need him I've already paid a bunch in advance so my bill will be lower. I do suppose it would be prudent to put that money into an account that generates interest (he just holds on to it for me) but I'd be concerned that a criminal charge might somehow result in my assets being frozen so I opted to just give it to him instead. I have another lawyer who is retained (with a much larger sum) who does tax, estate, property, some business, and things like that. The first one I mentioned is a criminal trial lawyer. There isn't much call for specialization beyond that around here really.

Re:Hey.. would ya pass me the constitution..

[The Rizz]

Sorry, it's been pretty well used up by a combination of Bush/Obama and the Roberts Court. It'd be like trying to wipe your ass with Swiss cheese at this point.

Re:Rights for the innocent

[sconeu]

"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

A simple statement is all it takes...

[PairOfBlanks]

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.

Re:Black is white. War is peace.

[AK Marc]

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).

Re:Black is white. War is peace.

[cffrost]

Your username nicely captures my response to this ruling.

not quite

[Chirs]

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.

Well there you have it!

[erroneus]

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:Well there you have it!

[triffid_98]

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

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

Here are some other fun facts:
1. Officers can arrest you without invoking Miranda. They only need that if they want to use your statements in evidence after the arrest has been made.
2. Officers are under no requirement to tell you your rights, and are perfectly free to lie to you about them if you ask.

Re:Well there you have it!

[maz2331]

Shot shells can be linked to the firing weapon through impressions made by the bolt, extractor, firing pin, etc. The plastic part of the case is unlikely to be traceable, but the brass head is quite likely to be matchable.

Re:Well there you have it!

[erroneus]

Firing pin marks are EXTREMELY bad evidence. On some rare occasions, a firing pin might be deformed enough to leave a distinctive mark, but that's not quite the norm.

Shotguns and consistency are hard to put together.

Re:Well there you have it!

[erroneus]

http://www.crime-scene-investigator.net/collect.html

Even this says that shotgun shells vary greatly in terms of quality of evidence.

Re:Well there you have it!

[erroneus]

...and I might add that the shotgun shell evidence was not mentioned as direct evidence of guilt in this case. If they had matched the shells with the shotgun, they wouldn't need to rely on "he was squirming in his seat when I asked him!" as evidence. "He just LOOKED guilty as hell!"

Seriously...

Re:Well there you have it!

[bobbied]

Ahhh... The Miranda warnings and the reason for them.. Remember we survived a LONG time without these. It was not required to "read them their rights" until 1966t.

Personally, I feel it is a failure of the educational system that we have to do this. Children should be brought up having studied the Constitution and bill of rights and fully understand what it says. For the most part, nobody knows what's in there anymore unless you study law or something and the /. discussions about this are evidence that many really do not know what their rights are as defined by the constitution and bill of rights. Crying shame, because we are going to loose all of them if we don't know what they are and protect them.

Re:Well there you have it!

[erroneus]

You have to admit that these discussions help some. I'm sure others might argue to the contrary, but discussion and debate brings about new ideas (for some) to consider.

Re:Well there you have it!

[jcr]

Children should be brought up having studied the Constitution and bill of rights and fully understand what it says

That's not going to happen as long as we put up with government schools.

-jcr

Re:Well there you have it!

[wonkey_monkey]

...and I might add that the shotgun shell evidence was not mentioned as direct evidence of guilt in this case.

Not mentioned by whom? TFA, whose job it is to draw in readers with a controversial story?

Has anyone read the transcripts? What exactly was said in court about this guy's refusal to answer the question? What evidence is there that this was directly used by the jury as (partial) evidence of guilt?

Re:Well there you have it!

[erroneus]

If the shotgun shell evidence was relevant, it would reinforce their theory that squirming is an admission of guilt. They wouldn't leave that out unless the evidence was "inconclusive." That's the thing about shotgun shell evidence. It's either inconclusive or it's not. It's never proof of innocence.

Re:Well there you have it!

[wonkey_monkey]

They wouldn't leave that out unless the evidence was "inconclusive."

Are you sure about that? Like I said, it's a news site. It wouldn't be the first time a news provider left out one or two details to sex up a story. If the shotgun evidence was inconclusive, why didn't they mention it?

Not that I'm suggesting we infer the paper's guilt from their silence on the matter, of course.

Re:Is it April 1st already?

[bloodhawk]

Need to actually read the article instead of the usual bullshit over exaggerated summary. He wasn't convicted based on this, His silence on certain questions was simply allowed to be entered as evidence.

Re:Rights for the innocent

[erroneus]

Let's just change the miranda rights script to say "anything can and will be used against you... if you say something it can and will be used against you... if you say nothing, it can and will be used against you." Damned if you do and damned if you don't.

If this isn't cause to oppose the entire judicial system, I don't know what is. When you make people believe that they are screwed no matter what they do, even when it is within their rights, people are going to just decide not to lay down and take it -- they'll fight back in some OTHER way.

Let's say this another way: This decision endangers law enforcement personnel.

5th Amendment

[the eric conspiracy]

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:5th Amendment

[sjames]

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.

Re:5th Amendment

[fredgiblet]

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

I guess it's a good thing that I do both of those every morning then!

Re:5th Amendment

[stenvar]

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

I would argue that in any dialog with the police about a crime they suspect you of but you are innocent of, "compulsion" has to be in play in some form.

Re:Hey.. would ya pass me the constitution..

[I'm New Around Here]

Hey now, keep the liberal side of the Court represented in that list. They are the ones that decided the government can take your land and give it to a casino developer.

Re:Black is white. War is peace.

[Sarten-X]

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:Black is white. War is peace.

[istartedi]

The issue here was that he did speak. Then didn't. Then did.

In other words, he spoke. The headline is sensationalism. Either you spoke or you didn't, and this sounds like speaking to me. Otherwise, he was "just a little bit pregnant".

Re:Hey.. would ya pass me the constitution..

[The Rizz]

Hey now, keep the liberal side of the Court represented in that list.

A) They are covered in the blanket "Roberts Court" designation; and
B) You mean "less conservative", not "liberal".

Should I point out

[NotSoHeavyD3]

We live in a country where it can be illegal to dig a hole or pickup a feather off the ground.(Depending on the circumstances and yes really.) As this video points out http://www.youtube.com/watch?v=6wXkI4t7nuc NEVER TALK TO THE POLICE. There's so many laws a prosecutor can find anything if he feels like it. Hell, even the cop in that video says you should never talk to him. To put a bigger point on it even in the video they give a quote from Robert Jackson(prosecutor at the Nuremburg trials) who said "...any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances."

Re:Typical Slashdot

[LandGator]

> One hundred responses and not a single one interested as to whether the suspect is actually guilty of the crime or not.

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:Typical Slashdot

[telchine]

Of course he's guilty. Why else would the police have arrested him? :p

Re:Hey.. would ya pass me the constitution..

[meta-monkey]

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.

Well then...

[Zamphatta]

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.

Re:Well then...

[russotto]

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?

It's not a Catch-22. It's not even new law. If the cops ask you to submit to questioning and you refuse and demand an attorney or cite your fifth amendment rights, they still can't use that against you (at least not until the next Supreme Court case to come down the line). But if you answer some questions but not others, they can use that against you.

Bottom line hasn't changed: Don't talk to the police beyond identifying yourself.

(I am not a lawyer and do not play one on the internet. Much.)

Re:Well then...

[Zamphatta]

But that's how it's always been, hasn't it? Pfft! I thought this article was NEWs, but I guess it really isn't. I admit I didn't read it all (skimmed thru the rest)... it was loooong & I didn't have enough time. So I guess I got the wrong idea from the blurb & the parts of the article I read.

ill never understand...

[Connie_Lingus]

...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...

Re:Hey.. would ya pass me the constitution..

[cffrost]

Hey.. would ya pass me the constitution.. I need some more ass wipes.

"What [DHS] thinks about the Fifth Amendment"

Example

[PortHaven]

"Where were you when you killed your girlfriend?"

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

Re:Rights for the innocent

[PortHaven]

You've never had to deal with the legal system have you? Many innocents get treated like brutal criminals. There is no innocent. In the eyes of the court you're guilty, or you wouldn't be there. It's just how much you have to pay.

Is Body Language testimony?

[erroneus]

If body language is testimony, then I am afraid we will have to release a LOT of convicted rapists. "She said 'No!' but her eyes said 'Yes!'" Sound familiar? Or is it the exclusive domain of the government to be allowed to interpret the meaning of body language? (And before anyone says "it was the jury, not the government!" I'll remind you that jurists *ARE* government and so is the prosecution who claims this is evidence and the judges who allow it.)

This ruling simply frightens and disturbs me.

Once again...

[FuzzNugget]

NEVER, EVER, EVER FUCKING TALK TO THE MOTHERFUCKING POLICE

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.

Re:Once again...

[Dan667]

I can sum this up for you. Anything you say to the police is evidence most likely against you.

Re:Once again...

[Anonymous Coward]

Except that still assumes the police won't make shit up:

http://www.nytimes.com/2013/02/03/opinion/sunday/why-police-officers-lie-under-oath.html?_r=1 ...or take revenge later for not being cooperative enough:

http://www.facebook.com/justiceforboyd/info
Read the whole thing down to the bottom. It all happened because someone legally declined a warrantless search.

Re:Once again...

[FuzzNugget]

Indeed, it does not. Which is all the more reason to shut up, lawyer up and not give them any more ammo for their bullshit gun.

Re:Once again...

[gatkinso]

You also should realize that being polite, cutting back on the f bombs, and not coming off as a smug holier/more intelligent/hipper-than-thou asshat also helps when dealing with police.

Re:Once again...

[StormReaver]

IANAL.

Articles on 5th Amendment issues should have a two-question quiz before posting is allowed:

1) Are you a licensed attorney? If yes, you may post. If no, then answer question number 2:
2) Have you viewed the YouTube video on why you never talk to the police? If yes, you may post. If no, then shut the fuck up, as nobody wants to see you talking out of your ass.

TL;DR: When asked anything by police, invoke your right to remain silent, then shut the fuck up.

Re:Once again...

[FuzzNugget]

Indeed, my Slashdot tone differs quite a bit from my real life tone. Be polite, but firm ... "sorry, I can't answer any questions without my attorney present."

Re:Rights for the innocent

[EmagGeek]

You are awfully naive.

Re:Typical Slashdot

[bobbied]

I assume he was found guilty. The question was if the silence could be used as evidence in court.

All the political stuff aside.. This ruling actually makes sense. You are not compelled to answer questions about criminal cases, but if you start answering questions, then stop, they are free to use that fact as evidence. I would suggest that anybody who is considering answering questions about any serious crime where they are in any way a suspect had better have a lawyer present when any questions are asked answers are given. If you know you are guilty, then make them arrest you and ask for a lawyer first thing, even if you intend to confess.

This is not a change to the 5th amendment. You are still not "compelled in any criminal case to be a witness against" yourself. They are just saying that the fact you refused to answer a question can be admitted as evidence. If you don't allow this, what's the point of investigators asking questions of any suspect? As soon as the suspect refused to answer a question, you'd pretty much have to toss ALL the answers and forget the interview ever took place. Nope, no evidence would be usable, even if the suspect offered it up for free. That's not right either.

I think the SCOTUS actually made the right call, despite how the press wants to cast it. At least at first blush.

Re:Hey.. would ya pass me the constitution..

[Rockoon]

B) You mean "less conservative", not "liberal".

They arent true Scotsman?

Here is an idea.. wake up.. get a clue.. accept or reject what the liberals are doing without trying to play hide-and-seek with your own identity.

So in other words...

[Darkness404]

So in other words, we have no rights. Rights are absolutes, if they can be defined or narrowed down to nothingness (like the Supreme Court has enjoyed doing) they cease to become rights and merely exist as privileges to be taken away at will.

Really, what enumerated rights do we in the US have left? I guess we have the third amendment still?

ask for a attorney and don't say anything and then

[Joe_Dragon]

ask for a attorney and don't say anything and then they can't ask you any more questions.

Re:Is it April 1st already?

[bloodhawk]

He was convicted, We don't know whether the Jury used it as evidence or completely disregarded it. All we know is it was entered as "PART" of the evidence against him.

Wrong! When arrested, Miranda is not mandatory!

[itwasgreektome]

"Most of us have seen at least enough cop shows to know police must read a suspect their Miranda rights when placing them in custody."

Wrong!

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

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

Miranda= Custody + Interrogation.

Absence of both of those factors, Miranda not necessary.

Texas Freedoms

[Jason Levine]

It looks like Texas is redefining more than one freedom. There's the "right to remain silent" and last week Gov Rick Perry signed the "Merry Christmas Bill" and declared that "Freedom Of Religion" doesn't mean "Freedom From Religion." So while you might not celebrate Christmas, you can't stop a school from forcing your kid into doing something Christmas related just because you don't celebrate it. Of course, he framed it as "every has the right" to religious expression. How long will that sentiment last if a Texas school institutes Muslim prayers for all kids to say? What if they ban all kids from eating or drinking in school on Yom Kippur? What if a Wiccan teacher decides to introduce her students to her religious practices? I highly doubt that Gov Perry will be so open minded. (To people like Gov Perry, "Freedom of Religion" means "everyone is free to practice Christianity in their own Church-approved way.")

Re:Rights for the innocent

[Dan667]

all well and good unless someone corrupt is trying to make their numbers look good at the end of the month and they need a warm body to convict.

Or you could just not commit a crime

[yuukari]

You know, just throwing that out there. Normally this situation wouldn't arise if you were just doing things the "not illegal" way.

Re:Or you could just not commit a crime

[hammyhew]

Cold fjord, is that you?

Re:Or you could just not commit a crime

[CrashPoint]

Or you could just not commit a crime

Or ever be suspected or accused of committing one. What, you thought the 5th Amendment was just for the guilty?

Re:Or you could just not commit a crime

[yuukari]

Shoot! And here I was going all my life thinking that the justice system had it stuff together.

Re:Or you could just not commit a crime

[CrashPoint]

You must have thought it was perfect, if you expected your OP to be sensible advice. Otherwise it's textbook Just World Fallacy.

Re:Is it April 1st already?

[fredgiblet]

Yeah. What gets me is that the jury isn't allowed to ask questions as far as I can see. I'm not certain why that wouldn't be allowed, but I never see it happening and it seems like a MASSIVE restriction to me.

you have the right

[bitt3n]

to remain silent. anything you do not say can and will be used against you.

Welcome to the New Police State

[__aaltlg1547]

Yeah, pretty much. The "conservatives" on the court have just remade the rules of evidence so that the the absense of evidence can be used in place of evidence. Guilt by accusation!

Detailed analysis by Orin Kerr

[Freddybear]

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/

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

Any of the following phrases would have worked

[WaffleMonster]

"I wish to assert my 5th amendment privledge"

"I refuse to answer on the ground it may tend to incriminate me"

"I invoke my 5th amendment privilege"

Don't just pick one - switch it up a little during questioning so you don't sound like such a broken record.

Re:You guys are missing the point.

[cfsops]

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?

Re:Is it April 1st already?

[fredgiblet]

I'd love to see the legal justification for why juries can't ask questions.

Re:Black is white. War is peace.

[AK Marc]

The fact he spoke to the police and refused his right to silence by speaking indicated he waived his rights. If he wanted to waive his rights to all but one question, he needed to clarify which one he was refusing to answer and why. The ruling is logical, reasonable, and wrong.

Selectively answering can be used against you, unless your lawyer (you do have one, right?) indicates which question is refused and why. If his lawyer said "he won't answer that", then it can't be held against you.

And they pick the cases well to run this all the way up. His answer was irrelevant. "Do you think we'll get a ballistics match to your shotgun" is irrelevant when they later did get an exact match. They would likely have gotten the conviction without it, but tried, after all, who would throw out a conviction of an obvious murderer?

Re:Black is white. War is peace.

[AK Marc]

They also didn't finish the story. The guy with the red on his arm just finished a hot dog, and will forever have an arrest on his record for wrong place wrong time and spilled catsup (yes arrests, they show up forever, and are nearly impossible to get removed, even if proven false).

Protect your rights or lose them

[Camael]

For those of you who are US citizens, as someone who lives in a part of the world where this privilege against self-incrimination is not recognised, I say - guard this privilege jealously.

It is always a temptation for those in power to water down, as much as they can, rights given to their citizens. In their eyes, these rights make their job difficult. They will try to narrow the scope (Oh, these rights only apply in some exceptional circumstances). They will try to obfuscate (Do you have such rights? No, its not part of the law). They will try to impose restrictions (You only have this right if you take the following steps). They will create new law to circumvent the rights (Sorry, this new law says you no longer have that right).

Over time, rights which are not protected will be whittled down to uselessness. If you think this is hyperbole, go look up, for example, the erosion of consumer rights and the expansion of intellectual property laws. There was a time when the music/game you bought was yours and could be passed down to your son and grandson. Now most of the time you don't even own what you paid for, you only have a limited 'license' to use it, enforced by DRM which is made illegal by law to circumvent. They got away with this because the public allowed them to take away their rights.

Re:Protect your rights or lose them

[It doesn't come easy]

...rights given to their citizens...

I agree with your statements and sentiment, but here's the real problem...the United States Federal Government (and state governments) do NOT give rights to the citizens. In the US it is the other way around. The US citizens, through the Constitution, gives LIMITED rights to the government. Granted, the issue here is interpretation of the Constitution. But if we continue to let the government make self serving decisions and thereby continue to weaken the Constitution without doing anything about it then shame on us.

So much for the court.

[jcr]

I guess they've decided to abandon all pretense of upholding our civil rights, and have decided to dedicate themselves to inventing ever more asinine pretensions to claim that the bill of rights doesn't say what it says.

Fuck those goddamned shysters.

-jcr

Re:Hey.. would ya pass me the constitution..

[fnj]

Can we just agree to end the conservative/liberal horse shit when talking about the supreme court (and pretty much everything else)? It's a false polarization meant to suppress individual thought on important matters.

In cases like this it's individual rights vs statism. Simple as that. So-called "conservatives" are big on certain elements of statism, and so-called "liberals" are also big on certain elements of statism (sometimes, but mostly not, the same elements). If the five who formed the majority court opinion happen to be commonly labeled "conservative", that is of no interest to me whatsoever. If they are statist tools, you can bet your ass I am damned interested in that.

In the end, too many of the SC justices are assholes selected by assholes who are elected by slack-jawed morons.

Broken Logic

[s.petry]

You can not compare a person making an agreement to a Government refusing basic human rights. In one case, the person voluntarily gives up something in order to benefit. In the other, it is a criminal act (defined by the Constitution).

Your logic is broken a 2nd time when you claim that it's someone's view that the 4th and 5th amendments are inalienable. It's not simply someone's opinion, it is the Law that the USA is founded upon. Just in case you are a little slow, here is a simple logic lesson. Law = Rule and Law != Whim

The purpose of Miranda rights is to ensure that both parties are aware of their basic human rights as given them by law.

Hmmm

[lightknight]

PICARD: Do you see what is happening here, Mister Worf?
WORF: Sir?
PICARD: This is not unlike a drumhead trial.
WORF: I do not understand.
PICARD: Five hundred years ago, military officers would upend a drum on the battlefield sit at it and dispense summary justice. Decisions were quick, punishments severe, appeals denied. Those who came to a drumhead were doomed.
WORF: But we know there is a traitor here. J'Dan has admitted his guilt.
PICARD: That's true, and he will stand for his crimes.
WORF: Tarses has all but done the same.
PICARD: How?
WORF: He refused to answer the question about his Romulan grandfather.
PICARD: That is not a crime, Worf. Nor can we infer his guilt because he didn't respond.
WORF: Sir, if a man were not afraid of the truth, he would answer.
PICARD: Oh, no. We cannot allow ourselves think that. The Seventh Guarantee is one of the most important rights granted by the Federation. We cannot take a fundamental principle of the Constitution and turn it against a citizen.
WORF: Sir, the Federation does have enemies. We must seek them out.
PICARD: Oh, yes. That's how it starts. But the road from legitimate suspicion to rampant paranoia is very much shorter than we think. Something is wrong here, Mister Worf. I don't like what we have become.

Re:Hmmm

[EmagGeek]

"The Seventh Guarantee is one of the most important rights granted by the Federation."

See what he did there? He planted the seed in the viewers' minds that rights are granted by government, and that they don't exist by the nature of human being.

We cannot allow ourselves to fall victim to that brand of thinking (and we are already doing it).

Government does not grant rights. Rights exist by the nature of being, and Government's one and only job is to protect those rights.

What to say when approached?

[sivo]

I know the best policy is simply not to volunteer any information to the police when approached. What is the best way to make it clear that you do not wish to speak with them, without raising suspicion? A lot of angry people on the internet seem to think the best option is simply to wave your pocket copy of the constitution in their face and yell "I know my rights!" If you're a law abiding citizen and have done nothing wrong, and want nothing to do with any wrongdoing of another person, what's the best (I'm assuming polite) response to an inquiry you do not want to indulge?

Re:What to say when approached?

[ledow]

Tell the damn truth.

I come from what was considered a "rough" area of London. My schoolfriends were all police-hating idiots. Even through to today, I've had to remove people from Facebook because they were doing things like suggesting to "fight the pigs" when it came to the London riots. Just the terminology used tells you EXACTLY what kind of reaction they would have to being pulled over, and precisely WHY the police bother them so much.

I've been pulled over by the police just as much. I have a tendency to drive old bangers of cars - legal, but they look scruffy and even I would admit that I'd pull them in "just to check" if I was a police officer. Fact is, I know they are legitimate and roadworthy or I wouldn't be driving the damn things.

But when pulled over, I don't start yelling. I'm not all sucking up, either, I just tell them the truth. If you have to lie to a police officer to make things go smoothly with them, then maybe that in itself is a kind of retro-active JUSTIFICATION for them to have pulled you over in the first place. They have the power to pull over anyone for anything, of course they have to or they couldn't act on suspicions. And if you have had to LIE then it meant that you were doing something you SHOULDN'T have and that would be of interest to them.

I've had any number of interesting conversations with police officers where I could quite easily see them tend towards the "It's close enough, let's nick him" kind of attitude if they really wanted to. Fact is, I tell them the truth.

"What speed where you doing there when I pulled you over?"
"I honestly have no idea."

Is that an admission of driving without due care and attention? It could be interpreted as so. Did they have speed-measuring equipment on their vehicle? I have no idea. Probably, because it was a fancy ANPR vehicle with all the cameras and he'd been following me for a while. What happened? Nothing. "Okay, thank you, I'll let you get on your way, sir", after checking documents.

Pulled over after a police car spotted me and obviously "targeted" me from a whole queue of traffic. I'd even tried to let him out in front of me as he was joining traffic and he waved me in front of him, then pulled me over a mile up the road.

"We just pulled you over because your car looks like it's had a hard life, doesn't it, Sir?"
[His colleague walks around the car, inspecting it while we talk]
"Yes, I know. I buy cheap cars and run them into the ground, officer, it's easier than trying to buy a car outright when you have no money. But I have a full MOT here, done yesterday".
[Officer checks paperwork, asks me about my job - IT Manager for a private school, which could probably be assumed that I *could* afford a car, asks me where I'm going, where I've come from, etc.]
"Okay, sir, it says on here that X, Y, Z are advised. You should get them checked out."
[X, Y, Z are not MOT failures, but an MOT pass is not a guarantee of roadworthiness, so advisories are put on for potential roadworthiness issues. He doesn't even bother to look at them]
"Absolutely."
[Officer walks away after a nod from his colleague. Turns back to tell me to be careful when rejoining the road, spots a broken rear light - how the hell it passed MOT I have no idea - and both our eyes are unconsciously drawn to it as he speaks. Officer smiles.]
"Sorry to inconvenience you, sir. It appears you were missing the mandatory duck-tape on the bumper."
[Gets in car, drives off back to the spot he was sitting at before I came past - the duck-tape on the bumper is a reference to the type of car I was driving because you ALWAYS see them in the worst state of repair with bits taped back on]

I got stopped driving back from Europe to the UK late at night. Late, single male in an old, knackered car, was chosen from a line and pulled over for a customs inspection.

I was asked who owned the car (me) and how long (I said about a year). He asked for documentation of the car, it was already o

Re:Hey.. would ya pass me the constitution..

[I'm New Around Here]

It was long before the Roberts Court.

And Ruth Bader Ginsburg is no conservative.

But I think fnj has the better response overall.

Walking away, not such a good idea

[Marrow]

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:Walking away, not such a good idea

[skegg]

And don't show teeth - - it's a sign of aggression.

Nice post, parent ;-)

Re:Walking away, not such a good idea

[ImprovOmega]

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.

No, no, no. Do not take a step away until you have been informed that you are free to go. One step after they tell you to stop and you can easily find yourself in trouble. If you are in fact under arrest then you have just resisted. If you are being detained then there's usually other laws you're running afoul of. Otherwise you are right about speaking in a soft voice and not being confrontational.

Re:Walking away, not such a good idea

[ejasons]

The dude was making a joke...

So if you refuse to incriminate yourself ...

[Skapare]

... then you must be guilty. Now they have it all figured out.

Admission

[gd2shoe]

Admissible, from the word Admit meaning to permit entry.

His choice to resume answering other questions made it admissible

No, it was made admissible when it was permitted to be entered as evidence. In other words, it was made admissible when the judge decided that it was.

Yes, I'm quibbling, but it is an important point. The law isn't a computer program running on some principle of physics. It is (unfortunately) a set of strongly worded guidelines interpreted by human beings. What the law is depends on what those in power decide that it is. What is "admissible" varies, not based on some impartial reality, but on what judges are willing to admit.

Would probably have been fine

[Arancaytar]

If instead of refusing specific questions, he'd have remained silent from the beginning.

Yet another example of how talking to the police is a bad idea.

Miranda rights

[fufufang]

Is that gone too? We just had the NSA news a couple of days ago.

I suppose "the land of the free" only applies to the government. They are pretty much free to do whatever they want.

Re:Miranda rights

[wonkey_monkey]

Is that gone too?

Yes, if you haven't been arrested and are answering questions voluntarily (or not).

Re:Rights for the innocent

[Murdoch5]

So your suggesting I act like a complete idiot to that person, hide behind silence, cloak my self in badly answered questions and make no attempt to defend my innocents ..... I fail to see how that would work better then just proving beyond all doubt I didn't do it.

Sigh

[ledow]

Welcome to the 21st Century.

The UK equivalent of "Miranda Rights" (why does everything have to have an unrelated name?) has said:

"You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

or words to that effect since about 1912.

Of course you have the right to be silent. And of course the court will be able to draw inferences in the absence of your answers. If you don't speak for a month and then tell police, after hearing all the evidence they have, that fantastical situation X was what you meant all along, then of course it's reasonable to assume that you're just making it up now that you know all the facts and were silent before because it's a fabrication that you didn't have at the time. You have the RIGHT to do that, but it doesn't mean that it won't come back to bite you.

That's been in law since God-knows-when, and the arrest warning is really just a formal restatement so that you aren't tricked into thinking you MUST answer any question a policeman asks you ("Have you stopped beating your wife?" - an unanswerable question either way).

You have the right to remain silent, in any decent first-world legal system. Nowhere does it say that that right is without cost. Or else, you'd never say anything, at all, whatsoever in court and they'd have to convict/release you without your side of the story at all. Similarly you have the right to a lawyer. It doesn't mean you have to have one, have a particular one, or use the incompetent one that they give you.

However, even in a UK court, "Where inferences may be drawn from silence, the court must direct the jury as to the limits to the inferences which may properly be drawn from silence. There may be no conviction based wholly on silence."

Welcome to the 20th/21st Century legal system. If you're stupid enough to stay completely silent and/or not seek legal advice at the first opportunity, that's your problem.

60% of all Americans and 85% of Obamatrons

[gelfling]

Cheerfully support unlimited spying on everyone all the time. You have the government you deserve and asked for.

I drag it out again

[ThatsNotPudding]

Worst Supreme Court since the days of Dred Scott.

glad to live in Canada ...

[A little Frenchie]

... nothing more to say.

Moral of the story...

[Lumpy]

When A cop is talking to you all you say is, "Am I being detained? Am I free to leave?" over and over and over. You say nothing else and do not trust the police in any way at any time. The police are not there to protect you or be your friend. They certainly are not there to help you in any way. Never EVER give them any information or say anything but, "Thank you officer, can I leave now? Am I free to leave?" If you want your rights you have to play their game.

Government coersion

[sjbe]

She has the right to not incriminate herself PERIOD.

Incorrect. She has the right to not be forced to incriminate herself. She is perfectly free to incriminate herself if she so chooses. She may incriminate herself with her actions or words even if that was not her intent. The 5th amendment ONLY prohibits the government from forcing an admission from you.

Re:Black is white. War is peace.

[MurukeshM]

What if he had spoke, then chose to exercise silence and continued doing so? It was the resuming of speech that cause the problem, imho.

You have the right to remain silent ...

[wylderide]

... But it may harm your defense if you do not mention, during questioning, something you later rely on in court.

Re:Blair made this the law in the UK too

[Faluzeer]

Tony Blair made 'silence' an explicit indicator of guilt that could be used as part of the prosecution case.
snip...

I believe that is incorrect, that change happened in the Criminal Justice and Public Order Act 1994. Tony Blair and the Labour Party did not enter office until May 1st 1997. The amendment was made under the Government of John Major.

Re:SCOTA?!?

[Politburo]

The South Carolina Occupational Therapy Association would like to have a word with you.

Re:WTF for real, there.

[superwiz]

Most rights exist only until you voluntarily give them up. There are very few rights which you cannot give up. The right to freedom is one of them (so you can't sell yourself into slavery). The right to remain silent is NOT one of them. You lose that right the moment you don't remain silent and testify.

Re:Hey.. would ya pass me the constitution..

[meta-monkey]

Wrong does not make right.

Rights

[Etherwalk]

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.

This has always been the case, and it has far more to do with individual state police forces and prosecutors than with the DOJ.

A cop on the street is not spending his time thinking "I want to maximize bad guy X's rights." He is thinking "X is a bad guy, so I want to find out about the crime and throw him away."

All that rights do is they give the cop a script he has to follow if he wants a conviction. If he does not follow the script, or if there is something missing that he needs for the script and he is unwilling to lie, then the case can be thrown out, and bad guy X is on the street. It's like giving a scientist a lab protocol.

So it's far better than not having rights, because (1) it regiments police behavior to some degree (2) it slightly reduces the consequences of abuse of power and (3) you can learn the script and how to use it to minimize harm. But that doesn't mean it makes sense, just that it's a lot better than it is in many places in the world.

Of course, cops lie. That's a part of their job. And juries tend to believe cops more than criminals. Which is stupid but true. So it's a pretty terrible system, but rights can still be useful.

re: cop tricks Re:wtf

[cyberfringe]

Truth. I know this first hand and also from lawyer friends. First thing to remember is that the police are not obligated to tell the truth. In fact, they are trained in various methods of deception and manipulation to get you to talk. [p] Second thing to remember is this: cops are going to do what they're going to do. You can object to a search (and you should, always), and not say anything (never talk unless your attorney says it is ok), and the police will still search, they will still arrest you. That's their job, and the prosecutor and judge sort things out, if you are lucky. Asserting your rights won't intimidate the police, or probably stop them, but it may help you later. Oh, you can also sue them afterwards, but do you really have the $$, Time, and do you really want to become a "person of interest"? Good luck!

Deputy Dan Re:wtf

[cyberfringe]

Deputy Dan is your friend! (google it)

Ignorance of the minds of the scotus

[bobvious]

We've heard that phrase "Ignorance of the law is no excuse" scads of times throughout our television viewing experience, but given that this ruling came *after* this person acted as he did, it's a self-fulfilling prophecy. So to abide by the law (at least in this case) all you have to do is know the minds of how the SCOTUS will rule in the case months or years before they render a verdict. sucks.

What's the deal

[leifbork]

Anything you say, can and may be used against you. The Miranda warning doesn't say that your silence won't be used against you

The MPAA...

[Meski]

Has a copyright on silence. Use it at your peril. :)

Re:Typical Slashdot

[fillmore]

> One hundred responses and not a single one interested as to whether the suspect is actually guilty of the crime or not.

*sigh*
What was the last "rights" criminal law case you saw where the party actually was innocent? Almost by definition, all criminal rights cases involve a person who committed a crime. The question at issue is whether the government used the proper process to actually convict them.
BTW, "committed a crime" is not always the same as "guilty of committing" the crime.

Re:Rights for the innocent

[Travelsonic]

And I'll say what many others say: [citation needed]... only since you insist on posting your position in a FACTUAL TONE [No shit you get flack for this opinion given that, Sherlock].

Re:Rights for the innocent

[Murdoch5]

I'm saying it in a factual tone because it's a fact.

Sad

[Slashdot Parent]

About 49 minutes total. Very worth it.

You're telling me that I need to watch 49 minutes of video in order to learn how to exercise my "inalienable" rights under the Constitution?

I seriously doubt that that's what our founding fathers intended.

The Law

[outerlimitsurvey]

My first and only serious encounter with law was when I went through my divorce. I pretty much memorized my state's family code and was sure that I stood on firm legal ground. It turns out that there is a lot more to it. The courts have decided that certain actions are Prima Facie evidence of other things. That is, if you do X you are automatically guilty of Z unless you can beyond a shadow of doubt prove that you aren't guilty of Z. So the courts add to the laws by interpreting X as Z but they also simply ignore parts of the family code they don't want to apply or enforce. My state's family code is short but there are several volumes of law books dealing with how the courts interpret and apply the laws. Yes, it is very easy to loose your rights. For example, if law enforcement starts to conduct an illegal search and you don't object than you will have no grounds to have any evidence excluded. Your silence is considered tacit approval if you are able to object but don't. Likewise, if you don't state that you are exercising your 5th amendment right against self-incrimination than law enforcement can keep working on you. One of the things that is obscene to me is law enforcement can read a suspect his Miranda rights than interrogate him for 12 hours telling him the opposite and if the suspect incriminates himself they can use it. Also, a suspect lying to law enforcement can have the lie used against them but law enforcement can lie about anything to get a suspect to incriminate themselves. If you are in trouble with the law you need a lawyer before doing anything. What you think you know about the law isn't enough when you are under arrest or suspicion.

Re:Rights for the innocent

[alexo]

"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

Why do I get the feeling that nowadays said hanging applies only to "the most honest of men", while the crooked go scott free?

Traffic stop

[coyote_oww]

So how does the sequence of (1) "Am I Under Arrest", (2) "Can I Go Now?" work during a traffic stop?

It generates an arrest.

You have the right toremain silent (sort of)

[doccus]

...and we may choose to allow you that privilege (oops.. right) Should you choose to exercise that privilege (oops , right...) we'll know you're not a "troublemaker" and when we convict you we'll help you get a good view of the courtyard and a nice straight cellmate ;-)

You're welcome

[Marrow]

I used a very drryy humor in the recipe. :)