And the US slips further from being civilised

[pecunium]

Yesterday I was happy to announce China adopted an exclusionary rule and (in theory) banned torture by removing the incentive.

The US, so I find out today, just, effectively, did away with Miranda.

The case came from Southfield, Mich., where a shooting suspect refused to sign a statement acknowledging that he had been given the Miranda warning but didn't expressly state he was invoking his right to remain silent.

Kennedy said, writing for the majority (guess who they were), "If Thompkins wanted to remain silent, he could have said nothing in response to [the detective's] questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation." He also said, ""the interrogation was conducted in a standard-size room in the middle of the afternoon," conditions that weren't inherently coercive."

Right. A standard room, three cops, three hours. Not allowed to leave and told anything he says will be used against him. He stands mute, for three hours, and responds to a "gotcha" question.

I've always said the thing to tell a cop, when he wants to talk to you about anything more than what you saw, when he arrives to the scene of an event you witnessed is, "I'll be glad to talk to you when my lawyer gets here."

All the more so now.

Comments

[onyxlynx]

Molars effectively ground back below gum line.

[dmlaenker.livejournal.com]

It looks like the PRC may (momentarily?) start to be taking their heretofore boilerplate ideology about "civil society" rather seriously.

[don-fitch.livejournal.com]

You know... I'm thinking that in anything approaching a really Free Country a Citizen (on non-citizen visitor) really wouldn't (or shouldn't) need to hire a commercial Lawyer for anything like that.

But, yeah, the New, Improved (Conservative) Supreme Court majority seems to be dedicated, like Conservatives/Republicans in general, to cutting corners and, whenever possible, evading the Spirit of The Law. OTOH, even in a less-Conservative era, the Supreme Court has (IIRC) Officially held that guilt or innocence is immaterial as long as the Letter of The Law has been observed. The quaint idea that they're in the business of Doing Justice apparently is quite outmoded.

[kestrels-nest.livejournal.com]

The quaint idea that they're in the business of Doing Justice apparently is quite outmoded.

Which is one of the many, many reasons I no longer practice law.

Being in the field..

[skip-hunter.livejournal.com]

I'm fine with that one. they informed him of his rights, and for three hours he asserted some of them. As I understand it, he was informed of his rights, and didn't ask for a lawyer. Browbeating him or tricking him, or somthing of that nature I can cast an eye on, but if someone tells you that you have the right to not say anything, dont.

Re: Being in the field..

[pecunium.livejournal.com]

I'm not. The way the decision is worded the system is such that only if he says, "I specifically invoke my right to remain silent" does he actually have it.

So long as he doesn't say the magic words, "I insist on a lawyer" he has no actual right to remain silent. Give me the situation they had, and I can get someone to say something; and then that something can be (will be) used against them.

The presumptive right should be (and was) that unless the right is specifically waived, it's inviolate. Now the reverse is true.

Re: Being in the field..

[skip-hunter.livejournal.com]

Yes, but all you have to do is NOT say anything. They tell you that AND you can have a lawyer if you want one before the question you.

My reading is you have the right to remain silent, but YOU have to do so yourself, YOU have to ask for a lawyer. If you are quiet the entire time, no problem, but if you decide to say something, its not as if you didn't know you didn't have to.

I also think this happened because the guy refused to sign stating he had been advised of his rights.

Re: Being in the field..

[pecunium.livejournal.com]

But, and this is the part where I (as a professional interrogator) have problems; under the new regime, they don't have to accept that you mean it.

So they can keep going, and work on you until you start to talk; about anything, at that point it's Katy bar the door; because the cops don't have to respect your right.

Which means it's no longer a right we defend.

Re: Being in the field..

[skip-hunter.livejournal.com]

As far as I know, and I was briefed on this today, the signature and assertion of rights still counts. I know a ton of "tricks" to get someone to talk, but if they dont wanna, they won't, and after they ask for a lawyer, you cannot.

Likely as not, the warning will be changed to reflect VA's version:You can decide at any time from this moment on to terminate the interview and exercise these rights or the generic version: Do you understand each of these rights I have explained to you? Having these rights in mind, do you wish to talk to us now?

The police go to GREAT lengths to make sure that cases do not get thrown out. You'll hear those rights a minimum of 3 times in most places.

I look at it as a pundulum swing. For a long time, rights we should have had were not presented to us as such. The burden was placed on the state. Now more is being placed on the individual.

Re: Being in the field..

[theweaselking.livejournal.com]

Even "invoking" your right to remain silent doesn't actually protect you if you then *don't remain silent* - if I say "I know my rights. I am choosing to remain silent. I want a lawyer before I say anything else. Yes, I robbed the store", as far as I know they're allowed to use that last statement.

I have the right to remain silent, but then I *have to remain silent*.

Re: Being in the field..

[theweaselking.livejournal.com]

Or is there some rule the cops were breaking by asking him questions when he wasn't answering, and if he'd said "I'm saying nothing" they'd have to stop and wouldn't be allowed to talk to him at all?

Re: Being in the field..

[pecunium.livejournal.com]

Depends. Right now, when someone is being interrogated they have to acknowledge they are waiving their right to remain silent.

In effect, before they can continue the cops have to remind the subject they are not required to say anything, and they do so at their own peril.

There's more, but I'll comment to that where it's apt.

Re: Being in the field..

[pecunium.livejournal.com]

As of the day before yesterday, they were enjoined from continuing to interrogate you, once you asked for a lawyer. Any question they asked, was void.

If you volunteered it (without prompting, of any sort) that was one thing, but to ask you questions wasn't allowed. No longer.

Further, by making the right one has to assert, as opposed to one which inheres, the power dynamic has shifted (what a surprise) further to the state. Give me time, and nothing but time; no need for threats, much less tortures, and I can get enough out of someone to put them in the dock.

Even if they aren't guilty. Since being accused puts (legal assumptions of innocence notwithstanding) the burden of proving to a jury that one didn't do it... that's a huge disadvantage to the public, since anyone can be suspected of a crime.

As Thomas Paine said, "He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself. for that, selfish, reason, if no other, we should be decrying this (and all things like it) as the evils they are, for they allow much greater evils than they can possibly prevent.

Re: Being in the field..

[theweaselking.livejournal.com]

I suspect I'm still missing something critical here.

As of the day before yesterday, they were enjoined from continuing to interrogate you, once you asked for a lawyer. Any question they asked, was void.

But that's still true now. You have the right to have your lawyer present while you are being interrogated - so as soon as you ask for a lawyer, they're violating your rights by continuing to interrogate you without one.

However, and again I'm a layman, I thought you don't have to say "I don't want a lawyer" for them to ask you questions without a lawyer. Not now, not two days ago. They have to tell you that you CAN have a lawyer, and they have to let you have a lawyer present during all interrogations if you ask for one, but if you don't actually ask for a lawyer, they aren't obliged to not ask you any questions.


In the same way, you have the right to remain silent, but it is my understanding that they can ask you questions, lawyer present or not, all day long if they want to, and your right to remain silent is predicated on you (or your lawyer) saying "I will not answer any questions" over and over again until they give up.

Is that not how it work(s/ed)? I'm well aware that any competent interrogator can get anyone to say SOMETHING incriminating about SOMETHING given enough time and answers - but isn't that the point of refusing to answer at all? Was there, previous to this ruling, an assumption that refusing to answer required them to stop asking? Even calling for a lawyer means they have to stop until the lawyer arrives.... but not that they have to stop *after* the lawyer arrives, right?

Or am I missing something fundamental?

[elf]

How can one "unambiguously invoke" one's right to "remain silent?" Doesn't invoking it, remove the silence?

Gah.

And geeze, cops wonder why they don't get cooperation from poor urban communities.

[pecunium.livejournal.com]

As I said above the previous understanding of the law was that one had to affirmatively waive the right; sign that one understands speaking is a risk, and that one knows all that follows is voluntary.

Now the reverse is true. Unless one specifically (by formula) invokes the right, it's presumptively waived.

[elf]

The ruling has some terrifying implications for non-native English speakers and people with cognitive disabilities. The idea that "after giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived his rights"--very much says "if the suspect is incapable of understanding and asserting his rights, he doesn't have any."