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  1. 17 Jun '13 19:32
    Conservatives limit 5th Amendment

    Court says pre-Miranda silence can be used

    WASHINGTON (AP) — The Supreme Court says prosecutors can use a person's silence against them if it comes before he's told of his right to remain silent . . .

    The Fifth Amendment protects Americans against forced self-incrimination . . . with police required to tell people under arrest they have a right to remain silent without it being used in court. . . .

    [The] "Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question," Justice Samuel Alito said. . .

    The court decision was down its conservative/liberal split, with Alito's judgment joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Antonin Scalia.

    Liberal Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented. "In my view the Fifth Amendment here prohibits the prosecution from commenting on the petitioner's silence in response to police questioning," Breyer said in the dissent.

    http://www.chron.com/news/crime/article/Court-says-pre-Miranda-silence-can-be-used-4604784.php
  2. 17 Jun '13 19:38
    Originally posted by moon1969
    Conservatives limit 5th Amendment

    [quote][b]Court says pre-Miranda silence can be used


    WASHINGTON (AP) — The Supreme Court says prosecutors can use a person's silence against them if it comes before he's told of his right to remain silent . . .

    The Fifth Amendment protects Americans against forced self-incrimination . . . with police required ...[text shortened]... www.chron.com/news/crime/article/Court-says-pre-Miranda-silence-can-be-used-4604784.php[/b]
    Not quite as presented, if you actually read the link supplied. Once the detained party is given his Miranda warning, or claims it, questioning without a lawyer present must end. If he continues to talk, answer questions, he has given permission for cops to ask more.
  3. Standard member sasquatch672
    Don't Like It Leave
    17 Jun '13 19:50
    Originally posted by moon1969
    Conservatives limit 5th Amendment

    [quote][b]Court says pre-Miranda silence can be used


    WASHINGTON (AP) — The Supreme Court says prosecutors can use a person's silence against them if it comes before he's told of his right to remain silent . . .

    The Fifth Amendment protects Americans against forced self-incrimination . . . with police required ...[text shortened]... www.chron.com/news/crime/article/Court-says-pre-Miranda-silence-can-be-used-4604784.php[/b]
    I don't think this is an extremely significant ruling. This is really clarifying procedure, rather than having a landmark interpretation. I'm surprised it was 5-4; I think there were some clever cops that shot a gap in the Miranda procedure against a criminal not versed in the law.
  4. Subscriber no1marauder
    It's Nice to Be Nice
    17 Jun '13 19:51
    Originally posted by moon1969
    Conservatives limit 5th Amendment

    [quote][b]Court says pre-Miranda silence can be used


    WASHINGTON (AP) — The Supreme Court says prosecutors can use a person's silence against them if it comes before he's told of his right to remain silent . . .

    The Fifth Amendment protects Americans against forced self-incrimination . . . with police required ...[text shortened]... www.chron.com/news/crime/article/Court-says-pre-Miranda-silence-can-be-used-4604784.php[/b]
    The Court essentially decides that in order to have a right to remain silent in the face of police questioning you must verbally invoke said right!

    That is bizarre to say the least.
  5. Subscriber no1marauder
    It's Nice to Be Nice
    17 Jun '13 19:54
    Originally posted by sasquatch672
    I don't think this is an extremely significant ruling. This is really clarifying procedure, rather than having a landmark interpretation. I'm surprised it was 5-4; I think there were some clever cops that shot a gap in the Miranda procedure against a criminal not versed in the law.
    The right wing libertarians at Cato Institute don't agree:

    What’s most disturbing about the ruling is its discussion of “burdens.” The plurality put the onus on the individual, not the government. That is the profound error in the decision. As the dissenters noted, in the circumstances of the case, it was evident what Salinas was doing. Unfortunately, the Supreme Court has complicated the law for persons who are the most vulnerable–persons who lack education, persons who do not speak English very well, persons who may suffer from mental problems, and persons who may be under the influence of alcohol. This is a bad day for the Bill of Rights.

    http://www.cato.org/blog/salinas-v-texas?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Cato-at-liberty+%28Cato+at+Liberty%29
  6. Standard member sasquatch672
    Don't Like It Leave
    17 Jun '13 19:56
    Originally posted by no1marauder
    The Court essentially decides that in order to have a right to remain silent in the face of police questioning you must verbally invoke said right!

    That is bizarre to say the least.
    I can see where you would be able to say that, but he wasn't Mirandized. He wasn't under arrest. I think about the cop shows - cop asks one question too many, guy says, "Am I under arrest?", then the guy gets up and walks out. It's probably tilted to the police and the courts, as opposed to Joe Blow who doesn't have an intricate understanding of the law. In that respect, yes, it does not assist the common man.
  7. Standard member sasquatch672
    Don't Like It Leave
    17 Jun '13 19:58
    Originally posted by no1marauder
    The right wing libertarians at Cato Institute don't agree:

    What’s most disturbing about the ruling is its discussion of “burdens.” The plurality put the onus on the individual, not the government. That is the profound error in the decision. As the dissenters noted, in the circumstances of the case, it was evident what Salinas was doing. Unfortunately, ...[text shortened]... tm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Cato-at-liberty+%28Cato+at+Liberty%29
    All very good points. Taken in the context of recent government malfeasance, it would be nice to see a ruling go the way of the little guy.
  8. 17 Jun '13 20:04
    Originally posted by no1marauder
    The Court essentially decides that in order to have a right to remain silent in the face of police questioning you must verbally invoke said right!

    That is bizarre to say the least.
    It does seem strange, but the entire Miranda warning is somewhat strange. Previously, if any questioning preceded the warning the "evidence" gathered might be disallowed at trial. Seems the right has to exist no matter what, but the focus seems to be on a specific order that cops are obliged to take in order to preserve evidence gathered by questioning.
  9. Subscriber no1marauder
    It's Nice to Be Nice
    17 Jun '13 20:14
    Originally posted by normbenign
    It does seem strange, but the entire Miranda warning is somewhat strange. Previously, if any questioning preceded the warning the "evidence" gathered might be disallowed at trial. Seems the right has to exist no matter what, but the focus seems to be on a specific order that cops are obliged to take in order to preserve evidence gathered by questioning.
    I don't find Miranda strange at all; it is the government being made to apprise someone they are depriving their liberty of of their rights. That seems awfully appropriate in a nation founded on the belief in a limited government formed to protect Natural Rights.

    What's strange is that the rule is now IF the police decide NOT to Mirandize you in a non-custodial setting, YOU must verbally assert your right to remain silent or a prosecutor can use that silence against you. It really makes no logical sense; how can your right to remain silent be predicated on you saying something?
  10. 17 Jun '13 20:26 / 1 edit
    Originally posted by no1marauder
    I don't find Miranda strange at all; it is the government being made to apprise someone they are depriving their liberty of of their rights. That seems awfully appropriate in a nation founded on the belief in a limited government formed to protect Natural Rights.

    What's strange is that the rule is now IF the police decide NOT to Mirandize ...[text shortened]... s no logical sense; how can your right to remain silent be predicated on you saying something?
    What I was trying to get at was that the right to remain silent ought to exist prior to, and in the absence of reading a card to a suspect.

    By the way, Masaad Ayoob, in instructing post self defence shootings, lists a few things people ought to say, and then tells them to shut up. Say nothing which is unnecessary, and might be later used against you, regardless of the reading of Miranda.
  11. Subscriber no1marauder
    It's Nice to Be Nice
    17 Jun '13 20:32 / 1 edit
    Originally posted by normbenign
    What I was trying to get at was that the right to remain silent ought to exist prior to, and in the absence of reading a card to a suspect.

    By the way, Masaad Ayoob, in instructing post self defence shootings, lists a few things people ought to say, and then tells them to shut up. Say nothing which is unnecessary, and might be later used against you, regardless of the reading of Miranda.
    It does exist. This explanation of Miranda is succinct:

    The rationale behind the Miranda rule is to protect a defendant from the “inherently compelling pressures”5 and the “police-dominated atmosphere”6 of custodial interrogation. In Miranda, the court created two basic prophylactic measures to protect a defendant’s Fifth Amendment rights: the right to silence and the right to counsel. 7 When law enforcement provides the warnings required by Miranda, a defendant may relinquish these rights through a knowing, intelligent, and voluntary waiver or may invoke one or both of the rights.8 the Supreme Court created a set of measures to protect a defendant’s Fifth Amendment privilege against compelled self-incrimination by requiring law enforcement officers to provide certain warnings and obtain a waiver from a defendant prior to custodial interrogation.

    http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/May-2010/fifth-amendment-protection-and-break-in-custody


    Mr. Ayoob offers some good advice.
  12. 17 Jun '13 21:09 / 5 edits
    I agree with the four dissenting moderate members of the Court that even after answering with your name, stating your business, answering a question or two, that you should be able to make an assessment that the police are leading you down a path of self-incrimination (or for any reason), and at the point you should be able to remain silent (pre-Miranda), and that the 5th Amendment prohibits the prosecutor later in Court using that silence against you.

    Unfortunately, the Republican-nominated justices disagreed.
  13. 17 Jun '13 21:12
    Kennedy is always going to go with the radical conservatives on a case like this.
  14. 17 Jun '13 21:13 / 1 edit
    Originally posted by sasquatch672
    All very good points. Taken in the context of recent government malfeasance, it would be nice to see a ruling go the way of the little guy.
    You are going to be waiting a long time "to see a ruling go the way of the little guy" if we have Republican Presidents appointing justices to the Court.
  15. 17 Jun '13 23:07
    The article cited in the Opening Post (not to mention Moon's edits to that article) is misleading in its description of the US Supreme Court's recent opinion, Salinas v. Texas. I suggest people who want to be fully informed read the actual opinion itself (and the authority that it relies on as well): http://www.supremecourt.gov/opinions/12pdf/12-246_1p24.pdf

    Moreover, it is also misleading to inject politics into this debate. Generally, Supreme Court Justices are not political hacks. As such, the Justices rely on their interpretation of prior case law and other authority rather than their individual political leanings. If you read the actual opinion, you will notice that the plurality (or Alito's opinion, to be more precise) relies on prior Supreme Court opinions joined by Justices appointed by Democrat Presidents. If the so-called right-wing bloc of the Supreme Court were to respond to your accusations and innuendos, Moon, I am sure they would contend that they were merely following Supreme Court precedent rather than their individual political leanings.