4
   

You have the right to remain silent...

 
 
JPB
 
Reply Tue 1 Jun, 2010 09:23 am
Quote:
The Supreme Court ruled Tuesday that suspects must explicitly tell police they want to be silent to invoke Miranda protections during criminal interrogations,

<snip>

The ruling comes in a case where a suspect, Van Chester Thompkins, remained mostly silent for a three-hour police interrogation before implicating himself in a Jan. 10, 2000, murder in Southfield, Mich. He appealed his conviction, saying that he invoked his Miranda right to remain silent by remaining silent.

But Justice Anthony Kennedy, writing the decision for the court's conservatives, said that wasn't enough.

source


Interesting... I can see how/why they equated this to explicitly asking for an attorney. And, I can also see that if you remain silent then you have to somehow let the interrogators know that you intend to remain silent so they'll stop the interrogation, but this is a major change in Miranda.

I suppose if you say, "I intend to remain silent" and that means that the interrogation has to end then that equals out the playing field some, but I don't exactly see where that is going to happen.
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joefromchicago
 
  1  
Reply Tue 1 Jun, 2010 11:33 am
@JPB,
JPB wrote:
Interesting... I can see how/why they equated this to explicitly asking for an attorney. And, I can also see that if you remain silent then you have to somehow let the interrogators know that you intend to remain silent so they'll stop the interrogation, but this is a major change in Miranda.

I'm not so sure. Sotomayor had a point when she accused the majority of insisting on a "magic words" formula for invoking the right to remain silent, but clearly it has to be something more than just sitting there and not saying anything, which is what this guy did (or tried to do). As long as the courts don't insist on some kind of formalistic invocation of the right (it should be as simple as saying "I won't talk"), then the essential core of Miranda should be fine.
JPB
 
  1  
Reply Tue 1 Jun, 2010 11:46 am
@joefromchicago,
Quote:
The officers in the room said Thompkins said little during the interrogation, occasionally answering "yes," "no," "I don't know," nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for "shooting that boy down," Thompkins said, "Yes."

In this particular case it doesn't sound like he was "remaining silent" enough to use that as a defense against having what he said used against him.

Do you think that if someone invokes the right to remain silent then they have to stop interrogating him? That would certainly change a lot of things -- he was in there for three hours until they got him to say something. If he had said "I won't talk", then would the interrogation have ended at that point?
dyslexia
 
  1  
Reply Tue 1 Jun, 2010 12:15 pm
apparently one must speak up in order to remain silent.
joefromchicago
 
  1  
Reply Tue 1 Jun, 2010 12:17 pm
@JPB,
Yes, the police must stop their questioning at the point when the suspect invokes his right to silence. In fact, many police departments don't even start questioning a suspect until they have a signed Miranda waiver, but that obviously wasn't the case here.
0 Replies
 
joefromchicago
 
  1  
Reply Tue 1 Jun, 2010 12:19 pm
@dyslexia,
dyslexia wrote:

apparently one must speak up in order to remain silent.

Or else actually, you know, remain silent. That was the problem with the defendant in this case. He was just a bit too chatty for his own good.
0 Replies
 
BillRM
 
  1  
Reply Tue 1 Jun, 2010 03:30 pm
@JPB,
Never never talk to the police without a lawyer if you have even a mild hint that they might be looking into charging you with a crime.

Second remember they can lied to you all day long however in a lot of cases any misstatements you might made to them can lead to a serous charge.

More then one person found themselves locked up not for the crime the police were investigating but on the charges of lying to the cops.

The ice skater who boyfriend had someone attack her rival and good old Martha Stewart come to mind in that regards.

Ask for hell demand a lawyer.
vikorr
 
  1  
Reply Fri 11 Jun, 2010 03:03 am
@BillRM,
BillRM, in some circumstances, the police have no choice but to charge you if you remain silent. For example, if they are investigating you for assault, and you choose to remain silent, and therefore don't bring up legal defenses, such as provocation or self defense, and there's evidence to charge you - then police will charge you. At least, here in Australia that's the case, and I doubt it would be too much different in the US.
BillRM
 
  1  
Reply Fri 11 Jun, 2010 09:04 am
@vikorr,
You chance of talking them out of charging you is near zero and your chance of greatly harming yourself no matter if you are or are not guilty of a crime is large.

I would talk to them all day long if my lawyer is there and he is telling me that it is a good idea to do so however not otherwise.

Let them charge me and I will let my lawyer deal with the matter.
vikorr
 
  1  
Reply Sun 13 Jun, 2010 04:10 am
@BillRM,
In terms of assault charges, your claim that the chance of 'talking them out of charging you is near zero' is speaking from ignorance. Many people are not charged for 'unlawful assault' purely because they participate in an interview and provide lawful reasons/defences to the assault (lawyer present or not).

If you have lawful reasons for the 'assault', then the 'logic' of taking the option of : not being willing to pay a lawyer to attend a police interview with you (which may only last an hour), but being willing to pay a lawyer to attend a whole day at court is beyond me.

Why not just take a lawyer to the interview?

Now let's revisit the wisdom of speaking without a lawyer present. If you have no lawful reason, then bad idea. If you do, and you stuff up the interview...then such things can usually still be explained away in court...where under your option, you'd have your lawyer anyway - .ie the end result is little different from the option you presented. But if you are successful (and that's not that uncommon), then you will have saved yourself a bucketload of money.

Of course, assaults are a little different in law to other sorts of charges, because of the range of defenses available to you. And of course, the legalities of it differ from country to country, and probably state to state.
BillRM
 
  1  
Reply Sun 13 Jun, 2010 10:46 am
@vikorr,
Sorry my friend but if you wish to place your future on the line by being interview by the police when they are thinking of placing charges against you please feel free to do so!!!!!!

As an expert lawyer in Florida once wrote if you ever need to used deadly force in self defense then you should state I was in fear of my life and needed to protect myself from harm. I am upset now and wish to talk to my lawyer and have him with me for any interviews however.

Now given that the police are experts in getting you to say what they wish you to say and in fact more then one person had been found innocent beyond question had even confessed to the crime that they did not do under the kind of pressure they can generated on you.

With a simple assault for example it is far better to let them charge you with the crime and bail out and let your lawyer handle it from there.

So good luck to you as for every person innocent or not who had talk the police out of charging them there are a hundred and one who had talk themselves into a prison term.

BillRM
 
  1  
Reply Sun 13 Jun, 2010 12:33 pm
@vikorr,
Here is a video on youtube from a law professor that explain the situation in details as to why you do not what to talk to the police alone with a police officer who does such interviews.

http://www.youtube.com/watch?v=6wXkI4t7nuc
http://www.youtube.com/watch?v=08fZQWjDVKE&feature=related
0 Replies
 
vikorr
 
  1  
Reply Sun 13 Jun, 2010 08:13 pm
@BillRM,
Quote:
As an expert lawyer in Florida once wrote if you ever need to used deadly force in self defense then you should state I was in fear of my life and needed to protect myself from harm. I am upset now and wish to talk to my lawyer and have him with me for any interviews however.

That's the same advice I'd give them.

Reread my comments - they are specifically in relation to assault interviews with police, rather than say, a murder interview. So a couple of your assertions, like the one above, I agree with - but they don't have to do with assaults.

I don't know about in the States, but in Queensland, Australia (where I live obviously), if police ask leading questions of any kind, the answer to that question can be thrown out in court (that is 'can', not necessarily 'will be').

Quote:
With a simple assault for example it is far better to let them charge you with the crime and bail out and let your lawyer handle it from there.

Well, if they have enough evidence, and you in fact have no lawful excuse, then this is true. If they have evidence, and you have a lawful excuse, then this is simply not true, for you don't lose anything by taking part in an interview - what, you get charged? That would happen anyway. And if you 'didn't say the right thing' it's usually pretty easily explained away (if in fact you have that excuse)

'Your honour, at the time my client said this, he was caught by surprise by the question, and feeling he needed to give an answer immediately, did not have time to reflect on the many emotions he was feeling, and the many forces that were pulling him in different directions. After my client had time to consider his feelings (etc), he realised that what he had told the police was not accurate...'

Quote:
So good luck to you as for every person innocent or not who had talk the police out of charging them there are a hundred and one who had talk themselves into a prison term.


101 guilty people that talked themselves into prison - or 101 innocent people that talked themselves into prison?

If you are trying to compare innocent people doing interviews to guilty people doing interviews...well, you can see the plain silliness of that comparison I'm sure - it's not a comparison of equal fruit - apples and oranges so to speak.

If you are trying to compare the number of innocent people talking themselves out of charges, compared to the number of innocent people talking themselves into charges, then that is just plain poppycock.

And lastly, if you are trying to just talk about interviews in general, you need to go back and reread my posts that you disagree with again, which were talking specifically about assault interviews.
BillRM
 
  1  
Reply Sun 13 Jun, 2010 08:52 pm
@vikorr,
Sorry take a look at what both the lawyer/prof and the cop had to say on the subject in the two youtube video of not talking and it had zero do if you are the virgin Mary or a mob hit man.

At the point were they are interviewing you as a suspense their mind are already made up for the most part see the comment by the cop on the video who had done over two thousands such interviews and only two or three was not charge with a crime!!!!!

Charging you is one thing proving it in a court of law or even getting the DA to go along and go to court is another thing all together.

But feel free to talk yourself into a nice prison cell if you care to do so.

Sir I did not assault anyone and beyond that I am not talking to you without my lawyer would be my statment.
vikorr
 
  1  
Reply Sun 13 Jun, 2010 10:27 pm
@BillRM,
Seems the stuff I had going was cancelled. Interesting video's, with some very interesting points, some points structured on the premise that you should try and get even guilty off, some points using very outdated cases, some things in Virginian law that are considered dinosaurs here in Queensland, and some things that are rather unlikely to happen but possible (and then don't necessarily lead to a conviction). Other than that, the professor also made some very interesting points.

Quote:
At the point were they are interviewing you as a suspense their mind are already made up for the most part see the comment by the cop on the video who had done over two thousands such interviews and only two or three was not charge with a crime!!!!!

You will have to rewatch the video, because he did not quite say this. He did say : he had done a couple of thousand interviews, most confessed, he had a 98% conviction rate, his interviews were with people he thought had done the crime, and after interviewing he found some were innocent, and he tried never to charge an innocent person.

Further, the cops investigative field was felonies - which again, I have been talking about assaults. Assaults have numerous defences and are therefore a lot more grey in law than the crimes he mentioned - burglaries, armed robberies, and murders (with only murder truly having available defences)

Quote:
Charging you is one thing proving it in a court of law or ...is another thing all together.


? You mention that like I've disagree'd with this point somewhere.
BillRM
 
  1  
Reply Mon 14 Jun, 2010 02:36 am
@vikorr,
Quote:
some points structured on the premise that you should try and get even guilty off, some points using


Under our laws in the US you are not guilty unless and until the state can prove you are to a jury of your fellow citizens beyond a reasonable doubt.

The state had all the resources in the world behind it to do so and it is not your duty "guilty" or not to aid in them convicting you of a crime.

If I am in that interview room with a highly professorial person looking to perhaps take away my freedom rightly or wrongly I am not going to assume good will on fairness on his or her part, and I am just going to keep my mouth firmly shut if guilty or not guilty of the charges at hand.

Just as if the police would raid my home with a search warrant and seized my computers and my computers files no matter what I am not going to just turn over my encrypted keys so they can go digging around my files guilty or not guilty they can go to hell without a final high court order for me to do so.

Under the US Constitution protections it would be a decade long drawn out process to get the courts to agree to force such keys out of me even with the courts ruling concerning one very special case at the US border and I might in fact and more then likely would win in the end.

The fact that there is nothing in my files that would likely cause me problems is beside the point as once against it is not my duty either legally or morally to aid the police in an investigation that might lead me to being lock up.

vikorr
 
  1  
Reply Mon 14 Jun, 2010 02:45 pm
@BillRM,
vikorr wrote:
some points structured on the premise that you should try and get even guilty off, some points using
BillRM wrote:
Under our laws in the US you are not guilty unless and until the state can prove you are to a jury of your fellow citizens beyond a reasonable doubt.

There's a difference between being guilty at law, and guilty. Seeing you've been harping on this point (about innocent people getting convicted), I'm surprised you brought it up.

Also amusing is your use of the video's because in relation to this, the cop who you quoted said that despite the fact that your laws (and ours) saying you are innocent until proven guilty, once you're put in the defendants box in front of a jury, they already perceive that you must be guilty, and it's up to you to prove your innocence.

By the way, in Queensland, if police reasonably suspect you have kiddy porn on your computer, and obtain a warrant for the encryption key, you are required by law to give the encryption key. Probably have similar laws for terrorism related stuff, but I haven't looked into that.
BillRM
 
  1  
Reply Mon 14 Jun, 2010 03:27 pm
@vikorr,
Quote:
if police reasonably suspect you have kiddy porn on your computer, and obtain a warrant for the encryption key, you are required by law to give the encryption key. Probably have similar laws for terrorism related stuff, but I haven't looked into that.



Yes I am sure you have such laws concerning encrypted keys however they are having a little problem with our Bill of Rights passing such laws in the US!!!!!

Thanks god for the US founding fathers and all over the world governments are using child porn trading as one hell of an excuse to pass laws to invade their citizens privacy.

No lawyer by the way in the US in his or her right mind also would not tell someone not to shut up and demand their lawyers under the conditions you think it would be wise to do otherwise.

It is a shame that you happen to be living in a country that written Constitution does not offer a large degree of protection against the government if you do invoked your rights that is.

One note I travel with a cheap notebook that is fully protected by layers of encryption not because I had a damn thing on the hard drive that would be illegal but because I am determent to keep my private information private and encryption is also been a hobby of mine since the days of dos computers.

On returning to the US I had never been ask by customs to unlock my computer but I had already decided if that should occur I will refused to do so.

Once more US citizens are under not obligation to aid their government in spying on them even at the border. Yes I know there is some cracks in that protection at the border but that is a narrow crack driven by a non-US gentleman that at first unlock his computer and allow custom to look at it

Losing a cheap computer is hardly a great lost to me and should be an interesting event to write about and if my protection can be crack and it amused me that it would likely cost the government tens of millions of dollars of supercomputer time all to look at an everyday 300 hundreds dollars netbook hard drive.
BillRM
 
  1  
Reply Mon 14 Jun, 2010 03:48 pm
@vikorr,
Also Vikorr even in your country and similar countries you can have whole encrypted OSs that can not be detected by any known test so it is a little hard to get a warrant to unlocked something you can not prove is there!

There are means to protected people privacy however like the right to keep silent most people do not take advantage of them even when they have those rights and tools.

It amused and amazed that if you google the terms child porn for any thirty days period you get thousands of hits however if you google the terms child porn encrypted you might get three hits and in the last year only one of those hits was where the police ran into complete hard drive encryption in a raid and the homeowner call his lawyer to come over and did not give up his keys.
0 Replies
 
vikorr
 
  2  
Reply Tue 15 Jun, 2010 12:25 am
@BillRM,
Quote:
Thanks god for the US founding fathers and all over the world governments are using child porn trading as one hell of an excuse to pass laws to invade their citizens privacy.

It's a shame that many people value their privacy over helping detect and lock up pedophiles and thereby prevent the further sexual abuse of children.

Personally, I think privacy of the sort you are talking about is mostly meaningless twaddle.

On the other side of the coin, people have a right to privacy, 'celebrities' should be left alone if they so desire to be, sports people aren't role models (and parents should teach their children this), and politicians private lives are their own...until any of them start breaking the law (and then it is only the specific area of the law that they are breaking where their right to privacy becomes void)

Quote:
It is a shame that you happen to be living in a country that written Constitution does not offer a large degree of protection against the government if you do invoked your rights that is.

Obviously you don't comprehend what the protections involve - a search required warrant to obtain the computer, and authorised power on that warrant by a magistrate to obtain the encryption key.
 

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