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Old July 11, 2013, 02:58 AM   #76
jimpeel
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This case is eerie due to the fact that most people believe that they are within their rights to refuse to answer with abject silence. They believe, as this case now shows to be incorrect, that their silence is the invocation of that right.

If I were not a member of this board, my knowledge of this case would have been confined to the deafening silence of the media.

Also, is the answering of a question with a question going to be seen as guilt based upon this ruling?

ie: "Have you been drinking?" "Am I being detained? Am I free to go, Officer?"

"Do you mind if I search your car?" "I do not consent to any searches. Am I being detained? Am I free to go, Officer?"

This is, after all, the stated response recommended by the ACLU.

If that person makes those statements, rather than a direct and unambiguous recitation of their fifth amendment right, are they still held to be suspect and their rights not invoked?
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Last edited by jimpeel; July 11, 2013 at 03:05 AM.
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Old July 11, 2013, 11:40 AM   #77
Frank Ettin
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Quote:
Originally Posted by jimpeel
...When one invokes their Fifth Amendment right the listener will usually take that as an avoidance due to guilt not due to innocence. So this ruling places one in the realm of damned if you do and damned if you don't. If one does invoke, they are deemed to be guilty and have something to hide;...
The reality is that the protection afforded by the Fifth Amendment right not to be compelled to testify against oneself only affects whether, and under what circumstances, your silence may be commented upon in legal proceedings or otherwise used as evidence. It does not, and can not, affect a listener's perception or what a listener thinks.

It you refuse to answer a question, the listener is going to think whatever he pleases.

Quote:
Originally Posted by jimpeel
...if one does not invoke they are deemed to have waived their right to silence and assumption of innocence.
What is this "assumption of innocence" and where do you get it?

There is such a thing as the "presumption of innocence", which is essentially a technical rule of evidence and the burden of proof which has procedural significance.

The presumption of innocence can affect the protocols for dealing with suspects or prisoners before trial, and relates directly to the prosecutor's burden of proof at trial. I see nothing in Salinas that affects that.

But there is no "assumption of innocence". Folks will assume that you're innocent or guilty as they choose.
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Old July 11, 2013, 09:45 PM   #78
iraiam
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If one is stopped, and the officer starts asking questions which one does not wish to answer, does one have to invoke the right time after time after time; or can one simply invoke the right in general terms such as "I am invoking my fifth amendment right to remain silent; and I will, from this point, refuse to answer any further questions."?
That is sort of how I do it, it usually starts with a question such as "where are you going? (or similar), I will specifically state that I am not discussing my whereabouts or answering any further questions.

It seems a simple matter to me to just slightly modify my statement to include "My 5th amendment right"

Either way the officer/government agent is going to infer guilt, after all, the sole purpose of even speaking to me is to gather evidence to use against me or someone else.
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Old August 1, 2013, 01:45 AM   #79
jimpeel
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Frank Ettin,

While you did posit a wonderful semantical dissertation on the differences between assumption and presumption, and my failure to use the terms in a grammatically and legally correct manner, you failed to answer the questions I posited in my post HERE

Quote:
If one is stopped, and the officer starts asking questions which one does not wish to answer, does one have to invoke the right time after time after time; or can one simply invoke the right in general terms such as "I am invoking my fifth amendment right to remain silent; and I will, from this point, refuse to answer any further questions."?

Also, if one may invoke on the basis above, does that invocation become null and void if one does answer any question, or have any further communication after that invocation? Does one have to re-invoke the right in general terms -- assuming that is permissible -- once again?
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Gun Control: The premise that a woman found in an alley, raped and strangled with her own pantyhose, is morally superior to allowing that same woman to defend her life with a firearm.

"Science is built up with facts, as a house is with stones. But a collection of facts is no more a science than a heap of stones is a house." - Jules Henri Poincare

"Three thousand people died on Sept. 11 because eight pilots were killed"
-- former Northwest Airlines pilot Stephen Luckey
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Old August 1, 2013, 01:54 AM   #80
jimpeel
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As SamNavy posted on post #2 the Miranda warning is kinda moot based upon this ruling.

The Miranda warning states "You have the right to remain silent." What it does not say is "You have the right to invoke your fifth amendment right to remain silent; but only if you do so verbally. You do not have the right to simply remain silent in the absence of that declaration. Mere silence will be held against you in a court of law as well as anything you do choose to say."
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Gun Control: The premise that a woman found in an alley, raped and strangled with her own pantyhose, is morally superior to allowing that same woman to defend her life with a firearm.

"Science is built up with facts, as a house is with stones. But a collection of facts is no more a science than a heap of stones is a house." - Jules Henri Poincare

"Three thousand people died on Sept. 11 because eight pilots were killed"
-- former Northwest Airlines pilot Stephen Luckey
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Old August 1, 2013, 02:08 AM   #81
Frank Ettin
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Quote:
Originally Posted by jimpeel
...you failed to answer the questions I posited in my post HERE

Quote:
If one is stopped, and the officer starts asking questions which one does not wish to answer, does one have to invoke the right time after time after time; or can one simply invoke the right in general terms such as "I am invoking my fifth amendment right to remain silent; and I will, from this point, refuse to answer any further questions."?

Also, if one may invoke on the basis above, does that invocation become null and void if one does answer any question, or have any further communication after that invocation? Does one have to re-invoke the right in general terms -- assuming that is permissible -- once again?
Nor do I plan to try to answer it. It's not an issue that's really addressed by Salinas, and I'm not planning to do the research into Fifth Amendment jurisprudence that would be needed to come up with a decent answer.

Quote:
Originally Posted by jimpeel
As SamNavy posted on post #2 the Miranda warning is kinda moot based upon this ruling....
Not really. That question was addressed by KyJim in post 5.
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