Important Fifth Amendment SCOTUS Opinion

[speedrrracer]

Originally Posted by Fishing Cabin

You are confusing a voluntary encounter with a custodial interrogation.

No, but I did choose my quotes poorly; sorry about that. Answer me this: Before this opinion, did I have a blanket, universal right to remain silent (except for identification, perhaps, as you mentioned) at all times and under all circumstances, without having that silence used against me?

Originally Posted by Fishing Cabin

This case dealt with a voluntary encounter, not a custodial encounter. Its a big difference.

Agreed, and to be clear, I don't really care about the person involved in this case, or if the ruling was fair to that person. It's the "extra" stuff that I'm trying to focus on. I only care about (what I perceive to be) the sweeping change in the so-called "right to remain silent", and how that will affect all of society going forward.

Originally Posted by Spats

Perhaps I should have phrased that better, but as Frank pointed out, there are other ways to attempt to fix these alleged "flaws inherent in the profession of lawyering" without actually becoming a licensed attorney. Go vote or run for office. Neither requires a law degree. For that matter, it's my understanding that getting a law license in CA doesn't even require going to law school, if you're so inclined.

You don't have to like us, but there's nobody better suited to dealing with the realities of legal matters than lawyers.

Perhaps you are right, but again, not picking on lawyers alone. If engineers ran this country, then the flaws inherent in the profession of engineering would be causing problems for this country (just different problems). I read this ruling and my take is that the particular flaws of being a lawyer are all over this ruling -- only a lawyer would think this ruling is a good idea.

But maybe I'm misunderstanding the situation, since laws can be complex, and, not being a lawyer, maybe the nuances here are not clear to me. So I'm trying to make sure I understand what this ruling actually means.

So let me ask you the 2nd part of my question to Fishing Cabin: Now that this opinion has been handed down, is it correct to say I do not have a right to remain silent without first speaking (then hopefully returning to silence) and more, my speech must include some very specific legal verbiage referencing the correct amendment?

[zukiphile]

Originally Posted by Aguila Blanca

As SamNavy points out, doesn't the standard Miranda warning say, "You have a right to remain silent?

This decision seems to be saying that right commences only when an officer reads it to a suspect, but IMHO that's not how "rights" work. I either have the right or I don't.

AB, I would guess that your view of rights would be the majority view in most groups; it is reasonable to assert that one doesn't waive a right to silence by failing to speak to assert it.

The problem with seeing this decision as am imposition on the 5th Am. is that, as Spats notes, the 5th doesn't describe a right to remain silent. Of course, we have a sense that it does from thousands of cop shows, but that isn't in the COTUS itself.

In Salinas, the prosecutor appears to have used a hearsay exception, a party admission. The defendant wasn't compelled to testify at all, but the testimony of others about the conduct indicating guilt was admitted. This doesn't strike me as novel ground, even of the plurality reasoning is at odds with some of our ideas about how and why we hold rights.

[speedrrracer]

Originally Posted by zukiphile

The problem with seeing this decision as am imposition on the 5th Am. is that, as Spats notes, the 5th doesn't describe a right to remain silent. Of course, we have a sense that it does from thousands of cop shows, but that isn't in the COTUS itself.

COTUS doesn't convey a right to an abortion, either. That "right" came from a SCOTUS decision, just as the right to remain silent came from a SCOTUS decision, in Miranda.

Now we're fleshing out the boundaries of the "right", as is done with all rights over time, and that's part of the process.

[zukiphile]

Originally Posted by speedrrracer

COTUS doesn't convey a right to an abortion, either. That "right" came from a SCOTUS decision, just as the right to remain silent came from a SCOTUS decision, in Miranda.

Now we're fleshing out the boundaries of the "right", as is done with all rights over time, and that's part of the process.

I do not disagree, though some here will dislike the substance of your analogy, so I will avoid it.

The peril arises when the link between constitutional text and case law is so attenuated that case law develops primarily in reference to itself rather than to the underlying document.

The counter analogy might be Miller and Heller. One could conceivably have resolved the question presented by Heller with some of the ideas presented in Miller, namely that the Second Amendment protects primarily or exclusively arms suitable for militia service. Heller did not do that, and is no mere extension of Miller.

[Fishing_Cabin]

Originally Posted by speedrracer

Answer me this: Before this opinion, did I have a blanket, universal right to remain silent (except for identification, perhaps, as you mentioned) at all times and under all circumstances, without having that silence used against me?

No. Previous case called Berghuis v Thompkins held that the right had to be unambiguously invoked in a custodial interview, to keep it in line with the right to counsel in the Davis decision. The Salinas case just confirmed that the right to remain silent must be invoked unambiguously as well in a voluntary encounter. Also, if in a custodial interrogation, after being read your rights, you will be asked if you understand them, or sign that you understand them. If you do not answer by remaining mute, it may be implied as a waiver of your rights

http://www.supremecourt.gov/opinions/09pdf/08-1470.pdf

Originally Posted by SCOTUS link above

Held:
1. The state court’s decision rejecting Thompkins’ Miranda claim was correct under de novo review and therefore necessarily reason-able under AEDPA’s more deferential standard of review. Pp. 7–17.
(a) Thompkins’ silence during the interrogation did not invoke his right to remain silent. A suspect’s Miranda right to counsel must be invoked “unambiguously.” Davis v. United States, 512 U. S. 452, 459. If the accused makes an “ambiguous or equivocal” statement or no statement, the police are not required to end the interrogation, ibid., or ask questions to clarify the accused’s intent, id., at 461–462. There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis. Both protect the privilege against compulsory self-incrimination by requiring an interrogation to cease when either right is invoked. The unambiguous invocation requirement results in an objective inquiry that “avoid[s] difficulties of proof and . . . provide[s] guidance to officers” on how to proceed in the face of ambiguity. Davis, supra, at 458–459. Had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the questioning. He did neither. Pp. 8–10.

....

(c) Thompkins argues that, even if his answer to Helgert could constitute a waiver of his right to remain silent, the police were not allowed to question him until they first obtained a waiver. However, a rule requiring a waiver at the outset would be inconsistent with Butler’s holding that courts can infer a waiver “from the actions and words of the person interrogated.” 441 U. S., at 373. Any waiver, express or implied, may be contradicted by an invocation at any time,terminating further interrogation. When the suspect knows that Miranda rights can be invoked at any time, he or she can reassess his or her immediate and long-term interests as the interrogation progresses. After giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived Miranda rights. Thus, the police were not required to obtain a waiver of Thompkins’ Miranda rights before interrogating him. Pp. 15–17.

Originally Posted by speedrracer

Now that this opinion has been handed down, is it correct to say I do not have a right to remain silent without first speaking (then hopefully returning to silence) and more, my speech must include some very specific legal verbiage referencing the correct amendment?

Again, see my previous quote from SCOTUS Berghuis v Thompkins above.

[Frank Ettin]

Another way perhaps to look at Salinas is that brings the "silence" issue more in line with the general proposition that evidence of conduct is admissible. Silence can be a subset of conduct or part of a course of conduct. It's long been accepted that conduct can be probative of, among other things, state of mind, and that a trier of fact may draw inferences from conduct.

[Dan F]

This decision, and the discussion in this thread concerning its implications, just reinforces in me the sense of dread at I have ever being the subject of a police investigation.

I consider myself to be a fairly intelligent individual, but the more I hear about what I need to know to avoid potential legal pitfalls when talking to police, the less confident I feel in saying anything. And now, it seems, even avoiding saying anything can be a mistake.

And all of this would in all likelihood be taking place under highly stressful circumstances.

I'd like to believe that "the system" is basically benign and forgiving of those that are "just trying to do the right thing" and haven't "done anything wrong", but I just can't muster any trust that that is anything but naive.

I have no confidence that I would be able to differentiate in a meaningful way whether I was "in custody", NOT "in custody", or somewhere in between, and to be able to use the proper incantations at the appropriate times to avoid seriously screwing myself over by accident, even if I am "innocent".

I think, if this dire situation ever arises, i.e. I shoot an intruder in my home, all I should say is "Officer, I want to cooperate, and I will, but even though I believe I acted appropriately and legally here, I'm really afraid of saying anything at all until I have an attorney to advise me."

I can't help but feel there is a problem when the law-abiding realistically need to fear talking to a cop when they've defended themselves. Oh well.

[KyJim]

Answer me this: Before this opinion, did I have a blanket, universal right to remain silent (except for identification, perhaps, as you mentioned) at all times and under all circumstances, without having that silence used against me?

The short answer is no. Look at how the Supreme Court framed the issue:

We granted certiorari, 568 U. S. ___ (2013), to resolve a division of authority in the lower courts over whether the prosecution may use a defendant's assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief. Compare, e.g., United States v. Rivera, 944 F. 2d 1563, 1568 (CA11 1991), with United States v. Moore, 104 F. 3d 377, 386 (CADC 1997). But because petitioner did not invoke the privilege during his interview, we find it unnecessary to reach that question.

So, when the court took it up, it thought the issue was whether the prosecutor could comment on a suspect's silence in a non-custodial setting and affirmatively invokes his or her right to remain silent. The lower courts were split on the issue. It turned out, however, that the suspect had not invoked his Fifth Amendment rights but simply declined to answer one or two questions. Since he did not affirmatively assert his right, he could not rely upon it to keep the prosecutor from commenting on his silence. The bigger question is whether the a prosecutor can comment on silence where the suspect specifically invokes the Fifth Amendment in a non-custodial setting. We don't know the answer to that.

I'll repeat what I said earlier. Historically, a defendant was expected to explain himself to a judicial official before trial and the judicial official could infer guilt from the defendant's failure to do so. He simply could not be compelled to testify at trial. And, to my knowledge, truly involuntary confessions have always been inadmissible; e.g., confessions obtained by torture.

Speedrrracer, you quoted me:

I thought this case was important, not because it was a huge change in the law, but because it very clearly makes a point that most people just don't understand. If you want to assert your Fifth Amendment right, you need to specifically assert the Fifth Amendment right and not just remain silent or "I have nothing to say."

Then asked,

Does anyone see the logical flaw here? Anyone getting why lawyers are screwing up our society?

You see a logical flaw because you don't understand the history. As noted above, the right was not always read as broadly as it is today. In addition, comment on the right is not allowed when a person has specifically relied upon the right. How do we know if someone has relied upon the right or not? We don't unless the suspect claims it.

It is indeed frustrating that our laws can seem so complicated. Yet, life is complicated. Since you're an engineer, think in terms of the Chaos Theory. While the overall effect of something may be quantified and predicted, the behavior of individual molecules cannot be predicted with absolute certainty. Individuals are the molecules and there are a multitude of factors which can influence those molecules and how they react. It is up to the law and the lawyers to use general rules and apply them to very specific and, perhaps, unique circumstances.


DanF said:

I have no confidence that I would be able to differentiate in a meaningful way whether I was "in custody", NOT "in custody", or somewhere in between . . .

The test is whether a reasonable person would believe he or she was free to leave. The easiest way of determining this is to ask if you are free to go. Life is seldom that simple, however.

[Fishing_Cabin]

Originally Posted by KyJim

So, when the court took it up, it thought the issue was whether the prosecutor could comment on a suspect's silence in a non-custodial setting and affirmatively invokes his or her right to remain silent. The lower courts were split on the issue. It turned out, however, that the suspect had not invoked his Fifth Amendment rights but simply declined to answer one or two questions. Since he did not affirmatively assert his right, he could not rely upon it to keep the prosecutor from commenting on his silence. The bigger question is whether the a prosecutor can comment on silence where the suspect specifically invokes the Fifth Amendment in a non-custodial setting. We don't know the answer to that.

I'll repeat what I said earlier. Historically, a defendant was expected to explain himself to a judicial official before trial and the judicial official could infer guilt from the defendant's failure to do so. He simply could not be compelled to testify at trial. And, to my knowledge, truly involuntary confessions have always been inadmissible; e.g., confessions obtained by torture.

KyJim, not to pick on you specifically since you started the thread...You hit on something I have tried to get across to folks for the last many years. I will quote you as:

...Since he did not affirmatively assert his right, he could not rely upon it to keep the prosecutor from commenting on his silence...

That begs to ask a serious question. Honestly. How does remaining mute affirmatively assert your right granted by the fifth amendment? I ask that because of two issues.

1. I am a LEO and while we (LE) are complained about being the "thought police", by remaining silent, the person being question/interrogated/etc, is relying on LE to read their thoughts instead of actually unambiguously claiming their fifth amendment right. If a person actually wanted their right, why would they not want to actually claim it as theirs by invoking it, instead of leaving it to a chance interpretation?

2. By remaining "silent" as in mute, how does LE know that you not only understand the question, language, etc, but also have a level of cognitive intelligence to answer the questions at hand?

In all honesty, the folks who claim "don't talk to police" or "remain silent" always puzzle me... After all, if they did not want to be questioned, according to SCOTUS, its simple to end any questioning by just simply invoking your right. I guess I just don't get why folks do not want to invoke their right, but instead want to play the silence "game"...

ETA: I know, and agree with this SCOTUS decision. I just would like to hear from the other side who may feel that silence alone is enough, instead of actually invoking their right.

[KyJim]

Fishing_Cabin -- I think you pretty well answered the question you posed to me. The Supreme Court stated some of the same concerns you did.

I'll also mention that a state court might read read a state constitutional right more broadly than the federal constitutional right.

[speedrrracer]

Originally Posted by Fishing Cabin

I just would like to hear from the other side who may feel that silence alone is enough, instead of actually invoking their right.

Well thanks to the concerted efforts of Frank, Spats, you, kyjim, and probably other lawyers in this thread, I think I'm starting to get the gist of this ruling... I really appreciate all your time!

However, that is part of my point, and part of the problem. No one should have to know, say, or do anything in order to enjoy their rights, and piling on extra rulings about when you can and when you can't and what you have to say to whom under what circumstances seems ridiculous, because it creates a system where only some inner circle knows how to effect this right (and even then only if they get it right in a stressful moment).

Why should anyone be forced to ever take action to claim their rights? Because it makes LE's life easier? Does anyone seriously believe that the Founding Fathers created this nation to make LE's life easier?

If a person actually wanted their right, why would they not want to actually claim it as theirs by invoking it, instead of leaving it to a chance interpretation?

Well, maybe because they aren't up on the latest SCOTUS opinion, and aren't sure how. There shouldn't be any interpretation -- I should have my rights by default.

By remaining "silent" as in mute, how does LE know that you not only understand the question, language, etc, but also have a level of cognitive intelligence to answer the questions at hand?

Bluntly, who cares what LE knows? When it comes to choosing between something which potentially benefits LE but imposes on citizens' liberties, LE (or anything else, including the liberty-consuming nuisance called "public safety") needs to be put down in it's proper place, and that right quick.

I guess I just don't get why folks do not want to invoke their right, but instead want to play the silence "game"...

Maybe because it's been drilled into their heads via episodes of Law and Order that "...anything you say can and will be used against you in a court of law..."
so they figure that if they say nothing, then there's nothing to be used against them. Certainly no educational system is informing them of the rules on how to play the ever-changing "effect your rights" game, and in this society, even if such education existed, it would force you to sign a waiver disclaiming any liability for giving you incorrect instructions in that regard!

I agree life is complicated, and I can generally stomach therefore that many laws tend towards the complicated, but I'm having trouble believing that this country was founded so that the enjoyment of rights should be so burdened.

[Frank Ettin]

Originally Posted by speedrrracer

...No one should have to know, say, or do anything in order to enjoy their rights, ....

Why should anyone be forced to ever take action to claim their rights?...

But, as Spats pointed out, the right protected by the Fifth Amendment is not a right to remain silent -- even if we tend to use that imprecise short hand to describe it. The actual right described is to not be, "...compelled in any criminal case to be a witness against himself..."

On the other hand, silence is a form of conduct, and it's long been the fact that conduct can be evidence and that a jury may draw inferences from conduct.

• U.S. v. Perkins, 937 F.2d 1397 (C.A.9 (Cal.), 1990), at 1402:

  ...the instruction explicitly stated, "the jury may consider [the false statements] as circumstantial evidence of the defendant's guilt." Id. at 1104. Second, we have approved the use of this instruction on false exculpatory statements. See United States v. Boekelman, 594 F.2d 1238, 1240 (9th Cir.1979) (court noted approval of standard Devitt & Blackmar instruction and distinguished Di Stefano in upholding a variation from the standard instruction); United States v. Wood, 550 F.2d 435, 443 (9th Cir.1976)....

• State v. Wimbush, 260 Iowa 1262, 150 N.W.2d 653 (Iowa, 1967), at 656:

  ...In Wigmore on Evidence, Third Ed., section 276, Volume II, page 111, under the title 'Conduct as Evidence of Guilt' the editor states: 'It is today universally conceded that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.'
  
  McCormick on Evidence, section 248, pages 532, 533, puts it thus: "The wicked flee when no man pursueth.' Many acts of a defendant after the crime seeking to escape the toils of the law are received as admissions by conduct, constituting circumstantial evidence of consciousness of guilt and hence of the fact of guilt itself. In this class are flight from the locality after the crime, assuming a false name, resisting arrest, * * *.' See also Jones on Evidence, Fifth Ed., section 386, page 717.
  
  We have held many times that evidence of escape from custody and flight of an accused is admissible as a criminating circumstance. State v. O'Meara, 190 Iowa 613, 625, 177 N.W. 563, 569; State v. Heath, 202 Iowa 153, 156, 209 N.W. 279, 281; State v. Ford, Iowa, 145 N.W.2d 638, 641. See also 29 Am.Jur.2d, Evidence, section 280, and 22A C.J.S. Criminal Law § 625 a....

• State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (Neb., 1991), at 743:

  ... Although Clancy involved evidence of the defendant's attempted intimidation or actual intimidation of a State's informant or witness, evidence which was admissible under Neb.Evid.R. 404(2) ("other acts"), the rationale for "conscious guilt" evidence is equally applicable in Lonnecker's case.
  
  Lonnecker's hiding in the crawl space was evidence of his "conscious guilt" concerning the marijuana located on the premises which were under his control, that is, a conscious guilt concerning possession and cultivation of marijuana as a controlled substance. ...

• Martin v. State, 707 S.W.2d 243 (Tex.App.-Beaumont, 1986), at 245:

  ...In 2 RAY, TEXAS LAW OF EVIDENCE CIVIL AND CRIMINAL sec. 1538 (Texas Practice 3rd ed. 1980), we find:
  
  "Sec. 1538 Conduct as Evidence of Guilt
  
  "A 'consciousness of guilt' is perhaps one of the strongest kinds of evidence of guilt. It is consequently a well accepted principle that any conduct on the part of a person accused of crime, subsequent to its commission, which indicates a 'consciousness of guilt' may be received as a circumstance tending to prove that he committed the act with which he is charged." ...
  
  See also Cuellar v. State, 613 S.W.2d 494 (Tex.Crim.App.1981)....

[speedrrracer]

I agree all the cases you cite show examples of behavior, and I agree behavior should generally be admissible, but calling silence behavior to me is plainly wrong.

Behavior implies action, and silence is quite obviously the absence of the speech action. The default condition of the human body is silence, and so to call that behavior is ridiculous. Therefore, corpses can now be said to exhibit legal behavior. Madness.

[Frank Ettin]

Originally Posted by speedrrracer

...all the cases you cite show examples of behavior...

But the word used in the cases is not "behavior" but "conduct."

"Conduct" means:

the act, manner, or process of carrying on

That can clearly include keeping silent when asked a question. Not answering is in a particular instance is the manner of response.

And even behavior could include keeping silent. "Behavior" means:

1. a : the manner of conducting oneself
b :...
c : the response of an individual, group, or species to its environment
2. : the way in which someone behaves; also : an instance of such behavior
...

[KyJim]

Behavior implies action, and silence is quite obviously the absence of the speech action. The default condition of the human body is silence, and so to call that behavior is ridiculous.

Let's lay aside the Constitution for a moment. Suppose I walk up to you while you're with a group of co-workers and loudly accuse you of peeping through my daughter's bedroom window. But you don't say anything in response. Wouldn't an innocent person deny it? By remaining silent when circumstances would ordinarily call for a response, you are displaying consciousness of guilt. This is called an adoptive admission. Now, you can try to explain it later but that's for the jury to consider.

This sort of evidence has long been admissible in both civil and criminal cases. It's not ridiculous. It's a logical inference based upon common human behavior.

[KyJim]

I see Frank was a bit quicker in responding.

Let me respond to another point:

Bluntly, who cares what LE knows? When it comes to choosing between something which potentially benefits LE but imposes on citizens' liberties, LE (or anything else, including the liberty-consuming nuisance called "public safety") needs to be put down in it's proper place, and that right quick.

It is important for an officer to know in order to protect civil liberties. If they know the person is invoking his Fifth Amendment right, they know to stop the questioning.

[Fishing_Cabin]

Originally Posted by speedrracer

Well thanks to the concerted efforts of Frank, Spats, you, kyjim, and probably other lawyers in this thread, I think I'm starting to get the gist of this ruling... I really appreciate all your time!

Thanks for the compliment, but I need to admit that while I do have a firm understanding of this, I am not a JD, I am a LEO. Also, since you previously mentioned engineering, I must confess my B.S. is "Engineering Technology" as in part engineering part public admin. Anyway...

Originally Posted by speedrracer

However, that is part of my point, and part of the problem. No one should have to know, say, or do anything in order to enjoy their rights, and piling on extra rulings about when you can and when you can't and what you have to say to whom under what circumstances seems ridiculous, because it creates a system where only some inner circle knows how to effect this right (and even then only if they get it right in a stressful moment).

So, no one should have to do anything in order to enjoy their right? What about the right to a lawyer? If you do not do anything does a lawyer just pop out of thin air because you may have a desire? No, a lawyer doesn't. You must ask for a lawyer, and go through the process of hiring your own, or obtaining a court appointed one. Why should the right to remain silent (as in, not testify against yourself) be any different? Also, just being humorous for a moment. If someone doesn't have to do anything for their right, who gets stuck with the bill for the lawyer? IMHO, SCOTUS connected the rights/actions to invoke the rights so it would be easier to understand, instead of a patchwork for each.

Originally Posted by speedrracer

Well, maybe because they aren't up on the latest SCOTUS opinion, and aren't sure how. There shouldn't be any interpretation -- I should have my rights by default.

So if you should have your rights by default, there should be no Miranda warnings to advise you of your rights, and also hence, never any questioning unless you seek it out on your own? Sounds strange....

Originally Posted by speedrracer

Bluntly, who cares what LE knows? When it comes to choosing between something which potentially benefits LE but imposes on citizens' liberties, LE (or anything else, including the liberty-consuming nuisance called "public safety") needs to be put down in it's proper place, and that right quick.

If SCOTUS and others felt the same way, there would probably be more in custody death reports. There is a reason when processing a DWI that LE tries to establish a level of communication. Yes part of it deals with custodial interrogation, but well beyond that, and even if they claim their fifth, there is a safety/health aspect as well. There is good reason why LE should have an indication of well being and cognitive response to better protect the suspect. But there again, you said "who cares what LE knows?"

Originally Posted by speedrracer

Maybe because it's been drilled into their heads via episodes of Law and Order that "...anything you say can and will be used against you in a court of law..." so they figure that if they say nothing, then there's nothing to be used against them.

Then if they are obtaining their knowledge by watching "for profit" television, instead of gaining knowledge on their own, in an unbiased fashion, I say its their fault. By "for profit" I mean, with all the commercials, which in turn pay for the programming that we watch on TV, there is a profit aspect which outweighs accuracy.

Frank and KyJim already pointed out other issues as well. I am just trying to answer your questions point to point, and I hope that helps. No offense intended.

speedrracer,

I do thank you for your thoughts. Im not trying to pick on you either, just trying to better understand the other point of view. Please do not take offense.

FC

[speedrrracer]

Originally Posted by Fishing Cabing

So, no one should have to do anything in order to enjoy their right? What about the right to a lawyer?

Glad you asked. Easy answer if we follow the default of having our rights, as opposed to the current system. If I don't make any efforts to obtain or demand a lawyer or reject one, one should be provided to me by default, just like it says in the Miranda warning. So if the police show up to question me, and I'm not making any overt / obvious action to obtain / reject a lawyer, they should be required to plop one down right next to me in order to protect my rights, should I wish to avail myself of his services.

This is especially true since we're going to continue down this inane path of ever-more complicated legislation, and still maintain the obscene notion that ignorance of the law is no excuse. We need to own up to the fact that due to the ridiculously complicated legal system, ignorance of the law is now the default position, and legal aid is therefore to be provided unless rejected. That requires no input from anyone.

Originally Posted by Fishing Cabin

Also, just being humorous for a moment. If someone doesn't have to do anything for their right, who gets stuck with the bill for the lawyer?

Who gets stuck with the bill for LE? Should come out of the same budget.
My taxes shouldn't only pay the bill for people whose sole job is to find evidence to convict me, in fact they should preferentially pay for public servants whose sole job it is to protect me and my rights, since as we all know, the police do not need to protect citizens (at least, according to my understanding of Gonzalez, Warren v D.C., et al)

Originally Posted by Fishing Cabin

So if you should have your rights by default, there should be no Miranda warnings to advise you of your rights, and also hence, never any questioning unless you seek it out on your own?

I didn't say this, so I don't know where you pulled this from. I completely disagree. Why not also have Miranda warnings, just to add another layer of protection for citizens? I don't understand the bit about "...never any questioning..." -- can you explain that?

Originally Posted by Fishing Cabin

There is good reason why LE should have an indication of well being and cognitive response to better protect the suspect.

Disagree. LE is not qualified to make medical judgments based on interviews of any length. If LE suspects for any reason a citizen requires medical care, they can call for medical care and offer it to the citizen, who is then free to ignore the medics if he chooses. Legally requiring the citizen to speak adds nothing to this whatsoever -- it's unlikely the citizen is qualified to make medical judgments. If the citizen wishes to convey a desire for medical care, they can always do so. This whole, "It's for your own good" thing is both infantilizing and it's misuse / abuse is perhaps the single largest threat to personal liberty.

However, I suspect with your experience you can come up with a better / more specific scenario that will perhaps change my opinion. I'd like to hear it, if you don't mind.

Originally Posted by Frank Ettin

But the word used in the cases is not "behavior" but "conduct."

Different word, same failings. Conduct still implies action, and silence is still the absence of action. Corpses cannot engage in conduct. To get as fine-grained as possible, what I think we should accept is the transition from speech to silence. A transition is clearly conduct, behavior, and an action.

Originally Posted by kyjim

If they know the person is invoking his Fifth Amendment right, they know to stop the questioning.

This is seriously unpersuasive. Who cares if LE knows to stop questioning? I'm going to have to remember some legal magic passwords just for the convenience of LE? Does this honestly strike no one else as wrong?

[zukiphile]

Originally Posted by speedrrracer

Different word, same failings. Conduct still implies action, and silence is still the absence of action. Corpses cannot engage in conduct.

That is the point. The object of a question is not a corpse. An individual to whom the question "Did you shoot John Smith?" is posed, and who decides to respond by folding his arms and going strangely silent has made a conscious decision that his interests are better served by his silence than by any words whatsoever.

Behaviors, conduct and responses may all indicate a guilty state of mind.

If I am wearing the shiny badge and the magic blue shirt and I ask you "did you shoot John Smith?" and you respond with "well, yes. Yes I did.", I will come to a conclusion based on that response.

If I pose the question and you turn around and run away as fast as you can, I will imagine that you have chosen a course of action that reflects your interests and your state of mind.

The same may be said of the affirmative act of deciding to go silent.

[Frank Ettin]

Originally Posted by speedrrracer

...Conduct still implies action,...

No it does not. Read the definitions again. It may imply an ability to do or choose; but when that choice is to sit still silently, that is conduct.

[Spats McGee]

Originally Posted by speedrrracer

Glad you asked. Easy answer if we follow the default of having our rights, as opposed to the current system. If I don't make any efforts to obtain or demand a lawyer or reject one, one should be provided to me by default, just like it says in the Miranda warning. So if the police show up to question me, and I'm not making any overt / obvious action to obtain / reject a lawyer, they should be required to plop one down right next to me in order to protect my rights, should I wish to avail myself of his services.

I have to disagree with this one, for a couple of reasons. First, it seems to presume that all people are entitled to an attorney at the State's expense, regardless of the offense charged. That's not the law as it stands today, and I see no reason to plop a lawyer down next to someone who's charged with driving without wearing a seatbelt (not a jailable offense in AR). If you'll think back to the old Miranda warnings . . . "You have a right to an attorney. If you cannot afford one, one will be provided . . . " There are a couple of wrinkles here: (1) if there's no risk of jail time, the Sixth Amendment right to counsel does not automatically attach; and (2) just because you have a right to an attorney does not automatically mean that you get one at the State's expense, hence the "if you cannot afford one" language. The solution that you have proposed, taken to its logical extreme, would mean that we would have to put a public defender in every squad car in the nation, just in case the police have an encounter with a citizen and choose to ask questions.

Second, as more of a policy matter than anything else, why should we not expect people to speak up and say that they'd like to exercise their rights? Should we not expect and encourage them to take some minimal steps to exercise those rights. Saying "I want a lawyer," or "I'm going to exercise my Fifth Amendment right now" hardly seems burdensome.

Originally Posted by speedrrracer

Disagree. LE is not qualified to make medical judgments based on interviews of any length. If LE suspects for any reason a citizen requires medical care, they can call for medical care and offer it to the citizen, who is then free to ignore the medics if he chooses. Legally requiring the citizen to speak adds nothing to this whatsoever -- it's unlikely the citizen is qualified to make medical judgments. If the citizen wishes to convey a desire for medical care, they can always do so. This whole, "It's for your own good" thing is both infantilizing and it's misuse / abuse is perhaps the single largest threat to personal liberty.

It's not necessarily about making "medical judgments." In part, it's about being able to determine if a "medical judgment" is necessary. If a LEO makes no effort to communicate with a person, then the LEO has no way of determining if the person is deaf, mute, intoxicated, high, psychotic, or even whether they're cooperative. Many people who have absolutely no medical training, and perhaps only a minimal education are perfectly capable of determining another person's condition, at least to a minimal degree of accuracy. Legally requiring the citizen to speak certainly does add something to that. For example, it aids the LEO in determining if the person is intoxicated (slurred speech), or perhaps psychotic (speaking about how the officers body mike is a mind control device). Once the citizen has spoken, the officer is much better able to make a determination as to whether medical assistance is necessary, or even desired by the citizen. If the officer asks "why are you staggering down the street?," a call for medical help may be a waste of taxpayer money if the citizen's answer is "oh, I just had a little too much tequila, and I just live two doors down." OTOH, if the answer is "because my boyfriend hit me over the head with a tequila bottle," then the officer can reasonably: (a) call for medical assistance; and (b) go arrest the boyfriend, thus helping protect the injured party, at least for the moment.

Originally Posted by speedrrracer

Different word, same failings. Conduct still implies action, and silence is still the absence of action. Corpses cannot engage in conduct. To get as fine-grained as possible, what I think we should accept is the transition from speech to silence. A transition is clearly conduct, behavior, and an action.

The transition idea is not tenable. Imagine the following scenario:
Officer Friendly: What's your name?
Spats: Spats McGee
Officer Friendly: Where are you headed today?
Spats: To work.
Officer Friendly: (pauses briefly to listen to his radio) Do you know why I stopped you?
Spats: No.

Now, in that conversation, could it not be said that I made a "transition to silence" at the end of every one of my sentences? What about the pause that the officer took to listen to his radio? Is that a transition to silence, such as to trigger the Sixth Amendment right to counsel, just because I was polite enough to not talk while he was trying to listen?

If the ends of the sentences were such transitions, did I then waive my Fifth Amendment right not to be compelled to testify, just by answering the next question?

[speedrrracer]

(I continue to enjoy, learn from, and appreciate all answers in this thread)

Originally Posted by KyJim

Let's lay aside the Constitution for a moment. Suppose I walk up to you while you're with a group of co-workers and loudly accuse you of peeping through my daughter's bedroom window. But you don't say anything in response. Wouldn't an innocent person deny it? By remaining silent when circumstances would ordinarily call for a response, you are displaying consciousness of guilt.

I'm sad to hear this is the case, since it sounds like a train wreck of soft-science garbage. No, an innocent person would not necessarily even dignify such a ridiculous accusation with a response. I might just ignore the person, assuming they are on drugs or are speaking to someone else. But by ignoring them I remain silent -- does that make me guilty? I just "displayed consciousness of guilt"...

Originally Posted by zukiphile

who decides to respond by folding his arms and going strangely silent

Strangely silent? You must be a prosecutor. Who gets to determine what is strange and what is not? What is strange about shutting one's mouth (since anything I say can and will be used against me) when accusations of murder are flying around? Isn't it a wiser course than risking, in a moment of great stress, saying something that might turn a jury against me?
Oh, you say, but couldn't your silence be used by a prosecutor to turn that jury against you? Probably, and that's at the feet of the lawyers I was complaining about earlier. (Presumably) Innocent man, instantly damned if he does and damned if he doesn't, all because of this wonderful system we have.

Originally Posted by zukiphile

The same may be said of the affirmative act of deciding to go silent.

Now this I could almost go with, except it's impossible to prove to anyone that I have decided to be silent. It requires the ability to read my mind to know that I have considered options and made a decision, which is not necessarily true, since, as I said, the default condition of the human body is not speech but silence. Therefore silence requires no decision, it is speech which requires it.

Originally Posted by Spats

The solution that you have proposed, taken to its logical extreme, would mean that we would have to put a public defender in every squad car in the nation, just in case the police have an encounter with a citizen and choose to ask questions.

And it would be tragic if all those citizens were to have someone looking out for their rights. Think of the children! So my extreme costs a lot of money, reduces passenger capacity in cop cars, and protects the rights of citizens.

SCOTUS's solution, taken to it's extreme, does what? The destruction of personal liberty via an endless array of increasingly-complicated legal hoops through which we must all jump, only to satisfy an omnipotent LE / govt.

I guess I'll take my extreme for $200, Alex. More importantly, which extreme is more likely Constitutional?

Originally Posted by Spats

Second, as more of a policy matter than anything else, why should we not expect people to speak up and say that they'd like to exercise their rights? Should we not expect and encourage them to take some minimal steps to exercise those rights. Saying "I want a lawyer," or "I'm going to exercise my Fifth Amendment right now" hardly seems burdensome.

Hardly seems burdensome, says the trained lawyer! Again, what if I made you solve differential equations to effect your rights? Wouldn't slow me down, so what's your malfunction? This is the problem I mentioned long ago, rearing it's head yet again.
As for asking specifically for 5A rights, again, how many Americans do you really think have any idea what the 5A encompasses? 5%?

There's no consideration given for what an average citizen will be going through in such a scenario. Average citizen is likely uneducated, terrified of the cops, terrified of going to jail, terrified of saying the wrong thing. Maybe he doesn't even speak English -- here in CA, that's closing in on a likelihood.

These are the people that rights are supposed to protect, but instead we continue to complicate the decision tree such people are supposed to magically know and process, without error, under great duress. For what reason? To make life easier on LE?

[Spats McGee]

Originally Posted by speedrrracer

I'm sad to hear this is the case, since it sounds like a train wreck of soft-science garbage.

Right, wrong or indifferent, people don't necessarily behave in the same ways that the subjects of the hard sciences do. The failure to refute an accusation when an ordinary, reasonable person would do so has long been taken as evidence that the accused has no good response -- hence, evidence of guilt.

Originally Posted by speedrrracer

Hardly seems burdensome, says the trained lawyer! Again, what if I made you solve differential equations to effect your rights? Wouldn't slow me down, so what's your malfunction? This is the problem I mentioned long ago, rearing it's head yet again.
As for asking specifically for 5A rights, again, how many Americans do you really think have any idea what the 5A encompasses? 5%?

You really think someone needs special training to say that they want to exercise their Fifth Amendment right?!? Is that really comparable to calculating differential equations? It's not like I've suggested that a person be able to recite the contours of substantive and procedural due process.

Originally Posted by speedrrracer

There's no consideration given for what an average citizen will be going through in such a scenario. Average citizen is likely uneducated, terrified of the cops, terrified of going to jail, terrified of saying the wrong thing. Maybe he doesn't even speak English -- here in CA, that's closing in on a likelihood.

That doesn't seem like a good reason for a police officer to ask questions (thus, asking the citizen to speak)? To see if the citizen speaks English?

Originally Posted by speedrrracer

These are the people that rights are supposed to protect, but instead we continue to complicate the decision tree such people are supposed to magically know and process, without error, under great duress. For what reason? To make life easier on LE?

Actually, I'm still working my way through the decision, but from what I've read, the petitioner was the one asking SCOTUS to carve out another exception to long-standing rules. Read in that light (& without having finished the decision), it looks like SCOTUS stood by long-standing principles rather than complicating things further.

[MLeake]

The flip-side of this, as Mas has been known to point out in print and in MAG-40, is that for LEO-involved shootings, it is normal for the officers to not be questioned for 24+ hours, and then only with a representative present.

This begs the question, why does it not imply some sort of guilt for the officers to wait to give statements until they have had time to get their nerves under control, and confer with reps?

Or the converse, why does it imply some sort of guilt for the rest of us?

[csmsss]

The flip-side of this, as Mas has been known to point out in print and in MAG-40, is that for LEO-involved shootings, it is normal for the officers to not be questioned for 24+ hours, and then only with a representative present.

This begs the question, why does it not imply some sort of guilt for the officers to wait to give statements until they have had time to get their nerves under control, and confer with reps?

Or the converse, why does it imply some sort of guilt for the rest of us?

The rest of us do not have a collective bargaining agreement with the state...