|
Forum Rules | Firearms Safety | Firearms Photos | Links | Library | Lost Password | Email Changes |
Register | FAQ | Calendar | Today's Posts | Search |
|
Thread Tools | Search this Thread |
June 27, 2013, 06:11 PM | #51 | |||||||
Senior Member
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 317
|
Quote:
To decide that one reaction is normal and all others are evidence of guilt is ridiculous. Human experience is far too diverse to be confined to one acceptable reaction. Adhering to such nonsense grows further ridiculous as the population grows -- more humans == more diversity in the population == wider array of possible reactions to a given stimulus. Quote:
Quote:
Quote:
Quote:
What a shock -- more Americans are in jail now that ever before...hmmmm (NYTimes link) By the weak standards required to strip liberties from citizens these days, the evidence posted above should put most of the legal profession on death row. Quote:
Quote:
Last edited by speedrrracer; June 27, 2013 at 06:17 PM. |
|||||||
June 27, 2013, 07:50 PM | #52 | |||
Staff
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 9,471
|
Quote:
The reality is, whether or not you think it's right, that in litigation inferences may be drawn from a party's conduct, that evidence of a party's conduct can be admitted at trial, that the side offering the evidence can argue what inferences should be drawn from that evidence of conduct, that the other side can argue a contrary result, and that the trier of fact will be allowed to draw its inferences from the evidence of conduct. That has been the rule in both civil and criminal litigation for a very time, and it is well settled. In the Salinas decision, which is the subject of this thread, SCOTUS has expanded and clarified the circumstances under which the Constitution permits silence to be treated in criminal litigation essentially the same as other forms of conduct. And note that this has always been the case in civil litigation where the Fifth Amendment privilege against being compelled to testify against one's interests has never applied. That is what the law now is. If someone thinks that the law is wrong, our system provides ways of changing the law. One can become politically active and urge a legislature to "fix" what he thinks is wrong about current evidence law. Note also that it's not the role of the Court to decide if the result is good or bad. It's the job of the Court to apply the Constitution and applicable precedent to decide the case. If the result of applying the Constitution and precedent is unsatisfactory to you, you might consider how the law might need to be changed and take the opportunities provided by our system to bring about such change. However, changing the law is the province of legislatures, not the courts. In fact, sometimes when precedent and the law as applied by a court don't achieve a satisfactory result, a legislature can change the law -- checks and balances at work. Recently there was the case of Kelo v. City of New London, 545 U.S. 469 (2005). It was a ruling on a technical point of eminent domain law (specifically involving the "takings" clause of the Fifth Amendment applied to the States through the 14th Amendment and the meaning of "public use"). The result was found to be unsatisfactory by many. As a consequence, the legislatures of 42 States revised those States' eminent domain laws to avoid a Kelo result. It would be within the powers of legislatures to by statute provide for a broader "right to remain silent." If there is enough political pressure for changing the rules of evidence to provide more protection for the individual than required by the Constitution, legislatures can do that. Quote:
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper |
|||
June 27, 2013, 08:02 PM | #53 | ||||||
Staff
Join Date: July 28, 2010
Location: Arkansas
Posts: 8,821
|
Quote:
Quote:
Quote:
I'm not convinced that you really understand what it takes to "strip liberties" from anyone. In order to strip rights or liberties from anyone, Due Process requires Notice and an Opportunity to be heard. That means a trial. The defendant in Salinas got that. In fact, he got a trial, two reviews at the appellate level in TX, and then another level at SCOTUS. How is that a "weak standard" to strip him of his liberties? That's a pretty good dose of Due Process. And in fact, he was not stripped of anything. He chose to go to a consensual police encounter, would have been free to leave, and made the (perhaps unfortunate) decision to remain silent. That's not stripping him of rights. That's a bad calculation on his part. If a person doesn't ask for something, and it's not provided, that's not "stripping" them of anything. That's not giving them something they didn't request. If a person fails to take any steps whatsoever to exercise a right, there's no reason to have legal counsel on standby to assist them, just in case they decide they might want it. Libraries, including law libraries, are open to the public and paid for at taxpayer expense. And when someone is actually stripped of rights and liberties, they often do have a lawyer to defend them. And if those rights are taken without due process, a citizen can have a lawyer appointed to represent them in the 42 USC 1983 action. Quote:
There's no "presumption of guilt" from remaining silent. It's an inference. Legally speaking, there's a pretty significant difference. Look at it this way. If there's an inference of guilt, that inference might be enough to tip the scales towards a finding of guilt. If there's a presumption of guilt, the burden shifts to the defendant to disprove it. The inference that silence may be evidence of a guilty conscience seems pretty reasonable to me. I understand your desire to protect civil rights. The calculus that you do not appear to have done is to weigh civil rights against society's interest in catching evildoers. Society does have a valid interest in catching and punishing bad buys. The 4th, 5th, 8th, and 14th Amendments, and a whole host of statutory laws frustrate that interest, and they do so by shielding defendants, information, and things from the government. Basic civil rights really are not that complicated to learn, if one will spend some minimal amount of time doing so.
__________________
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some. Last edited by Spats McGee; June 27, 2013 at 10:07 PM. |
||||||
June 27, 2013, 10:45 PM | #54 |
Senior Member
Join Date: November 1, 2011
Location: Near St. Louis, Missouri
Posts: 864
|
I just don't understand the controversy here. We all still have the right to remain silent, whether before being arrested, or after. I did not realize that in most circumstances prior to this ruling, a defendant's silence could not be mentioned by the prosecution as evidence of guilt. I find that somewhat ludicrous. Why not present it to the jury? Let the defendant's lawyer refute it, explain it, whatever, and let the jury decide. Think about it, if the prosecution's only evidence of guilt is the fact that the dude didn't talk to the cops, they won't even get an indictment. There will have to be a much stronger body of evidence than mere silence. So what we are talking about here is a fairly nuanced change in the rules of trial.
As a potential juror, I would want to be exposed to as much evidence as possible. I personally feel that there is all together too much closed door discussions between the prosecution, the defense, and the judge about what evidence can or cannot be presented. As a juror, show me all the evidence, and include me in the debate on why it might be tainted or improperly obtained. If anyone thinks that I, as a juror, am not going to speculate on why a defendant does not take the stand in their own defense, they are naïve. Of course I am going to wonder why, and I am going to weigh that as evidence. Again, I don't see this as some earth-shattering change in our constitutional rights. Jim |
June 28, 2013, 06:37 AM | #55 |
Senior Member
Join Date: January 15, 2013
Location: South Jersey
Posts: 1,416
|
From btmj:
"If anyone thinks that I, as a juror, am not going to speculate on why a defendant does not take the stand in their own defense, they are naïve. Of course I am going to wonder why, and I am going to weigh that as evidence." As I read through this thread, I wondered the same thing. What we seem to be inching toward is an inference of guilt by a defendant's refusal to take the stand. To me, that's the same as silence. |
June 28, 2013, 08:54 AM | #56 | ||||||
Senior Member
Join Date: December 13, 2005
Posts: 4,450
|
Quote:
Quote:
The participants in a conversation would ordinarily be the ones who determine whether a silence is strange or out of context. In a courtroom setting, where the exchange is being related by a witness, the trier of fact is effectively made a participant in or observer of that conversation. Quote:
A short, but illustrative story: a few years ago, I was in another state deposing a plaintiff who had filed suit against the title company. Me: Were you aware of the mortgage your son put on the property the day you bought it? Plaintiff: No. (I sat and stared at her) Plaintiff: Well, we were not sure that the title was clear and I am not sure where my son was that day. (I sat looking at her as an uncomfortable silence followed) Plaintiff: Okay, yes, we knew. We told them to put it on... That was a person who had something to hide. She and her son and a person at the escrow office had conspired to defraud the title company. This all came out because this woman felt greater discomfort at a socially awkward silence than disclosing the subject of fraud. Simply not speaking at all may be wise in some contexts, but it is not the natural or ordinary response. You are correct that I cannot prove your subjective motivation for your silence, but I do not need to. As an ordinary observer, I can draw conclusions (not infallible ones) about your motivations from your conduct. _______________________________ A slight tangent: Quote:
At some point, volumes of long and contradictory rules become so complex that they lose their character has law, rules by which we generally agree to be governed and which enjoy a wide and general support. Where the authority of the state is exercised through a thicket of statute, ordinance, regulation and case law that no lawyer by himself really understands (often the wisdom of a lawyer involves knowing who to call in the applicable area of law), then a system begins to look less like a system of laws and more like a system that treats insiders and outsiders differently based on their ability to navigate the thicket. More succinctly, clarity and predictability are virtues in law, and complexity can work against both. I do not have a politically plausible solution for that problem.
__________________
http://www.npboards.com/index.php Last edited by zukiphile; June 28, 2013 at 11:44 AM. |
||||||
June 28, 2013, 01:23 PM | #57 | |
Senior Member
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 9,142
|
Quote:
|
|
June 28, 2013, 03:16 PM | #58 | ||||||||
Senior Member
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 317
|
Quote:
Quote:
Quote:
Quote:
We should bend over backwards to protect civil rights. And again, I think requiring legal knowledge only seems like a good idea to lawyers. Quote:
But yes, lawyers are responsible. Why? Because they created this system, so they need to own it's deficiencies. If they are ethical, they should also work to correct them (with, as Frank has noted, popular support and efforts from the rest of us). Instead, it appears to me that the problems are being exacerbated. Quote:
US Drone Assassinates US Citizen US Citizen Held Without Trial Obama Signs 2013 NDAA: May Still Arrest, Detain Citizens Without Charge I guess there are really simple legal principles at work here, which any single mother who is working two jobs to feed her kids can easily research at the local ghetto library during her spare time... Quote:
Quote:
Last edited by speedrrracer; June 28, 2013 at 03:43 PM. |
||||||||
June 28, 2013, 04:27 PM | #59 | |||||
Staff
Join Date: July 28, 2010
Location: Arkansas
Posts: 8,821
|
Quote:
The concept of having public defenders on standby for every possible police encounter would incur enormous costs, financially speaking, for the legal system. The other question being how the benefits to society "balance against" the costs (financial and otherwise) associated with such a proposal. Clearly, this is one area on which you and I disagree. That's OK. Quote:
Quote:
I'm not claiming that every member of society needs to be able to write a treatise on the nuances of eminent domain. I am saying that each member of society really should spend a little time learning things like "If I'm in custody, I have a right to remain silent, and I can ask for lawyer." I don't care whether they know the terms "probable cause," or "reasonable suspicion, based on articulable facts." I do think they need to learn that the police need to have a reason to pull them over. You are welcome to think that I'm trapped by my perspective. I don't think it's that so much as I just disagree with you. I'm not really all that excited by the prospect of having my taxes raised by society having to pay for all of the extra public defenders that your plan would require, when the Sixth Amendment does not guarantee an attorney in all the situations you've outlined. As far as the "tons of training" aspect, also consider that the Miranda warnings are nothing more than basic legal instruction to be given at the beginning of a custodial interrogation. I have no problem with the police being required to instruct someone in custody of their basic rights. Salinas, though, revolves around a noncustodial event. The defendant was free to leave, and admitted that. For Sixth Amendment purposes, that's a different kettle of fish. Quote:
The system is by no means perfect, but Due Process actually does a pretty good job of keeping government officials in line. If one chooses to remain silent during a police encounter, counsel for the defense is aways welcome to file a motion to prohibit the prosecutor from making reference to the defendant's silence, and request a hearing. Quote:
Lawyers do work to fix the system. Some of our efforts may not be in the ways you'd expect, though. For example, under the Model Rules of Professional Conduct, lawyers (with a few exceptions) are required to donate time or money to assist clients who cannot afford counsel. This is not usually in the criminal context, because the public defender system is in place. So attorneys donate time and money to help the poor fight credit disputes, get divorced, resolve custody battles . . . They also file civil rights lawsuits when violations of civil rights do occur. That's what all those cases in the "Current 2A Cases" thread are. What you may not realize aboutthose is that most civil rights cases are brought on a contingency fee basis. So it's the lawyer sticking his neck out (in terms of time and money) taking a case that may or may not pay off. My point is that, where there are violations, there's usually more than one remedy. If the police conduct an investigation in an unlawful manner: (1) evidence can be suppressed at trial; and (2) the entity which employs those police may well have to pay out substantial $$$.
__________________
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some. |
|||||
June 28, 2013, 08:17 PM | #60 | ||||
Senior Member
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 317
|
Quote:
In Quote:
Shouldn't we guard what few, weak rights remain more jealously? Quote:
Quote:
Salinas should have been decided as such: "There is no amendment guaranteeing the state the right to use silence against the accused, and since this is a civil rights issue, the state must show a monumentally important reason why it needs this power which directly relates to the preservation of life / liberty and can be shown to be of certain efficacy." (I'm trying for strict scrutiny-sounding verbiage here , I'm sure you can improve on it, but hopefully it conveys my point) |
||||
June 28, 2013, 10:53 PM | #61 | ||
Staff
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 9,471
|
Quote:
Fortunately, that is not how cases are decided. And although there can be disagreements about how certain legal principles might apply to a particular matter, at least judicial decisions are founded upon those principles. So let's go back and look again at something I wrote not too long ago in post 52: You apparently have certain ideas about how certain things should work. But in general you need to be looking to the legislatures to constitute matters the way you seem to want them to be. Most of the time people object to the way the system is working it seems to be primarily because they aren't getting what they want. But we live in a pluralistic Republic, and not everyone agrees that things ought to be the way you want them to be.
SCOTUS in Salinas decided a dispute on the bases of established legal principles, the Constitution and precedent. That's how courts are supposed to decide things. Legislatures on the other hand set public policy and decide things through a political process based on what enough of the body politic wants or will support, subject to certain constraints on the outer limits of their powers. The key to trying to achieve your vision is the political process, not the judicial process. So have at it and good luck.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper |
||
June 29, 2013, 02:58 AM | #62 | |
Senior Member
Join Date: May 24, 2005
Location: North Carolina
Posts: 2,903
|
Quote:
There is a vast difference between not allowing a defendant's fingernails to be pulled out one by one until a satisfactory confession is obtained and mandating absolute judicial blindness to whether or not a defendant has offered testimony or made statements. Over the years, the courts have expanded the interpretation of the Fifth Amendment so substantially that many people may have come to believe that those expansions are really derived from some sort of underlying unqualified right to remain silent. |
|
June 29, 2013, 03:35 AM | #63 |
Senior Member
Join Date: April 28, 2001
Location: CA
Posts: 1,765
|
Lawyers are paid liars. There is no expectation of truth in court. He who hath the most resources often wins as facts are twisted around and around to fit what a particular lawyer wants people to believe. It's all a big game to 99% of the lawyers who have no personal stake in what happens to a person they represent as long as they are getting their $300/hour and spend more time documenting billing than working on your case.
|
June 29, 2013, 07:07 AM | #64 | |
Staff
Join Date: July 28, 2010
Location: Arkansas
Posts: 8,821
|
Quote:
speedrrracer, I don't have time to address all of your comments right now, so I'll limit myself to this: Thus far, my reading of Salinas is not that the Court took away any rights from the defendant, but merely that it declined to expand A5 protections to a new area where the A5 has never reached before.
__________________
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some. |
|
June 29, 2013, 07:07 AM | #65 | |
Senior Member
Join Date: October 24, 2008
Location: Orange, TX
Posts: 3,078
|
Quote:
|
|
June 29, 2013, 12:38 PM | #66 | ||||
Senior Member
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 317
|
Quote:
Quote:
Quote:
Quote:
Seems like you and Frank and in agreement, so I'll assume you're both right. So is this correct: Salinas expanded (if I understand Frank's use of the word) the powers of the State -- they can now use silence in criminal litigation in a way / ways that were not previously available to them. The 5A didn't cover this ground previously, you say. This previously unallocated ground has now been found not to belong in the domain of the people, but instead to the State. Is that correct? |
||||
June 29, 2013, 02:02 PM | #67 | |||||
Staff
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 9,471
|
Quote:
Quote:
The important RKBA decisions in Heller and McDonald were not the product of "blue-sky" thinking. They were the product of solid, disciplined legal work. Apropos of which, you might want to note that the result here in Salinas comes from the conservative/centrist side of the Court -- who gave us Heller and McDonald. And the two arguable most "strict constitutionalist" justices published a concurring opinion further reflecting an even narrower understanding of a right to remain silent. Quote:
Quote:
The Court was asked by the Petitioner (and defendant below) to support and expansive reading of the Fifth Amendment protection of the right not to be compelled in a criminal case to testify against himself and prevent the use by the prosecution of his remaining silent when asked certain questions during a voluntary, non-custodial interrogation. The Court declined to do so. So from that perspective, Spats may properly characterizes the Court as refusing to expand Fifth Amendment protections. On the other hand, as noted in the decent, a number of lower courts had previously supported a more expansive reading of Fifth Amendment protections and thus a narrower permissible use by the prosecution of silence. From that perspective, the plurality in Salinas clarified and expanded the permissible scope of the use of silence by the prosecution. If you haven't read the decision, you might want to.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper Last edited by Frank Ettin; June 29, 2013 at 08:13 PM. Reason: fix grammar |
|||||
June 29, 2013, 02:59 PM | #68 | |
Senior Member
Join Date: May 24, 2005
Location: North Carolina
Posts: 2,903
|
Quote:
A good source of information not frequently returned by Google searches -because they are components of a broader work- are the Congressional Research Service's series of analyses of the Constitution. Like the other components of the series, the analysis of the Fifth Amendment is in near-layman's terms. Akhil Amar provides a thought-provoking view of the Fifth Amendment. Amar would "advocate a solution remarkably like the early scope of the privilege." He would allow the government to compel testimony, but would bar using the testimony at trial - but only the testimony (the "words") would be barred, the "fruits" that the testimony might lead to would be admissible. Interestingly, to speedrrracer's point about counsel, Amar's system would move most formal investigatory questioning into a magistrate-supervised environment with counsel present. Last edited by gc70; June 30, 2013 at 12:26 AM. Reason: fix link |
|
June 29, 2013, 11:52 PM | #69 | |
Senior Member
Join Date: November 1, 2011
Location: Near St. Louis, Missouri
Posts: 864
|
Quote:
RC, your posting is nothing more than a vile and malicious venting of your spleen. It adds nothing to this thread, and strangely, it has nothing to do with this thread... Speedracer and Spats and Frank are having a passionate but mostly civil discussion. Lawyers are an easy target, and throwing stones at them proves nothing and solves nothing. If you want to talk about a specific lawyer like Dickie Scruggs, fine. But painting the entire profession with a broad brush of condemnation is childish. |
|
June 30, 2013, 01:08 PM | #70 |
Senior Member
Join Date: April 28, 2001
Location: CA
Posts: 1,765
|
Last time I checked I was entitled to freedom of speech. A lawyer makes an argument in court. Facts are ommitted and assertions made by each side to try and convince or mislead the judge and jurry to a particular conclusion. The first casulty in court is the truth and the lawyers are the ones doning most of the talking. I made some of the lawyers here upset with my comments but we have seen time and again people get away with murder and other people wrongfully convicted and later cleared with DNA evidence. Lawyers are out to win cases at all costs. That's not a recipe for honesty and ingegrity. Conferring guilt from silence is wrong in my opinion.
|
June 30, 2013, 01:36 PM | #71 |
Senior Member
Join Date: November 15, 2007
Location: Outside KC, MO
Posts: 10,128
|
rc, you might check again. "Freedom of Speech" has to do with government regulation of speech, not with constraints imposed by a privately owned site - IE Rich Lucibella is not required to let you spew insults at other members.
Seeing things as absolutes can blind one to what things actually are. I suspect that if you wish to continue verbal attacks on entire professions, your tenure on TFL might be shorter than you might have wished. I suppose I should give you points for insulting multiple mods to their online faces... But then again, I won't. I'll just recommend more civility on your part. |
June 30, 2013, 03:13 PM | #72 | |||||
Staff
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 9,471
|
First, I'm going to respond, but that will be the end of it in this thread.
Do not further drag this thread off topic. rc, if you have anything further to say to Spats or to me about your notions about lawyers or the legal system, say it to us privately by PM. Further public posts in this thread similar to your last ones will be dealt with harshly. Quote:
In any case, freedom of speech does not mean that others can't call you out for making preposterous and unsubstantiated claims. Quote:
A trial is an adversarial proceeding. Each side has an ethical and professional obligation to, within the framework of the applicable rules, zealously and vigorously represent the interests of his client. And therefore:
Quote:
So if you have a foolproof way of deciding legal matters perfectly, let Spats and I know (by PM), and we'll pass it along. Quote:
Quote:
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper |
|||||
July 2, 2013, 03:35 AM | #73 | |
Senior Member
Join Date: December 12, 2006
Posts: 1,512
|
Quote:
Miranda already applied only if you specifically state you invoke your right to silence and this case reafirms Berghuis v. Thompkins and goes a step further by making silence is usable against you if you do not specificaly invoke your right to not answer questions. You can read Berghuis v. Thompkins here. http://en.wikipedia.org/wiki/Berghuis_v._Thompkins Last edited by teeroux; July 2, 2013 at 03:42 AM. |
|
July 10, 2013, 11:12 PM | #74 |
Senior Member
Join Date: September 6, 2012
Location: Lakewood, CO
Posts: 1,057
|
I guess if they are going to use my silence against me, I'll take my chances. Far better to have my silence used against me than to supply them with actual evidence to use against me by actually opening my big mouth.
I'll stick with my lawyers long standing advice; be cooperative with showing ID, and other documents that are required but beyond that, never answer any questions no matter how insignificant you think they might be. By my read of the SCOTUS opinion, it will be a very simple matter just to say "I'm invoking my 5th amendment right against self incrimination" and not say another word.
__________________
NRA Lifetime Member Since 1999 "I ask, sir, what is the militia? It is the whole people except for a few public officials." George Mason Last edited by iraiam; July 10, 2013 at 11:32 PM. |
July 11, 2013, 02:45 AM | #75 |
Senior Member
Join Date: October 11, 1999
Location: Longmont, CO, USA
Posts: 4,530
|
I have several questions.
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? 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; and if one does not invoke they are deemed to have waived their right to silence and assumption of innocence.
__________________
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 Last edited by jimpeel; July 11, 2013 at 02:59 AM. |
|
|