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Old June 27, 2013, 06:11 PM   #51
speedrrracer
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Quote:
Originally Posted by Spats
Right, wrong or indifferent, people don't necessarily behave in the same ways that the subjects of the hard sciences do.
In fact, the truth is that not only do people not behave in the same way as the subjects of the hard sciences, they don't behave in the same way, period.

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:
Originally Posted by Spats
You really think someone needs special training to say that they want to exercise their Fifth Amendment right?!?
Quote:
Of 1,000 citizens who were asked in a Newsweek poll: ” ‘What is the supreme law of the land?’ 70 percent of the 1,000 citizens polled by Newsweek couldn’t answer correctly.” (ABC News, May 13). http://www.cato.org/publications/com...any-us-know-it
Quote:
Originally Posted by Supreme Court Justice Sandra Day O'Connor
“Knowledge of our system of government is not handed down through the gene pool. … But we have neglected civic education for the past several decades, and the results are predictably dismal.” She also lamented (Jewish World Review.com, April 28: “Barely one-third of Americans can even name the three branches of government.” (Education week, May 4) my column, “The sickly state of the First Amendment.” (Jewish World Review.com).
Quote:
The national survey, conducted by Harris Interactive* on behalf of the Bill of Rights Institute, also reveals that 60 percent of Americans can’t identify the principle that our government’s powers are derived from the people as an attribute that makes America unique.
The First Amendment fares particularly poorly; 55 percent of Americans don’t recognize that education is not a First Amendment right, while nearly 1 in 5 mistakenly excludes from the First Amendment one of the five rights it actually does guarantee.
The lonely Tenth Amendment, meanwhile, is recognized by only 20 percent of Americans as the amendment that reserves powers to the states and the people. (http://billofrightsinstitute.org/blo...ison-and-marx/)
That you would even ask such a question supports my previously-stated theory that lawyers have created a complicated system which seems acceptable only to them and in which only they have any hope of functioning adequately.

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:
Originally Posted by Spats
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?
Again the insistence that our rights be curtailed to convenience LE. The Constitution was not written to protect LE's right to see if I speak English, or to convenience LE in any way. Officer is free to ask whatever he wants; it's the requirement to respond or else my silence will lead to some soft-science presumption of guilt that needs to go away.

Quote:
Originally Posted by 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?
If true, it's just another example of how the legal system's complications creates a privileged class and an unprivileged class. Here in CA, LE can carry pistols that have not passed various safety tests (the so-called "Roster"), but lower-classes of citizens may not buy those same pistols, unless, of course, they know the magic legal incantation (the so-called "Single Shot Exemption", although, unsurprisingly, there's a bill to do away with the SSE and just screw the lower class entirely). Those same LE are not subject to the same magazine capacity restrictions as the lower classes. The list goes on...

Last edited by speedrrracer; June 27, 2013 at 06:17 PM.
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Old June 27, 2013, 07:50 PM   #52
Frank Ettin
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Quote:
Originally Posted by speedrrracer
...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....
We're getting very far afield here.

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:
Originally Posted by speedrrracer
Quote:
Originally Posted by Spats
You really think someone needs special training to say that they want to exercise their Fifth Amendment right?!?
...That you would even ask such a question supports my previously-stated theory that lawyers have created a complicated system which seems acceptable only to them and in which only they have any hope of functioning adequately...
So what? It is still the system that we have. Feel free to avail yourself of the opportunities our systems offers to change that. But in the meantime, we still need to understand and be able to work with and in the existing process.
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Old June 27, 2013, 08:02 PM   #53
Spats McGee
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Quote:
Originally Posted by speedrrracer
Quote:
Originally Posted by Spats
Right, wrong or indifferent, people don't necessarily behave in the same ways that the subjects of the hard sciences do.
In fact, the truth is that not only do people not behave in the same way as the subjects of the hard sciences, they don't behave in the same way, period.

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.
No, people do not behave in the same way. However, it's not like the idea that guilt can be inferred from silence is new. Besides, so what if people react in all kinds of different ways? Even if courts were to not infer guilt from silence, what's next? Should juries and courts not infer guilt from any of an accused's behavior? In some cases, an inference of guilt is entirely reasonable and fair. Pop culture notwithstanding, many cases are decided on what is known as "circumstantial evidence." If every criminal case had to have direct evidence (such as an eyewitness to a crime), it would become extremely difficult to convict much of anybody.

Quote:
Originally Posted by speedrrracer
Quote:
Originally Posted by SpatsMcGee
You really think someone needs special training to say that they want to exercise their Fifth Amendment right?!?
That you would even ask such a question supports my previously-stated theory that lawyers have created a complicated system which seems acceptable only to them and in which only they have any hope of functioning adequately.
You think saying "I want my lawyer" is a complicated system? And lawyers are somehow responsible for the fact that most American haven't bothered to educate themselves on the most basic of civil rights and liberties? Libraries are open to the public and paid for with taxpayer dollars. City council meetings are open to the public and can be attended free of charge. Courts are open to the public and can be attended free of charge. You know who wrote all the statutes making sure that all that stuff was available to the public without additional fee? Oh, yeah, lawyers.

Quote:
Originally Posted by speedrrracer
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.
Because, why? We're responsible for educating a public that chooses not to be educated? We're lawyers, not teachers. Take that up with your local school board. Better yet, run for school board and fix the problem.

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:
Originally Posted by speedrrracer
Again the insistence that our rights be curtailed to convenience LE. The Constitution was not written to protect LE's right to see if I speak English, or to convenience LE in any way. Officer is free to ask whatever he wants; it's the requirement to respond or else my silence will lead to some soft-science presumption of guilt that needs to go away.
First of all, I said nothing about the "convenience of LE." In order to function properly, a LEO does need to figure out if the citizen can communicate.

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.
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Last edited by Spats McGee; June 27, 2013 at 10:07 PM.
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Old June 27, 2013, 10:45 PM   #54
btmj
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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
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Old June 28, 2013, 06:37 AM   #55
2ndsojourn
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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.
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Old June 28, 2013, 08:54 AM   #56
zukiphile
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Quote:
Originally Posted by speedrrracer
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"...
Yes. My response to you is not rooted in any social science, but from ordinary observation of people. Ordinarily, the reaction of an individual who has been wrongly accused is vociferous denial, or at least denial.

Quote:
Originally Posted by speedrrracer
Quote:
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?
In fact, I am not a prosecutor. I ordinarily litigate the issues that arise from peoples' business dealings. By temperament, I am generally more sympathetic to the defendant in a criminal case.

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:
Originally Posted by speedrrracer
Quote:
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.
If the default condition of the human body is silence, why is it that some people cannot shut up? That question is only half tongue-in-cheek. Most people in the face of a question feel a compulsion to speak.

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:
Originally Posted by speedrrracer
... my previously-stated theory that lawyers have created a complicated system which seems acceptable only to them and in which only they have any hope of functioning adequately...
I do not agree with your ideas about our epistemological limits in observing silence, but I believe there is some merit in this accusation immediately above.

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.

Last edited by zukiphile; June 28, 2013 at 11:44 AM.
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Old June 28, 2013, 01:23 PM   #57
KyJim
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Quote:
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.
I think that captures my understanding of what the Fifth Amendment right not to testify originally meant. It got expanded by the courts. Miranda is the best example. The Supreme Court decided custodial searches were inherently coercive (this was the early 60s). So, they decided police should warn in-custody suspects before questioning them. Then they decided that it would be unfair to advise a suspect in custody of his or her right to remain silent and but then allow adverse comment on it. All of this was added by the courts.
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Old June 28, 2013, 03:16 PM   #58
speedrrracer
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Quote:
Originally Posted by Frank Ettin
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.
This is nothing short of awesome. One line, sums it all up so even someone like me can understand it. This should seriously be the first line on the Wikipedia page for this case.

Quote:
Originally Posted by Spats
Even if courts were to not infer guilt from silence, what's next?
Maybe an increase in personal liberty? What's the downside? We err on the side of civil rights? Doesn't that sound more like something in line with our Constitution? The only justification I read from the more knowledgeable posters in this thread is "..it's been done this way for a long time", which reads like no justification at all...

Quote:
Originally Posted by Spats
Should juries and courts not infer guilt from any of an accused's behavior?
Now we're back to the "I don't believe silence is behavior / conduct and you do."

Quote:
Originally Posted by Spats
You think saying "I want my lawyer" is a complicated system?
And we've been through this, too -- I think rights should automatically attach inasmuch as they can be contorted to do so. I have a right to a lawyer, and I get one if I can't afford one, so if I say nothing then we should assume I want one and can't afford it and plop that legal eagle down right next to me. Why? Because it might possibly protect my civil rights in the presence of those who might seek to take them from me.
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:
Originally Posted by Spats
And lawyers are somehow responsible for the fact that most American haven't bothered to educate themselves on the most basic of civil rights and liberties?
Again, "most basic" is coming from a lawyer with tons of training, years of experience, and probably a natural predilection for the field. I get you're trapped by your perspective, as we all are, and this topic is right in a lawyer's blind spot.

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:
Originally Posted by Spats
In order to strip rights or liberties from anyone, Due Process requires Notice and an Opportunity to be heard. That means a trial.
Huh?
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:
Originally Posted by Spats
Society does have a valid interest in catching and punishing bad buys.
You are right and I agree. It seems we differ only on where to find the balance. I think it's clear that society's infinitely greater interest lies in protecting civil rights, but the rulings from the Court don't seem to agree.

Quote:
Originally Posted by zukiphile
I do not have a politically plausible solution for that problem.
If this changes, please let us know ASAP

Last edited by speedrrracer; June 28, 2013 at 03:43 PM.
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Old June 28, 2013, 04:27 PM   #59
Spats McGee
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Quote:
Originally Posted by speedrrracer
Maybe an increase in personal liberty? What's the downside? We err on the side of civil rights? Doesn't that sound more like something in line with our Constitution?
Listen, I'm all for personal liberty. I'm not sure I share your optimism that assuming a bright-line "everybody gets a lawyer for any and all offenses unless they affirmatively state that they do not want one" accomplishes that. From a policy perspective, and on a large scale, I'm not even sure it accomplishes anything other than to discourage people from actually learning what their rights are. ("Why should I bother to learn about my rights? If I get in trouble, the police will plop a lawyer down by me, and he'll know it all.")

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:
Originally Posted by speedrrracer
Now we're back to the "I don't believe silence is behavior / conduct and you do."
Well, I do think silence is a behavior. That aside, my question was actually intended to find out from exactly what behaviors you think an inference of guilt might fairly be drawn. It would appear that you take the position that the police should infer a couple of things from silence (desire for an attorney and an inability to pay for one), but that a jury should draw none. Am I close?

Quote:
Originally Posted by speedrrracer
And we've been through this, too -- I think rights should automatically attach inasmuch as they can be contorted to do so. I have a right to a lawyer, and I get one if I can't afford one, so if I say nothing then we should assume I want one and can't afford it and plop that legal eagle down right next to me. Why? Because it might possibly protect my civil rights in the presence of those who might seek to take them from me.
We should bend over backwards to protect civil rights. And again, I think requiring legal knowledge only seems like a good idea to lawyers.
Actually, society has long expected at least a basic, functional legal knowledge of every member of society for years. Do you know when you are required to file your federal income taxes every year? April 15, right? If you knew the answer to that question, you had basic, functional legal knowledge. I sincerely doubt that it's just the lawyers who think that kind of knowledge is good for a citizen to have. I have a strong hunch that my accountant (back when I had one) thought that information was pretty useful. If you found out close to your 18th birthday that you had to register for Selective Service, that's basic, functional legal knowledge.

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:
Originally Posted by speedrrracer
Huh?
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...
No, the three cases that you pulled up are not simple, but they're very different from the issues we've been discussing. We've been discussing right to counsel, and the issues arising in the Salinas case, such as the right to remain silent (which, again, isn't actually mentioned in the Fifth Amendment).

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:
Originally Posted by speedrrracer
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.
Our system is by no means perfect, but it's a pretty good one. I understand that it takes some time and effort to educate oneself. I understand that we all have lives, jobs and many of us have kids. However, there are a whole lot of folks who just can't be bothered to put in the time and energy. That part is not "the lawyers'" fault. I believe that part of the problem lies in the fact that they've seen noo many reruns of Law & Order where everyone has an unqualified right to remain silent, and everyone gets a public defender.

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 $$$.
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Old June 28, 2013, 08:17 PM   #60
speedrrracer
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Quote:
Originally Posted by Spats
It would appear that you take the position that the police should infer a couple of things from silence (desire for an attorney and an inability to pay for one), but that a jury should draw none. Am I close?
I would say I'm comfortable with anyone inferring anything which results in the increase or protection of my civil rights. When the opposite is the case, I want the most limited possibilities, strictly scrutinized.

In
Quote:
Salinas
, we have a ruling which further limits civil rights by expanding the circumstances in which your silence can be used against you. So we have given up civil rights, and gained what? Was cancer cured? Is the public safe from Islamic bombers at marathons? No, we gave up some civil rights and got what? Long term, that extrapolates out to all civil rights gone for what?

Shouldn't we guard what few, weak rights remain more jealously?

Quote:
Originally Posted by Spats
Actually, society has long expected at least a basic, functional legal knowledge of every member of society for years.
This is my fault for saying, " I think requiring legal knowledge only seems like a good idea" when I meant to say, " I think requiring legal knowledge to exercise rights only seems like a good idea...". I agree on legal knowledge for lesser matters.

Quote:
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.
Doesn't guarantee it, but this is a great example of the dim view of civil rights in America -- unless it's absolutely guaranteed (and not always even then, we all know how the 2A is raped), you have no rights. Why do we never look at rights in the opposite way, "Well, the Constitution doesn't prevent it, so why not?"

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)
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Old June 28, 2013, 10:53 PM   #61
Frank Ettin
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Quote:
Originally Posted by speedrrracer
...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...
Why? Because it suits your notion of the way you'd like things to be? In other words, you think (1) that disputes should be decided by whim based upon a particular judge's personal belief about what is good or bad; and (2) that judge's ideas about what is good or bad will be the same as yours.

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:
Quote:
Originally Posted by Frank Ettin

...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.
...
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.

  1. Whenever a court makes a major decision that one disagrees with, the judicial system is broken and the judges corrupt. Whenever a court makes a major decision that one agrees with, the judges are great scholars (except any dissenters, who are corrupt), and our courts are the last bulwark against the machination of the political toadies bought and paid for by special interests.

  2. There has been, and probably always will be, a huge negative reaction by a large number of people to every important to the pubic Supreme Court decision. There are plenty of folks who loved Roe v. Wade and hated Heller, and perhaps as many who hated Roe v. Wade and loved Heller.

  3. Most of the time when folks call a decision of a court a bad decision, it isn't really because it didn't comport with the law and precedent. Most people tend to think a court decision is a bad decision because it did not achieve the result they wanted.

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.
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Old June 29, 2013, 02:58 AM   #62
gc70
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Quote:
But popular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be compelled in any criminal case to be a witness against himself; it does not establish an unqualified right to remain silent.
The language in the Fifth Amendment that prohibits compelling self-incrimination seems to be a simple reflection of the lesson learned from the historic experiences of our English ancestors that torturing a person to obtain a confession is intolerable.

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.
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Old June 29, 2013, 03:35 AM   #63
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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.
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Old June 29, 2013, 07:07 AM   #64
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Quote:
Originally Posted by rc
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.
Hogwash, and insulting hogwash, at that.

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.
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Old June 29, 2013, 07:07 AM   #65
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Quote:
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.
Everyone says/thinks this right up to the moment the red and blue lights start flashing in their rear view mirror.
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Old June 29, 2013, 12:38 PM   #66
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Quote:
Originally Posted by Frank Ettin
Why? Because it suits your notion of the way you'd like things to be?
Yes, it's an opinion. I infer from several of your posts that you may have lost your understanding of the purpose of this forum (discussions, per the description). This is probably my fault, since I've been soaking up so much education on even the most basic legal issues that one could be forgiven for thinking this was anything but an online lecture hall (and again, thanks to you and everyone else for that ongoing schooling, I'm sure educating the ignorant is not the most appealing way for you guys to spend your time).

Quote:
Originally Posted by Frank Ettin
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.
Even if true, can't we revisit some or all of those legal principles, the Constitution, and precedent, discuss them, and see if they don't need changes in light of what happened in Salinas? I think we can all agree SCOTUS doesn't always get it right, therefore there is room for improvement in a general sense, even if only in theory.

Quote:
Originally Posted by gc70
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.
I doubt the courts are the cause, I would go with TV as the likely explanation. But I'm very interested to learn about these substantial expansions of the 5A -- if you have any favorite links on this topic that I'm unlikely to encounter via a Google search, please toss them my way.

Quote:
Originally Posted by Spats
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.
OK, thanks. I'll be interested to hear if your opinion changes after you've had time to complete your reading.
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?
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Old June 29, 2013, 02:02 PM   #67
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Quote:
Originally Posted by speedrrracer
...I infer from several of your posts that you may have lost your understanding of the purpose of this forum (discussions, per the description)...
There's a difference between potentially productive discussion aimed at understanding the world, how it functions and how to get along in it and "blue-sky" discussion. The latter may be assuming to some, but has less to do with understanding what is than with, at best, possible future political action. As such it is off topic for this Forum.

Quote:
Originally Posted by speedrrracer
...I'm sure educating the ignorant is not the most appealing way for you guys to spend your time...
Actually, I enjoy helping folks understand what the law is and how it works in the real world. Understanding such things helps folks stay out of trouble. A solid understanding of both legal reality and how the law works is also a necessary foundation of any worthwhile efforts to effect positive changes.

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:
Originally Posted by speedrrracer
...Even if true, can't we revisit some or all of those legal principles, the Constitution, and precedent, discuss them, and see if they don't need changes in light of what happened in Salinas?...
See above. At best that becomes a political discussion which would then be out of bounds for this Forum.

Quote:
Originally Posted by speedrrracer
Quote:
Originally Posted by Spats
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.
OK, thanks. I'll be interested to hear if your opinion changes after you've had time to complete your reading.
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. ...
That becomes an exercise in splitting hairs and is probably not really useful. It depends on perspective.

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.
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Old June 29, 2013, 02:59 PM   #68
gc70
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Quote:
Originally Posted by speedrrracer
I doubt the courts are the cause, I would go with TV as the likely explanation. But I'm very interested to learn about these substantial expansions of the 5A -- if you have any favorite links on this topic that I'm unlikely to encounter via a Google search, please toss them my way.
Google will provide plenty of reading, particularly after the Fifth Amendment was incorporated against the states by Malloy v Hogan in 1964.

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
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Old June 29, 2013, 11:52 PM   #69
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Quote:
posted by RC
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.
I have jumped on peoples butt in the past because they hurled insulting accusations at engineers who work in the defense industry... (that would be me).... So I feel compelled to support my professional colleagues in the legal profession.

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.
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Old June 30, 2013, 01:08 PM   #70
rc
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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.
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Old June 30, 2013, 01:36 PM   #71
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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.
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Old June 30, 2013, 03:13 PM   #72
Frank Ettin
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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:
Originally Posted by rc
Last time I checked I was entitled to freedom of speech....
This is private property, and the First Amendment doesn't apply here.

In any case, freedom of speech does not mean that others can't call you out for making preposterous and unsubstantiated claims.

Quote:
Originally Posted by rc
...Facts are ommitted and assertions made by each side to try and convince or mislead the judge and jurry to a particular conclusion...
Clearly you don't understand how things work in a trial.

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:
  1. The lawyer on each side of a dispute has an incentive and professional obligation to put forth, consistent with the applicable rules of evidence and procedure, every fact that will be helpful to his side's interests.

  2. The lawyer on each side of a dispute has an incentive and professional obligation to argue the law as most favorable to his side's interests.

  3. The lawyer on each side of a dispute has an incentive and professional obligation to challenge the other side if he thinks that the other side has overstepped the rules or if he thinks the evidence put forth by the other side is not credible.

  4. The judge is there to rule on disputed matters of law and generally see that the rules of evidence and procedure are followed.

  5. Thus the adversarial system encourages that all facts material to the deciding of the dispute get out on the table.

Quote:
Originally Posted by rc
...we have seen time and again people get away with murder and other people wrongfully convicted and later cleared with DNA evidence...
No system devised and operated by humans is perfect. Mistake can be made, but considering the enormous amount of matters processed through the legal system, they are few.

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:
Originally Posted by rc
...Lawyers are out to win cases at all costs. That's not a recipe for honesty and ingegrity...
  1. Yes lawyers want to win cases. More importantly, our clients want us to win cases.

  2. When a lawyer loses a case, his client goes to jail (or gets otherwise punished, if it's a criminal matter), or loses money or something else of value (in a civil matter).

  3. If you were in legal trouble, I suspect that you'd want your lawyer to win your case too.

  4. As far as honesty and integrity goes, in every State, in order to practice law, a lawyer must adhere to rules of professional responsibility and ethics enforced by the courts and/or the State Bar Association.

    1. Lawyers who don't operate in accordance with the rules can be lose the right to practice law (either temporarily or permanently). They can thus lose their livelihood.

    2. Lawyers work long and hard to earn the right to practice law and to build their practices and professional reputation.

    3. The practice of law is highly competitive (and lawyer by their nature are competitive). It is not in our interests to have other lawyers getting away with ethical or professional violations.

    4. Just for an example, the June, 2013, edition of The Journal of the California State Bar lists 16 now former lawyers who have been disbarred and 17 lawyers placed on suspension or probation.

Quote:
Originally Posted by rc
...Conferring guilt from silence is wrong in my opinion.
Then write your legislators. They can change that in your State.
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Old July 2, 2013, 03:35 AM   #73
teeroux
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Quote:
...Conferring guilt from silence is wrong in my opinion.
I don't believe that silence alone cannot confer guilt. It would have to be used with the totallity of the circumstances which is what the decision allows. If your silence to a particular question for instance indicates hesitation admitting guilt or used in the process of lying and the prosecution can catch you in it and you did not invoke your right. I think it should be used against you.

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

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Old July 10, 2013, 11:12 PM   #74
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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.
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Old July 11, 2013, 02:45 AM   #75
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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.
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