You have to verbally invoke your right to remain silent?

[kiryan]

http://news.yahoo.com/s/ap/us_supreme_c ... nda_rights

Guy was read his miranda rights, basically remained mostly silent during the interogation answering a few question with simple basic responses, yes/no/i don't know, answered yes to the quesiton do you pray for forgiveness for gunning that boy down (btw don't talk to police) was convicted of murder or something, overturned on appeal on the basis that he had invoked his miranda rights but they continued to question him, overturned by the conservative justices on the supreme court in a 5-4 decision.

I don't know if I agree here... I think he gave a pretty good indication he was invoking his right to remain silent... but obviously not completely silent. I agree with Sotomayer that its counter intuitive to have to say somethign to invoke your right to remain silent. I think he tried to invoke his right to remain silent but got wore down. When you are in that situation you are not in control or in power so its probably a pretty uncomfortable / counter intuitive thing to stand up and say something like I want to invoke my right to remain silent. On the other hand, cops can't sit around and wonder if you are invoking your rights or wanting an attorney... you probably need to say something. I would really like to see folks being read their miranda rights be asked Do you want a lawer and Do you want to invoke your right to remain silent. I think I would've preferred to see the appeal stand (and the murdere go free) and indicate that police need to ask the questions to ensure they have a good legal confession.

Then again, theoretically more dumb criminals convicted...

[Corth]

Don't really have an opinion on the Supreme Court holding. I've been watching a lot of the First 48 lately (I seem to watch it a lot when I'm taking care of a newborn.. weird huh?). Anyway it never ceases to amaze me how many people end up going to jail simply because they wouldn't shut up. People that absolutely would have gotten off the hook if they hadn't talked. Parents that come in and tell their teenagers to tell the cops exactly what happened (cops tell the parents it's in their kid's best interest), and then teenager goes away to jail for life after listening to mama. Totally amazing. If you get arrested, shut the fuck up!

[kiryan]

Ouch... would suck to be that parent...

I'm reminded of Caylee's mom who said some really stupid, negative shit about her daughter in the early days of the investigation. Stuff like she didn't believe her ect...

[teflor the ranger]

My feeling is that you waive the right by opening your mouth. People are notoriously bad at protecting themselves, cops don't protect the guilty from their consequences, and people aren't smart enough to seek help. A right is only a right so long as you chose exercise it (when you are capable of exercising such a right).

From the story, I don't see that he was incapable of willfully exercising his rights (unless he was mentally incapacitated in some way). But the standards on mental incapacitation appear to be quite high in the eyes of the law.

[Corth]

I read the article. So the minority suggests that cops must use psychic abilities to figure out when the suspect has invoked his right to not speak to them. At that point they must cut off all questioning.

Ok amendment to the conventional torilmud wisdom that you don't talk to cops. You don't talk to cops, and you make sure that they are unequivocally told that you aren't going to talk to them.

Got it? :)

[kiryan]

Do people really know they shouldn't talk to cops? Were you taught that in school not to talk to cops or were you taught that they are your friends and here to help you (DARE program among others).

With something this serious and the mental state that suspects are often in and the fact you are dealing with professional interrogators, I think it can only be construed as grossly unfair to not require a bit more effort in the disclosure of your rights. What was the point of Miranda... letting folks know they don't have to talk and that if they do talk it can be used against them. Is the spirit and intent of miranda being fulfilled when your "read your rights" in a traumatic situation (after being arrested) and expected to have enough wits about you to verbally say with no prompting I want to exercise my right to remain silent? I imagine most people are in a state of shock (that they got caught or they got arrested) at this point.

Maybe this is part of the reason that so many poor people are in jail, better off folks may be more likely to know to STFU. dumb people think they can tell a good story and get away with it.

[Corth]

Look, if the guy in the article truly kept silent then there wouldn't be an issue. He answered questions and those answers were used against him. Nobody ever has to say anything, ever. The issue here isn't about the right to remain silent - rather it is more about when the cops have to stop asking questions. I think the Supreme Court got it right on this one. If you sit there silently without telling the cops to stop talking to you, why shouldn't they just keep firing off questions? If you continue to excercise your right to remain silent then no harm no foul. Alternatively, if you tell the cops you no longer wish to talk to them then of course they must stop talking to you, which is essentially another right - to force the cops to lay off.

Are we going to require the cops to use some sort of psychic ability that enables them to determine when absolute silence requires them to stop asking questions?

[kiryan]

I don't think thats fair at all... many police departments require a signed waiver before interrogation. That I believe is a lot more fair than just ruled. Again, realize that you as the suspect have been yanked out of your life, subjected to an extremely authoritative environment where you are encouraged to be subservient and then you are placed into interrogation with professional interrogators. This is not a situation of equals this is a situation where one person has power over another and has well documented psychological implications including confessing to things you didn't even do.

For about two hours and 45 minutes, Thompkins said almost nothing in response to questions. The detective asked Thompkins if he believed in God and then asked: "Do you pray to God to forgive you for shooting that boy down?"

"Yes," Thompkins said, and looked away. He refused to sign a confession or to speak further, but he was convicted of first-degree murder, based largely on his one-word reply

2 hours and 45 minutes he basically invoked his right to remain silent. I think thats a pretty damn good indication you are invoking your right to remain silent, but that wasn't good enough for the court.. he needed to say the magic words. I wonder what happens when a suspect says "I'd like to invoke my right to remain silent"... I mean I'd like to doesn't mean I am. WIll that stand up? He didn't answer questions for 3 straight hours? What else could that possibly indicate? Do you have a problem when interrogation with an unresponsive susect reaches 4 hours? 8 hours? 24 hours of straight interrogation? Isn't the simplest and most proper answer that you need to waive your right by signing a statement... which apparently was the previous legal standard? The more I read about this decision, the less I like it. It gives more power to agents of the government and undermines critical protections in my opinion.

article from which the above quote comes.

http://www.latimes.com/news/nationworld ... 4181.story

"In the past, the court said the "burden rests on the government" to show that a crime suspect had "knowingly and intelligently waived" his rights. Some police departments tell officers not to begin questioning until a suspect has waived his rights, usually by signing a waiver form."

"In her first strongly written dissent, Justice Sonia Sotomayor said the ruling "turns Miranda upside down" and "marks a substantial retreat from the protection against compelled self-incrimination.""

"This decision approves of the practice of giving the warnings and then asking questions of the suspect, without asking first whether he wants to waive his rights."

"But Steven Shapiro, legal director for the American Civil Liberties Union, said the case "demonstrates the power of custodial interrogation to wear down the defendant's willpower, which is what Miranda was designed to prevent.""

[teflor the ranger]

Or, you could just keep your mouth shut.

[kiryan]

I don't dispute that you could. I dispute that its reasonable to expect the average person in this situation to be able to say I'd like to remain silent in the face of an onslaught of questioning with no clear understanding of how to do that and no ability to simply get up and walk away. It is furthermore unreasonable to expect people to understand the implications that speaking could have. We're taught institutionally to answer questions and obey authority. We're taught that police are our friends and here to help us. The police are in a position to abuse their authority; I feel they did with this suspect.

I believe both of you agree that you should never speak to police, but you support a system that makes it more likely that people will talk to police, makes it more likely that police will engage in methods that are less than stand up. I think its a chip against 5th amendment rights, I agree that it results in less protections for individuals and I don't agree with that.

My wife was cited for 2 counts of child endangerment 2 (or neglect I can't remember), for leaving our kids in the car for < 10 minutes. She was in tears from stress because I had directed her never to answer police questions and they were sitting their asking her a bunch of questions for 10 minutes that she obviously wanted to answer. We won and the charges were dropped with prejudice (meaning they can't be refiled). Who knows what she might have said if she had answered the questions. She could be She was in tears within 10 minutes, and you expect people to withstand 3 hours of interrogation? I doubt my wife could withstand that. I know my kids couldn't. whether they thought they were guilty or not.

[Sarvis]

I don't dispute that you could. I dispute that its reasonable to expect

You're talking to a guy who thinks we could fight tanks with shovels. "Reasonable" is not a word in his vocabulary.

Then again... look who I'm talking to.

[teflor the ranger]

"Reasonable" does not lead to victory in the face of prejudice.

Reasonable (without quotes) is keeping your mouth shut in the face of interrogation.

Shovels are used to build insurmountable obstacles and subterranean tunnels (this is how the Palestinians are fighting Israeli tanks right now, you ignorant bastard). Unless you have weak arms, weak minds, and no heart.

[Corth]

Again, there are basically two separate issues. 1. The right to not say anything to the police. 2. The right to get the police to stop questioning you.

The first implies a lack of action. You cannot be compelled to talk to the police. They can ask you all the questions in the world, but you never need to answer them.

The second implies an afifirmative action. You can make the police stop asking you questions. "Do not talk to me".

My feeling is that it is unreasonable to expect that the police should use magical psychic abilities to determine when the constitution says they can no longer ask questions. There is no clear way to distingish between lawful interrogation and violation of Miranda rights. Perhaps they should add another line to the Miranda warning. After "You have the right to remain silent", they should then say, "You have the right to tell us not to question you". That might make things more clear.

[kiryan]

I'm surely not advocating psychic abilities, the solution you propose I think is reasonable protection which is why I disagree with the court's decision.

On the other hand, why is a written waiver at the beginning of at least formal interrogations unnecessarily burdensome? I mean they can run you through a million pieces of paperwork if you come to them for something, but if they pick you up they can't be bothered with asking you to sign a simple waiver before you answer questions?

[teflor the ranger]

Because it would be silly to protect the citizen's second amendment rights by giving them all guns.

[kiryan]

funny, but giving 300 million people guns is not the same as having police ask a couple million suspects to sign a waiver when appropriate.

[teflor the ranger]

Adults should be able to exercise their rights without having to be treated as children by a nanny state.

[kiryan]

I agree with that however, there is a difference between the nanny state protecting you from itself through signed waivers and the nanny state "protecting" you from consuming too much salt by taxing and regulating salt in food manufacture.

[Corth]

I'm actually surprised that law enforcement agencies don't use signed waivers voluntarily - to protect them from accusation that they did not disclose rights to suspects. Of course what good is a signed waiver if half these guys aren't literate? I suppose the next thing the supreme court will find is that the constitution guarantees a right to have a psychologist on premises to verify that the disclosure of rights, either verbal or written, were actually -understood- by the suspect. For only a few pieces of paper, the constitution sure has a lot of guarantees!

[teflor the ranger]

Furthermore, the waiver might imply that information gleaned from informal interrogation during the arrest and transportation are granted protections that they are not. Every piece of paper complicates the process.

While an understandable protection of rights, it seems both unnecessary for the preservation of the right and an additional burden on law enforcement that ultimately provides little protection of the innocent.

[kiryan]

Little protection for the innocent? I think not talking to the police is the single most important thing you can do to protect yourself from the police whether you are guilty or innocent, and so does that criminal defense professor in that other thread. One false word said under stress = admission of guilt = next thing you know you're being convicted. A cop remembering you saying something you didn't actually say = conviction by accident (or forced to get on the stand to dispute the testimony which is just about as bad as talking to police).

Sure Corth, it can be taken too far; is requiring a signed waiver during interrogations taking it too far? I'm not saying they need a waiver when they approach you on the street, but if you are in custody or in the police station "for questioning", I think a waiver is a reasonable legal protection of your 5th amendment rights. And many jurisdictions will probably continue to use a signed waiver to reduce their exposure to appeals... as long as the courts protect people's rights.

[teflor the ranger]

Little protection for the innocent? I think not talking to the police is the single most important thing you can do to protect yourself from the police whether you are guilty or innocent, and so does that criminal defense professor in that other thread. One false word said under stress = admission of guilt = next thing you know you're being convicted. A cop remembering you saying something you didn't actually say = conviction by accident (or forced to get on the stand to dispute the testimony which is just about as bad as talking to police).

Yes, little protection for the innocent. First off, because the innocent are rarely wrongly convicted in the first place. Second off, because there are plenty of opportunities to talk to and around the police before they get to any waiver signing. Third off, because a waiver won't shut up a loudmouth, or most stupid people.