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Thread: Is Silence Before Arrest REALLY Protected?

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    Regular Member TFred's Avatar
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    Is Silence Before Arrest REALLY Protected?

    Just ran across this case being heard at the SCOTUS today. Seems to contradict what we pass around as "common knowledge" on this board. I hope the court rules in favor of the Fifth Amendment.

    TFred

    "That is an issue that arises directly under the Self-Incrimination Clause, because it depends solely upon what the guarantee of silence means in a setting other than a criminal trial in court. The answer to that has drawn conflicting responses in lower federal and state courts, with ten of them ruling that the Fifth Amendment applies to silence before arrest and before police had a duty to give Miranda warnings, and almost that many courts ruling the opposite way. In the new case now before the Justices, the Texas Court of Criminal Appeals itself split, in a ruling allowing prosecutors to use silence in that context to try to prove guilt."

    Salinas v. Texas

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    We have only the rights that we defend. When does law enforcement coercion become 'waterboarding' and torture? Self-incrimination is a slippery slope.

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    Regular Member 1245A Defender's Avatar
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    Well,,,

    I want to thank you, Tfred for posting this important informaton.
    NOW ther are at least 4 threads in this forum about this stupid court question!
    EMNofSeattle wrote: Your idea of freedom terrifies me. So you are actually right. I am perfectly happy with what you call tyranny.....

    “If ever a time should come, when vain and aspiring men shall possess the highest seats in Government, our country will stand in need of its experienced patriots to prevent its ruin.”

    Stand up for your Rights,, They have no authority on their own...

    All power is inherent in the people,
    it is their right and duty to be at all times ARMED!

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    Is this related to?

    Hopefully User or another attorney will comment on this, but is this related to the case where an individual didn't say anything at all (literally, mouth closed), so the police kept at him and at him without letting him have an attorney present?

    I have a copy of User's letter I keep in my car, and I think people should be ready to actively stand up for their rights when confronted by law enforcement.

    A bit off topic, but one item I find very ironic is that at the end of the document of the 2012-2016 strategic plan of US Customs and Border Protection is this quote "No man is entitled to the blessing of freedom unless he be vigilant in its preservation" General Douglas MacArthur. I interpret this as an "easter egg" type hint to encourage citizens not to submit to the warrantless searches in violation of the 4th amendment that DHS and Border Patrol increasingly conduct within 100 miles of US borders.

    I carry portions of that document in my car as well, since on page 5, two of the core values include these phrases "We are dedicated to defending and upholding the Constitution of the United States" and "We are guided by the highest ethical and moral principles" I intend to hold them to those principals if I am ever stopped.

    http://nemo.cbp.gov/obp/bp_strategic_plan.pdf

  5. #5
    Regular Member TFred's Avatar
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    Quote Originally Posted by 1245A Defender View Post
    I want to thank you, Tfred for posting this important informaton.
    NOW ther are at least 4 threads in this forum about this stupid court question!
    Do you mean 4 threads on the general subject, or 4 threads on the fact that the Supreme Court is hearing this case today?

    If the former, so what, this is new information. If the latter, then I apologize and will ask a moderator to combine my post into an older thread.

    TFred

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    Accomplished Advocate user's Avatar
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    There is a presumption that can arise from total silence that the prosecutor can use at trial. The theory is that if someone says something to you that is so outrageous or inflammatory that any reasonable person would protest, then the fact that you don't protest means it wasn't really outrageous or inflammatory because it was a true statement. In other words, they can argue that your failure to object means you agree with the statement. The counter to that is not to be totally silent; say, "I want my lawyer, and I'm not talking with you until my lawyer is present."; then remember the five magic letters, "KYBMS". That way, you take the game away from the cop by making it clear you're not talking at all, not simply not responding to one particular statement or question.

    By the way, the cops are not required to give any warnings unless and until one is subjected to a full custodial arrest. So their technique, even where they know they've got probable cause and every intention of making such an arrest, is to interrogate "the subject" thoroughly prior to the arrest. Most of the cases I've lost over the years were due to the fact that my clients had engaged in what appeared to be ordinary conversation with cops.
    Last edited by user; 04-17-2013 at 07:58 PM.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Quote Originally Posted by user View Post
    There is a presumption that can arise from total silence that the prosecutor can use at trial. The theory is that if someone says something to you that is so outrageous or inflammatory that any reasonable person would protest, then the fact that you don't protest means it wasn't really outrageous or inflammatory because it was a true statement. In other words, they can argue that your failure to object means you agree with the statement. The counter to that is not to be totally silent; say, "I want my lawyer, and I'm not talking with you until my lawyer is present."; then remember the five magic letters, "KYBMS". That way, you take the game away from the cop by making it clear you're not talking at all, not simply not responding to one particular statement or question.

    By the way, the cops are not required to give any warnings unless and until one is subjected to a full custodial arrest. So their technique, even where they know they've got probable cause and every intention of making such an arrest, is to interrogate "the subject" thoroughly prior to the arrest. Most of the cases I've lost over the years were due to the fact that my clients had engaged in what appeared to be ordinary conversation with cops.
    Yep. The smart ones know they need the suspect's cooperation and keep it conversational.

    And, cops are even slicker than that. Remember the Prof. Duane video, where the detective comes to the podium talks after the professor? Anybody notice his technique? He Mirandizes the arrestee, and then says "before you tell me whether you want to talk to me, let me tell you what I know". He gives his guesstimation of what happened, and watches the guilty sink lower and lower in the chair or put their hand over their eyes as he goes along. Then he warns them about how the judge dislikes lies, and how it will help them if they tell the truth. And, only then does he ask if they want to talk to him. Very slick psychological trick totally invalidative of the right against self-incrimination.

    For comparison, Leonard Levy, in the appendix of his book, The Origins of the Fifth Amendment: The Right Against Self-incrimination, tells of a government that completely respected the right, utterly. Ancient Hebrew law forbade the introduction of any self-incrimination evidence. There was no weaseling around about whether the suspect was in custody when he was questioned or had been properly Mirandized, or understood English. Bang. Plain and simple. Nothing incriminatory spoken by the defendant could be used in court. He put it in the appendix because he considered ancient Hebrew law did not inform English legal tradition. But, you'd think a three thousand year old lesson wouldn't need to be re-learned. Or, maybe I'm too optimistic.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

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    Is Silence Before Arrest REALLY Protected?

    Kinesiology.

    The latest and greatest in interview techniques.

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    Accomplished Advocate peter nap's Avatar
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    We were discussing that this morning (Old men with guns).

    I said I always speak to Police Officers when questioned. For the last few months I say "Read the letter".

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    Is Silence Before Arrest REALLY Protected?

    Quote Originally Posted by peter nap View Post
    We were discussing that this morning (Old men with guns).

    I said I always speak to Police Officers when questioned. For the last few months I say "Read the letter".
    I'd wave at you. Maybe with a coffee or an energy drink in hand...or a DQ Blizzard. I'd still wave and keep on moving. However, if the gun had too much sex appeal, I'd have to come for a fashion consultation. A gun should be the center of a man's outfit.

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    Regular Member Repeater's Avatar
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    Quote Originally Posted by user View Post

    By the way, the cops are not required to give any warnings unless and until one is subjected to a full custodial arrest. So their technique, even where they know they've got probable cause and every intention of making such an arrest, is to interrogate "the subject" thoroughly prior to the arrest. Most of the cases I've lost over the years were due to the fact that my clients had engaged in what appeared to be ordinary conversation with cops.
    Well, to clarify, what the cops will do is say they are seeking "cooperation" -- and THEN, if you refuse to do what THEY want, they will respond by saying you are not being "very cooperative" and thereby try and make you feel bad. All the while they are actually interrogating you.

    How clever.

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    Regular Member scouser's Avatar
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    Quote Originally Posted by peter nap View Post
    We were discussing that this morning (Old men with guns).

    I said I always speak to Police Officers when questioned. For the last few months I say "Read the letter".
    so the code phrase "Number One !!" has been replaced? Or is that only for the ones who have been to private school?

    As for the silence harming a defence, I posted a couple of links about that being the attitude in UK law since 1994 in a similar thread in the News & Political Alerts subforum

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    Quote Originally Posted by palerider116 View Post
    I'd wave at you. Maybe with a coffee or an energy drink in hand...or a DQ Blizzard. I'd still wave and keep on moving. However, if the gun had too much sex appeal, I'd have to come for a fashion consultation. A gun should be the center of a man's outfit.
    I like this guy. Not just for this comment lol. Many I have seen on here.
    Last edited by HearseGuy; 04-18-2013 at 05:38 PM.
    Additional text for your reading pleasure...

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by scouser View Post
    so the code phrase "Number One !!" has been replaced? Or is that only for the ones who have been to private school?

    As for the silence harming a defence, I posted a couple of links about that being the attitude in UK law since 1994 in a similar thread in the News & Political Alerts subforum
    No, the code phrase has not been replaced.

    Remember, it is necessary to first declare your desire to consult with an attorney and to not speak with the cops until your attorney shows up, or to (first alternate choice) read User's letter to them and then inform them of the code phrase, or (second alternate choice) recite your rights as enumerated under Miranda and then explain the meaning of the code phrase.

    It is for anybody who has passed within five hundred (500) miles of a private school, regardless if they knew they did so or not.

    stay safe.
    Last edited by skidmark; 04-18-2013 at 05:53 PM. Reason: Mirand_a_, dammit
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

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    I remember seeing this "letter" by Mr. Hawes before but for some reason I am unable to locate same at present.

    Link? repost?
    RIGHTS don't exist without RESPONSIBILITY!
    If one is not willing to stand for his rights, he doesn't have any Rights.
    I will strive to stand for the rights of ANY person, even those folks with whom I disagree!
    As said by SVG--- "I am not anti-COP, I am PRO-Citizen" and I'll add, PRO-Constitution.
    If the above makes me a RADICAL or EXTREME--- So be it!

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    Regular Member Fuller Malarkey's Avatar
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    Quote Originally Posted by palerider116 View Post
    I'd wave at you. Maybe with a coffee or an energy drink in hand...or a DQ Blizzard. I'd still wave and keep on moving. However, if the gun had too much sex appeal, I'd have to come for a fashion consultation. A gun should be the center of a man's outfit.
    Same trap, different bait. Contact initiated, construct of prosecution begins.
    Liberty is so strongly a part of human nature that it can be treated as a no-lose argument position.
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    From the cop’s perspective, the expression “law-abiding citizen” is a functional synonym for “Properly obedient slave".

    "People are not born being "anti-cop" and believing we live in a police state. That is a result of experience."

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    Regular Member scouser's Avatar
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    Quote Originally Posted by JoeSparky View Post
    I remember seeing this "letter" by Mr. Hawes before but for some reason I am unable to locate same at present.

    Link? repost?
    http://forum.opencarry.org/forums/sh...ent-quot-cards

    It's quoted in the above thread, and says

    To Law Enforcement Officers:

    I have been instructed by my attorney not to discuss the facts of any case with anyone other than my attorney unless and until I am given the opportunity to consult with and be advised by my attorney, and to have my attorney present for any statement to be given or interrogation to be conducted: I shall not answer any questions other than for identification. This applies regardless of the nature or duration of the detention or arrest. I do not wish to evade or interfere with any legitimate investigation, nor does my refusal to answer represent any disrespect for you or your office.

    My attorney has also instructed me never to consent to a warrantless search of my person or property, and has instructed me to tell you that there will be absolutely no waiver of the right to see and be served with a warrant in proper form prior to any such search.

    My attorney has warned me, and I understand that, you may determine that this is a situation in which you feel you need to make an arrest; I understand that you may make such an arrest regardless of anything I may tell you. I have further been instructed to submit to your authority fully in the event you do elect to make an arrest. My submission, however, is for the purpose of avoiding unnecessary confrontation, and is neither a waiver of, or done with prejudice to, my rights under applicable civil and criminal laws.

    I am represented by the attorney named below, and I am the client of this attorney for all issues related to the detention, search and seizure of me and my property. I ask that you contact my attorney promptly upon taking me into custody, before any search of my property, and before making any attempt to question me about the facts of any case. Unless you feel you have probable cause to place me into custody at this time, I respectfully request that you advise me that I am free to leave right now.

    My name is: __________________________________________________ ____

    I reside at: __________________________________________________ ______

    My attorney’s name is: ______________________________________________

    My Attorney’s telephone number is: __________________________
    Last edited by scouser; 04-19-2013 at 06:41 PM.

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    Is Silence Before Arrest REALLY Protected?

    Quote Originally Posted by Fuller Malarkey View Post
    Same trap, different bait. Contact initiated, construct of prosecution begins.
    That's a catchy phrase, but I'm not a trapper or a master baiter.

    Personally I am thinking about hanging it all up. Hostile management. Hostile customers. I rather have some peace and quiet.

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    Is Silence Before Arrest REALLY Protected?

    Maybe even hang out with you fine folk without the stain of LE leprosy.

  20. #20
    Regular Member Fuller Malarkey's Avatar
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    Quote Originally Posted by palerider116 View Post
    That's a catchy phrase, but I'm not a trapper or a master baiter.

    Personally I am thinking about hanging it all up. Hostile management. Hostile customers. I rather have some peace and quiet.
    I'm not aware of any law enforcement in Virginia or anywhere else in the U.S. serving under conscription......
    Liberty is so strongly a part of human nature that it can be treated as a no-lose argument position.
    ~Citizen

    From the cop’s perspective, the expression “law-abiding citizen” is a functional synonym for “Properly obedient slave".

    "People are not born being "anti-cop" and believing we live in a police state. That is a result of experience."

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by JoeSparky View Post
    I remember seeing this "letter" by Mr. Hawes before but for some reason I am unable to locate same at present.

    Link? repost?

    To Law Enforcement Officers:

    I have been instructed by my attorney not to discuss the facts of any case with anyone other than my attorney unless and until I am given the opportunity to consult with and be advised by my attorney, and to have my attorney present for any statement to be given or interrogation to be conducted: I shall not answer any questions other than for identification. This applies regardless of the nature or duration of the detention or arrest. I do not wish to evade or interfere with any legitimate investigation, nor does my refusal to answer represent any disrespect for you or your office.

    My attorney has also instructed me never to consent to a warrantless search of my person or property, and has instructed me to tell you that there will be absolutely no waiver of the right to see and be served with a warrant in proper form prior to any such search.

    My attorney has warned me, and I understand that, you may determine that this is a situation in which you feel you need to make an arrest; I understand that you may make such an arrest regardless of anything I may tell you. I have further been instructed to submit to your authority fully in the event you do elect to make an arrest. My submission, however, is for the purpose of avoiding unnecessary confrontation, and is neither a waiver of, or done with prejudice to, my rights under applicable civil and criminal laws.

    I am represented by the attorney named below, and that am the client of this attorney for all issues related to the detention, search and seizure of me and my property. I ask that you contact my attorney promptly upon taking me into custody, before any search of my property, and before making any attempt to question me about the facts of any case. Unless you feel you have probable cause to place me into custody at this time, I respectfully request that you advise me that I am free to leave right now.

    My name is: __________________________________________________ ____

    I reside at: __________________________________________________ ______

    My attorney’s name is: ______________________________________________

    My Attorney’s telephone number is: __________________________

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    Is Silence Before Arrest REALLY Protected?

    Quote Originally Posted by Fuller Malarkey View Post
    I'm not aware of any law enforcement in Virginia or anywhere else in the U.S. serving under conscription......
    What??? I have been lied to then!

  23. #23
    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Fuller Malarkey View Post
    Same trap, different bait. Contact initiated, construct of prosecution begins.
    Is there a reason for jumping on him. I haven't seen him post anything offensive.

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    Regular Member Fuller Malarkey's Avatar
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    Quote Originally Posted by peter nap View Post
    Is there a reason for jumping on him. I haven't seen him post anything offensive.
    It was an observation, not an attack.
    Liberty is so strongly a part of human nature that it can be treated as a no-lose argument position.
    ~Citizen

    From the cop’s perspective, the expression “law-abiding citizen” is a functional synonym for “Properly obedient slave".

    "People are not born being "anti-cop" and believing we live in a police state. That is a result of experience."

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    Quote Originally Posted by scouser View Post
    http://forum.opencarry.org/forums/sh...ent-quot-cards

    It's quoted in the above thread, and says
    Thanks, saved to my computer and hard copy printed....

    until next time.
    RIGHTS don't exist without RESPONSIBILITY!
    If one is not willing to stand for his rights, he doesn't have any Rights.
    I will strive to stand for the rights of ANY person, even those folks with whom I disagree!
    As said by SVG--- "I am not anti-COP, I am PRO-Citizen" and I'll add, PRO-Constitution.
    If the above makes me a RADICAL or EXTREME--- So be it!

    Life Member NRA
    Life Member GOA
    2nd amendment says.... "...The right of the people to keep and bear arms SHALL NOT BE INFRINGED!"

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