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Thread: Silence is not an option, you must invoke 5th amendment now!

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    Silence is not an option, you must invoke 5th amendment now!

    SCOTUS has just ruled in a 5-4 decision that you must "invoke" your 5th amendment rights immediately if a cop starts to "interregate" you. Otherwise they can now use "your silence" against you in a court. This is a stupid ruling, that will get more uneducated people thrown in jail, as they will not know that their rights are not in effect until you tell the police that you actually are using your rights.

    http://www.csmonitor.com/USA/2013/06...speak/(page)/2

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    old news dude ... you may ask me any ? about the ruling but i would refuse to answer hehehehe

    i can see both sides of the opinion ...

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    Quote Originally Posted by davidmcbeth View Post
    old news dude ... you may ask me any ? about the ruling but i would refuse to answer hehehehe

    i can see both sides of the opinion ...
    Not terribly old - reported yesterday.

    http://www.huffingtonpost.com/2013/0...n_3453968.html

    "Salinas' "Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question," Justice Samuel Alito said. "It has long been settled that the privilege `generally is not self-executing' and that a witness who desires its protection `must claim it.'"

    Nuts. What possible sense does this make? In order to invoke a right to silence you must announce it?

    The previous SCOTUS ruling was in 2010: http://www.supremecourt.gov/opinions/09pdf/08-1470.pdf .. BERGHUIS v. THOMPKINS .

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    I haven't dived into the full opinion yet, but I believe this is being misconstrued in the news.

    The core of the ruling is that pre-Miranda silence may be used to infer guilt in light of the circumstances.

    In this case, the suspect was initially cooperative and talkative, then refused to answer certain questions before being taken into custody, mirandized, and interrogated. It was that change in behavior that was used to infer guilt -- the jury saw it as guilty behavior.

    I haven't yet seen if the ruling covers simply refusing to talk to police. If you don't talk from the beginning, mirandized or not, it would make absolutely no sense to allow an inferrence of guilt, when doing exactly the same thing after being mirandized would be protected behavior.

    Then again, SCOTUS has made more than one nonsensical ruling.

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    Quote Originally Posted by Contrarian View Post
    Not terribly old - reported yesterday.

    http://www.huffingtonpost.com/2013/0...n_3453968.html

    "Salinas' "Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question," Justice Samuel Alito said. "It has long been settled that the privilege `generally is not self-executing' and that a witness who desires its protection `must claim it.'"

    Nuts. What possible sense does this make? In order to invoke a right to silence you must announce it?

    The previous SCOTUS ruling was in 2010: http://www.supremecourt.gov/opinions/09pdf/08-1470.pdf .. BERGHUIS v. THOMPKINS .
    He wasn't being silent. He was talking up a storm. Then he stopped. What he said was admissible. The only question was whether it was admissible that he was talking and stopped when a certain question was asked.

    Not having read the whole ruling, I am still up in the air on this. I just don't allow it to stand when a ruling is oversimplified to the point where the ruling is misrepresented. If he had been silent from the get, there would be nothing to admit, but that is not the case, despite implications to the contrary.

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    My post in another thread.


    Salinas' "Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question," Alito wrote for the narrow majority. "It has long been settled that the privilege 'generally is not self-executing' and that a witness who desires its protection 'must claim it.'"
    Tudor governments, the Stuart government, and Cromwell's government fought tooth and nail against the right.

    In its lust for maintaining power, it was government's refusal to recognize the right that forced the fight. The only reason the government recognized what it did is because of the public's outrage over the injustices that reached the boiling point with John Lilburne's fourth treason trial.* The government only backed down because of Lilburne's huge popularity and his repeated pounding the point during his trials. Within a year or two of his last trial, the criminal court in England finally acknowledged officially the right.

    The right is not self-executing because the government refused to fully recognize it, because the cases before the bar didn't involve that question. NOT! because the people wanted it that way.

    For Alito to claim it is settled law that a witness must claim the right is ignorant at best, disingenuous at worst. That's like saying, "we never conceded that much, so its now settled. And, that's that." Bullhockey! The government, at any time since about 1548 AD could have decided to recognize the right. Mary Tudor could have done it. Elizabeth I could have done it. The Star Chamber court and the High Commission could have done it. Charles I could have done it. Oliver Cromwell could have done it. Or, any of their ministers or judges involved in the cases could have done it. There is no reason on earth the government couldn't, didn't, or hasn't except that government chooses not to. The only reason it is "settled law" (sic) is because the government wanted it that way in direct opposition to the right. If government could have had its way, the right wouldn't be recognized at all, in any degree.
    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?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by Citizen View Post
    My post in another thread.




    Tudor governments, the Stuart government, and Cromwell's government fought tooth and nail against the right.

    In its lust for maintaining power, it was government's refusal to recognize the right that forced the fight. The only reason the government recognized what it did is because of the public's outrage over the injustices that reached the boiling point with John Lilburne's fourth treason trial.* The government only backed down because of Lilburne's huge popularity and his repeated pounding the point during his trials. Within a year or two of his last trial, the criminal court in England finally acknowledged officially the right.

    The right is not self-executing because the government refused to fully recognize it, because the cases before the bar didn't involve that question. NOT! because the people wanted it that way.

    For Alito to claim it is settled law that a witness must claim the right is ignorant at best, disingenuous at worst. That's like saying, "we never conceded that much, so its now settled. And, that's that." Bullhockey! The government, at any time since about 1548 AD could have decided to recognize the right. Mary Tudor could have done it. Elizabeth I could have done it. The Star Chamber court and the High Commission could have done it. Charles I could have done it. Oliver Cromwell could have done it. Or, any of their ministers or judges involved in the cases could have done it. There is no reason on earth the government couldn't, didn't, or hasn't except that government chooses not to. The only reason it is "settled law" (sic) is because the government wanted it that way in direct opposition to the right. If government could have had its way, the right wouldn't be recognized at all, in any degree.
    +1
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    Essentially if you don't know you have a right...you don't have the right?

    You would think an argument could made that this "disenfranchises" certain groups of people. I mean, not everyone knows what their rights are and can articulate them. Wasn't that the reason that the Miranda warning was created?

    The SCOTUS ruled, but I think not talking is not talking, regardless of why. This is just another thing to give cops ammo where there really is none.

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    A libertarian blogger made a few very good points.

    Now, anything you don't say can and will be used against you. (My favorite rhetorical comment.)

    Regarding mere silence without an express invocation of the right, what if the cops don't read a fella his rights? If he doesn't already know them, he won't invoke them. If he doesn't invoke this so-called fighting right, he's outa luck.

    If government can use your sudden silence mid-questioning against you, its only one short step to using your invocation of the right against you.




    I would add something I just remembered from the history of the 5th Amendment right against self-incrimination. The very foundation of the right is conscience and self-preservation. In the 1500's and 1600's multiple proponents of the right correctly identified compulsory self-incrimination as a form of torture, meaning a mental torture, anguish. Don't sell this short. Imagine your worst non-criminal sin--I use the word sin in its non-religious sense. Then imagine having to confess that. The mental resistance can be very, very strong, literally overwhelming to the point a person cannot move his mouth and tongue. Now, recall having done something of which you were particularly unproud--something not necessarily criminal but really wrong--but thought was undiscovered, and the terror when it was discovered. Recall the terror of when something was just strongly suspected, for example by a spouse or parent. So, yes, I can completely understand and agree that compulsory self-incrimination is mental torture. I have no problem at all accepting that, and consider it axiomatic.

    So, for Salinas to go silent when the cop turned to the ballistics question, plainly showing a specific suspicion in Salinas, I can totally understand Salinas going silent, especially if he's guilty. Now, one might think, "great, he's guilty; he should be punished." But, don't forget the same principle of silence = guilt can be applied by government to malum prohibitum offenses (offenses that are offenses just because the government says they are, not because they are wrong in and of themselves.) That was how the hell we got the right in the first place--government punishing people because they were suspected of doing things that were objectionable to government, not because the offense was wrong in its own right.

    The principle of silence = guilt can also be applied to people who are poor debaters when a cop asks a particularly dastardly question. For example, the cops asks an innocent suspect, "How did the shotgun shells at the scene match the firing pin on your shotgun?" Take a few seconds too long to figure out an answer, and months later at trial, the cop testifies not that the suspect didn't have an answer but that, "The defendant became silent."


    No, no, no. Rights are rights are rights are rights. And, this particular right was far too expensive to obtain to tolerate even the tiniest infringement by government. On the way to obtaining this right, numerous people were convicted of not conforming to government-mandated ideas in Tudor England, and then turned out of their job, or heavily fined. Four men had their ears cut-off--one had already suffered that punishment, but the court saw stumps of ears and had those cut off. At least one was branded on the face. Queen Mary Tudor (Bloody Mary), daughter of Henry VIII burned at the stake almost 300 people. John Lilburne was whipped a walking mile, at the end of which he was pilloried; and, when he continued his pro-freedom speech from the pillory, the guard captain had him gagged so tight his jaws bled. He spent most of his adult life in prison, his health finally being broken to die in his early forties.

    This right was literally paid for in blood and smoke. Literally. No backing up should be tolerated. Even so much as a government sigh indicating it wished it could infringe should be met with outrage and brandished pitchforks.
    Last edited by Citizen; 06-20-2013 at 11:45 AM.
    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?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Silence is not an option, you must invoke 5th amendment now!

    The Miranda Ruling only applies to custodial interviews--which this was not. The so-called "right to remain silent" is an invented right of that ruling. The actual right is not to be compelled to be a witness agains oneself. The Court in Miranda held that mere custody created compulsion, and therefore created the "right to remain silent" and the mandatory warning that goes with it. Had this interview been a custodial interview, the evidence would have been disallowed.

    As this was a consensual encounter with the police, it is assumed that he is not exercising the right not to self-incriminate the instant he voluntarily opened his yap. That assumption remained legally in force until he broke off the encounter or specifically stated that he no longer intended to talk. Had he never talked at all, he'd have been fine.

    But, he opened his maw. Dumbass.


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    Quote Originally Posted by eye95 View Post
    The Miranda Ruling only applies to custodial interviews--which this was not.
    Neither were most of the interviews conducted by the High Commission.
    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?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Quote Originally Posted by eye95 View Post
    The Miranda Ruling only applies to custodial interviews--which this was not. The so-called "right to remain silent" is an invented right of that ruling. The actual right is not to be compelled to be a witness agains oneself. The Court in Miranda held that mere custody created compulsion, and therefore created the "right to remain silent" and the mandatory warning that goes with it. Had this interview been a custodial interview, the evidence would have been disallowed.

    As this was a consensual encounter with the police, it is assumed that he is not exercising the right not to self-incriminate the instant he voluntarily opened his yap. That assumption remained legally in force until he broke off the encounter or specifically stated that he no longer intended to talk. Had he never talked at all, he'd have been fine.

    But, he opened his maw. Dumbass.


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    We should be careful about accepting government unstated premises. Merely being in front of an official questioner can be powerfully compelling. Merely being a suspect, even if innocent, can be a powerful compulsion to defend oneself by trying to explain innocence. And, unless a person is saavy and understands the sophisticated danger, even the innocent can explain themselves right into a jail cell or the electric chair.

    More about unstated government premises. The right is more expansive than mere compulsion. In the late 1500's, there were men who invoked the right and were punished. They were threatened, but the threats did not work! That is to say, government tried to compel them to be witnesses against themselves. But, they were of giant character and the compulsion failed. They maintained their silence and were punished for exercising the right. Meaning, exercising the right was actually used against them after the compulsion failed.

    Just to show readers how complex this can get. In colonial America, a wealthy fellow was accused of something pretty serious. I can't recall what. He was exiled or jailed. He refused to incriminate himself and suffered for that refusal. But, by refusing, he was not convicted of a crime for which government had insufficient evidence and for which all of his property would have been forfeit, leaving his family destitute.

    The right against self-incrimination was so expansive during the colonial period, that in some colonies a person could not be forced to turn over papers because it was judged akin to being forced to speak against oneself. (Keep that in mind the next time SCOTUS says you can be jailed for contempt for refusing to divulge your computer password to the police).

    The right to remain silent is merely manner of speaking. The term is literally refering to the same thing as the words nemo tenetur siepsum prodere. The same as no man should be convicted out of his own mouth. The term right to silence is just the popular modern terminology for a right that can be found fully recognized in ancient Hebrew law, my point being that this thing is really, really old.

    The various aspects of the right to silence form an interlocking armor against wily government officials who have a very long history of abusing their power and being willing to do almost anything they think they can get away with to maintain their power.

    Salinas may well have been guilty. He may well be a dumba$$ for trying to deceive the cops. But, when the Supreme Court rules on a case, it is not establishing the law for that case alone. Every similar case from here on out, including the wrongfully accused, will have the same unjust ruling applied. Nevermind the fact that the case is about a distinction in law that many people will never remember if they become a suspect.
    Last edited by Citizen; 06-20-2013 at 12:42 PM.
    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?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Quote Originally Posted by Citizen View Post
    A libertarian blogger made a few very good points.

    Now, anything you don't say can and will be used against you. (My favorite rhetorical comment.)

    Regarding mere silence without an express invocation of the right, what if the cops don't read a fella his rights? If he doesn't already know them, he won't invoke them. If he doesn't invoke this so-called fighting right, he's outa luck.

    If government can use your sudden silence mid-questioning against you, its only one short step to using your invocation of the right against you.




    I would add something I just remembered from the history of the 5th Amendment right against self-incrimination. The very foundation of the right is conscience and self-preservation. In the 1500's and 1600's multiple proponents of the right correctly identified compulsory self-incrimination as a form of torture, meaning a mental torture, anguish. Don't sell this short. Imagine your worst non-criminal sin--I use the word sin in its non-religious sense. Then imagine having to confess that. The mental resistance can be very, very strong, literally overwhelming to the point a person cannot move his mouth and tongue. Now, recall having done something of which you were particularly unproud--something not necessarily criminal but really wrong--but thought was undiscovered, and the terror when it was discovered. Recall the terror of when something was just strongly suspected, for example by a spouse or parent. So, yes, I can completely understand and agree that compulsory self-incrimination is mental torture. I have no problem at all accepting that, and consider it axiomatic.

    So, for Salinas to go silent when the cop turned to the ballistics question, plainly showing a specific suspicion in Salinas, I can totally understand Salinas going silent, especially if he's guilty. Now, one might think, "great, he's guilty; he should be punished." But, don't forget the same principle of silence = guilt can be applied by government to malum prohibitum offenses (offenses that are offenses just because the government says they are, not because they are wrong in and of themselves.) That was how the hell we got the right in the first place--government punishing people because they were suspected of doing things that were objectionable to government, not because the offense was wrong in its own right.

    The principle of silence = guilt can also be applied to people who are poor debaters when a cop asks a particularly dastardly question. For example, the cops asks an innocent suspect, "How did the shotgun shells at the scene match the firing pin on your shotgun?" Take a few seconds too long to figure out an answer, and months later at trial, the cop testifies not that the suspect didn't have an answer but that, "The defendant became silent."


    No, no, no. Rights are rights are rights are rights. And, this particular right was far too expensive to obtain to tolerate even the tiniest infringement by government. On the way to obtaining this right, numerous people were convicted of not conforming to government-mandated ideas in Tudor England, and then turned out of their job, or heavily fined. Four men had their ears cut-off--one had already suffered that punishment, but the court saw stumps of ears and had those cut off. At least one was branded on the face. Queen Mary Tudor (Bloody Mary), daughter of Henry VIII burned at the stake almost 300 people. John Lilburne was whipped a walking mile, at the end of which he was pilloried; and, when he continued his pro-freedom speech from the pillory, the guard captain had him gagged so tight his jaws bled. He spent most of his adult life in prison, his health finally being broken to die in his early forties.

    This right was literally paid for in blood and smoke. Literally. No backing up should be tolerated. Even so much as a government sigh indicating it wished it could infringe should be met with outrage and brandished pitchforks.
    Outstanding post, I agree 100%
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    Silence is not an option, you must invoke 5th amendment now!

    The Constitution does not say that the government must protect one from his own stupidity, just that it cannot compel one to be a witness against himself. Since compulsion is not a solid concept, courts must step in and determine when the state has compelled. They say that asking questions during a custodial interview so looks like compulsion that they require the state to inform the person in custody that what looks like compulsion is not. They say that consensual encounters do not look like compulsion, so no warning is necessary.

    You or I may not have drawn the line in the same place, but short of drawing the line in a way that destroys the right (this does not), it is reasonable to let the courts do their jobs and draw that line.


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    Re: Silence is not an option, you must invoke 5th amendment now!

    Quote Originally Posted by NMOCr View Post
    SCOTUS has just ruled in a 5-4 decision that you must "invoke" your 5th amendment rights immediately if a cop starts to "interregate" you. Otherwise they can now use "your silence" against you in a court. This is a stupid ruling, that will get more uneducated people thrown in jail, as they will not know that their rights are not in effect until you tell the police that you actually are using your rights.

    http://www.csmonitor.com/USA/2013/06...speak/(page)/2
    So, if I'm minding my own business and a cop asks me to stop, and I know I've done nothing wrong, what is the suggested course of action?

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    Silence is not an option, you must invoke 5th amendment now!

    KYBMS.

    Other than to ask if you are free to go.


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    Quote Originally Posted by eye95 View Post
    The Constitution does not say that the government must protect one from his own stupidity, just that it cannot compel one to be a witness against himself. Since compulsion is not a solid concept, courts must step in and determine when the state has compelled. They say that asking questions during a custodial interview so looks like compulsion that they require the state to inform the person in custody that what looks like compulsion is not. They say that consensual encounters do not look like compulsion, so no warning is necessary.

    You or I may not have drawn the line in the same place, but short of drawing the line in a way that destroys the right (this does not), it is reasonable to let the courts do their jobs and draw that line.

    The enumerated rights are actually much broader than what the constitution merely says.

    Scholars are quick to point out that the authors of the rights either didn't mean what they said, or didn't say what they meant. And, logic seems to come down on the side of failing to say what they meant.

    Lets use the right against cruel and unusual punishment as an example. What does cruel and unusual punishment mean? Does it mean that cruel but not unusual punishments can be used? Are only punishments that are both cruel and unusual prohibited? Of course not. If true, we'd still be subjecting women to the usual punishment for treason--burning at the stake. For men: hanged until almost dead, privy parts cut off, disembowelled, the bowels burned in front of the traitor, and then beheaded. Such may have been cruel, but it certainly wasn't unusual. Thus, it would still be an option for genuine traitors.

    So, what the Bill of Rights says is sometimes just the tip of the iceberg--a quick clause to bring to mind the entirety of the right. Regarding the right against self-incrimination, it goes well beyond merely a proscription against compelling an answer. There were times in this country when judges interrupted a question saying it ought not be asked because it "tended to criminate the witness."

    The framers of the Bill of Rights didn't say what they meant. We're not limited to the mere language of the text. We're entitled to receive every nuance fought, bled, and burned for over the last seven centuries.
    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?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    The whole key is compulsion. A person is free to choose to be a witness against himself. He is also free to ignorantly or stupidly do so.

    Miranda only exists because the Court interpreted questions asked during a custodial interrogation (without some kind of warning) as compulsion. This ruling basically says that questions asked during a consensual encounter (with or without a warning) are not compulsion. The Court needs to draw this line that was not clearly drawn in the Constitution. They did not unreasonably draw it, even if you or I would have drawn it in a way that would have made it harder for the state to ask the questions without some kind of warning.

    To me, that is a needed function of the courts: to exercise judgment where the Constitution is not crystal clear.

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    Quote Originally Posted by eye95 View Post
    The whole key is compulsion. A person is free to choose to be a witness against himself. He is also free to ignorantly or stupidly do so.

    Miranda only exists because the Court interpreted questions asked during a custodial interrogation (without some kind of warning) as compulsion. This ruling basically says that questions asked during a consensual encounter (with or without a warning) are not compulsion. The Court needs to draw this line that was not clearly drawn in the Constitution. They did not unreasonably draw it, even if you or I would have drawn it in a way that would have made it harder for the state to ask the questions without some kind of warning.

    To me, that is a needed function of the courts: to exercise judgment where the Constitution is not crystal clear.
    The whole key is government using a person's own statements or comments against him.

    For perspective on a government that thoroughly respected the right, ancient Hebrew courts accepted nothing from the accused. Zero, zip, nada. This from Leonard Levy in the appendix to his Pulitzer-prize winning book The Origins of the Fifth Amendment: the Right Against Self-incrimination, the main body of which traces the right forward from Henry II in the late 1100's to the Bill of Rights. For the ancient Hebrew courts, there was no fannying-about over whether the accused had been Mirandized, or whether sitting in the back of the police car counts as custodial questioning, or whether the cop was misrepresenting something from foggy memory or deliberate lies. Nothing said by the accused in or out of court could be used against him. Period.

    For government to dice and split hairs regarding compulsion is ignorant at best. As I mentioned in a post well above, government caved in to pressure and finally conceded the right. Government didn't want to recognize the right at all. Its not like government consulted the people on what they thought the sphere of the right should be. Compulsion was the focus because the Star Chamber, High Commission, and later courts used the oath ex officio1 and convictions pro confesso2. The people had to raise holy heck and scare government into conceding compelled incrimination. That is to say, it stopped at compulsion because that was all government conceded, not because that was the just and rightful place to stop. And, it actually went a little further than that. John Lilburne, in his very public treason trials badgered the judges for trying to ensnare him by their questioning, and those judges quickly disavowed it. They didn't disavow compulsion. They disavowed attempting to get information out of him--just by asking the question--to use against him.

    I'll concede that courts need to interpret rights in an abusive government system that rules without genuine consent and where no other mechanism for deciding such issues is present. But, I'll also insist that its folly to accept anything they say without comparing it to history under an electron microscope. And, its definitely folly to accept as reasonable even the tiniest reversal of progress on rights. Especially, when that reversal comes in the form of binding precedent that will used by government for years and years to come. Especially, this particular right. It cost far too much to obtain. This case affects more than the guilty; it affects the innocent as well.



    1. The oath ex officio was the classic oath we all heard about in grade school. Make the suspect swear before God to tell the truth to any and all questions asked, putting the poor suspect in fear of eternal damnation if he lied under oath, or fear of punishment if he told the truth, or for the sophisticated, fear of punishment if any of their answers could be twisted and used against them.

    2. A conviction pro confesso was to be convicted of the suspected crime merely for refusing to take the oath and answer the questions. The rationale (lying pretext) was exactly the same we've heard from cops right on this forum: if you have nothing to hide, why won't you answer questions; if you won't answer questions, you must be guilty.
    Last edited by Citizen; 06-21-2013 at 12:45 AM.
    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?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  20. #20
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    Request an attorney present when doing any business with LEO.

    Make the encounter a NON Friendly Encounter.

    Lawyer up.

    CCJ

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    Quote Originally Posted by Citizen View Post
    The whole key is government using a person's own statements or comments against him...
    Sorry, but that is just wrong.

    The 5A clearly says that a person may not be compelled to testify against himself. It does not say that he cannot at all. It does not say that he cannot willfully. It does not say that he cannot foolishly. It does not say that the government may not use a person's own statements against him.

    Even the Miranda warning (which contains the invented right to remain silent) recognizes that whatever a defendant says may be used against him in a court of law.

    You cannot be compelled to be a witness against yourself.
    According to Miranda, while in custody, you have the additional right to remain silent.
    By court interpretation, you must you must be told of your right to remain silent before a custodial interview.
    By court interpretation, you need not be warned that you have a right to remain silent if you are not in custody.
    The government may use one's own statements against him as long as they were not compelled.

    The court rulings merely deal with under which circumstances are the statements against interest compelled. In custody, they are assumed to be unless the defendant has been warned. Not in custody, they are assumed not to be. I am sure, as with all such gray areas, there are other things the police might do in a non-custodial situation that would cause any statements to be seen as compelled, just like the totality of the circumstances can be used to determine whether a reasonable person would believe that he is being detained.

    The government may indeed use one's statements against him in court.

  22. #22
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    Quote Originally Posted by Citizen View Post
    The enumerated rights are actually much broader than what the constitution merely says.
    Exactly.

    I'm no constitutional scholar like our illustrious President, but even I know that there were arguments both for, and against, enumerating our rights in a list, or "Bill of Rights".

    Enumerate. As in stating what already exists for posterity. If I remember correctly, many were against a bill of listed rights as a list could be interpreted as something finite; ONLY the things on this list are protected. Since folks were wise enough to realize that, at some point in the future, a right might be thought of that wasn't put on the list, it would be excluded from protection by the fact that a list was made at a point in time before the right was able to be enumerated. Therefore, no "Bill of Rights", no finite list of things that could be construed to be the only rights protected.

    If I'm not mistaken, I believe this is what led to the inclusion of an amendment process. A means to add to the list in order to mollify those against enumeration of a finite list. "TA-DA! We have included a process to add to the list in recognition that MORE FREEDOMS may be included that we haven't written down, yet."

    Therefore, one can reason from this process that, just because something is written in law: One cannot be compelled to testify against one's self, it doesn't mean that the respected right isn't broader, just that the broadness of it hasn't been enumerated.

    However, this brings up a rather grey area: How can a nation founded on law distinguish what is enforceable and non-enforceable if people have rights that aren't clearly and completely written down for posterity? After all, the law is concrete: Here is what is enforceable. Here is what is not. There has to be a point in which to distinguish it.

    Haven't we always determined that law is interpreted by what is written? "The letter of the law"? Where else can you draw the line other than a finite list of enforceable/not enforceable? If it is on the list: it is law. If it is not on the list: Not law.

    While I agree that a list of enumerated rights is not all inclusive, there has to be a point at which the enforcement of them has to take place.



    Therefore, the question is: Even though you may, or may not have the right to not incriminate yourself beyond compulsory testimony, at what point is this enforceable?

    Isn't it reasonable to assume that incriminating information you voluntarily disclose can be held against you (and, most likely WILL BE), and only that which is coerced from you should be governed by rules restricting its use by the government?

    This brings up an entirely new can of worms: If you have the right not to incriminate yourself, why is there a need by the government to finagle it out of you in the first place? Why suspect someone, fish for evidence, and then, after securing "probable cause" read them their rights......only to immediately try to hornswaggle the accused into slipping up and provide incriminating evidence after being read his rights?

    More succinctly: If you have the right to remain silent in order to not incriminate yourself, wouldn't this right be more accurately enumerated by stating: "You have the right to not have anything you say held against you."? Wouldn't this statement more accurately define your right? It would eliminate the entire questionable and idiotic process of excluding incriminating statements made before the point at which you are simply reminded that you have a right that exists....but only a right that exists after you have been reminded of it, and can now voluntarily discard.

    After all, if authorities have probable cause to make an arrest, why do they require you to play a game in which they need to trick you into forfeiting a right in order to gain more evidence? They already have enough evidence to convict, right? No? Then why did they make the arrest?

    Simply rephrasing your "right to remain silent" into a "right to not incriminate yourself" would solve this Miranda game playing entirely.
    Last edited by Superlite27; 06-21-2013 at 08:21 AM.

  23. #23
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    Pick up Alan M. Dershowitz book-- IS THERE A RIGHT TO REMAIN SILENT? COERCIVE INTERROGATION AND THE FIFTH AMENDMENT AFTER 9/11.

    Very informative reading about Your right to remain silent.

    Best regards.

    CCJ

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    Silence is not an option, you must invoke 5th amendment now!

    You do NOT have the right to not have anything you say held against you. That is NOT what the Constitution says.

    You have the right not to be compelled to testify against yourself. If the courts hold that you were compelled to say what you did, it is inadmissible. If you voluntarily say it, it will be held against you. Thus spaketh Miranda.


    Sent from my iPad using Tapatalk.

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    Every year millions and millions of Americans give up there right to not incriminate themselves when filing an income tax return with the IRS.

    Something to think about.

    TIA

    CCJ

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