Being Silent is Guilty

KYGlockster said:

Once you have been Mirandized, if you remain silent after that, then the fact that you remained silent can not be admitted in court. Now if you remain silent before being read your Miranda Rights, then the fact that you failed to answer any questions can be admitted as evidence. But as one poster already mentioned, it all boils down to the totality of the circumstances. Simply being silent is not enough to get you convicted for anything. If you explicitly invoke your right to remain silent, even before being Mirandized, then again, this can not be admitted at trial because you specifically invoked your rights.

I personally don't agree with this decision, but it stands as of now.

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Can you cite this? I admit I don't know, but I thought the protections (not rights) afforded by Miranda kick in once you reasonably believe that your have been detained, whether or not the warnings have been given.

I understand that if you are being interviewed as a witness and are not at all a suspect, you don't have the protections of Miranda. That makes sense. However, once they start questioning you as though you are a suspect, everything changes, warning or no. So, I'd always ask that all-important question, "Am I free to go?" If you are not certain that you are free to go, assume that you have been "seized" and answer no questions other than to identify yourself.

This is not the first ruling that has been mentioned here that has held that stopping talking (not just remaining silent) is admissible. Basically, once you waive your Miranda protections, everything you say and do is admissible until after you have shut up. The act of shutting up is part of the talking you have already done and what follows is the remaining silent. So just don't start flapping the gums in the first place.

Should we repost the Don't Talk to the Police video yet again?


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eye95 said:

Can you cite this? I admit I don't know, but I thought the protections (not rights) afforded by Miranda kick in once you reasonably believe that your have been detained, whether or not the warnings have been given.

I understand that if you are being interviewed as a witness and are not at all a suspect, you don't have the protections of Miranda. That makes sense. However, once they start questioning you as though you are a suspect, everything changes, warning or no. So, I'd always ask that all-important question, "Am I free to go?" If you are not certain that you are free to go, assume that you have been "seized" and answer no questions other than to identify yourself.

This is not the first ruling that has been mentioned here that has held that stopping talking (not just remaining silent) is admissible. Basically, once you waive your Miranda protections, everything you say and do is admissible until after you have shut up. The act of shutting up is part of the talking you have already done and what follows is the remaining silent. So just don't start flapping the gums in the first place.

Should we repost the Don't Talk to the Police video yet again?


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Custody+Interrogation= Miranda

http://usgovinfo.about.com/cs/mirandarights/a/mirandaqa.htm

Miranda is one of those things that has been decided to death but really is circumstantial. I do agree, either cooperate completely or just remain silent. And if your going to remain silent, state it from the get go.

Eye, if your still really curious, I'll get my criminal procedures book and can quote actually case law to try and help.

Didn't click the link (I hate clicking links).

5A is not a shelter for wrongdoers.

This guy's willingness to answer some questions, avoid others and answer yet others is not really a 5A issue...in reality, he waived his 5A rights by continuing to volunteer answers in response to questions. The 5A doesn't mean the defendant gets to call the shots in questioning in order to fit his own narrative.

Primus said:

Custody+Interrogation= Miranda

http://usgovinfo.about.com/cs/mirandarights/a/mirandaqa.htm

Miranda is one of those things that has been decided to death but really is circumstantial. I do agree, either cooperate completely or just remain silent. And if your going to remain silent, state it from the get go.

Eye, if your still really curious, I'll get my criminal procedures book and can quote actually case law to try and help.

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My point wasn't to the reading of the "rights," but more to when the protections of Miranda come into play. It is when you are in custody or when you are suspected of a crime. If the cops start a convo with you, not suspecting you of anything, and you chat up a storm, suddenly shutting up before suspicion arises and causing suspicion to arise, is and should be admissible.

Of course, if and when suspicion arises, and Miranda applies, will be decided in a court of law after much arguing and deliberation. When one is having to react on the scene, one should assume the worst. Personally, as long as they are asking what I observed about others while investigating an event I witnessed, but had no part in, I will be as helpful as possible. The instant the convo gets around to me, I will say something along the lines of, "Has this stopped being a witness interview and turned into an interrogation about my actions? Because I don't discuss any of my actions with law enforcement without a lawyer present. Ever."

And, of course, if I did do something I shouldn't have, they ain't even getting a witness statement outta me!

I have no problem with this ruling.


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Sometimes it is cheaper to let your lawyer do your talking for you. Where the heck is Citizen?

OC for ME said:

All ya gotta do is not speak a word to any cop who pulls ya over. Just hand your DL/registration/insurance card. Follow cop instructions in silence. There is no law that requires a citizen to speak to cops.....ever.

I gotta change my approach to interacting with cops. Where is Citizen and his catchy little phrase he uses when a cops speaks to him?

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I's right here.

My phrases are all just the usual:

"No offense, officer. I know you're just doing your job, but

I do not consent to an encounter with you."

Wouldn't answer any questions without an attorney."

Do not consent to any searches or seizures."

Am I being detained?"

Why am I being detained?"

I wish to be released and go on my way."

Citizen said:

I's right here.

My phrases are all just the usual:

"No offense, officer. I know you're just doing your job, but

I do not consent to an encounter with you."

<snip>"

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Yepper, that's the one, me likey that one. A classic PO a cop if the cop is prone to getting PO's cuz we citizens don't want to play.

onus said:

This ruling is bad because it creates an environment where you now shouldn't even answer ANY questions by police.

For instance, I made a video where I was filming the police detaining a man for taking photographs of a refinery.

Of course, the police came over to me. The police officer wanted to know if I was a traveling tourist and what kind of camera I was using. Now, on the surface it sounds like an innocent question from a curious officer who likes photography and wants my opinion on what is a good camera.

However, if I answered "its a Nikon D700" then he would have asked "cool, so what lens do you use" I would have said "I use a nikor 18-200" then he would have said "that's a nice lens, do you take pictures a lot?" I would have said "yes, I take all kinds of pictures, I like photography".

The problem comes when he says "so why are you taking pictures of a refinery?". Now at this point its obviously my constitutional right to remain silent BUT.....this new ruling says that if I suddenly don't answer this question that THAT is suspicious and can be introduced as evidence in a trial. I answered all questions prior freely and voluntarily in a non custodian interview so I was free to leave at anytime and I was free to invoke my rights at anytime so according to this new ruling when I stop answering questions (exercising a constitutional right) that is suspicious and evidence of evasion and admissionable in court.

If you want to see how I in fact handled the situation, watch my video.......

http://www.youtube.com/watch?v=HZCqMJ3VRH0

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Exactly.

Primus said:

This case was MORE then just his not answering one question. His whole demeanor changed. His body language changed. Everything changed. It wasn't a answer a, answer b, don't answer c..... HA GOT YA!! Not remotely. It was totality of circumstances. Other guys have tried explaining this and agreed.

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, The second you decide to exercise your right, is when the cop will decide your body language and demeanor changes, I have read so many reports by cops that are misleading and use a liteny of boiler plate words meant to demonize the "perp" in the eyes of the judge and jury even when no such thing happened. Nervous, belligerent, uncooperative, furtive, bad attitude etc.

Also this fails to recognize there is a natural change in body language and attitude when someone realizes, that oh crap this cop doesn't have my best interest in mind I am going to shut up now, and then the cop persists to pressure said person into giving up his rights.

CT Barfly said:

5A is not a shelter for wrongdoers.

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Tell that to the IRS employee and other goverment workers to include Hillary Clinton.

CT Barfly said:

Didn't click the link (I hate clicking links).

5A is not a shelter for wrongdoers.

This guy's willingness to answer some questions, avoid others and answer yet others is not really a 5A issue...in reality, he waived his 5A rights by continuing to volunteer answers in response to questions. The 5A doesn't mean the defendant gets to call the shots in questioning in order to fit his own narrative.

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On the other hand.

It is better that ten guilty persons escape than that one innocent suffer. - Blackstone's ratio

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Just sayin.

For comparison and perspective, consider ancient Hebrew courts where nothing--nothing!--said by the suspect could be used in evidence against him. There was no weaseling around about whether the suspect had been properly Mirandized, or had answered some questions and then stopped. Flat out, front to back, nothing the suspect said could be used against him. Period. No loopholes for prosecutors or cops to exploit and chisel away at everybody's rights after that. Nothing the suspect said could be used against him. The courts would not allow it. How's that for government recognition of a right?

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That gives an interesting light on persecution of Jews thru history. Governments would wholly detest this form of protection and thus would want to ostracize those who would profer this form of observation of rights into their society. Hence governments thru history have condoned or at least looked the other way over persecution of Jews in most cases. There are other reasons (involvement in banking whereas other religions forbid it), but I would wager this had something to do with it.

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As for the photography at the refinery, I may be able to answer your question as to why they would detain and question you or anyone else. I work in a power plant, it is considered a critical infrastructure facility and covered under what is now called "homeland security" but has in fact been a protected class of facilities since at least WWII. Refineries would also fall under this, as do rail yards etc.

If you are outside such a place taking pictures, "they" (whatever police authority is local) will be called by the operator to detain and question you to make sure your name isn't Mohamed and you aren't casing the joint for a future terrorist attack (ie, if it happens, they'll be back asking you questions as they'll have your name on file as showing an interest in the place).

Now as a libertarian one may decry this as being draconian, but the alternative is to block off everything close by such a facility including the streets to anyone. If you question what the RAS is, its the act of taking pictures of a classified critical infrastructure facility. They have a reasonable suspicion that such may be an act in prelude to an attack on the facility and thus can and will contact you to at least document who you are, and inform you that without the permission of the faciilty operator you cannot take such pictures. Sure, from a far enough distance you can do so and likely not get that kind of harassment, but when you are on the street outside the fence, its a given.

I have called the sheriff a few times when CU Boulder morons come and photog our plant. The sheriffs come and move them off fairly quickly. Its even better if they resist, I am always hoping for a ringside seat while the cops massage some liberal tools with their batons.

At any rate, it is best to know where you are attempting to enforce your exercise of your rights, that you aren't under some sort of tresspass due to regulation. You certainly aren't getting pics of Area 51 from the fence, and to an extent much of critical heavy industry is under similar protection for fairly good reason. Smart terrorists would be taking pictures of where certain equipment was, to know where to send their bomb to render useless said factility for a protracted period of time. Nobody wants that to happen save the terrorists themselves, or stupid liberals that are in collusion with them.

Citizen said:

For comparison and perspective, consider ancient Hebrew courts where nothing--nothing!--said by the suspect could be used in evidence against him. There was no weaseling around about whether the suspect had been properly Mirandized, or had answered some questions and then stopped. Flat out, front to back, nothing the suspect said could be used against him. Period. No loopholes for prosecutors or cops to exploit and chisel away at everybody's rights after that. Nothing the suspect said could be used against him. The courts would not allow it. How's that for government recognition of a right?

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Thank You for that reminder, Citizen. I was aware there was a civilization that had that concept of jurisprudence, but I could not for the life of me remember which it was.

I think that might be a truly superior system; it would certainly eliminate all the 'fishing expeditions' cops seem to find so lucrative these days.

Fallschirmjäger said:

Thank You for that reminder, Citizen. I was aware there was a civilization that had that concept of jurisprudence, but I could not for the life of me remember which it was.

I think that might be a truly superior system; it would certainly eliminate all the 'fishing expeditions' cops seem to find so lucrative these days.

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You're welcome.

I can't say enough about The Origins of the Fifth Amendment, the Right Against Self-Incrimination. Leonard Levy really digs into the history. And, its easy to read.

For those following this part of the thread, I came across an interesting tidbit in the book.

The first official recognition of the right occurred in 1642. The Puritans had gained control of Parliament, and booted out the bishops. Now, the bishops were members of the House of Lords, so denying them their seats was pretty serious business. The bishops thought so, and wrote strongly against it. They were brought up on treason charges for their written protests, Parliament sitting as jury and judge.

One of the prosecutors asked the bishops whether they had signed the letter(s) taking issue with being denied their seats in Parliament. The bishops asserted their right against self-incrimination. The question was dropped.

The irony is that when the bishops earlier had lots of power, they were quick to refuse to recognize the right when questioning suspects about religious non-conformity.

So, there you have it. The first official recognition of the right against self-incrimination happened during a treason trial of bishops in 1642.

Citizen said:

You're welcome.

I can't say enough about The Origins of the Fifth Amendment, the Right Against Self-Incrimination. Leonard Levy really digs into the history. And, its easy to read.

For those following this part of the thread, I came across an interesting tidbit in the book.

The first official recognition of the right occurred in 1642. The Puritans had gained control of Parliament, and booted out the bishops. Now, the bishops were members of the House of Lords, so denying them their seats was pretty serious business. The bishops thought so, and wrote strongly against it. They were brought up on treason charges for their written protests, Parliament sitting as jury and judge.

One of the prosecutors asked the bishops whether they had signed the letter(s) taking issue with being denied their seats in Parliament. The bishops asserted their right against self-incrimination. The question was dropped.

The irony is that when the bishops earlier had lots of power, they were quick to refuse to recognize the right when questioning suspects about religious non-conformity.

So, there you have it. The first official recognition of the right against self-incrimination happened during a treason trial of bishops in 1642.

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Hi Citizen

Levy actually dates the origin of the English privilege as far back as the thirteenth century, when the oath ex officio or inquisitorial oath was given as " a gift of Pope Gregory IX"

The new oath procedure was first uised in 1246 when Bishop Robert Grosseteste conducted " strict Inquisitions " into the sexual misconduct and general immorality of the people in his diocese...To discover all who were guilty of any of the sevn deadly sins,the noble and humble alike were put to the "oath de veritate dicenda, " an innovation never used in the Realm before," and were questioned about themselves and others ' to the enormous defamation and scandal of many"

The oath ex officio continued to be used over the centuries not only by ecclesiastical courts,but by secular tribunals, such as the Star Chamber.It proved to be a powerful, if controversial, weapon against religious and political dissidents. One important shield against this weapon was "Principled Silence" as manifested by an old maxim of the canon law, Nemo tenetur seipsum prodere. Levy translates this as " No man is bound to accuse himself."

I would also suggest reading " Is there A right to Remain Silent? Coercive Interrogation and the fifth Amendment After 9/11

By Alan M. Dershowitz.

The right to remain silent is more a privilege afforded to a defendant not to be forced to testify at his own criminal trial.

As for speaking to LEO, You could simply exercise your right to remain silent from the beginning of any police encounter.

Officer to You-- Sir what is your name, do you have ID? You, officer I am invoking all my rights under the US constitution at this time therefore I will not agree to answer any of your questions without a certified, state licensed member of the Bar Association being present. Have a nice day Officer.

Just my .02

CCJ

Saxxon said:

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Now as a libertarian one may decry this as being draconian, but the alternative is to block off everything close by such a facility including the streets to anyone. If you question what the RAS is, its the act of taking pictures of a classified critical infrastructure facility. They have a reasonable suspicion that such may be an act in prelude to an attack on the facility and thus can and will contact you to at least document who you are, and inform you that without the permission of the facility operator you cannot take such pictures. Sure, from a far enough distance you can do so and likely not get that kind of harassment, but when you are on the street outside the fence, its a given.

I have called the sheriff a few times when CU Boulder morons come and photog our plant. The sheriffs come and move them off fairly quickly. Its even better if they resist, I am always hoping for a ringside seat while the cops massage some liberal tools with their batons.

At any rate, it is best to know where you are attempting to enforce your exercise of your rights, that you aren't under some sort of tresspass due to regulation. You certainly aren't getting pics of Area 51 from the fence, and to an extent much of critical heavy industry is under similar protection for fairly good reason. Smart terrorists would be taking pictures of where certain equipment was, to know where to send their bomb to render useless said facility for a protracted period of time. Nobody wants that to happen save the terrorists themselves, or stupid liberals that are in collusion with them.

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I may be dating myself, but Uncle Sam used to place "No Photography" signs on perimeter fences back in the day, spaced so as to mitigate a claim that they were not seen.

No sign, snap away.

Anyway. There is no law that mandates a detainee to verbally communicate with a cop. Provide the demanded documents, in silence, whether the demand is lawful or not, and seek a redress of any wrongs later.

I won't provide the documents. I will answer questions as to my name, DOB, and address. I will state that I agree to no searches or seizures of me or my stuff--all this, of course, after determining (audibly, for the recorder) that I am not free to go. I will also state that I will answer no questions (other than those for name, DOB, and address) without an attorney present.

If the cops then choose to search me to seize my DL, that will make it on to the recording too.

I will, as you say, seek redress later.


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Uh Huh!!!

OC for ME said:

I may be dating myself, but Uncle Sam used to place "No Photography" signs on perimeter fences back in the day, spaced so as to mitigate a claim that they were not seen.

No sign, snap away.

Anyway. There is no law that mandates a detainee to verbally communicate with a cop. Provide the demanded documents, in silence, whether the demand is lawful or not, and seek a redress of any wrongs later.

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I may be dating myself,, (but Im not that cute)!
I was into photography in hi school in 1967 or so...
Riding the ferry into Bremerton Wa. near the ship yard,
they had a "no photography" sign on the fence near the landing...
I still have a picture of that!!! I have always really liked that I took that picture!

countryclubjoe said:

SNIP Levy actually dates the origin of the English privilege as far back as the thirteenth century, when the oath ex officio or inquisitorial oath was given as " a gift of Pope Gregory IX"

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In the book I've cited above, Levy starts his narrative in the late 1100's under Henry II. The King, seeking to extend his royal authority sent his judges on circuit to judge cases. The judges took twelve men from the area, and presuming them to know the facts of the case, put them on oath to tell the truth about the case (also the beginnings of the jury system.)

countryclubjoe said:

SNIP As for speaking to LEO, You could simply exercise your right to remain silent from the beginning of any police encounter.

Officer to You-- Sir what is your name, do you have ID? You, officer I am invoking all my rights under the US constitution at this time therefore I will not agree to answer any of your questions without a certified, state licensed member of the Bar Association being present. Have a nice day Officer.

Just my .02

CCJ

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Yes. You can simply exercise your right to remain silent. However, this does not clearly establish whether the encounter is consensual. There are reams and reams of court opinions sorting out whether an encounter was consensual--all because the citizen didn't expressly say so one way or the other.

Expressly refusing consent to the encounter removes all doubt and puts the cop on notice that he must have RAS or another warrant clause exception is he wants to continue the encounter.

Citizen said:

In the book I've cited above, Levy starts his narrative in the late 1100's under Henry II. The King, seeking to extend his royal authority sent his judges on circuit to judge cases. The judges took twelve men from the area, and presuming them to know the facts of the case, put them on oath to tell the truth about the case (also the beginnings of the jury system.)

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Also, around that time, a suspect could absolve himself by taking the oath of purgation. Basically, a person swore he did not commit the offense, and that was the end of it.