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Thread: Miranda warning loses some more of its teeth

  1. #1
    Campaign Veteran skidmark's Avatar
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    From Stephen Wenger's Daily DUF newsletter:

    It has not been a good week for the famed Miranda warning at the hands of the Supreme Court. In decisions issued on Tuesday and Wednesday, the Court ruled that confessions should be admitted at trial even when police interviewed suspects in circumstances that lower courts viewed as Miranda violations. The Court on Wednesday issued Maryland v. Shatzer, establishing new, more permissive rules for police who want to question a suspect for a second time after the suspect invokes Miranda's right to remain silent. The Maryland case came down a day after the justices decided Florida v. Powell, in which a 7-2 majority Court said that Florida's alternative wording of the Miranda warning is acceptable, even though it does not explicitly state that a suspect has a right to have a lawyer present during questioning…

    http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202444467846&src=EMC-Email&et=editorial&bu=National%20Law%20Jou rnal&pt=NLJ.com-%20Daily%20Headlines&cn=20100225NLJ&kw=%27 Miranda%27%20dealt%20one-two%20punch%20by%20high%20court&slreturn=1&amp ;hbxlogin=1

    …Powell was convicted of illegally possessing a firearm after telling police he bought the weapon "off the street" for $150 for his protection. Before his confession, Powell signed a Miranda statement that included the words, "You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview." … (Remember, if you are involved in a self-defense incident, it is best to say no more than to identify yourself as the victim of a life-threatening attack and, if applicable, to point out witnesses and physical evidence before either can disappear. It is better to spend a night in jail than to spend many years in prison – wait for an attorney!)

    http://www.policeone.com/legal/articles/2008676-Supreme-Court-backs-police-on-questioning-subjects/
    ---

    Crap! now every cop in the land will have to relearn that famouse warning:

    You might have the right to remain silent. Anything you say or do not say can and will be used against you in a court of law. You might have the right to an attorney. If you cannot afford an attorney, one might be appointed to you. Even if you do have an attorney, we will manipulate anything you say, or do not say based on the advice of your attorney, to use against you in a court of law. Do you understand these rights as they have been read to you? Even if we forgot to explain these rights to you, we will get to use anything you did or did not say against you in a court of law because the Supreme Court says these rights are not really real rights all the time.

    I'm gonna have a stroke and lose my ability to speak. Let the cops deal with that!!

    stay safe.

    skidmark
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    Because stupidity isn't a race, and everybody can win.

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  2. #2
    Regular Member t33j's Avatar
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    I never got the whole Miranda thing... if one don't know the rights to which he is entitled, it seems that'd be the problem of the person being questioned, not the concern of the police or the courts. If they're violated that's a different story.
    Sic Semper Tyrannis

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    I for one applaud the ruling. It doesn't touch the 5th amendment, it just takes away one of the loopholes that defense attorneys have been using for years to put criminals back on the street due to "technicalities". As with any tool it can, and probably will, be used to trap innocent people in a very small number of cases, but by and large I think it's a good ruling.

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    Regular Member rodbender's Avatar
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    "It is better to have 100 guilty men go free than to have 1 innocent man inprisoned"

    Iforget who said it.
    The thing about common sense is....it ain't too common.
    Will Rogers

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    Campaign Veteran deepdiver's Avatar
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    I'm not seeing any problem with the ruling. I agree with the majority (at least given the info in the links) that the wording was sufficient.
    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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    Regular Member gsx1138's Avatar
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    It depends on where the confession is made. At the scene or after 15 hours in an interrogation room.

    As far as I'm concerned if you drive up on the scene is someone admits "I did it" then that should be admitted into the record.
    "Think lightly of yourself and deeply of the world." ~ Musashi

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    I had charges dropped because the officer failed to read me my Miranda rights before asking me questions. In the cruiser, on the way to the station, I specifically stated (for the dash cam) that I was not read my Miranda rights.

    It went like this- I was approached- and then questioned

    I was arrested (in handcuffs and in cruiser) for suspected DWAI (20 years old at the time)

    I had refused the roadsides and was on my way down for the machine at the department.

    I was clear (40 minute drive!) of any alcohol related charges, but the officers thought they had a charge based on answers to the questions I gave in the car, in handcuffs, without knowing I was being arrested for any crime.

    So I got off because I was in cuffs and never read my rights.

    I'm not sure if that's standard or normal.. or if I had a great lawyer. Anyway that's how the lawyer explained it to me and why/how I won the case. I could have misunderstood though.

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    gsx1138 wrote:
    It depends on where the confession is made. At the scene or after 15 hours in an interrogation room.

    As far as I'm concerned if you drive up on the scene is someone admits "I did it" then that should be admitted into the record.
    If the LEO approaches the scene and someone blurts out "I did it," that is a spontaneous admission that does not implicate Miranda. In other words, it would be admissible.

    The Miranda rules apply only if all of the following six factors are present:

    1. Evidence must have been gathered.
    2. The evidence must be testimonial.
    3. The evidence must have been obtained while the suspect was in custody.
    4. The evidence must have been the product of interrogation.
    5. The interrogation must have been conducted by state-agents.
    6. The evidence must be offered by the state during a criminal prosecution.
    A spontaneous admission is, by definition, not the product of interrogation.


    The material presented herein is for informational purposes only, is not guaranteed to be correct, complete, or up to date, does not constitute legal advice, and does not establish an attorney-client relationship. You should NOT act or rely on any information in this post or e-mail without seeking the advice of an attorney YOU have retained.

    In plain English, while I am an attorney, I am NOT your attorney, and I am NOT giving you legal advice.


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    Regular Member Thundar's Avatar
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    rodbender wrote:
    "It is better to have 100 guilty men go free than to have 1 innocent man inprisoned"

    Iforget who said it.
    I'm sure it was one of the 100 guilty men.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitableand let it come! I repeat it, Sir, let it come . PATRICK HENRY speech 1776

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    Regular Member Statesman's Avatar
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    Disclaimer: This is not advice. I am not a lawyer, and I do not give legal advice.
    1st mistake. Saying anything other than your name and address.

    DO NOT TALK TO THE POLICE! http://www.youtube.com/watch?v=i8z7NC5sgik

    2nd mistake. Signing anything, under duress or not. The police cannot force you to sign anything, period. They may threaten you, but it's a lie.

    I'd sign a parking ticket to avoid an arrest, or being taken downtown, but beyond that, no.

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    Statesman wrote:
    Disclaimer: This is not advice. I am not a lawyer, and I do not give legal advice.
    1st mistake. Saying anything other than your name and address.

    DO NOT TALK TO THE POLICE! http://www.youtube.com/watch?v=i8z7NC5sgik

    2nd mistake. Signing anything, under duress or not. The police cannot force you to sign anything, period. They may threaten you, but it's a lie.

    I'd sign a parking ticket to avoid an arrest, or being taken downtown, but beyond that, no.
    Awesome video! Thank you for posting it.

  12. #12
    Campaign Veteran marshaul's Avatar
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    Thundar wrote:
    rodbender wrote:
    "It is better to have 100 guilty men go free than to have 1 innocent man inprisoned"

    I*forget who said it.
    I'm sure it was one of the 100 guilty men.
    Of course. Nobody is ever wrongfully convicted in this country on false or trumped-up charges.

    It's good to know that Thundar thinks of William Blackstone as one of the "guilty men".

    I, for one, agree with the sentiment expressed in rodbender's post. Any repudiation of that sentiment is anti-liberty, IMO.

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    It's amazing, all of the whining and moaning on this forum about the violation of "rights," but when it comes to something like this half the people get behind the fascists and assume guilt of the accused party.

    "People don't want freedom, they want comfort."

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    Regular Member autosurgeon's Avatar
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    rodbender wrote:
    "It is better to have 100 guilty men go free than to have 1 innocent man inprisoned"

    I*forget who said it.
    Benjamin Franklin
    Anything I post may be my opinion and not the law... you are responsible to do your own verification.

    Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer."

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    Carpetbagger wrote:
    gsx1138 wrote:
    It depends on where the confession is made. At the scene or after 15 hours in an interrogation room.

    As far as I'm concerned if you drive up on the scene is someone admits "I did it" then that should be admitted into the record.
    If the LEO approaches the scene and someone blurts out "I did it," that is a spontaneous admission that does not implicate Miranda. In other words, it would be admissible.

    The Miranda rules apply only if all of the following six factors are present:

    1. Evidence must have been gathered.
    2. The evidence must be testimonial.
    3. The evidence must have been obtained while the suspect was in custody.
    4. The evidence must have been the product of interrogation.
    5. The interrogation must have been conducted by state-agents.
    6. The evidence must be offered by the state during a criminal prosecution.
    A spontaneous admission is, by definition, not the product of interrogation.


    The material presented herein is for informational purposes only, is not guaranteed to be correct, complete, or up to date, does not constitute legal advice, and does not establish an attorney-client relationship. You should NOT act or rely on any information in this post or e-mail without seeking the advice of an attorney YOU have retained.

    In plain English, while I am an attorney, I am NOT your attorney, and I am NOT giving you legal advice.
    No offense, Carpetbagger, but the Forum Rules do not make an exception for attorneys regarding citations. Forum Rule #7:

    7) If you state a rule of law, it is incumbent upon you to try to cite, as best you can, to authority. Citing to authority, using links when available,is what makes OCDO so successful. An authority is a published source of law that can back your claim up - statute, ordinance, court case, newspaper article covering a legal issue, etc.



    Cite(s), please.
    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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    skidmark wrote:
    From Stephen Wenger's Daily DUF newsletter:

    SNIP It has not been a good week for the famed Miranda warning at the hands of the Supreme Court....
    This is one of the problems with taking law from a secondary source instead of reading the law itself. You get a summary. Who knows where any given writer got his information. Another summary by someone else?

    The best place to get the real skinny is the court opinion itself. When I see articles like this, I immediately hunt up the opinion itself, and ignore the article. It is amazing how often an article skews the information.

    Fourth Amendment and Fifth Amendment court opinions are surprisingly easy to read. Hardly any legal-ese; certainly nothing you cannot look up in an on-line dictionary site in 15 seconds.
    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.

  17. #17
    Regular Member buster81's Avatar
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    Cite(s), please.
    Although not particularily evident, if you click on the bold, blue "six factors"from his post, it does take you to the ultimate resource, Wikipedia.

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    rodbender wrote:
    "It is better to have 100 guilty men go free than to have 1 innocent man inprisoned"

    Iforget who said it.
    Lenin supposedly said: It is better for one hundred innocent men to die, than for one enemy of the state to go unpunished.

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    Regular Member Fallschirmjger's Avatar
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    ccwinstructor wrote:
    rodbender wrote:
    "It is better to have 100 guilty men go free than to have 1 innocent man inprisoned"

    Iforget who said it.
    Lenin supposedly said: It is better for one hundred innocent men to die, than for one enemy of the state to go unpunished.
    I don't know about Lenin, but one who frequently opposed his views, Feliks Dzerzhinsky, founder of the Soviet secret police said: “Better to execute ten innocent men than to leave one guilty man alive.”

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    Carpetbagger wrote:
    gsx1138 wrote:
    It depends on where the confession is made. At the scene or after 15 hours in an interrogation room.

    As far as I'm concerned if you drive up on the scene is someone admits "I did it" then that should be admitted into the record.
    If the LEO approaches the scene and someone blurts out "I did it," that is a spontaneous admission that does not implicate Miranda. In other words, it would be admissible.

    The Miranda rules apply only if all of the following six factors are present:
    1. Evidence must have been gathered.
    2. The evidence must be testimonial.
    3. The evidence must have been obtained while the suspect was in custody.
    4. The evidence must have been the product of interrogation.
    5. The interrogation must have been conducted by state-agents.
    6. The evidence must be offered by the state during a criminal prosecution.
    A spontaneous admission is, by definition, not the product of interrogation.


    The material presented herein is for informational purposes only, is not guaranteed to be correct, complete, or up to date, does not constitute legal advice, and does not establish an attorney-client relationship. You should NOT act or rely on any information in this post or e-mail without seeking the advice of an attorney YOU have retained.

    In plain English, while I am an attorney, I am NOT your attorney, and I am NOT giving you legal advice.
    It sounds like you're paraphrasing Justice Warren's court opinion in Miranda v. Arizona:

    " Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. 4 As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned."


    As I understand it, this means simply that miranda advisement MUST be given when:
    1. Person is being questioned by a law enforcement officer
    2. Person is NOT free to leave at any time during such questioning
    If the above 2 conditions are met and a miranda advisement has not been given then the evidence is inadmissible.

    Thus if the suspect blurted out "I did it!" before ANY questions had been asked it would not meet the conditions that mandate miranda advisement and would thus be admissible. However, based on Oregon v. Elstad the officer would be well advised to have the suspect sign a miranda waiver and repeat his confession. Although I suppose if the original confession was caught on a voice recorder or dash cam you could forgo the waiver.


  21. #21
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    buster81 wrote:
    Cite(s), please.
    Although not particularily evident, if you click on the bold, blue "six factors"from his post, it does take you to the ultimate resource, Wikipedia.
    Correct. And the Wikipedia article has extensive cites.

  22. #22
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    Thanks, that is probably where my faulty "recollection" of the Lenin quote came from.

  23. #23
    Campaign Veteran skidmark's Avatar
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    Citizen wrote:
    skidmark wrote:
    From Stephen Wenger's Daily DUF newsletter:

    SNIP It has not been a good week for the famed Miranda warning at the hands of the Supreme Court....
    This is one of the problems with taking law from a secondary source instead of reading the law itself. You get a summary. Who knows where any given writer got his information. Another summary by someone else?

    The best place to get the real skinny is the court opinion itself. When I see articles like this, I immediately hunt up the opinion itself, and ignore the article. It is amazing how often an article skews the information.

    Fourth Amendment and Fifth Amendment court opinions are surprisingly easy to read. Hardly any legal-ese; certainly nothing you cannot look up in an on-line dictionary site in 15 seconds.
    My intention was to spark discussion, as opposed to presenting documentation.

    I believe I accomplished my mission.

    In all fairness, I agree with you that I might have been better off citing the opinions outright, even though there were links in both of the articles. I'll try to be improve.

    stay safe.

    skidmark

    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
    ----Allahpundit

  24. #24
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    This should be the warning:
    "If you want to be free; Do not speak. Do not make a sound. Do not write anything. Do not use sign language. Do not tap or blink Morse code. Do not gesture. By not doing all of these things, we will safely assume you want a lawyer, and we will then ask for their name and number. If you do not answer, we will get one for you. Other than giving the lawyer's name and number, you should not communicate in any way with us. These are your rights as a human being."

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