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Thread: The right to remain silent

  1. #1
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    A recent ruling from the SCOTUS that is peripherally related to OCing....

    Full story available Here

    Excerpt:

    WASHINGTON -- The Supreme Court ruled Tuesday that suspects must explicitly tell police they want to be silent to invoke Miranda protections during criminal interrogations, a decision one dissenting justice said turns defendants' rights "upside down."

    ... [T]he justices said in a 5-4 decision that suspects must tell police they are going to remain silent to stop an interrogation, just as they must tell police that they want a lawyer.

    The ruling comes in a case where a suspect, Van Chester Thompkins, remained mostly silent for a three-hour police interrogation before implicating himself in a Jan. 10, 2000, murder in Southfield, Mich. He appealed his conviction, saying that he invoked his Miranda right to remain silent by remaining silent.

    But Justice Anthony Kennedy, writing the decision for the court's conservatives, said that wasn't enough.

    "Thompkins did not say that he wanted to remain silent or that he did not want to talk to police," Kennedy said. "Had he made either of these simple, unambiguous statements, he would have invoked his 'right to cut off questioning.' Here he did neither, so he did not invoke his right to remain silent."

    Justice Sonia Sotomayor, the court's newest member, wrote a strongly worded dissent for the court's liberals, saying the majority's decision "turns Miranda upside down."

    "Criminal suspects must now unambiguously invoke their right to remain silent -- which counterintuitively, requires them to speak," she said. "At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded."
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    Nothing Earth shattering here......

    Just carry your Attorney's business card with you: Write something like "In accordance with my Constitutional protection against self incrimination, I choose to not answer any questions at this time and require my attorney be present before any further questioning take place"

    Simply hand to to the officer, no need to actually speak.

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    Regular Member AZkopper's Avatar
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    Newly appointed SCOTUS Judge Sotomayor had the legal brainchild to write that having to say "I am excercising my Right to remain silent" in fact violates that right. I guess under that concept, you must mime everything you want or need while in custody. She can't understand the concept that the Right to remain silent refers to INCRIMINATING statements, not all conversing (ie: "I need to use the restroom").

    So proud of her lack of reasoning ability.

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    Regular Member thx997303's Avatar
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    This makes me want to puke.

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    I know some people who think "The right to remain silent" means "Shut up".

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    Regular Member Brimstone Baritone's Avatar
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    And for those people it is probably best if they do. Now with the caveat that they have to tell the police that they are doing so.
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    You have the right to remain silent. But do you have the ability, thats the bigger question.

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    I don't see a right to remain silent in the Constitution. I do see a right not to self-incriminate. Therefore, it makes perfect sense to stop being silent long enough to tell the cops that you will not be making any statements and that you want to see your lawyer. If you do that, the questioning must stop.

    If you do not do that, the police don't know that you are invoking the right not to self-incriminate and will reasonable continue questioning. You still do not have to say anything.

    Otherwise, you end up in the silly situation of the cops having to interpret any period of silence, however brief and for whatever reason, as the invocation of the right against self-incrimination.

    "Your Honor, while in the back of the squad car, I said nothing. That meant I invoked my right not to self-incriminate. Therefore, when I voluntarily answered questions later, the cops ignored my invocation and violated my rights. Consequently, my confession should be thrown out."

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    Regular Member virginiatuck's Avatar
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    mcdonalk wrote:
    And for those people it is probably best if they do. Now with the caveat that they have to tell the police that they are doing so.
    I don't even think they have to tell the police they are doing so, even now. If remaining silent, to them, means to not say a word no matter what, then that's what they can do. If the guy would have remained silent like he wanted in the first place, he wouldn't have made an incriminating statement.

    Anyway, isn't there a limit to how long one can be held for questioning without being charged? Those people just have to hold out until then.

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    virginiatuck wrote:
    mcdonalk wrote:
    And for those people it is probably best if they do. Now with the caveat that they have to tell the police that they are doing so.
    I don't even think they have to tell the police they are doing so, even now.* If remaining silent, to them, means to not say a word no matter what, then that's what they can do.* If the guy would have remained silent like he wanted in the first place, he wouldn't have made an incriminating statement.*

    Anyway, isn't there a limit to how long one can be held for questioning without being charged?* Those people just have to hold out until then.
    *****

    It's not quite that simple. (Worst case scenario) Depending on jurisdiction you may be held several days while Investigators gather the remainder of their case, and sometimes weekends and or Holidays can enter into delaying the Detectives. An experienced Investigator will likely present the case to the D.A.
    The D.A. will then recommend proceeding with the case or release of the suspect.
    However long it takes is how long you need to hold your tongue.
    If the time gets too long you may be released, only to be re-picked up and charged. javascript:emoticon('', 'images/emoticons/sad.gif')

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    this is much ado about nothing!!!!
    it doesnt matter WHEN you open your mouth to make an incriminating statement!
    anything, anytime you speak!
    anything you say "can and will be used against you in a court of law"!
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    My post from the other topic on this,

    I don't see what Sotomayor's problem with this decision is. It's just following precedent.

    The SCOTUS has ruled in the past that a suspect's request for an attorney must be unambiguous1. The statement, "Maybe I should talk to a lawyer" was found to be an ambiguous statement. A suspect must clearly request a attorney. When a suspect later said, "I think I want a lawyer before I say anything else", questioning stopped as it was a clear request for an attorney.

    This case follows that same principle. For all the officers know, the suspect could just have been being difficult and refusing to cooperate. Requiring a suspect to make a statement invoking their Miranda rights is not forcing them to give up their "right to remain silent." There is no such thing as a "right to remain silent." The right is to be free from self incrimination. The "right to remain silent" is really a right to remain silent when asked to incriminate yourself. Requiring a suspect to make a statement invoking their "right to remain silent" is not forcing a suspect to give up their silence. This silence is limited to only self incriminating statements. The suspect is simply being required to inform the police that they are invoking their right if they want questioning to stop. If they wish to wait until the police give up, they are still free to do so. The suspect is only required to speak if that want the police to stop questioning them.


    1. Davis v. United States, 512 U.S. 452 (1994)
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    Regular Member Alexcabbie's Avatar
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    Yeah, it's odd. "anything" you say after youhave been read Miranda"can and will" be used against you... But you are then required to say something to stop questioning?

    There is a technique used by LE, however, in that even when required to stop asking questions, the police can still make statements to the suspect. If the suspect opens his yap, what he says is then useable. Lots of them change their mind when they find out a transport to the jail is on the way, and try to talk themselves out of a night iin the pokey. Usually this leads to a lot of nights in the pokey.

    The right to remain silent is IMO the most under-utilized of zll rights, especially by blowhard politicians of every stripe, party, and level of government from the homeowner's association to the White House.

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    You guys can just write notes. Make a sign. Mark up a sticker.

    "Officer, I Will Remain Silent."

    No need to speak.

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    The unfortunate wording of Miranda aside, the right is not to remain silent. The right is a protection against self-incrimination. Silence is merely one strategy for exercising that right. Saying "I want to see a lawyer before any questioning begins," may not be remaining silent, but it is exercising the enumerated right.

    It is Sotomayor who is being absurd.

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    Regular Member simmonsjoe's Avatar
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    I think some of you are basing your decision on disagreeing with Sotomayor.

    Nobody is right all the time. Nobody is wrong all the time.
    I think Sotomayor has it right this time.

    You must give every edge to the 'suspect' simply due to the disparity of force.
    illegal ≠ immoral legal ≠ moral
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    simmonsjoe wrote:
    I think some of you are basing your decision on disagreeing with Sotomayor.

    ...
    I am not. I have explained my reasoning several times. I will explain it again to demonstrate that my disagreement is with the dissent and not with the dissenter:

    Sotomayor's logic is based on someone having to break silence to exercise the right to remain silent, calling this absurd.

    However, the right is not to remain silent. The right is a protection from self-incrimination. Silence is merely a strategy to avoid self-incrimination. It is effective, but fails to communicate the futility of questioning, fails to ask for a lawyer, and fails to demand an end to the questioning.

    To exercise the right not to self-incriminate, one must, at first, not be silent (in a way that is totally non-incriminating). Allowing police to continue to question a suspect until he explicitly asks them to stop and asks for a lawyer (which is all the ruling really says) is quite reasonable.

    It is the opposite that is absurd! For how long may the police question the suspect before his not having said a word constitutes invoking the right? It is a silly question, but one that must be answered if one take Sotomayor's mistaken stand.

    Sotomayor's absurdity requires we accept the incorrectly-worded Miranda as conferring a right that does not exist: the "right to remain silent." There is no such right. The most glaring example that there is no right to remain silent is that (at least in Alabama) there are two questions you must answer: What is your name? What is your address?

    My disagreement with the dissent is based on logic. I resent the implication that it is based on personalities.

    Shall I assume that you support the dissent merely because the dissent claims (falsely) that rights are being abridged? I won't. I would be presumptuous if I did.

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    simmonsjoe wrote:
    I think Sotomayor has it right this time.

    You must give every edge to the 'suspect' simply due to the disparity of force.
    Sotomayor and the other dissenting justices are wrong. Still, using your premise of "disparity of force" wouldn't it then make more sense to specifically and formally invoke your rights rather than just remain mute? If you tell them you won't be answering questions and want a lawyer they are legally sanctioned to stop asking questions. Remaining mute relies on your endurance.

    At what point does mute silence invoke your right? Answer: Thesecond you go mute but you have placed no sanction on law enforcement other than the battle of wills you have entered into.

    When does mere mute silence invalidate anything you say once you break your silence? Answer: Never

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    JT wrote:
    simmonsjoe wrote:
    I think Sotomayor has it right this time.

    You must give every edge to the 'suspect' simply due to the disparity of force.
    Sotomayor and the other dissenting justices are wrong. Still, using your premise of "disparity of force" wouldn't it then make more sense to specifically and formally invoke your rights rather than just remain mute? If you tell them you won't be answering questions and want a lawyer they are legally sanctioned to stop asking questions. Remaining mute relies on your endurance.

    At what point does mute silence invoke your right? Answer: Thesecond you go mute but you have placed no sanction on law enforcement other than the battle of wills you have entered into.

    When does mere mute silence invalidate anything you say once you break your silence? Answer: Never
    No. I don't have to invoke any other rights, do I?

    I shouldn't have to declare to a police officer when I'm about to write a book or go to church.

    I shouldn't have to declare to a police officer when I'm going to be leaving the house bearing arms.

    I shouldn't have to declare to a police officer that I do not want troops quartered in my home.

    I shouldn't have to declare to a police officer that he cannot search and seize me without a warrant.

    Here we are in this thread. I could go on but you get it.

    These are birthrights based solely on our humanity. We do not need to declare any of them, including the right to remain silent, because the Bill of Rights already does that for us.


    illegal ≠ immoral legal ≠ moral
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    *sigh*

    The ruling does not say that you have to speak to exercise your right not to self-incriminate. That's just silly hyperbole from Sotomayor.

    You can sit there and be silent for hours on end. There is simply no set time after which the police must assume that you never will talk. (For Sotomayor's view to prevail, such a time would have to be set by the courts. Silly, huh?) So, if they continue to question you, and you ultimately give up your right not to self-incriminate and then say something incriminating, it can be used against you.

    You still have the same two ways to exercise your rights that have been recognized by the courts for years:

    1. Say nothing at all.

    2. Tell them that you will say nothing and clearly request an attorney.

    That's what it boils down to.

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    simmonsjoe wrote:
    No. I don't have to invoke any other rights, do I?

    I shouldn't have to declare to a police officer when I'm about to write a book or go to church.

    I shouldn't have to declare to a police officer when I'm going to be leaving the house bearing arms.

    I shouldn't have to declare to a police officer that I do not want troops quartered in my home.

    I shouldn't have to declare to a police officer that he cannot search and seize me without a warrant.

    Here we are in this thread. I could go on but you get it.

    These are birthrights based solely on our humanity. We do not need to declare any of them, including the right to remain silent, because the Bill of Rights already does that for us.


    It has never been said that you have to invoke the "right to remain silent." As I said that right isexercised the second you shut up. Conversly it is relinquished the second you begin to answer questions.

    What is being said is that you can formally invoke your right to remain silent and put an end to the questioning. Miranda didn't enumerate the right. It clarified it and limited law enforcement's power. There are times that formal invocation ofour rights are not only necessary but desirable. Particularly when that right is being challenged.

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    Silly serfs. You have no rights. Where doyou think you are, a free country or something?

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    The ruling comes in a case where a suspect, Van Chester Thompkins, remained mostly silent for a three-hour police interrogation before implicating himself in a Jan. 10, 2000, murder in Southfield, Mich. He appealed his conviction, saying that he invoked his Miranda right to remain silent by remaining silent.
    Watch law professor James Duane explain it (again).

    Thompkins sat silent for most of an interrogation and then opened his mouth. Both Professor Duane and his guest talk about this very thing, amongst other fine points.

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    simmonsjoe wrote:
    JT wrote:
    simmonsjoe wrote:
    I think Sotomayor has it right this time.

    You must give every edge to the 'suspect' simply due to the disparity of force.
    Sotomayor and the other dissenting justices are wrong. Still, using your premise of "disparity of force" wouldn't it then make more sense to specifically and formally invoke your rights rather than just remain mute? If you tell them you won't be answering questions and want a lawyer they are legally sanctioned to stop asking questions. Remaining mute relies on your endurance.

    At what point does mute silence invoke your right? Answer: Thesecond you go mute but you have placed no sanction on law enforcement other than the battle of wills you have entered into.

    When does mere mute silence invalidate anything you say once you break your silence? Answer: Never
    No. I don't have to invoke any other rights, do I?

    I shouldn't have to declare to a police officer when I'm about to write a book or go to church.

    I shouldn't have to declare to a police officer when I'm going to be leaving the house bearing arms.

    I shouldn't have to declare to a police officer that I do not want troops quartered in my home.

    I shouldn't have to declare to a police officer that he cannot search and seize me without a warrant.

    Here we are in this thread. I could go on but you get it.

    These are birthrights based solely on our humanity. We do not need to declare any of them, including the right to remain silent, because the Bill of Rights already does that for us.

    'simmonsjoe' is right about this (although coming from me that will probably tar and feather him from now on in this site). The Fifth Amendment says: "No person...shall be compelled to be a witness against himself."


    Among the things it doesn't say that it has been presumed to say, as for example in the Miranda Decision, is that no person can becompelled to give testimony against himself, or give evidence against himself, or provide damning information to the prosecution, etc., etc.

    It says that no person can be compelled to act as a witnessagainst himself in any form or fashion. The merepresence of a person brought before an inquisition of any kind intended extract incriminating information from him violates the Fifth Amendment.

    The Jewish Law, The Halakha, prohibits the use of any such information obtained from the accused in a trial whether obtain voluntarily on his part or not. The Halakha recognizes that people are sometimes self destructive and actagainst their own interests. Their law is meant to protect peoplefrom their ownself-destructiveness. And that is what the Fifth Amendment intendedto do, but has thus far failed to do as a result of contary precedents down through the years.

    Think ofit this way: If all the Fifth Amendment was meant to do (in it's relevant parts)was to protect the guilty from acknowledging their guilt under oath, it isn't much of a protection is it? Why even bother with it?

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    Regular Member Brimstone Baritone's Avatar
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    swine wrote:
    'simmonsjoe' is right about this (although coming from me that will probably tar and feather him from now on in this site). The Fifth Amendment says: "No person...shall be compelled to be a witness against himself."


    Among the things it doesn't say that it has been presumed to say, as for example in the Miranda Decision, is that no person can becompelled to give testimony against himself, or give evidence against himself, or provide damning information to the prosecution, etc., etc.

    It says that no person can be compelled to act as a witnessagainst himself in any form or fashion. The merepresence of a person brought before an inquisition of any kind intended extract incriminating information from him violates the Fifth Amendment.

    The Jewish Law, The Halakha, prohibits the use of any such information obtained from the accused in a trial whether obtain voluntarily on his part or not. The Halakha recognizes that people are sometimes self destructive and actagainst their own interests. Their law is meant to protect peoplefrom their ownself-destructiveness. And that is what the Fifth Amendment intendedto do, but has thus far failed to do as a result of contary precedents down through the years.

    Think ofit this way: If all the Fifth Amendment was meant to do (in it's relevant parts)was to protect the guilty from acknowledging their guilt under oath, it isn't much of a protection is it? Why even bother with it?
    Nice post. If you can, could you post a reference to that part of Jewish law? If not, I'll google it later. That is an idea I hadn't considered.
    There was a time that the pieces fit, but I watched them fall away, mildewed and smoldering, strangled by our coveting. I've done the math enough to know the dangers of our second guessing. Doomed to crumble, unless we grow and strengthen our communication. -Tool, "Schism"

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