Fifth Amendment Rights

This federal court finding by the 7th district is hoy off the press and contains some important information for all of us. After the web sites loads for some reason you must scroll down a couple of screens.

http://www.leagle.com/xmlResult.aspx?xmldoc=In FCO 20110324144.xml&docbase=CSLWAR3-2007-CURR

This was a good read, albeit a little hard for my non-legalese brain.

But I did find these words to remember.

Violent force and abusive behavior are not prerequisites to infringing upon an individual's rights. Constitutional violations can occur even when they are cloaked in kindness.

Click to expand...

I think I shall keep my mouth shut, lest I incriminate myself.

thanks for the post

I agree with Phred, I only have two things I will ever say to law enforcement.

1: I am the victim.
2: I choose to exercise my 5th amendment right to remain silent.

Make that 3.

3: I want my attorney.

CalicoJack10 said:

I agree with Phred, I only have two things I will ever say to law enforcement.

1: I am the victim.
2: I choose to exercise my 5th amendment right to remain silent.

Make that 3.

3: I want my attorney.

Click to expand...

maybe 4? am I being detained? ..if not.. bug! heheh

Excellent find.

I'm rather amazed that a federal court of appeals, on a case arising from Illinois, suppressed the evidence based solely on the timing of the subject being Mirandized.

Maybe there's hope after all...

7th Circuit seems to be merely following SCOTUS rulings on the timing of being advised of your Miranda/Edwards rights. While it is not required that you be advised of those rights immediately, it is required that no custodial interrogation take place until after you have been advised. Cops have screwed up by asking dumb questions such as "Well, that was a stupid thing to do, wasn't it?" (in reference to committing the alleged crime).

Remember, the cops can ask you lots of questions that do not impinge on your Miranda/Edwards rights. Name, address, DOB, etc. are just the basic ones. But asking if you know what day of the week it is might be part of a custodial interrogation to establish mental capacity (orientation to time). Ask your attorney about that - you did take the hint and tell the cops you will not answer any questions until you have consulted with and been advised by an attorney - right?

stay safe.

My son is in a criminal justice class taught by a retired US Marshall. The stories he tells just shows how stupid criminals are. He tells his students in almost every class, never, ever talk to the police under ANY circumstances.

5th or not, dont talk to the cops.

That was a very good read, I love the 5th amendment!

Miranda

All is not quite so rosy concerning the Miranda warning as one would like. In June of 2010 SCOTUS modified the condition of Miranda rights. Essentially what SCOTUS said is that before you can declare a right to remain silent you must declare that at the time the warning is given, either verbally or in writing.

Here is the key satement made in the ruling in the case of Van Chester Thompkins.

“A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police,” Justice Kennedy wrote. Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. joined Justice Kennedy’s opinion.

The Courts also made two earlier decisions which water down the Miranda rights. The following is a media quote made at the time of the June 2010 decision. The most significant is the second decision which says that if a person has declared his fifth amendment protection before questioning at point one and he/she is requestioned again after two weeks have elapsed then the person must redeclare the fifth amendment before the second questioning. At least that's how I interpret it.

"Monday’s decision followed two in February that also narrowed and clarified the scope of the Miranda decision. One allowed police officers to vary the wording of the warning; the other allowed a second round of questioning of suspects who had invoked their rights so long as two weeks had passed since their release from custody".

None of these decisions infringe on a person's fifth amendment protection against self incrimination. They affect whether or not statements are admissable in court as evidence. The second deision made in Feb. is especially bothersome. An unscrupulous prosecutor can use it as a form of entrapment in order to gain incriminating evidence. For example Question a person the first time and because the person declares his fifth amendment rights discontinue questioning. In two weeks re-question the person and use his/her comments as incriminating evidence because more than likely the person won't be aware that before the second questioning he had to again declare his/her intent to remain silent.

Be aware and have a lawyer present.

IANL these are just my opinions correct me if you will.