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The Warning Formerly Known as Miranda
#1
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http://blog.simplejustice.us/2014/08/25/...s-miranda/

Quote:You used to have a right to remain silent.

– The California Supreme Court, People v. Tom

When the Supreme Court issued its Miranda decision, the expectation was that it would prove the end of police interrogations, the end of confessions, as no one, after being given the warnings, would be stupid enough to talk to the cops. They clearly had their finger on the pulse of humanity.

As it turned out, Miranda has proven to be hugely confusing to people, as has pretty much every rule of law ever crafted. People regularly complain that their arrest was unlawful because cops didn’t give the Miranda warnings, even though the only remedy would be the inability to use custodial statements at trial. People have a really hard time grasping this.

The Supreme then decided that silence wasn’t silence anymore, anyway, in one of its most ill-conceived cases, Berghuis v. Thompkins, holding the post-Miranda silence wasn’t an invocation of silence, but rather evidence to be used against the guy who didn’t know how to invoke his rights properly.

Sam Alito, who has never gotten a speeding ticket, took the concept a step further, writing in Salinas v. Texas that pre-custodial questioning, without benefit of the Miranda warnings, shifted the burden onto the person being interrogated to invoke his right to remain silent or, surprise, it was fodder against him. You know, what kind of innocent guy wouldn’t answer police questions? And let’s not go near the question of what distinguishes a custodial interrogation, as it’s only good for headaches.

But just how crazy, how absurd, could Salinas get in application? Richard Tom found out.

The case began with a car accident in Redwood City, south of San Francisco, where Richard Tom broadsided a car driven by Loraine Wong — killing her 8-year old-daughter and seriously injuring her 10-year-old daughter.
Tom said nothing, consistent with the pop legal advice of “you have the right to remain silent; use it.” For those who can remember only one sentence, this is better advice than spill your guts, but it’s not quite good enough.

The prosecutor elicited testimony Sergeant Alan Bailey over the objections of the defense as to Tom’s silence about the well-being of the accident victims. She asked “So, during any of this time [at the accident scene], the defendant ever ask you about the occupants of the other vehicle?” Sergeant Bailey said that he did not.

Then, in her direct examination of Officer Josh Price, the prosecutor asked, “During those three hours [after the accident], did the defendant ever ask you about the condition of the occupants of the Nissan?” Again over objections, Price answered no.

Finally, in her closing argument, the prosecutor told the jury “how [Tom] acted the night of the collision” showed “his consciousness of his own guilt.” She added that it was “particularly offensive, he never, ever asked, hey, how are the people in the other car doing? Not once. . . . Not once.
Not only did the prosecutor manage to find a way to use Tom’s silence against him, but with the added benefit of making him appear a monster, the sort of man who cared nothing about killing a child. Like a cherry atop a prosecutor’s sundae, the hatred evoked by this line of question was so strong that the court officers probably feared the jury lunging out of the box to hang him in the courtroom.

And the California Supremes, albeit by a sharply divided court, were good with this.

The U.S. Supreme Court held in Salinas that “[t]he privilege against self-incrimination is an exception to the general principle that the Government has the right to everyone‘s testimony” but that “a witness must assert the privilege to subsequently benefit from it.”
Remaining silent isn’t asserting the privilege. Not anymore.

But the means of attack used in Tom is far trickier, far more nefarious, than just the use of silence in the absence of an affirmative invocation of the right by the defendant. Sure, that’s bad enough, to shift the burden to the defendant in a trick play of Miranda, but consider how the Tom gives rise to the affirmative use of “things a person didn’t say” where a prosecutor can argue he should have.

In this case, the defendant failed to ask about the condition of the people in the other car, which was what the prosecutor argued turned him into a monster killer. After all, wouldn’t any normal person do that? It opens up the opportunity to the prosecution to invent a concern that any normal, innocent, person would have expressed, and use their failure to do so as a weapon against them.

So it’s not merely about whether a defendant knows how to properly invoke his right to remain silent, but to somehow divine every possible “normal” concern that could possibly be invented by the prosecution for use against him, to prove he’s evil incarnate by his failure to care enough.

The United States Supreme Court stuck defendants in the middle of a mine field, and the California Supreme Court decided that the defendant deserved to be destroyed even if he never actually stepped on a mine. So whenever you hear the advice to just STFU, bear in mind that you open the door to prosecutorial ingenuity about what you might have said, if only you weren’t so totally guilty.
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#2
I tend to agree, that clamming up at the scene of an accident and showing now concern for others does nothing to aid your defense.
Vampire pig man since September 2012
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#3
Camper;152670 Wrote:I tend to agree, that clamming up at the scene of an accident and showing now concern for others does nothing to aid your defense.

It's way deeper than that, dude. That kind of logic from the prosecutor used to be waved away by a judge. Continuing with it could poison a jury and trigger a mistrial. Not anymore.

The only way to invoke Miranda, as the justices have said, is to ASSERT your right to remain silent. That means you have to be aggressive about it up front, be extremely clear you're invoking it, and THEN shut up.

You also can't begin to answer ANY questions and then decide to invoke Miranda, either. Not even one. Because if you answer a single one, then you've waived Miranda in the eyes of a judge.




This is what you have to now memorize:


"I am not going to answer your questions. I want to talk to my lawyer. His/her name is X."

or

"I am not going to answer your questions. I cannot afford an attorney. Until you find me one, I am remaining silent."
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#4
No, I understand that Arctic...but you could still 'speak' and show sympathy without incriminating yourslef like "Oh my gosh, are they ok? Did someone call an ambulance?" typical kind of stuff that shows you're human.

Zipping up the window, sitting in your car and looking straight forward while not acknowledging anyone or anything happening around you makes you look like you're hiding something, or under the influence of something and waiting for it to wear off. Or who knows what, because...who the hell does that??

Point being, you can show humanity without incriminating yourself, and when something like this--guaranteed to go to trial--makes you look inhuman, it does not help you.
Vampire pig man since September 2012
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#5
Camper;152737 Wrote:No, I understand that Arctic...but you could still 'speak' and show sympathy without incriminating yourslef like "Oh my gosh, are they ok? Did someone call an ambulance?" typical kind of stuff that shows you're human.

Zipping up the window, sitting in your car and looking straight forward while not acknowledging anyone or anything happening around you makes you look like you're hiding something, or under the influence of something and waiting for it to wear off. Or who knows what, because...who the hell does that??

Point being, you can show humanity without incriminating yourself, and when something like this--guaranteed to go to trial--makes you look inhuman, it does not help you.

That may have worked in this specific instance however Arctic's point as I see it is that the door is now opened for a prosecutor to assign a meaning to things that are left unsaid. That is a frightening concept to say the least.

Silence of itself becomes self-incriminating which is the exact opposite of the intent of 5th amendment.
Ammunition, it's the new lead bullion. Buy it cheap and stack it deep.
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#6
Im torn on this one...

Torn..[/i]
steelcityk9cop, proud to be a member of pa2a.org since Sep 2012.
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#7
You have the right to remain silent.

If you give up your right to remain silent, then anything you say may be used against you in a court of law.

If you remain silent, then anything that that the State thinks you should have said, but didn't, will be used in evidence against you as admission of guilt since you obviously were only remaining silent since you were guilty and avoiding self incrimination.

If you originally said the things that the State thinks that you should have been saying, but then chose to remain silent subsequently, that will will be used in evidence against you as admission of guilt since you obviously only started being silent since you were guilty and avoiding self incrimination.

So basically, you are guilty.

I must applaud the efficiency of this system. I do see opportunity for improvement, next we can eliminate the delays and expense of trials. A simple sentencing hearing upon arrest is all that is required.

ETA: This is beyond the "slippery slope." Anybody approached by a cop now stands on a 0.1" wide ledge above the chasm of of being totally screwed.
-JD-, proud to be a member of pa2a.org since Sep 2012.
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#8
http://youtube.com/watch?v=FGnqGoKFZzY
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#9
Camper;152670 Wrote:I tend to agree, that clamming up at the scene of an accident and showing now concern for others does nothing to aid your defense.

There has never been a defense attorney ever in the history of mankind that has ever uttered the words "Thank god my client opened his mouth at the scene". Ask any one of them and you'll get the same answer. Any competent defense attorney can shred that argument if you choose to remain silent. Also if the police intend to arrest you, based on the evidence they have been presented with at the scene there is pretty much nothing you can say to talk them out of it. In almost every case, except maybe an answer to prevent imminent harm to coming to someone else there is no benefit to opening your mouth. There is more than enough time to explore every avenue and motive of the case in court. If you show concern and try to seem compassionate your disposition, demeanor and phrasing can be used against you and in most cases and it's your word against the cop's which doesn't bode well for you. I think this person just had a worthless advocate.
The forum poster formerly known as Emoticon...
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