Suspect must explicity invoke their Miranda rights [Archive]

KingMerv00

3rd June 2010, 07:08 AM

I'm not familiar with US law, but won't this affect every single interrogation from now on?

Miranda only applies to custodial interrogation. If the police are simply asking you questions out on the street before you've been arrested (or similarly restricted), the conversation is unaffected.

Well DUH!

I think the House of Representatives needs to start impeachment procedings against five idiots right now. They are legislating from the bench to the detriment of the constitutional rights of the accused.

Honestly, this holding isn't that different from how Miranda has been handled before.

Please explain your understanding of how Miranda works.

dtugg

3rd June 2010, 07:16 AM

KingMerv00

3rd June 2010, 07:18 AM

I fail to see what the big deal is. The guy at any point could have said he didn't want to talk to them or ask for a lawyer. Or he could have said nothing at all. And this was explained to him. So what if an idiot murderer cracks during an interrogation?

To be fair, there is a point when the interrogation would become too coercive but I don't think they reached that point.

The justices just seemed to be following precedent as I understand it.

dtugg

3rd June 2010, 07:22 AM

Well DUH!

I think the House of Representatives needs to start impeachment procedings against five idiots right now. They are legislating from the bench to the detriment of the constitutional rights of the accused.

Thankfully, Supreme Court Justices can't be impeached just because you don't like their decisions.

Lurker

3rd June 2010, 07:22 AM

I fail to see what the big deal is. The guy at any point could have said he didn't want to talk to them or ask for a lawyer. Or he could have said nothing at all. And this was explained to him. So what if an idiot murderer cracks during an interrogation?

I think the part that concerns Miranda I highlit above. Previously, those arrested had to be told about their Miranda rights within a reasonable amount of time. After this court decision they no longer have to be told their rights. I find that a bit worrying. Sure, we all know our Miranda rights but it is a bit of a leap to assume everyone else does as well.

KingMerv00

3rd June 2010, 07:25 AM

I think the part that concerns Miranda I highlit above. Previously, those arrested had to be told about their Miranda rights within a reasonable amount of time. After this court decision they no longer have to be told their rights. I find that a bit worrying. Sure, we all know our Miranda rights but it is a bit of a leap to assume everyone else does as well.

You are misreading the article. The suspect was read his Miranda rights. The court simply took his answer as waiver of those rights.

The Miranda warning must still be read upon arrest.

dtugg

3rd June 2010, 07:29 AM

I think the part that concerns Miranda I highlit above. Previously, those arrested had to be told about their Miranda rights within a reasonable amount of time. After this court decision they no longer have to be told their rights. I find that a bit worrying. Sure, we all know our Miranda rights but it is a bit of a leap to assume everyone else does as well.

The decision does not do that. Police will still be required to give Miranda warnings. The defendant in this case argued that his silence equaled an evocation of his Miranda rights and that what he said couldn't be used against him. The Court said no, you have to say so.

Bikewer

3rd June 2010, 07:56 AM

The shadings of Miranda go on and on. I just took our monthly online training course (put out by the University of Missouri Law School) and they covered recent decisions in this area.
One involved how long after a suspect invokes his rights the police may then approach him again. Previously, it was never. The suspect had to approach the investigators. Not now, the SCOTUS drew a "bright line"....Two weeks.
In another case with some similarities to the one above, the suspect was "Mirandized" and he said he wanted to think about it and confer with his lawyer. He left the interrogation. Three hours later he returned and made an incriminating statement. No lawyer.
The Appellate court ruled that he had adequate time to "lawyer up", and that his statement was admissible.

Bob Klase

3rd June 2010, 08:08 AM

Justice Sonia Sotomayor, joined by three other liberals, dissented.

"Today's decision turns Miranda upside down," she said. "Criminal suspects must now unambiguously invoke their right to remain silent -- which, counter-intuitively, requires them to speak.

It seems Sotomayor would have to agree that if the police read a suspect their rights and then ask if they understand them, requiring the suspect to give an unambiguous 'yes' or 'no' answer would violate their right to not speak.

So, if you're ever arrested, just refuse to answer when they ask if you understand your rights. Then you can talk your head off, later claim that you didn't understand your right to remain silent and let your lawyer claim that making say you didn't understand your right to be silent would violate the right to be silent. If Sotomayor is still on the court and leftysergeant joins her then you'll win on appeal.

Everyone knows that anything which seems counter-intuitive must be wrong.

A criminal has the right to remain silent but a non-criminal is required to answer census questions. How does Sotomayor explain that counter-intuitive situation?

DDWW

3rd June 2010, 08:22 AM

KingMerv00

3rd June 2010, 08:25 AM

It seems Sotomayor would have to agree that if the police read a suspect their rights and then ask if they understand them, requiring the suspect to give an unambiguous 'yes' or 'no' answer would violate their right to not speak.

So, if you're ever arrested, just refuse to answer when they ask if you understand your rights. Then you can talk your head off, later claim that you didn't understand your right to remain silent and let your lawyer claim that making say you didn't understand your right to be silent would violate the right to be silent. If Sotomayor is still on the court and leftysergeant joins her then you'll win on appeal.

Sotomayor really dropped the ball on this one. I honestly don't know what she is thinking with some of those remarks.

Lurker

3rd June 2010, 08:36 AM

Merv, dtugg:

Thanks for the explanation. OK, Miranda still read and defendent must explicitly say they are invoking their right to not speak. I guess I am fine with that.

BenBurch

3rd June 2010, 08:48 AM

Hey, if you speak, you have given up your right not to speak. That ought to be obvious to anybody. I really have zero problem with this.

But if I say "I invoke my right to be silent, please provide me with a lawyer" then they need to stop asking questions and get me a lawyer.

That is how it ought to be.

KingMerv00

3rd June 2010, 08:49 AM

Merv, dtugg:

Thanks for the explanation. OK, Miranda still read and defendent must explicitly say they are invoking their right to not speak. I guess I am fine with that.

No problem.

There is a good reason for requiring invocation btw. Miranda is subject to the fruits doctrine (http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree). If you allow a suspect to yammer on about the crime and later claim there was no waiver, the suspect could destroy the case against him through legal trickery.

KingMerv00

3rd June 2010, 08:51 AM

"I invoke my right to be silent, please provide me with a lawyer" then they need to stop asking questions and get me a lawyer.

That is how it ought to be.

And that's the way it is.

ZirconBlue

3rd June 2010, 08:53 AM

I don't know. If, in the future, it is understood that you have to explicitly invoke your right to remain silent, I guess that might be OK. Especially, if doing so ends questioning.

But, in the case in question, that was not the norm. Basically police just ask you questions for hours and hours until you say something and now that's taken as a tacit waiver to your Miranda rights.

KingMerv00

3rd June 2010, 08:56 AM

I don't know. If, in the future, it is understood that you have to explicitly invoke your right to remain silent, I guess that might be OK. Especially, if doing so ends questioning. But, in the case in question, that was not the norm.

It IS the norm. Invocation has been around for a while.

Basically police just ask you questions for hours and hours until you say something and now that's taken as a tacit waiver to your Miranda rights.

That's not a tacit waiver, that's an explicit waiver IMO.

ZirconBlue

3rd June 2010, 08:56 AM

Hey, if you speak, you have given up your right not to speak. That ought to be obvious to anybody.

Perhaps. But I defy anyone to sit through hours and hours of questioning without speaking. I suggest that it's easier said (ha!) than done.

KingMerv00

3rd June 2010, 09:00 AM

Perhaps. But I defy anyone to sit through hours and hours of questioning without speaking. I suggest that it's easier said (ha!) than done.

I agree with that. That's why you say, "I don't want to talk to you."

ZirconBlue

3rd June 2010, 09:12 AM

Invocation has been around for a while.

I bet if you questioned a hundred random people on the street about this, the vast majority of them will

A) understand that they have the right to remain silent, and
2) have no idea that they have to explicitly invoke that right.

If you have to explicitly state that you are invoking your right to remain silent, then I think that should be stated in the Miranda rights that are read to you.

That's not a tacit waiver, that's an explicit waiver IMO.

See my previous post.

JoeTheJuggler

3rd June 2010, 09:24 AM

I'm a big time civil libertarian, but I have no problem with this decision. If they tell you that anything you say can be used against you, and tell you that you don't have to say anything, and make sure you understand this, and then you go ahead and say something even after remaining silent for a while, then-- yes--they can use that against you.

I guess the real question is, when should police stop questioning someone. If the guy had asked for a lawyer, and the lawyer said, "My client has nothing to say" or "This interview is over" (as they do on TV), then I suspect the police would have stopped questioning him.

JoeTheJuggler

3rd June 2010, 09:27 AM

I agree with that. That's why you say, "I don't want to talk to you."

Are the police (or rather were they prior to this decision) required to stop questioning a suspect if the suspect said that?

I imagine they normally would, but was there a legal obligation for them to stop asking questions? (I suppose anything the suspect says could be considered coerced if it's clear the police continued questioning him after he invoked his right to silence.)

ETA: Maybe I need to re-think my opinion on this decision. If it allows the police to grill someone who doesn't want to talk, then it opens a window for coerced confessions. Even if a confession isn't actually coerced, it opens up that question (and another possible defense), so they would be wise not to continue questioning. . . . I dunno what I think now.

KingMerv00

3rd June 2010, 09:30 AM

If the guy had asked for a lawyer, and the lawyer said, "My client has nothing to say" or "This interview is over" (as they do on TV), then I suspect the police would have stopped questioning him.

Your suspicion is correct. Invoking the right to silence or the right to have a lawyer present immediately ends the interrogation. Surprisingly, TV gets it mostly right.

KingMerv00

3rd June 2010, 09:34 AM

Are the police (or rather were they prior to this decision) required to stop questioning a suspect if the suspect said that?

I imagine they normally would, but was there a legal obligation for them to stop asking questions? (I suppose anything the suspect says could be considered coerced if it's clear the police continued questioning him after he invoked his right to silence.)

Yes, it should be enough. There are no magic words. The suspect only needs to make his desire unambiguous. If he says something like "I'm thinking about getting a lawyer.", there may be trouble.

The Central Scrutinizer

3rd June 2010, 09:42 AM

The correct decision was made.

JoeTheJuggler

3rd June 2010, 09:43 AM

Yes, it should be enough. There are no magic words. The suspect only needs to make his desire unambiguous. If he says something like "I'm thinking about getting a lawyer.", there may be trouble.
Thanks. I wasn't so sure on that.

And I also wonder what it means to put an end to "this interview" or "interrogation". As you said, if the suspect asks for a lawyer, "this interview" is over. . . until the lawyer gets there.

Can't the suspect change his mind and offer an admissible confession (with or without counsel) even after first invoking his right to remain silent?

If he doesn't ask for a lawyer, but invokes his right to remain silent, and police lock him up for a few hours, can't the police try to question him again later on? If so, then how much later? Or is that invocation an end to the right of law enforcement to question a suspect for all time?

Again, to use TV, I've seen episodes where a suspect either invoked his right to silence or asked for a lawyer, but then brand new damning evidence came up, and police immediately confront the suspect with it. Maybe that's just in fiction?

JoeTheJuggler

3rd June 2010, 09:46 AM

Honestly, this holding isn't that different from how Miranda has been handled before.
Ah. . I'm just getting caught up, but I think maybe the new decision wasn't what the headlines say (as in this thread title) but rather that in this case the period of silence wasn't sufficient to invoke the right to remain silent and end the interrogation (after which point, continued questioning might be considered coercive, and any statements made not admissible).

KingMerv00

3rd June 2010, 09:48 AM

I bet if you questioned a hundred random people on the street about this, the vast majority of them will

A) understand that they have the right to remain silent, and
2) have no idea that they have to explicitly invoke that right.

If you have to explicitly state that you are invoking your right to remain silent, then I think that should be stated in the Miranda rights that are read to you.

Most people are also unfamiliar with the fruits doctrine, the public safety exception, and the booking questions exception. Obviously giving the suspect a crash course in 5th amendment law is out of the question so we really need to ask how much information is enough. The courts have balanced the rights of the suspect against the need for police freedom and decided invocation is necessary.

Legally, there is no question. Morally, reasonable minds can differ.

JoeTheJuggler

3rd June 2010, 10:03 AM

KingMerv00

3rd June 2010, 10:19 AM

Thanks. I wasn't so sure on that.

And I also wonder what it means to put an end to "this interview" or "interrogation". As you said, if the suspect asks for a lawyer, "this interview" is over. . . until the lawyer gets there.

Can't the suspect change his mind and offer an admissible confession (with or without counsel) even after first invoking his right to remain silent?

Yes. The suspect must initiate the new conversation though.

If he doesn't ask for a lawyer, but invokes his right to remain silent, and police lock him up for a few hours, can't the police try to question him again later on? If so, then how much later? Or is that invocation an end to the right of law enforcement to question a suspect for all time?

Once the "silenced" suspect has been released from custody, the police must wait 14 days to approach again. See Maryland v. Shatzer (http://www.scotuswiki.com/index.php?title=Maryland_v._Shatzer%2C_Sr.). That case is one of the very few times that the SCOTUS has given specific numerical orders.

Again, to use TV, I've seen episodes where a suspect either invoked his right to silence or asked for a lawyer, but then brand new damning evidence came up, and police immediately confront the suspect with it. Maybe that's just in fiction?

Like I said above, the cops have to wait 14 days to obtain admissible testimonial evidence. If the police approach the suspect before then, anything he says is inadmissible in court but faced with overwhelming evidence against him, the suspect may feel compelled to cooperate with the police.

The evidence has to be presented to the suspect and/or his counsel at some point in the interest of full disclosure anyway. I think the cops might as well use the the opportunity to lean on the suspect, don't you?

Suddenly

3rd June 2010, 10:30 AM

A criminal has the right to remain silent but a non-criminal is required to answer census questions. How does Sotomayor explain that counter-intuitive situation?

What silliness.

A) Suspected criminal.

B) The Fifth Amendment deals with incrimination, and census answers are not incriminating. If an answer to a census question were incriminating, you wouldn't be required to answer it. No exact caselaw on point here, but the reasoning in Hiibel would pretty clearly apply.

The correct decision was made.

Eh. It isn't a surprising decision nor is it unreasonable, but not clearly correct. That waiver rather than invocation needs to be explicit isn't unreasonable. The dissent goes against the direction the Court has been going in as to Miranda, but that is the point. Somewhere we went from an immediate participation in an interview as implied waiver to now everything except an explicit invocation is an implied waiver. That is one heck of a slippery slope.

I've rarely had to litigate a Miranda issue here because local police have a policy of getting a written waiver. Making signing/refusing to sign a threshold fact solves almost all of these issues in a clear fashion.

JoeTheJuggler

3rd June 2010, 10:49 AM

Yes. The suspect must initiate the new conversation though.

Once the "silenced" suspect has been released from custody, the police must wait 14 days to approach again. See Maryland v. Shatzer (http://www.scotuswiki.com/index.php?title=Maryland_v._Shatzer%2C_Sr.). That case is one of the very few times that the SCOTUS has given specific numerical orders.
Thanks again. I had no idea the specifics were worked out to that degree of detail. That's heartening, though, because the main thing we want is for a degree of predictability. (That is, if the police follow SOP and a suspect gives a confession, then we want that confession to be admissible. If the police stray from SOP, then they should be aware they'll be in legal fuzzy area, and might be giving fodder to the defense.)

The evidence has to be presented to the suspect and/or his counsel at some point in the interest of full disclosure anyway. I think the cops might as well use the the opportunity to lean on the suspect, don't you?
I agree, but I think this opens up a new can of worms. On TV, the new evidence (that can justify immediately starting a new round of questioning even if the suspect has invoked the 5th) is something blatantly damning, but what if it's not? In a way, I think police could always re-start questioning under the excuse that they have something new.

I've rarely had to litigate a Miranda issue here because local police have a policy of getting a written waiver. Making signing/refusing to sign a threshold fact solves almost all of these issues in a clear fashion.
Good policy. With that in hand, police can be confident that anything they get is admissible.

This reminds me of a famous case that happened back when I was an interpreter for the Deaf. Part of our Code of Ethics says that if we're not competent to a certain interpretation task, we have to refuse it. (Which can sometimes mean a huge inconvenience for the parties involved who have to freeze time while a qualified interpreter is procured. But the reasoning is, if you refuse, the parties know they're not communicating. If you stay there and act as an interpreter, they may think communication is happening that really isn't.)

In this case, apparently a deaf man committed a murder. He was read his rights through an interpreter. The deaf man only used ASL, but the interpreter wasn't very competent in ASL and rendered the rights in PSE (Pidgin Signed English). This is more like transliteration, and in this case wasn't at all conceptually accurate ("you have correct stay silent" or something like that, whereas the more accurate rendering would be something that glosses more like "you don't need to talk" etc.) At the end, when they ask "Do you understand these rights?" there is a cultural phenomenon (not unique to deaf/hearing interaction) where the minority language person will say "yes" to the question "Do you understand?" even when he doesn't. That's pretty much what happened.

He gave a full confession and was acquitted (IIRC) when the case fell apart. Sorry, I don't recall any names, and I think the case was somewhere in the upper midwest (Minnesota or Michigan?) probably in the mid '90s.

ZirconBlue

3rd June 2010, 10:56 AM

KingMerv00

3rd June 2010, 11:16 AM

Thanks again. I had no idea the specifics were worked out to that degree of detail. That's heartening, though, because the main thing we want is for a degree of predictability. (That is, if the police follow SOP and a suspect gives a confession, then we want that confession to be admissible. If the police stray from SOP, then they should be aware they'll be in legal fuzzy area, and might be giving fodder to the defense.)

I imagine that was the impetus for the 14 day rule.

I agree, but I think this opens up a new can of worms. On TV, the new evidence (that can justify immediately starting a new round of questioning even if the suspect has invoked the 5th) is something blatantly damning, but what if it's not? In a way, I think police could always re-start questioning under the excuse that they have something new.

I don't believe new evidence removes the invocation. Only 14 days or a waiver can do that. However, the cops can approach the suspect in that 14 day window as long as they don't mind getting inadmissible testimony (or inadmissible fruits). A friendly "suggestion" to cooperate with the cops in light of new evidence is not out of the question though.

INRM

3rd June 2010, 11:19 AM

I have a feeling this will work quite badly

- Most people will not invoke their rights, and say stuff not knowing what their rights are
- Smart criminals will invoke their rights (which, as much as I don't like it, *IS* their right, as is anybody else)
- People who know the law will invoke their rights, but because some smart criminals also will invoke their rights, people who know the law and are not criminals, will automatically be assumed to be smart criminals

KingMerv00

3rd June 2010, 11:27 AM

I have a feeling this will work quite badly

- Most people will not invoke their rights, and say stuff not knowing what their rights are

People have been making that mistake long before this case.

- People who know the law will invoke their rights, but because some smart criminals also will invoke their rights, people who know the law and are not criminals, will automatically be assumed to be smart criminals

Cops may think you are a smart criminal but the invocation of your rights cannot be used against you in the court of law.

KingMerv00

3rd June 2010, 11:46 AM

Ziggurat

3rd June 2010, 11:56 AM

Yet, we do not assume that people know their Miranda rights. In fact, he courts have determined that the suspect must be specifically told of their right to remain silent, etc. IMHO, if that right can only be invoked by a specific action on the part of the suspect, then the suspect should be so informed.

Actually, the right to remain silent CAN be invoked without a specific action: the suspect can just remain silent. The issue here is that simply not talking doesn't prevent the cops from continuing to ask questions (why should it?), or using subsequent answers (which the suspect didn't have to give). To get them to stop asking questions and using your answers, you need to invoke your right to remain silent. I really don't see the problem with this arrangement. Even with ignorance of the consequences of not explicitly invoking your rights, it seems quite obvious that if you want to remain silent, you can simply remain silent.

Bob Klase

3rd June 2010, 12:06 PM

What silliness.

A) Suspected criminal.

B) The Fifth Amendment deals with incrimination, and census answers are not incriminating. If an answer to a census question were incriminating, you wouldn't be required to answer it. No exact caselaw on point here, but the reasoning in Hiibel would pretty clearly apply.

Silly or legal was not the point. Counter-intuitive remains.

KingMerv00

3rd June 2010, 12:11 PM

Silly or legal was not the point. Counter-intuitive remains.

It isn't really counter-intuitive. The 5th Amendment says:

...nor shall be compelled in any criminal case to be a witness against himself...

Note it says "criminal case". The census is not a criminal matter.

JoeTheJuggler

3rd June 2010, 12:16 PM

I respect that opinion (I may even agree with it) but until it is backed up by precedent, it won't be anything but a good idea.

Also, I don't think the law requires any specific way of invoking the right to remain silent. This case just said that in this case, his silence wasn't sufficient to express invocation.

To do what Zircon suggests would be a big change. If, for example, the only way to invoke that right is to say, "I invoke the right to remain silent" as legal "magic words", then by all means the reading of the Miranda rights should spell that out. But then any other statement a suspect makes that clearly and explicitly express his desire to remain silent (and not be questioned) wouldn't be sufficient.

ZirconBlue

3rd June 2010, 12:40 PM

Also, I don't think the law requires any specific way of invoking the right to remain silent. This case just said that in this case, his silence wasn't sufficient to express invocation.

To do what Zircon suggests would be a big change. If, for example, the only way to invoke that right is to say, "I invoke the right to remain silent" as legal "magic words", then by all means the reading of the Miranda rights should spell that out. But then any other statement a suspect makes that clearly and explicitly express his desire to remain silent (and not be questioned) wouldn't be sufficient.

My fear is that we seem to be on a slippery slope toward that requirement for such "magic words". Today we're saying that not responding for hours isn't a clear indication of your intent to "remain silent", tomorrow I fear it will be someone whose statement of intent is insufficiently precise.

KingMerv00

3rd June 2010, 12:59 PM

My fear is that we seem to be on a slippery slope toward that requirement for such "magic words". Today we're saying that not responding for hours isn't a clear indication of your intent to "remain silent", tomorrow I fear it will be someone whose statement of intent is insufficiently precise.

Remaining silent is not sufficient to end interrogation because it only pertains to specific questions. If I choose to not answer one question but feel comfortable answering another I may. Invoking silence ends all questioning.

Not to stir up your fears but "tomorrow" is "yesterday". I sincerely doubt there will ever be magic words but there have been plenty of cases when an attempted invocation was not sufficiently clear. For example, "I am thinking about getting a lawyer." is NOT an invocation of my 5th amendment right to counsel.

NoZed Avenger

3rd June 2010, 01:09 PM

Ah. . I'm just getting caught up, but I think maybe the new decision wasn't what the headlines say (as in this thread title) but rather that in this case the period of silence wasn't sufficient to invoke the right to remain silent and end the interrogation (after which point, continued questioning might be considered coercive, and any statements made not admissible).

Right. Any admisison still must be voluntary -- non-coerced -- and that is a separate question not part of this particular ruling. Even if a suspect has been judged to waive his or her Fifth Amendment rights, a confession made under duress would be inadmissible on those grounds. This situation did not present a case where the Justices felt the confession was made involuntarily (as defined under the law).

ZirconBlue

3rd June 2010, 02:23 PM

Not to stir up your fears but "tomorrow" is "yesterday". I sincerely doubt there will ever be magic words but there have been plenty of cases when an attempted invocation was not sufficiently clear. For example, "I am thinking about getting a lawyer." is NOT an invocation of my 5th amendment right to counsel.

Where's that "OH NOES!! EVERYBODY PANIC!!" .gif I had . . . ?

Suddenly

3rd June 2010, 02:26 PM

Remaining silent is not sufficient to end interrogation because it only pertains to specific questions. If I choose to not answer one question but feel comfortable answering another I may. Invoking silence ends all questioning.

Not to stir up your fears but "tomorrow" is "yesterday". I sincerely doubt there will ever be magic words but there have been plenty of cases when an attempted invocation was not sufficiently clear. For example, "I am thinking about getting a lawyer." is NOT an invocation of my 5th amendment right to counsel.

The thing about this case that makes it somewhat different than past invocation cases is that in those cases there is usually a pretty clear waiver, whether express or implied by immediate participation in an interrogation. Then the suspect wants to revoke that waiver. The main cases cited by the majority fall into this pattern.

At that point, it makes sense that an explicit invocation is necessary to revoke waiver or else it gets very messy. I'd want to put a bigger burden on the officers to resolve ambiguity than exists in practice, but so it goes.

This case is about the initial waiver. That is where the dissent is coming from, that establishing the waiver of the right should involve a higher burden on the state than when someone wants to revoke a waiver. Refusal to sign the Miranda form and hours of silence seem a bit meager to establish waiver. The majority rule now functionally assumes waiver, and I have a problem with that.

KingMerv00

3rd June 2010, 02:37 PM

This case is about the initial waiver. That is where the dissent is coming from, that establishing the waiver of the right should involve a higher burden on the state than when someone wants to revoke a waiver. Refusal to sign the Miranda form and hours of silence seem a bit meager to establish waiver. The majority rule now functionally assumes waiver, and I have a problem with that.

The SCOTUS did not assume waiver. They saw a waiver when he opened his big fat mouth and basically confessed. If he was coerced, then the confession should be thrown out. I don't see any evidence of that so I'm going to say he knowingly, intelligently, and voluntarily decided to speak when he didn't have to.

Suddenly

3rd June 2010, 03:04 PM

The SCOTUS did not assume waiver. The deduced a waiver when he opened his big fat mouth and basically confessed.

Under Miranda, you can not interrogate someone without counsel. Case law to this point is clear that this right must be waived to allow otherwise, and waiver can be implied by conduct. The only conduct they have, refusal to sign, isn't exactly an indication of waiver. Nor is silence. His Miranda rights are being ignored for those hours as he is being interrogated without counsel. This is in practice assumed waiver. His right is not respected until he asks for it.

In and of itself this is not some sort of horrible and ominous state of affairs as there is nothing all that unusual in having to affirmatively invoke a right, just that as to Miranda it is established that the right exists until waived. A technical point that this decision makes meaningless.

In every other invocation case cited in the opinion (unless I missed one) you have an immediate waiver of a right followed by a claimed revocation. Fine and dandy. Suspect wants to talk, talks for awhile, realizes he's not as smart as he thought he was, and lawyers up. Standard. Even so, the dissent wouldn't have created some horrible gray area full of loopholes. The officers ask the guy a few times if he wishes to waive his rights, if he says nothing, they take him to booking. If he says yes or starts talking, great.

commandlinegamer

3rd June 2010, 03:21 PM

I want to understand this fully. When a suspect is arrested, do they say 'You have the right to remain silent', the spiel about having an attorney present, and then followed by 'do you understand these rights?'

Because if one asks the question 'do you understand these rights?' and the suspect answers in the affirmative, then I would take that to be an explicit invoking of the Miranda rights, without having to literally say 'I invoke my Miranda rights.'

Ziggurat

3rd June 2010, 03:30 PM

I want to understand this fully. When a suspect is arrested, do they say 'You have the right to remain silent', the spiel about having an attorney present, and then followed by 'do you understand these rights?'

Generally speaking, yes. Police are not required to read someone they arrest their Miranda rights, but if they don't, then they risk anything that person says becoming inadmissible.

Because if one asks the question 'do you understand these rights?' and the suspect answers in the affirmative, then I would take that to be an explicit invoking of the Miranda rights, without having to literally say 'I invoke my Miranda rights.'

Uh... no. You're seriously confused here. Acknowledgment of understanding does not equal invocation. One can easily acknowledge and waive a right. What's at issue here is whether, absent a statement of "I want to remain silent", the police can continue to question a suspect and use what they say against them. The defendant argued that they could not, since the defendant had remained silent for some period of time before talking. The court disagreed. They have established that in order for results of questioning to be inadmissible, they need to actually state that they want to remain silent.

This isn't really any different from the whole, "I want to see my lawyer" thing. The police can question you and use what you say until you say you want your lawyer, at which time they have to wait for your lawyer to continue questioning.

Ziggurat

3rd June 2010, 03:32 PM

Under Miranda, you can not interrogate someone without counsel.

That's not true. It's only prohibited if the suspect demands counsel (which they have the right to do).

JoeTheJuggler

3rd June 2010, 03:50 PM

Because if one asks the question 'do you understand these rights?' and the suspect answers in the affirmative, then I would take that to be an explicit invoking of the Miranda rights, without having to literally say 'I invoke my Miranda rights.'
An explicit invoking of which Miranda rights?

Saying, "Yes, I understand my rights" is not the same thing as asking for a lawyer or invoking the 5th Amendment right not to give self-incriminating testimony.

In fact, even if you wish to waive your Miranda rights, you first have to acknowledge that you understand them.

ETA: Catching up again, I see Ziggurat already answered this.

JoeTheJuggler

3rd June 2010, 03:55 PM

Right. Any admisison still must be voluntary -- non-coerced -- and that is a separate question not part of this particular ruling. Even if a suspect has been judged to waive his or her Fifth Amendment rights, a confession made under duress would be inadmissible on those grounds. This situation did not present a case where the Justices felt the confession was made involuntarily (as defined under the law).

I understand there was no finding of coercion in this case, but I don't think it's wholly unrelated to this issue.

If we had taken his silence to be sufficient invocation of the 5th Amendment, and police continued to question him, then his assent/confession would have been inadmissible. The reason for this is that we would think it wasn't made voluntarily.

It would be the same as if the suspect had specifically said, "I don't want to talk to you" and police continued questioning him, and he eventually slipped up by saying "Yes" to a question that would incriminate him.

Bikewer

3rd June 2010, 04:56 PM

Note that there is no specific formula for the "rights" to be given to the suspect either.
In another case we recently reviewed, a police department had written their own "warning" which contained the salient points but in slightly different form than is usually seen.
The suspect claimed foul.
The Supreme Court said sorry, the essential points were covered...

One has to be very careful when dealing with non-English speakers as well. They may claim at the time to understand the warning, then claim later they were merely trying to please the interrogator.
Coming from countries where torture is often the norm, this is hardly surprising.

Bob Klase

3rd June 2010, 05:02 PM

It isn't really counter-intuitive. The 5th Amendment says:
...nor shall be compelled in any criminal case to be a witness against himself...

Note it says "criminal case". The census is not a criminal matter.

Once again, I wasn't trying to make a legal argument. Sotomayor clearly either thinks and/or implies that since it's counter-intuitive then it's wrong. I was just trying to point out that "counter-intuitive = wrong" is not a good argument.

Perhaps I should have just used a different comparison. Perhaps a hypothetical case brought before the court where ID proponents want to require the teaching of Geocentricism in all public schools and Sotomayor agrees because anything other than geocentricism is counter-intuitive.

Or maybe just look at establishing a precedent that says any legal matter can be correctly decided based on whether the answer is counter-intuitive or not.

GreNME

3rd June 2010, 06:26 PM

Most people are also unfamiliar with the fruits doctrine, the public safety exception, and the booking questions exception. Obviously giving the suspect a crash course in 5th amendment law is out of the question so we really need to ask how much information is enough. The courts have balanced the rights of the suspect against the need for police freedom and decided invocation is necessary.

Legally, there is no question. Morally, reasonable minds can differ.

See, and that's the problem I have with this decision: I think there is a legal question with deciding on the favor of authorities in a way that disadvantages the citizen on the possibility of a misunderstanding of a technicality. I dislike the same mentality within IRS rules, some of which are a real pain for the average citizen (like myself) who doesn't have an encyclopedic understanding of full tax law, but with criminal law I can think of dozens of ways that this can be abused left and right.

So, yeah: technically, sure, it's on the level. It's on the level the same way the new immigration laws are on the level but still way open to abuse. And I or anyone who has either dealt with or been in law enforcement knows that there are enough out there who will abuse it. That's what makes this decision troubling.

That said, I hate that this case was the one where this issue was decided. This was the worst type of case to use as a precedent, as the guy is obviously trying to abuse the Amendment to get out of a conviction. The reason I find this a bad case to use is because those Amendments are written explicitly to protect the rights of citizens and the kind of obvious abuse the convicted guy was doing weakens those rights just as much as crappy SCOTUS decisions would. This case was pretty much a no-win situation with regard to the spirit of the law.

KingMerv00

3rd June 2010, 07:26 PM

Under Miranda, you can not interrogate someone without counsel. Case law to this point is clear that this right must be waived to allow otherwise, and waiver can be implied by conduct.

No. The right to 5th amendment right to counsel must be invoked just like your 5th amendment right to silence. (Fun fact: Your 6th amendment right to counsel kicks in without invocation once official court proceedings start. That one's a freebie.)

The only conduct they have, refusal to sign, isn't exactly an indication of waiver. Nor is silence. His Miranda rights are being ignored for those hours as he is being interrogated without counsel. This is in practice assumed waiver. His right is not respected until he asks for it.

In and of itself this is not some sort of horrible and ominous state of affairs as there is nothing all that unusual in having to affirmatively invoke a right, just that as to Miranda it is established that the right exists until waived. A technical point that this decision makes meaningless.

In every other invocation case cited in the opinion (unless I missed one) you have an immediate waiver of a right followed by a claimed revocation. Fine and dandy. Suspect wants to talk, talks for awhile, realizes he's not as smart as he thought he was, and lawyers up. Standard. Even so, the dissent wouldn't have created some horrible gray area full of loopholes. The officers ask the guy a few times if he wishes to waive his rights, if he says nothing, they take him to booking. If he says yes or starts talking, great.

OK. Let's break it down:

1) He is informed of his rights.
2) He understands his rights.
3) He is not coerced.
4) He speaks.

In what sense should I NOT view that as a waiver? 1-4 is indicative of someone who knows what's going on and voluntary confesses. It is pretty clear he made a dumb mistake and is paying for it.

KingMerv00

3rd June 2010, 07:43 PM

I want to understand this fully. When a suspect is arrested, do they say 'You have the right to remain silent', the spiel about having an attorney present, and then followed by 'do you understand these rights?'

Because if one asks the question 'do you understand these rights?' and the suspect answers in the affirmative, then I would take that to be an explicit invoking of the Miranda rights, without having to literally say 'I invoke my Miranda rights.'

Already addressed by others but it bears repeating. Understanding your rights is different than invocating your rights.

KingMerv00

3rd June 2010, 07:47 PM

I understand there was no finding of coercion in this case, but I don't think it's wholly unrelated to this issue.

If we had taken his silence to be sufficient invocation of the 5th Amendment, and police continued to question him, then his assent/confession would have been inadmissible. The reason for this is that we would think it wasn't made voluntarily.

It would be the same as if the suspect had specifically said, "I don't want to talk to you" and police continued questioning him, and he eventually slipped up by saying "Yes" to a question that would incriminate him.

See my breakdown above. If he understood, was not coerced, and chose to speak then there was no damage done. The fact that he failed to terminate the interrogation is moot.

GreNME

3rd June 2010, 07:49 PM

KingMerv00, where is the line you draw when interrogation becomes coercion? The situation as you listed it did not happen. What happened was:

1. He was informed of his rights.
2. He refused to talk without even giving an idea that he understood his rights.
3. After hours of interrogation someone shoots a sideways question at him that gets a response.
4. Incarceration.

ETA: I'm not saying that constitutes coercion, but what it does constitute is law enforcement continuing to assume understanding of rights without bothering to ensure there is an understanding before proceeding.

KingMerv00

3rd June 2010, 08:02 PM

KingMerv00, where is the line you draw when interrogation becomes coercion?

I don't know. I can only really decide that on a case by case basis. I don't see coercion here and I don't think it was suggested.

The situation as you listed it did not happen. What happened was:

1. He was informed of his rights.

Agreed.

2. He refused to talk without even giving an idea that he understood his rights.

If he did not understand his rights he should have claimed so in his appeal. If he did claim make that claim on appeal, he failed to convince the court.

3. After hours of interrogation someone shoots a sideways question at him that gets a response.

Three hours I believe. That's not particualarly long as interrogations go. The sideway-ness of the question is not really relevant.

4. Incarceration.

Yup. Loose lips sinks cases. Happens all the time and the world is better off for it.

GreNME

3rd June 2010, 08:12 PM

I don't know. I can only really decide that on a case by case basis. I don't see coercion here and I don't think it was suggested.

No, it wasn't suggested, but you brought it up in your timeline of events (saying that he wasn't coerced). I'd agree a case-by-case is a rational way to judge.

If he did not understand his rights he should have claimed so in his aappeal. If he did claim make that claim on appeal, he failed to convince the court.

I agree. I know of others who have had to deal with such a situation (someone making the case that their rights were not explicitly understood), and some have been successful. In fact, I wish that this is the direction the SCOTUS decision against this douche would have went instead of saying that lack of response is an implicit waiver, which is precisely what this decision will do in enough cases for it to be a problem.

Three hours I believe. That's not particualarly long as interrogations go. The sideway-ness of the question is not really relevant.

Again, I agree. If anything, the sideway-ness is just good interrogation technique (IMHO). The troubling part in this case is that the decision is assuming an implied waiver in order to keep the admission as valid, and regardless of the despicable-ness of the guy I find that assumption troubling.

Yup. Loose lips sinks cases. Happens all the time and the world is better off for it.

And this is where we disagree. I don't think the world is a better place when the ends wind up justifying the niggling details in the means.

KingMerv00

3rd June 2010, 08:25 PM

I agree. I know of others who have had to deal with such a situation (someone making the case that their rights were not explicitly understood), and some have been successful. In fact, I wish that this is the direction the SCOTUS decision against this douche would have went instead of saying that lack of response is an implicit waiver, which is precisely what this decision will do in enough cases for it to be a problem.

His silence was not the waiver. His RESPONSE was.

Again, I agree. If anything, the sideway-ness is just good interrogation technique (IMHO). The troubling part in this case is that the decision is assuming an implied waiver in order to keep the admission as valid, and regardless of the despicable-ness of the guy I find that assumption troubling.

How is it an "assumption"? He understood and then voluntarily chose to talk. How can that NOT be considered a waiver? If it is not a waiver, what is it?

And this is where we disagree. I don't think the world is a better place when the ends wind up justifying the niggling details in the means.

I don't think the ends justify the means. I don't have a problem with the means.

Suddenly

4th June 2010, 10:36 AM

No. The right to 5th amendment right to counsel must be invoked just like your 5th amendment right to silence. (Fun fact: Your 6th amendment right to counsel kicks in without invocation once official court proceedings start. That one's a freebie.)

Miranda is pretty clear as to this:

An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver.

....

The defendant who does not ask for counsel is the very defendant who most needs counsel. We cannot penalize a defendant who, not understanding his constitutional rights, does not make the formal request and by such failure demonstrates his helplessness. To require the request would be to favor the defendant whose sophistication or status had fortuitously prompted him to make it.

...

An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.

No invocation necessary, the right exists automatically. Once it is waived and the suspect wants it back the game changes and all the unambiguous invocation case law comes into the picture.

OK. Let's break it down:

1) He is informed of his rights.
2) He understands his rights.
3) He is not coerced.
4) He speaks.

In what sense should I NOT view that as a waiver? 1-4 is indicative of someone who knows what's going on and voluntary confesses. It is pretty clear he made a dumb mistake and is paying for it.

Missing the whole hours of silence thing. That can falsify claim (3) in that he was subject to illegal interrogation. Miranda again:

Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege.

That is the difference here. Once right to counsel exists, any interrogation is illegal absent waiver. In every Miranda case I can think of other than this one there is a clear express or implied waiver and the issue surrounds the revocation of waiver.

Given a 5-4 decision it is clear reasonable people can differ as to much of this, but this factual distinction is the basis for my agreement with the dissent.

KingMerv00

4th June 2010, 11:45 AM

Miranda is pretty clear as to this:

No invocation necessary, the right exists automatically. Once it is waived and the suspect wants it back the game changes and all the unambiguous invocation case law comes into the picture.

From here (http://criminal.findlaw.com/crimes/criminal_rights/your-rights-counsel/invoking-the-right-to-counsel.html):

Because the invocation of Miranda rights, particularly the right to counsel, has created significant burdens on law enforcement's ability to conduct effective interrogations, several recent court decisions have begun to limit a custodial suspect's ability to invoke that right. Specifically, the Court wants to ensure that a suspect's invocation of rights is not frivolous. To do this, courts require that suspects invoke their right to counsel unequivocally, as well as in a timely manner.

If individuals are arrested or questioned, the burden is on them to invoke their right to counsel in a clear and unequivocal manner. They should receive notice that they have the right to an attorney, but law enforcement is not required to ask them whether they want an attorney, nor do they need to ask them clarifying questions if they are unclear in their request for an attorney. Not only must invoking the right to counsel be unequivocal, but courts also have begun to insist that invocations of the Miranda right to counsel be made in a timely manner. Individuals should not wait to be asked if they want a lawyer, nor should they expect the police to read them Miranda warnings before they ask for counsel.

Missing the whole hours of silence thing. That can falsify claim (3) in that he was subject to illegal interrogation. Miranda again:

I don't believe he was claiming coersion. If he was and failed to raise that issue in court, that's his lawyer's fault.

That is the difference here. Once right to counsel exists, any interrogation is illegal absent waiver.

You have a right to counsel the moment interrogation begins. You do not have to exercise it though. A waiver is a nice way of telling the police, "Go ahead and question me without my lawyer. Be aware I reserve the right to get one at any time."

I have a right to own a gun, but I choose not to exercise it.

In every Miranda case I can think of other than this one there is a clear express or implied waiver and the issue surrounds the revocation of waiver.

To which cases do you refer?

KingMerv00

4th June 2010, 12:04 PM

Suddenly

7th June 2010, 02:15 PM

See Minnick v. Mississippi (http://www.law.cornell.edu/supct/html/89-6332.ZS.html) for details.

Note that the police are interrogating the suspect BEFORE he asks for counsel. When he asks, they must stop.

Yes, but he gave an implicit waiver before the first interview by saying he wouldn't answer "very many" questions and then going on to answer them. This sort of behavior has been long held to be a waiver.

See also: Edwards v. Arizona (http://supreme.justia.com/us/451/477/)

Again, there is a waiver where the suspect says he will talk to the cops, then later lawyers up.

Outside of the strange case where someone sits in silence for a long period, the technical distinction here is unnecessary as responding to questions is an implied waiver, and a comment that one wants a lawyer or wishes to cease the interrogation is a clear invocation. In the case of silence it becomes an issue, and Miranda has some clear language on this no matter what some findlaw editorial comment says...

An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver.

In the end this case really doesn't matter outside the academic fine points as suspects either lawyer up or start talking virtually all of the time. When I first read it I kinda thought that this was already the law, and while closer inspection reveals an academic point I disagree with, it is as a practical sense absolutely nothing new.

KingMerv00

7th June 2010, 08:31 PM

In the end this case really doesn't matter outside the academic fine points as suspects either lawyer up or start talking virtually all of the time. When I first read it I kinda thought that this was already the law, and while closer inspection reveals an academic point I disagree with, it is as a practical sense absolutely nothing new.

To a certain extent we agree. I'm sure most police departments are smart enough to ask for a waiver immediately just to be safe. I don't think it is purely academic though. Say the cops Mirandize, cuff the suspect and put him in the squad car. Suppose they then interrogate the suspect on the ride back and the suspect admits his guilt in response. The suspect asked neither invoked silence nor the right to a lawyer. Would that be admissible? I say yes.

Suddenly

8th June 2010, 07:37 AM

To a certain extent we agree. I'm sure most police departments are smart enough to ask for a waiver immediately just to be safe. I don't think it is purely academic though. Say the cops Mirandize, cuff the suspect and put him in the squad car. Suppose they then interrogate the suspect on the ride back and the suspect admits his guilt in response. The suspect asked neither invoked silence nor the right to a lawyer. Would that be admissible? I say yes.

I agree. His participation is an implied waiver of the right assuming his participation happens reasonably soon.

It is the broad interpretation of waiver that makes this case largely academic. Pretty much anything verbal that isn't a direct affirmation is a waiver. Miranda makes it clear the right has to be waived, but the evolution of the doctrine makes it hard not to waive.

Sort of like the progression of the radio tuning dial as described in the Hitchhiker's Guide to The Galaxy, where it goes from remote control to motion detection to the point that if you want to listen to a station for any length of time you have to sit completely still. For initial waiver to be an issue you have to sit there and not take part.

Three hours of head nodding seems to be one set of facts where waiver is an issue. At some point the lack of participation indicates a lack of waiver. Up until then, interrogation can be arguably framed as a request for a waiver. It comes up here or there in criminal law that a rule or law has been so narrowed and excepted that we can sit around for hours trying to make up a set of facts where the rule applies, and this looks like one of those situations.

ponderingturtle

8th June 2010, 05:23 PM

The main thing seems to be that this ruleing hurts those least able to navigate the system. Carreer criminals and the educated will know what to do and others will not.

Harvard Law professor William Stuntz, considered something of a conservative, says that the ruling flies in the face of reality, since almost anyone will answer some questions if interrogated in a small room by police officers for hours on end. "Police don't need rubber hoses to get people to answer questions," he says. "Persistent questioning alone" will get suspects to give answers eventually. And when a suspect finally does answer a question, the Supreme Court now says those answers amount to a waiver. Concludes Stuntz: "Miranda just doesn't mean much."

Stanford Law professor Pam Karlan, on the liberal side of the spectrum, wonders, what is the cutoff? What if somebody is questioned for "12 hours, or 14 hours while they resolutely say nothing" until they eventually "just get worn down"?

Stanford Law professor Robert Weisberg, who lectures law enforcement officers about criminal law, says that Miranda put the burden on law enforcement to show that a suspect had been informed of and waived his rights. After Tuesday's decision, he says, "The burden is now the other way — virtually anything a defendant says at any point during any kind of interrogation in response to any kind of question is going to constitute a waiver of his right to silence."

NPR link (http://www.npr.org/templates/story/story.php?storyId=127352150)

They also make it clear that police like it, because it is a simple and easy system after it, while before it was more messy and subjective. Of course it makes it easier to get false confessions out of the unsophisticated as well so that is a benefit to some members of law enforcement.

Bikewer

8th June 2010, 05:41 PM

Something the TV and movies gets wrong is the immediate "mirandizing" of the suspect as he's being arrested.
Miranda applies to custodial interrogation. Most all police legal consultants advise to say nothing to the suspect as he's being arrested or transported to the station.
That way, if the suspect does say something incriminating, it can be used as a "spontaneous admission".
When we conduct a formal interrogation, we normally both videotape and audiotape, and the suspect is read each segment of the "rights" and must initial each before signing the waiver.

KingMerv00

8th June 2010, 07:44 PM

The main thing seems to be that this ruleing hurts those least able to navigate the system. Carreer criminals and the educated will know what to do and others will not.

NPR link (http://www.npr.org/templates/story/story.php?storyId=127352150)

They also make it clear that police like it, because it is a simple and easy system after it, while before it was more messy and subjective. Of course it makes it easier to get false confessions out of the unsophisticated as well so that is a benefit to some members of law enforcement.

It's a tough call. I don't want to hurt the innocent but I also want the police to take advantage of dumb criminals. Like I said, reasonable minds can differ.

Suddenly

9th June 2010, 08:02 AM

The main thing seems to be that this ruleing hurts those least able to navigate the system. Carreer criminals and the educated will know what to do and others will not.

That isn't a matter of knowledge as much as composure. I doubt there are many people that are unaware of the basic idea behind Miranda and that they don't have to talk. What happens is that highly trained interrogators use psychological ploys to convince the suspect that talking is in his or her best interest. Law and order virgins are more susceptible to this than those with experience.

These ploys work very well against the guilty, when I was back in trial work I can't count the number of cases I probably win in a jury trial but for a pesky confession. The problem is that it can work well against the innocent, especially those of lesser intelligence that tend to be compliant as a coping mechanism. They learn to go along without really understanding because it saves them from possible embarrassment. That is one pretty well established issue as to false confessions.

Messing around on the edges of the Miranda doctrine is pretty irrelevant to what happens in reality. A substantial reform would be video recording every second of every custodial interrogation. Now and then we get our hands on a recording when the officers thought the cameras were off, and it is rarely pretty. The picture below isn't one of ours, it is from a death penalty case somewhere else, and yes, that is a gun in his hand.

http://i276.photobucket.com/albums/kk31/Elbow_Jobertski/untitled.jpg

Miranda is a nice idea that is now pretty useless. Better would be doctrines requiring transparency and rules based on real science regarding false confessions.

Beerina

12th June 2010, 12:10 PM

Now and then we get our hands on a recording when the officers thought the cameras were off, and it is rarely pretty. The picture below isn't one of ours, it is from a death penalty case somewhere else, and yes, that is a gun in his hand.

Evidence? You may be right, but I'd like to know how many hundreds or thousands or millions of times they've been secretly filmed but did nothing wrong.

You won't hear about those cases, of course. Just the occasional horror as in this picture, which makes the news precisely because it's so wrong and non-standard.

peptoabysmal

12th June 2010, 06:51 PM

I think the new Miranda warning should be "I know what you're thinking, punk. You're thinking "did he fire six shots or only five?" Now to tell you the truth I forgot myself in all this excitement. But being this is a .44 Magnum, the most powerful handgun in the world and will blow you head clean off, you've gotta ask yourself a question: "Do I feel lucky?" Well, do ya, punk"

Lensman

13th June 2010, 11:51 AM

dtugg

13th June 2010, 12:09 PM

My concern would be a situation where a suspect is being interrogated for some time (3 or 4 hours?) & is silent the whole time (as in this case), then the interrogator asks the suspect if he'd like a cup of coffee, would any answer the suspect gave to that question be considered a waiving of his right to silence?

If if it was, so what? It's not like the answer to the question would be incriminating.

Anyway, there is an easy solution to this (and to avoid interrogations altogether). Tell the cops you don't want to talk to them, or ask for a lawyer. That is what I will do if I find myself the suspect of a crime (whether or not I did it).

Lensman

15th June 2010, 12:47 PM

If if it was, so what? It's not like the answer to the question would be incriminating.

<snip>

Would it allow the police to resume the interrogation, or does the "right to silence-waiving" question have to be of the "Why did you do it?" type of question?

dtugg

15th June 2010, 12:57 PM

Would it allow the police to resume the interrogation, or does the "right to silence-waiving" question have to be of the "Why did you do it?" type of question?

Sure they could continue the interrogation. And they could do they same even if he said nothing.

KingMerv00

15th June 2010, 01:05 PM

Would it allow the police to resume the interrogation, or does the "right to silence-waiving" question have to be of the "Why did you do it?" type of question?

I think you are missing something. You can remain silent and allow them to ask you questions. You can terminate the questioning at any time. If you terminate the questioning ONLY you may restart it (barring the two week rule I mentioned earlier).

If you remain allow them to ask you questions and ask for a cup of coffee you have chosen to not remain silent but the coffee request is hardly incriminating and you can still end the interrogation if you choose.