Supreme Court Bombshell: No Right to Remain Silent

chanson78

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I think what is the most scary, is that while you can still utilise the 5th to avoid incriminating yourself, you still have to "know the magic words".

"I ain't talkin." - Not good enough, can paint that as guilty in front of a jury.
"I'm not talking." - Not good enough, can paint that as guilty in front of a jury.
“I expressly invoke the privilege against self incrimination” - Magic words that forces police to leave you alone.

There will likely be no modification to Miranda to ensure that people know these magic words. It is almost hearkening back to the age when those with power witheld knowledge from the masses to be able to twist the system to keep them oppressed and beat down.
 

Tidewater

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“I expressly invoke the privilege against self incrimination” - Magic words that forces police to leave you alone.

There will likely be no modification to Miranda to ensure that people know these magic words. It is almost hearkening back to the age when those with power witheld knowledge from the masses to be able to twist the system to keep them oppressed and beat down.
In this case Salinas had not been arrested yet, he was only being questioned pursuant to an investigation of a crime.
 

G-VilleTider

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In this case Salinas had not been arrested yet, he was only being questioned pursuant to an investigation of a crime.
Interesting. So does the right to remain silent only apply after an arrest? If you remain silent or refuse to answer during questioning only, can you be charged with obstruction or another crime? Does a request for a lawyer have the same effect during questioning as it does after an arrest?
 

cbi1972

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I mean, if we are going to be constitutionalists in part, let's be them in whole. The Fifth Amendment says, that no one "shall be compelled in any criminal case to be a witness against himself.” When the question was asked, he wasn't arrested. He wasn't on trial. He wasn't even in custody. I see no problem with this ruling.
What, in your opinion, is required in order to enjoy 5th Amendment protection?
 

AlexanderFan

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I think what is the most scary, is that while you can still utilise the 5th to avoid incriminating yourself, you still have to "know the magic words".

"I ain't talkin." - Not good enough, can paint that as guilty in front of a jury.
"I'm not talking." - Not good enough, can paint that as guilty in front of a jury.
“I expressly invoke the privilege against self incrimination” - Magic words that forces police to leave you alone.

There will likely be no modification to Miranda to ensure that people know these magic words. It is almost hearkening back to the age when those with power witheld knowledge from the masses to be able to twist the system to keep them oppressed and beat down.
Almost? That is exactly what is happening.

Sent from my DROID RAZR HD using Tapatalk 2
 

cbi1972

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Constitutional principles should not be opaque to the average citizen. If we have to jump through arcane and/or unknown technical and legal hoops to enjoy our rights, then they may as well not exist.
 

TIDE-HSV

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Well, if you are brought to trial, you shouldn't have to testify against yourself. That doesn't seem particularly opaque to me. Everything beyond that is a prophylactic addition. If you are arrested but they can use your silence during interrogation against you in a trial, it's sorta like testifying against yourself (through silence). Or that was the original Supreme Court justification at least. Cases like this are what happens when you try and play around with the Constitution to make it do things you want--like give you a "right to remain silent." The limits get fuzzy.
I don't think the limits were fuzzy at all - until yesterday...
 

crimsonaudio

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The last Supreme Court case was about whether someone who doesn't speak but doesn't specifically invoke the right to remain silent was still protected by the 5th Amendment. It's fuzzy. It always has been.
So you have to know to invoke your right, even though 5A doesn't say anything about that?

Interesting.
 

cbi1972

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OK, the "right to remain silent" as we know it is a wholly judicial creation promulgated by the Supreme Court in Miranda. It is not a constitutional rule. The constitution only prevents you from having to actually testify in court when you are accused of a crime. The Supreme Court created a non-constitutional "prophylactic rule" in Miranda to bolster that constitutional protection. Because it's just a precautionary rule that the court just made up, they have expanded and contracted the right depending who is on the court. The most "conservative" position is that Miranda should be overturned and your right to remain silent returned to the courtroom whence it began.
Great. What are you going to do with people that won't confess? Compel them?
 

crimsonaudio

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OK, the "right to remain silent" as we know it is a wholly judicial creation promulgated by the Supreme Court in Miranda. It is not a constitutional rule. The constitution only prevents you from having to actually testify in court when you are accused of a crime. The Supreme Court created a non-constitutional "prophylactic rule" in Miranda to bolster that constitutional protection. Because it's just a precautionary rule that the court just made up, they have expanded and contracted the right depending who is on the court. The most "conservative" position is that Miranda should be overturned and your right to remain silent returned to the courtroom whence it began.
The salient part of 5A wrt this discussion is 'nor shall be compelled in any criminal case to be a witness against himself' - perhaps I'm just too libertarian, but when an officer of the law testifies that my behaviors, namely my silence, are proof of my involvement or guilt in a criminal trial, I'd say that's exactly the sort of thing 5A was created to protect us against.

But feel free to dance around the obvious spirit of the Amendment in order to make it seem as if the court isn't continuing to whittle away our rights...
 
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TIDE-HSV

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In the old days they just asked you questions until you confessed. You could pass a law to prevent that. You could amend the constitution to prevent it. Or you could, as the Supreme Court has done, just mandate a rule to prevent it. You can decide what method is best, but a lot of folks on this board aren't huge fans of the last option when other subjects are being discussed.
I couldn't care less as to what the board are or are not fans of. My opinions are my own...
 

cbi1972

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In the old days they just asked you questions until you confessed. You could pass a law to prevent that. You could amend the constitution to prevent it. Or you could, as the Supreme Court has done, just mandate a rule to prevent it. You can decide what method is best, but a lot of folks on this board aren't huge fans of the last option when other subjects are being discussed.
It is an strange and narrow view that 'in criminal cases' refers only to the trial stage. I would say that the criminal case begins when investigation does.
 

TideEngineer08

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It doesn't take a lot of intelligence to see where things are headed, considering all of the news of the past, oh 7 or 8 months.

It saddens me deeply to see what we've fallen to in this country, in just the last decade.
 

mikes12

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So we now have to invoke magic legal words in order to activate our 5th amendment rights. Gotcha.

So what are the magic legal words to invoke the 4th and protect ourselves from search and seizure?
 

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