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View Diary: Supremes chisel away at Miranda. Again. (82 comments)

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  •  From Tim Lynch, at CATO (16+ / 0-)

    Whom I rarely quote, but:

    The Supreme Court has also held, properly, that if anyone declines to take the witness stand during the trial, the prosecutor can’t attack that choice to the jury with comments like, “He could have taken the stand to tell us his side of the story, but he didn’t. That tells us quite a bit, doesn’t it?” The rationale against allowing that sort of “evidence” is that if one really has a right against self-incrimination, the government should not be permitted to attack it. The prosecutor must use other evidence to persuade the jury of guilt.

    ...What’s most disturbing about the ruling is its discussion of “burdens.” The plurality put the onus on the individual, not the government. That is the profound error in the decision. As the dissenters noted, in the circumstances of the case, it was evident what Salinas was doing. Unfortunately, the Supreme Court has complicated the law for persons who are the most vulnerable–persons who lack education, persons who do not speak English very well, persons who may suffer from mental problems, and persons who may be under the influence of alcohol. This is a bad day for the Bill of Rights.

    •  That works in reverse, though. (1+ / 0-)
      Recommended by:

      There's a right to tell the police what you want, without the police being able to use their own observations?  I think quite simply, in a voluntary setting, the police can testify as to someone's demeanor in a non-custodial interrogation upon being being confronted with evidence, and the defense can attack the weight of that evidence, or the judge could determine the weight is so little that it doesn't even go to the jury, without passing on the 5th amendment.

      Allowing statements of the kind described above ("why wouldn't he testify?") are tantamount to requiring the defendant really testify.  In Christmas Story terms, it's a triple-dog dare.  But I don't see such risk here, since by definition, the interrogation isn't custodial.  Nobody's damned if he does or damned if he doesn't.  

      The final statement, however, is valid, but it would be more compelling for actual custodial interrogations but the Court already said no to that one.  I don't see how the court can really justify a greater protection for defendants for (non-) statements in voluntary interrogations versus custodial ones.

      Difficult, difficult, lemon difficult.

      by Loge on Mon Jun 17, 2013 at 12:09:10 PM PDT

      [ Parent ]

      •  Allowing testimony about a failure to answer a (3+ / 0-)
        Recommended by:
        burlydee, Adam B, wxorknot

        question is no different and is tantamount to requiring a suspect to speak with the police.  What if the police had started with "where were you last night at such and such a time?" and he hadn't answered, but had acted nervous.  He's invoked his right to not answer questions by refusing to answer.  If the prosecutor can point out his refusal to answer, how is he not then being forced to answer?  

        The only difference here is that he'd answered some questions before he elected to invoke his right.  But that's a right a suspect has at any time.  Answering some questions does not waive your right.  

        Can you imagine an interrogation where a suspect is asked question after question after question, and just doesn't answer them, and then that failure to answer is used against him because he didn't deny anything.  Suppose you're that person.  Do you think, knowing you're suspected, might fidget a bit, might have some body language that shows nervousness?  Do you think anyone in that position wouldn't exhibit some nervous tics?  And that's going to be used as evidence of your guilt.

        How is that possibly not obligating someone to answer questions?  I'm not seeing the difference you seem to be seeing.

        "If you trust you are not critical; if you are critical you do not trust" by our own Dauphin

        by gustynpip on Mon Jun 17, 2013 at 04:46:47 PM PDT

        [ Parent ]

        •  The case would have come out differently (0+ / 0-)

          If petitioner had expressly invoked the privilege.  Here, the issue is what right against adverse inferences - derivative of the underlying right - applies when he doesn't.  That would mean he doesn't have to answer the question but has to say why.  He also doesn't have to talk to the police at all.  Had some of the previous cases regarding how express the invocation of the right to silence come out differently, I'd see staying silent as invoking the right, but in the absence of that, I find it harder to justify a more stringent rule for non custodial interrogations.  

          Difficult, difficult, lemon difficult.

          by Loge on Mon Jun 17, 2013 at 05:43:26 PM PDT

          [ Parent ]

    •  The burden shifting is beyond shameful. (6+ / 0-)

      There's something fundamentally wrong if the State can take away 5th Amendment rights without proving someone knowingly and affirmatively and voluntarily gave them away.

      I'm recalling the factual foundation that is laid in order to demonstrate a defendant voluntarily and knowingly waives a bunch of rights when s/he enters a guilty plea - and there's always a judge present and usually an attorney, too, so it's not as if the defendant is alone and scared shitless in "ambiguous circumstances."  

      Yet the plurality here thinks it's just fine to deem a defendant to have waived her 5th amendment rights if she stops talking - and then fidgets.

      Kinds of makes the right against self incrimination a tad illusory ....

      Out with the gloomage - in with the plumage!

      by mikidee on Mon Jun 17, 2013 at 12:32:14 PM PDT

      [ Parent ]

      •  Worse than that (3+ / 0-)
        Recommended by:
        misslegalbeagle, gecko, mikidee
        Yet the plurality here thinks it's just fine to deem a defendant to have waived her 5th amendment rights if she stops talking - and then fidgets.
        They are saying that in order to make use of a right that the Constitution specifically delineates, you have to affirmatively invoke it.  The 5th no longer hovers over you like a protective umbrella.  You have to take your special 5th Amendment rain slicker out of your pocket and put it on in order to have protection.

        I do not feel obligated to believe that the same God who has endowed us with sense, reason, and intellect has intended us to forgo their use -- Galileo Galilei

        by ccyd on Mon Jun 17, 2013 at 05:57:41 PM PDT

        [ Parent ]

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