Law and Order 2 - Page 124 - Politics and Economics

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06-20-2013 , 10:15 PM

#3076

Bremen

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Relevant text:

Quote:

No person shall ... nor shall be compelled in any criminal case to be a witness against himself

If you want to be insanely nitty you would argue the text only means the defendant does not have to take the stand.

06-21-2013 , 12:59 AM

#3077

vhawk01

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"Witness" doesnt mean someone on the stand, and "criminal case" doesnt mean a trial, though.

06-21-2013 , 01:02 AM

#3078

Happy_Fish

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Yup

06-21-2013 , 01:11 AM

#3079

Bremen

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Quote:

Originally Posted by vhawk01

"Witness" doesnt mean someone on the stand, and "criminal case" doesnt mean a trial, though.

Sure.

That doesn't change that you don't get to pick and choose which questions you want to answer.

06-21-2013 , 01:40 AM

#3080

Happy_Fish

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I don't follow that logic.

"Well, he told us his name and his favorite football team, so.........."

06-21-2013 , 01:57 AM

#3081

AngusThermopyle

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Not sure if it is a case that you cannot pick and choose (in a police interview, custodial or not) which questions to answer.

It seems that the Court is saying that if you do not want your silence to be used in court, you have to explicitly state that you are invoking your 5th amendment right relative to that question (or all further questions). There is nothing in the majority decision saying "since he answered the first eleven questions and the last eight, he loses his 5th amendment right on number 12."

06-21-2013 , 02:14 AM

#3082

Happy_Fish

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That would be a more reasonable interpretation, but also incredibly nitty. "You have to answer unless you say you're not gonna answer." It was my impression that because he started to answer questions, he was unable to assert the 5th to other questions.

06-21-2013 , 02:17 AM

#3083

Bremen

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Quote:

It seems that the Court is saying that if you do not want your silence to be used in court, you have to explicitly state that you are invoking your 5th amendment right

If you have someone who gets arrested and just refuses to say anything ever and the court ruled that way I would agree it's an insane ruling.

For many other instances the ruling makes perfect sense. Especially the case given where if I understand correctly the defendant originally agreed to answer questions. Under those conditions where someone agrees to cooperate it is difficult to then give them the presumption of not cooperating unless they demonstrably refute their earlier statements of cooperation.

06-21-2013 , 02:20 AM

#3084

Happy_Fish

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I would agree that if a suspect (though they claim he wasn't at the time) agrees to answer some questions, he should at that point state in no uncertain terms why he refuses to answer other questions, and that he's invoking his fifth amendment rights as it pertains to that question.

06-21-2013 , 02:28 AM

#3085

ikestoys

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Join Date: Nov 2006 Posts: 94,424

What a weird freaking case, seems pretty limited in scope though.

06-21-2013 , 02:38 AM

#3086

AngusThermopyle

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Quote:

Originally Posted by Bremen

If you have someone who gets arrested and just refuses to say anything ever and the court ruled that way I would agree it's an insane ruling.

http://en.wikipedia.org/wiki/Berghuis_v._Thompkins

From the current ruling:

Quote:

Petitioner and the dissent attempt to distinguish [*7] Berghuis by observing that it did not concern the admissibility of the defendant's silence but instead involved the admissibility of his subsequent statements. Post, at 8-9 (opinion of BREYER, J.). But regardless of whether prosecutors seek to use silence or a confession that follows, the logic of Berghuis applies with equal force: A suspect who stands mute has not done enough to put police on notice that he is relying on his Fifth Amendment privilege

06-21-2013 , 02:45 AM

#3087

Bremen

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Quote:

Originally Posted by AngusThermopyle

http://en.wikipedia.org/wiki/Berghuis_v._Thompkins

The Court held that unless and until the suspect actually stated that he was relying on that right, his subsequent voluntary statements could be used in court...

Subsequent voluntary statements kinda goes against

Quote:

...and just refuses to say anything ever...

and also implies that if you don't make "subsequent voluntary statements" you're good

Although if you don't want to waste a few hours ignoring questions you're best off explicitly claiming 5th amendment protection.

06-21-2013 , 08:40 AM

#3088

simplicitus

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"The typical American commits three felonies a day." http://marginalrevolution.com/margin...+Revolution%29

06-21-2013 , 11:04 AM

#3089

Bremen

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Interesting blog post on the history of 5th amendment jurisprudence. Deals with how Griffin and Miranda changed how it was interpreted and how that fits with today's Salinas case.

http://www.volokh.com/2013/06/17/do-...linas-v-texas/

Prior to 1965 is you didn't take the stand the prosecutor could use that against you at trial.

06-21-2013 , 08:30 PM

#3090

vhawk01

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Quote:

Originally Posted by Bremen

Sure.

That doesn't change that you don't get to pick and choose which questions you want to answer.

Well, I dont see what possible reason you could have for not being able to pick and choose, but I agree with you that my post doesnt change anything.

06-21-2013 , 08:31 PM

#3091

vhawk01

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Quote:

Originally Posted by AngusThermopyle

Exactly. Which is horrible, and makes absolutely no sense, and I cant understand how they could possibly rule it. I mean...the very definition of a right sort of implies that you ALWAYS have this right, at all times. You dont have to decide to ACTIVATE or EQUIP your right at special times, and if you dont say the magic words, you are SOL.

06-21-2013 , 08:34 PM

#3092

vhawk01

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Quote:

Originally Posted by Bremen

That is interesting, thanks.

06-27-2013 , 04:15 PM

#3093

pvn

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http://gawker.com/teen-faces-years-i...ium=socialflow

Quote:

A Texas teen has been jailed since late March for what his father says was just a dumb joke he posted on Facebook.

06-30-2013 , 02:48 PM

#3094

Aptronym

journeyman

Join Date: Sep 2010 Posts: 361

Bottled water lands UV student in jail

http://www.nationalreview.com/corner...eam-mark-steyn

Quote:

I’ve written before about the psychologically unhealthy need of every tinpot makework bureaucracy to run around pretending to be Seal Team Six. In a free society, a law-abiding citizen strolling the streets of her community has a reasonable expectation of occasionally encountering a uniformed constable, but plain-clothes, undercover “agents” from the Department of “Alcoholic Beverage Control” who want to examine her bottled water?

When a half-dozen men and a woman in street clothes closed in on University of Virginia student Elizabeth Daly, 20, she and two roommates panicked.

That led to Daly spending a night and an afternoon in the Albemarle-Charlottesville Regional Jail. Her initial offense? Walking to her car with bottled water, cookie dough and ice cream just purchased from the Harris Teeter in the Barracks Road Shopping Center for a sorority benefit fundraiser. ...><snip><...

06-30-2013 , 03:07 PM

#3095

AngusThermopyle

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A few more facts in this article

06-30-2013 , 04:14 PM

#3096

joeyDizzle

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Join Date: Jul 2006 Posts: 2,227

Quote:

Originally Posted by AngusThermopyle

A few more facts in this article

Quote:

A group of state Alcoholic Beverage Control agents clad in plainclothes approached her, suspecting the blue carton of LaCroix sparkling water to be a 12-pack of beer. Police say one of the agents jumped on the hood of her car. She says one drew a gun. Unsure of who they were, Daly tried to flee the darkened parking lot.

"They were showing unidentifiable badges after they approached us, but we became frightened, as they were not in anything close to a uniform," she recalled Thursday in a written account of the April 11 incident.

"I couldn't put my windows down unless I started my car, and when I started my car they began yelling to not move the car, not to start the car. They began trying to break the windows. My roommates and I were ... terrified," Daly stated.

Quote:

The woman was on edge after spending the night listening to stories from dozens of sexual assault survivors at an annual "Take Back the Night" vigil on Grounds, said Daly's defense attorney, Francis Lawrence.

All of this, for what they thought was a 12 pack of beer.

06-30-2013 , 05:32 PM

#3097

pvn

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it will get pled down

06-30-2013 , 07:23 PM

#3098

vhawk01

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Yeah I mean the worst part isnt that it turned out it was just water. The worst part is this is the situation they decided to create for, AT WORST, a 12 pack of beer. GUNS DRAWN?!?!?!

06-30-2013 , 07:57 PM

#3099

AngusThermopyle

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Quote:

Originally Posted by vhawk01

Yeah I mean the worst part isnt that it turned out it was just water. The worst part is this is the situation they decided to create for, AT WORST, a 12 pack of beer. GUNS DRAWN?!?!?!

Imagine if the woman and her two friends all had concealed carry...

or just if she pulled out her cell phone that in some bizarro way could possibly be mistaken for a gun...

06-30-2013 , 08:00 PM

#3100

ikestoys

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Join Date: Nov 2006 Posts: 94,424

Yup that's how Corey Maye ended up in prison for so long. Police officers executed a no knock raid at the wrong address, he shot one in fear for his life, and Maye went to prison for a long time.

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