SCOTUS inverts Miranda

[Dr Mordrid]

Whoa....

The majority ruling is in line with the position taken by the Obama administration and so argued by U.S. Solicitor General Elena Kagan, now a nominee to the Supreme Court.

Link...

Supreme Court: Suspects must invoke right to remain silent in interrogations

By Robert Barnes
Washington Post Staff Writer

The Supreme Court ruled Tuesday that a criminal suspect must explicitly invoke the right to remain silent during a police interrogation, a decision that dissenting liberal justices said turns the protections of a Miranda warning "upside down."

The court ruled 5 to 4 that a Michigan defendant who incriminated himself in a fatal shooting after nearly three hours of questioning thus gave up his right to silence, and the statement could be used against him at trial.

"Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent," Justice Anthony M. Kennedy wrote for the court's conservatives.

[Jammrock]

That is very interesting. Though I don't see how you can throw out a right to silence if they talked to police for three hours before hand?

[cjolley]

Even at that they don't really have to invoke the right.
They can just not talk, can't they?

[VJ]

It does change police movies as well...
policeman: "Arrest him"
suspect: "Hey, I have the right..."
policemen together, with fingers in their ears: "Nana, we can't hear you!"

I'm with cjolley: I never understood this right think... I mean, it seems obvious that the police tells a suspect he has the right to remain silent... but now why would he invoke the right? He could just keep shut...

[Dr Mordrid]

You'd be shocked at how many don't just shut up.

[Jammrock]

You'd be shocked at how many don't just shut up.

The stigma and the image that the media and TV try to press is that if you don't talk you make yourself look guilty. So a lot of people will talk to try and make themselves appear not guilty.

[Umfriend]

Detectives persisted in what one called mostly a "monologue" for about two hours and 45 minutes, until one asked Thompkins whether he believed in God. At a follow-up question -- "Do you pray to God to forgive you for shooting that boy down?" -- Thompkins answered "Yes" and looked away/

I'm missing the point methinks. How could this simple answer to this question be used against you (unless religion was relevant to the case)? What disadvantage did the suspect experience due to this single answer?

[Dr Mordrid]

If you answer any question it negates the protection Miranda gives. It's an all or nothing deal.

[cjolley]

I doubt that the fact that it's an admission of guilt helps much either.

[Umfriend]

Even more confused, Doc. Do you mean to say that once one answer was given to any question, you have lost the right to remain silent, is that it?

[Dr Mordrid]

Pretty much - and in court or congressional testimony once lost if you refuse to answer you could face contempt of court charges and go directly to jail after a special hearing.

Grand Juries are a special case - these are held by prosecutors to return indictments. Normally a potential defendant doesn't appear to testify, but they have the right to do so if the prosecutor doesn't object (though failing to allow such testimony could bring a later argument of unfairness.) If they do elect to testify they have to answer all questions and their attorney cannot object to any lines of inquiry that they otherwise could in a trial. They can observe, but that's about it.

Federal Grand Juries are also unique in that they contain from 16 to 23 members, and an indictment can be returned if only 12 vote to do so. States can follow this example or not. They can also elect not to use Grand Juries at all (about half do.)

Also; grand jurors are not screened for biases or other improper factors and the proceedings are secret, meaning no press allowed and if any participant "leaks" they could be indicted themselves.

[Umfriend]

Oh, I think I understand. Once you waive your miranda rights you are obligated to answer any question and failure to do so (a) you might be charged with contempt of court and (b) you refusal may be interpreted as an admission of guilt?

WOW! I would assume that, when not under oath in court, one could choose which questions to answer and not risk charges of perjury.

[Dr Mordrid]

Nope - all in or all out because in court you must swear to tell the truth. Once sworn either in testimony or in depositions lying can also bring perjury charges, which is what got President Clinton in trouble and disbarred from practicing law. People think it was about sex, but not so - it was his perjury that got him in the deep stuff.

[Umfriend]

That is why I said "when not under oath in court"?

[Jammrock]

There are many types of "right to remain silent" in the US, but two are most common. The first has to do with the Miranda right. That right grants you the freedom to shut the hell up and not answer police questions at all, or only in the presence of your lawyer. This is the law/right that the recent Supreme Court turned upside down by ruling it's an all or nothing deal. Either you shut up or you talk when being questioned by the police. Though declaring you won't answer further without representation is still intact (so you can talk, then refuse further questions without a lawyer, but whatever you say still counts because you have waived your right to be silent through action). Though you are required, by law, to give your legal name, which does not break your right to remain silent.

The second is "taking the 5th [amendment]". That gives citizens the right to not say anything while on trial that may incriminate them. This also gives you the right not to testify in your own defense as you may perjure yourself. This is where the Miranda right to silence roots from, but federal law interrupts this right differently depending on the circumstance, which is where this article comes in. Taking the 5th on the stand is different than being questioned while in custody, as it is not an all or nothing thing while on trial and you may answer what you want and take the 5th on the rest. However, this only works in criminal cases. In civil cases a jury can discriminate if you invoke your right to silence while a jury/judge cannot discriminate for remaining silent in a criminal trial.

Confused yet? Wikipedia has a fabulous article that explains the amendment is great detail. Maybe that will help.

http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution