b322da wrote:The Supreme Court we have now, which has decided to really throw its weight around, has gotten this whole area of the law, where the 5th Amendment and Miranda are involved, muddied up to the point where even brilliant legal scholars hesitate to try to explain it. Not being a brilliant legal scholar, with great fear of error I will stick my neck out.
A Miranda warning is not required unless you are you are detained by law enforcement. The word "detained" is not easy to define, if it can be defined at all. If one is not detained, it appears to mean, at least, that he is free to leave and terminate the interrogation at any time, but that is an almost impossible variable to pin down. It is just another thing for lawyers to argue about. If a Miranda warning is not required nor given your silence may be used against you as an admission of guilt, unless you have positively invoked the 5th Amendment in no uncertain terms. "No uncertain terms" -- what does that mean? Another thing for lawyers to argue about.
Another lawyer full employment decision.
"He said," "she said." Who does the judge and/or jury believe?
This over-brief summary of the way the law appears to be now may well be misleading, however. The Court is not through dealing with this area of the law, and many of those legal scholars will not be surprised at all if the Court overrules Miranda, the logical extension of what it says today. It at least appears clear that the present majority of the Court is intent on lessening the restraints on law enforcement. That has been seen in decisions other than the one here under discussion. It also appears clear that when the Court lays out "rules" which are subject to conflicting interpretations the ground is laid for more subjective judgment.
In sum, many lawyers would say cut it off at the pass, and regardless of innocence or guilt, you should (1) invoke the 5th, "in no uncertain terms," (2) ask to consult with (your) (a) lawyer, and (3) thereafter keep your mouth shut. Do not expect all LEOs to be happy whenever one does this. One must be prepared for an aggressive reaction by some, but not all, LEOs -- always expect the worst. The Court has not yet ruled that invoking the 5th is an admission of guilt, but ....
If, instead, knowing beyond any doubt that you are innocent of any wrongdoing you choose to answer questions, you will of course be considering yourself better qualified to understand the law here than those legal scholars I mention above.
Jim
Jim, I think you did a decent job of explaining it and I may be able to supplement it and make it a little clearer, based on my training and understanding of the rulings.
The first part to clear up is the rule on detention. The explanation is that the warning is needed if the mythical reasonable person would believe that he is not free to leave. Some examples help clear this up. One example where the Miranda warning is not needed was when the police came to a person's house and questioned him in his living room. No reasonable person would have felt he was under arrest at that time, so no warning was needed. A person who is arrested and taken to the police station in handcuffs would need to be warned before any questions are asked. A second confusing case was when the police asked a person to come down to the station to talk to them. When he arrived, they put him in an interview room with a locked door. SCOTUS ruled the warning was needed because a reasonable person would have thought he was unable to leave at will. This is probably the grayest area and the best the guidelines can ever be. One of the key points to remember that most people get wrong is that you do not have to be read the warnings just because you are arrested. The warning is only needed when you are not free to leave and when the police are asking incriminating questions.
The second part is a little easier to understand if you follow the history of the rulings. Escobedo was the first case to clearly establish the right to remain silent. In 1963, Escobedo requested his lawyer and was denied. This was a Sixth Amendment case, but the court said he was clearly denied his right to remain silent. Miranda came next and shifted the principle to the Fifth Amendment. This was the case that established that the police must tell you of your rights. In several other cases since then, the court has ruled that a person needs to make a clear and unequivocal assertion of his rights. Many of these involved people making statements like "I think I should talk to my lawyer" (not good enough) or "Do you think I need a lawyer?" (again, not good enough). Jump to 2010 and the case of Berghuis v. Thompkins. This was one of the better cases where the court said being silent was not enough. Thompkins was arrested and advised of his rights. He was questioned for 3 hours and refused to answer or say anything. He finally broke down under the badgering. The court ruled that his silence was not enough to end the questioning and, based on the prior rulings, that he needed to make a clear and unequivocal assertion of his rights. Now we get to Salinas in 2013. Salinas was not in custody and was not advised of his rights. He was being questioned and was participating. When the detective asked about whether shotgun shells found at the scene would match his shotgun, he clammed up and said nothing. The prosecution alleged that this showed he felt guilty. The court held that this could be used as evidence since he did not make an unequivocal assertion of his rights.
All of this leads up to my advice. If you are ever arrested by the police, you have to answer some very basic questions (name, date of birth, home address). If you are guilty of an offense, at this point you state that you will not answer any questions without your lawyer present and then you shut up. If you are involved in a shooting and believe you are not guilty of any wrong doing, you should answer a few basic questions to show that you are the victim of an attack, make sure that no evidence is missed or lost, and that all witnesses are identified and if you can, what you think they saw or did not see. Then state that you need to talk with your attorney before answering any further questions. The real trick to get the police on your side is to make sure that you identify the evidence and witnesses even if you think it hurts your case. I think that this helps show that you are right and trying to be fair. Of course, some other people say to cooperate fully and still others say to clam up totally.
The only sure thing I can tell you is that the court will reqquire you to make the clear assertion that you will not answer questions to get the police to stop asking you anything.
Jim
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