RE: Miranda TURNEd UPSIDE DOWN! (Full Version)

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rulemylife -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 2:34:05 PM)

quote:

ORIGINAL: laurell3

Pa, the ruling really isn't all that new or substantial, there are several cases similar, it only confirms a factual situation in which officers continued to question.


What cases would those be?



Arpig -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 2:53:52 PM)

quote:

"At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so
I fail to see how she made this leap, but not knowing the details of the case I will bow to her opinion, Lord knows she is better able to judge the intricacies of the law than I am. However if you say nothing it doesn't really matter. I personally still see it as a strengthening since the detainee can now actively invoke their right to not answer any questions and end the questioning, which as far as I know they could not do before...I guess this time I agree with the majority decision (shocking I know).



pahunkboy -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 2:56:57 PM)

Ok- when being questioned-  one can verbalize  wanting to be silent.

That lasts for 2 seconds as - somehow- one is prompted/ at times deviantly to speak. Sometimes no matter what you say -=the person is GUILTY.

So merely saying you wish to be silent- has not been my experience when questioned.  It is not a magic word.



Arpig -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 3:16:24 PM)

According to the linked article it would now be, however, again without all the details how are we to know.



pahunkboy -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 3:20:01 PM)

-- arrest powers.  who has them?

...more then meets the eye in the US.



rulemylife -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 3:29:37 PM)

quote:

ORIGINAL: Arpig

quote:

"At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so
I fail to see how she made this leap, but not knowing the details of the case I will bow to her opinion, Lord knows she is better able to judge the intricacies of the law than I am. However if you say nothing it doesn't really matter. I personally still see it as a strengthening since the detainee can now actively invoke their right to not answer any questions and end the questioning, which as far as I know they could not do before...I guess this time I agree with the majority decision (shocking I know).


I don't think it is a leap.

Miranda was based on the Fifth Amendment right against self-incrimination.

What this ruling says is you must specifically invoke your rights or your rights can be ignored.



Arpig -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 3:33:37 PM)

It doesn't put a time limit on it, so you can invoke your right at any time during the questioning...unless they left something out in the article. As things stand now (to the best of my understanding) the cops can question you as long as they want, until you ask for a lawyer and he ends the questioning...is this not the case?



pahunkboy -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 3:36:20 PM)

Cops tend to have selective hearing.



realcoolhand -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 3:38:46 PM)


quote:

ORIGINAL: Real0ne

Now have you ever been in a law library?

what is it up to now?  600,000 laws? 


ignorance of the law is no excuse!



It's not entirely true that ignorance of the law is no excuse, though 99.99% of the time, you're right, it's not. And it shouldn't be, when 99% (notice I've left off nearly a full percentage) of the law is pretty damned intuitive stuff, at least when you start reasoning from widely known legal presuppositions (i.e., income is taxable).

Law in large measure simply reflects the normative values all rational people share, and to the extent that it is not value-based tends to be economically efficient (think the common law of trademarks, zoning laws, patent laws, and the tax code). Even those sorts of economically efficient but not value driven laws tend to be very intuitive, though because they can be highly technical criminal liability generally attaches only to "knowing," "willful" or "intentional" violations of the law, which means that you have to know not only what you're doing, but also that it's illegal, before you find yourself knee deep.




realcoolhand -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 3:43:58 PM)


quote:

ORIGINAL: rulemylife

I don't think it is a leap.

Miranda was based on the Fifth Amendment right against self-incrimination.

What this ruling says is you must specifically invoke your rights or your rights can be ignored.



No no no; remember, it's a right to REMAIN SILENT, not to HAVE SILENCE. You can sit grinning all day long and thereby effectively invoke your right. You can also say, "I hereby invoke my right to remain silent" and invoke that same right. What you can't do is sit there dumbstruck for half an hour, then start blabbing, then bitch that the cops didn't understand that you didn't want to talk.

I'm a HUGE fan of Miranda, and I would probably have decided the issue differently than did the Court, but I don't think it's reasonable to say that this decision strikes a huge blow to the rights of the accused.



pahunkboy -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 3:46:58 PM)

We are so fucked.



LadyEllen -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 5:26:43 PM)

Seems youre nowhere near fucked Pa - here's the British version of your Miranda warning

"You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court, anything you do say may be given in evidence against you"

There is another version, but this is the one which if you hear it read to you, youre in trouble. The other version being read to you means they dont really have much on you as yet.

However we have this freedom hating thing called the Human Rights Act 1998 which does more than your 5th amendment I'd say to totally restrict police and prosecution in maintaining your rights - unless youre a "terrorist" of course.

E



Arpig -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 5:33:46 PM)

The Canadian version is as follows:

"You are under arrest for _________ (charge), do you understand? You have the right to retain and instruct counsel without delay. We will provide you with a toll-free telephone lawyer referral service, if you do not have your own lawyer. Anything you say can be used in court as evidence. Do you understand? Would you like to speak to a lawyer?"



Aneirin -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 6:22:43 PM)

quote:

ORIGINAL: Arpig

The Canadian version is as follows:

"You are under arrest for _________ (charge), do you understand? You have the right to retain and instruct counsel without delay. We will provide you with a toll-free telephone lawyer referral service, if you do not have your own lawyer. Anything you say can be used in court as evidence. Do you understand? Would you like to speak to a lawyer?"




Ooo, that's a good one, do you understand ? What if the person replied no to those questions ?



LadyEllen -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 6:30:40 PM)

Then you have to give the caution in French A

E



Arpig -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 6:34:39 PM)

quote:

Ooo, that's a good one, do you understand ? What if the person replied no to those questions ?
From personal experience if you are too drunk to comprehend or totally out of it they lock you up for the night and repeat the warning the next day...I have no idea what they would do if you continually claim to not understand.



LadyEllen -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 6:37:49 PM)

It is for the accused to prove, on the balance of probabilities, that he is insane or otherwise mentally incompetent, if that is what he asserts.

Interesting situation all in all - how might one undertake such a burden if one is insane or otherwise mentally incompetent?

Easier with a lawyer in tow for sure, but a bit late at that stage?

E



Arpig -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 6:40:54 PM)

quote:

Then you have to give the caution in French A
Actually it depends...but it must be given in the official language you understand before they question you. Some other  differences: while you have a right to consult a lawyer you have no right to have a lawyer present during questioning (asking for a lawyer stops the questioning until you get a chance to consult one, but then it can start again without your lawyer present), neither does explicitly invoking your right to remain silent bring the questioning to an end, the police can continue to question you regardless of how many times you say you are invoking your right to remain silent.



LadyEllen -> RE: Miranda TURNEd UPSIDE DOWN! (6/1/2010 6:44:37 PM)

For all the faults of PACE (Police and Criminal Evidence Act) it seems we're miles ahead of you in Canada and especially those oppressed of the USA

E



Aneirin -> RE: Miranda TURNEd UPSIDE DOWN! (6/2/2010 3:45:12 AM)

quote:

ORIGINAL: Arpig

quote:

Ooo, that's a good one, do you understand ? What if the person replied no to those questions ?
From personal experience if you are too drunk to comprehend or totally out of it they lock you up for the night and repeat the warning the next day...I have no idea what they would do if you continually claim to not understand.


One can be perfectly sober and not insane, but when asked if they understood, they could still say no, for they do not understand why they are being arrested, as in their mind, they are not committing an offence. People with learning difficulties for example, as learning difficulties, particularly dyspraxia is not a mental illness but it often results in the person concerned having a different view of the world, and their place in it.



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