Posted on 08/15/2014 3:47:36 PM PDT by Jet Jaguar
If it is a standard of law that I must invoke my right to remain silent, then I’m going to remember that.
However, “compelled to testify” doesn’t equal “draw no inferences from behavior” to me. In 1783 language, it means “get threatened and drug into court.”
the court is stupid
I can no longer spend time on this thread. The arguments have all been clearly laid out. Reiterating them is pointless and repetitious, at least to me.
I understand. I don’t wish the perp to be free with this young girl dead, though. I’m looking for an acceptable way to keep murderers in jail. You’re looking for an acceptable way to preserve the rights of innocent people. Not that either of us are against the other....just looking at different concerns.
I agree with that for the most part. It’s not my intent to see the guy walk here. I don’t want him forced to talk before Miranda as it pertains to guilt. As for sentencing, I see no value in reviewing his silence. One person might talk profusely feigning compassion and be a psychopath. Another guy may sit silently feeling extremely remorseful.
Do you give the verbal psychopath a lighter sentence?
In my post 38 I touched on this. I didn’t think you had objected so I touched on it again.
It is true you didn’t say it. It is also true you didn’t object when I either correctly or not attributed this to you earlier.
http://www.freerepublic.com/focus/news/3193350/posts?page=38#38
Agreed.
I think someone once said that military justice is to justice as military music is to music. Once while standing waiting for a liberty launch to carry me back to the aircraft carrier I was looking out on the bay of Naples when I heard a smack behind me. When I turned I saw a petty officer getting up off the ground and yelling to the shore patrol to, “Put that man on report, he just hit me.” The man he accused of hitting him was my buddy who had been out barhopping with me. This ended with my pal being restricted to the ship for a while by order of the Captain of the ship even though there was no evidence against him other than the statement in writing by the petty officer who was on another ship. No testimony of any kind. I had been ordered to appear at the Captain’s mast even though I had seen nothing. The division CPO told me flat out that he thought I was lying to protect a friend but I was not allowed to testify because I had made it clear that I did not see anything and was not going to say otherwise. The CPO asked me if I could say that my friend did NOT hit the other man and I told him no, I had heard a sound that could have been a blow, I turned around and I saw the man rising from the ground and claiming that he had been hit but I did NOT see anything. I know the blow was struck because the acccused told me that he had in fact struck the other man because of something that had been said to him but I was not going to volunteer that and I was not asked about such a possibility. Restriction to the ship with no liberty was not a big deal but it made me wonder if there would have been any more protection for the right of the accused if there had been more at stake.
Thank you.
I, likewise, hold a good opinion of you.
But, there’s no way that Richard Tom had physical or mental leverage used against him compelling him to take the witness stand and testify against himself.
I respectfully disagree; but then I have laid that case out elsewhere.
I could very well be wrong; but this decision violates my sensibilities and sense of justice and I would be remiss if I had not laid out the case thereof.
He wasn’t drug to court.
Of course he was — or do you deny his arrest and that he was compelled to appear. (i.e. that non-appearance would have been unacceptable; also it is highly likely that he could have been in custody from arrest until trial.)
His wife wasn’t held at gunpoint. His bank accounts weren’t seized.
His own self would have been so held at gunpoint, or worse, had he resisted.
He behaved in a certain way at the scene of an accident.
Agreed.
That behavior was noted by the prosecutor. What I asked Laz....if Tom had pointed and laughed at the wrecked car, he would have said nothing.
No, but that would have been an action; considering standing around being silent [i.e. non-action] as evidence of guilt just as much as pointing-and-laughing makes this Morton's fork — an anathema to our traditional jurisprudence.
Could that pointing and laughing have been commented upon by the prosecutor?
It would not be remaining silent, would it?
But then, this action would also be considered witness to his guilt; to hold that non-action also witnesses to his guilt completes the fork:
If you act, you are guilty; and if you do not act, you are guilty — how then could anyone maintain that they are not guilty
and not harm their own case? They cannot — in this manner testimony has been compelled, either by action or non-action, and no matter the choice you provide evidence for your own guilt.
The jury system, like an elected government, is no better than the citizens who sit on the jury and vote in the elections and sometimes not even nearly that good.
Yes, but he had not claimed his right, and the court says that the standard interpretation of our law is that he must unambiguously claim the right to remain silent. If they are right about that, then this silence IS behavior. And the defense is able to interpret it differently than the prosecution, as the defense could also claim pointing, pacing, laughing, sleeping, crying....whatever...has multiple interpretations.
We are saying that the prosecutor cannot even point it out but that she can those other behaviors.
“In my post 38 I touched on this. I didn’t think you had objected so I touched on it again.In my post 38 I touched on this. I didn’t think you had objected so I touched on it again.”
1. You didn’t ‘touch’ on it again. You made a blatant lie about what I said and didn’t even have the courtesy to copy what I said in your post.
2. In the linked post#38, you did NOT attribute anything to me so why should I object.
2. I did reply to #38 THREE times.
I very much do not agree with this interpretation; it is far too close to the doctrine the courts hold for Jury Nullification: that the juries unequivocally have that right, but that there is no requirement to inform them of that right; moreover, to do so in court is grounds for a mistrial.
I can all too easily imagine the right to silence likewise being relegated to that sort of position because there is no such right unless explicitly claimed by the defense.
It rubs my sense of justice the wrong way.
They claim that this interpretation is standard and cited case law demonstrating same.
However, why is silence NOT behavior?
Why can I mention other behavior?
I could do the same that would invalidate the fourth amendment — it has been sacrificed so oft in the War on Drugs, and more recently the War on Terror *cough*TSA*cough*, that citing it as a protection is nearly laughable.
That it is common, or readily accepted by the Judiciary does not mean that it is right.
However, why is silence NOT behavior?
Why can I mention other behavior?
Let's put it another way; if you must specifically invoke the right to silence what's to keep the police from literally beating a confession out of you and then reading you your rights? Or, more realistically, what about if you are read your rights but do not specifically and explicitly claim the right to silence? What about if you are about to be arrested, claim the right, and then are mirandized? Does your claiming it still hold even though, apparently, you don't have that right until it is read to you?
No, there are far, far, far too many abuses in this sort of interpretation.
And that does not [explicitly] touch on the Morton's Fork nature of silence and not-silence being used to evidence guilt.
The more you delve into this, the eviler its true nature becomes apparent.
http://www.freerepublic.com/focus/news/3193350/posts?page=62#62
Yes you did respond to it. And here you are trying to make the case it would be wrong to release the guy based simply on the inclusion of a statement that he said nothing prior to Mirandizing.
At least it appears you wish me to agree with that. And since I did tie it to the conviction, it appears you approve of tying it to the conviction.
If I were the judge I would not allow the mention of his silence prior to Mirandizing. His silence does not provide evidence of guilt or innocence. If it is mentioned, it could be seen as prejudicial and I would not want a defence attorney to be able to come back and appeal based on prejudicial actions by the prosecution.
It appeared to me you had no such concern, and were fine with the tactic. I am not, and I called you on that point.
It is true you didn’t come right out and say it, but the inference was there.
You deserve that as the voice of reason in this thread.
“It is true you didn’t come right out and say it, but the inference was there.”
You stated that I would convict someone because they were silent! That is not even close to what I said. People should be convicted on the evidence but not be allowed to go free on a technicality which had little bearing on their conviction.
Then it was my take you should have objected to the premise you quoted in that post.
Why didn’t you object to my reference to tying the silence to conviction. It appeared to me that didn’t bother you.
Do I think he should walk on that technicality? No, but I would do my best to avoid that technicality existing.
Wrong, wrong, wrong. The Court of Appeal did not order him freed. They ordered that he be re-tried, with all of the same evidence against him (the speeding, the blood alcohol level, etc.), except for the prosecutor's argument that he should have asked about the occupants of the car he hit.
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