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Supreme Court to consider if silence can be evidence of guilt
Al' Reuters ^ | Fri Jan 11, 2013 3:48pm EST

Posted on 01/20/2013 6:08:09 AM PST by Lazamataz

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To: Lazamataz

WTF!!???

If the court rules in the affirmative to undermining Miranda then surely the burning and drowning of witches would be right and just.


141 posted on 01/21/2013 12:02:29 PM PST by Vendome (Don't take life so seriously, you won't live through it anyway)
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To: Lazamataz

WTF!!???

Forgot to mention the 5th amendment, which is the supreme argument and ultimate right, which is also inalienable and no one should be compelled to self incriminate.

You are the accuser and you must your case based on evidence.

If the Supreme Court does rule to undermine the 5th and Miranda, and if a defendent should speak on his behalf proclaiming his innocence, it would not be to far fetched to make the leap by prosecutors to proclaim a defendant is presenting his guilt by way of “He doth protest to much”, he must be guilty.


142 posted on 01/21/2013 12:09:57 PM PST by Vendome (Don't take life so seriously, you won't live through it anyway)
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To: Lonesome in Massachussets
Robert Bork, who took a leave of absence from law school to serve as a tank commander in Korea, during the Korean War, said that if he was innocent he would prefer a court-martial, if he was guilty, he would prefer a jury.

Maybe he said that -- but I can think of one whole class of laws that are considered legitimate and lend themselves to assuming guilt: drug laws. It is thanks to them that the police can assume any large amount of cash on your person is/was meant for a drug transaction, take it, and make you have to prove that it was not.

Think O. J.

O.J. was acquitted because the prosecution sucked. Also, one Freeper mentioned that it looked like OJ was taking the fall for his son, based on the

143 posted on 01/21/2013 1:07:20 PM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: OneWingedShark

Drugs laws are stupid, stupidly enforced, and not appropriate in a free country. Agreed. OJ was guilty as hell and freed by a nitwit jury.

Robert Bork wasn’t always right about everything, but from what I’ve seen of juries and courts-martial, I think he was on to something. I know one court-martial was rigged to let off an NCO in my unit who slapped some kid who was AWOL (basically the prosecution witnesses’ jeep “broke down” and the defendant was let off), but in the scheme of things justice was served: a good NCO got his ass pulled through a ringer for a stupid act, but he didn’t lose his pension or go to jail.


144 posted on 01/21/2013 1:54:30 PM PST by Lonesome in Massachussets (Please, don't tell Obama what comes after a trillion.)
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To: Lonesome in Massachussets
Cops are skilled at drawing suspects into giving contradictory or inconsistent accounts, which is a valuable investigative tool.

Indeed, some cops are so skilled they can befuddle just about anyone into giving contradictory or inconsistent accounts of their actions, whether or not the person did anything wrong. This can greatly facilitate scoring convictions in cases where the cops can't find the real criminal.

145 posted on 01/21/2013 3:35:23 PM PST by supercat (Renounce Covetousness.)
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To: Lazamataz

And of course the low-info public is too focused on King Obama’s inauguration to care about yet another possible erosion of the US Constitution.

And I guarantee you, that the kook fringe leftists who would be protesting in the streets over this, won’t utter a word about it now.


146 posted on 01/21/2013 3:36:40 PM PST by CountryClassSF
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To: supercat

Police take training courses in how to lie to a suspect in order to elicit a confession. Folks might object if I said this makes them professional liars, but they certainly aren’t amateurs.


147 posted on 01/21/2013 3:45:22 PM PST by fattigermaster
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To: NCLaw441
I'm having difficulty following your reasoning.

In a perfect world, prosecutors and defense lawyers would essentially be neutral, both seeking truth and justice, according to law.
In the real world, that is not what happens.
Criminals lie.
Wittnesses lie.
Cops lie.
Prosecutors lie.
Defense attorneys lie.
Even the innocent are forced to silence, in the face of so many lies and liars.
Any words uttered may seemingly add weight to anothers lie.
When and if severe consequences for perjury for criminals, witnesses, cops, prosecutors and defense lawyers(not to mention politicians) are routine, I will reconsider your stated position.

Absent that time of utopia, I will not consider silence an admission of guilt, nor something that needs to be considered as evidence of guilt.

148 posted on 01/21/2013 6:13:55 PM PST by sarasmom
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To: Twotone

I was going to post that video if you didn’t! Not sure it is exactly about what this thread is about - but sure reminded me of it.


149 posted on 01/21/2013 6:25:37 PM PST by 21twelve ("We've got the guns, and we got the numbers" adapted and revised from Jim M.)
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To: shove_it

“guilty until proven innocent”

Hey - it still works for most of Europe IIRC. What? You think America is better than Europe for some reason!!??


150 posted on 01/21/2013 6:35:22 PM PST by 21twelve ("We've got the guns, and we got the numbers" adapted and revised from Jim M.)
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To: Lonesome in Massachussets

If you stay silent, you don’t concoct anything that says you are innocent.

I don’t understand your reasoning.


151 posted on 01/21/2013 7:52:47 PM PST by ConservativeMind ("Humane" = "Don't pen up pets or eat meat, but allow infanticide, abortion, and euthanasia.")
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To: mountainlion
That's right. Executive privilege= silence Sealed records=silence
152 posted on 01/21/2013 8:35:52 PM PST by dandiegirl
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To: 21twelve

I don’t know about criminal law but I’ve beat a few traffic tickets by standing mute when the traffic cop didn’t show up in court.


153 posted on 01/21/2013 8:43:02 PM PST by shove_it (the 0bama regime are the people Huxley, Orwell and Rand warned us about)
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To: ConservativeMind

Read the British warning again. It merely states that if you later offer a defense at trial based on facts that could have been offered at the time of arrest, your failure to assert this “defense” at the time of arrest can, correctly in my opinion, be weighed by the jury in determining the facts in the case. It’s just common sense.


154 posted on 01/22/2013 2:05:16 AM PST by Lonesome in Massachussets (Please, don't tell Obama what comes after a trillion.)
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To: ConservativeMind

Read the British warning again. It merely states that if you later offer a defense at trial based on facts that could have been offered at the time of arrest, your failure to assert this “defense” at the time of arrest can, correctly in my opinion, be weighed by the jury in determining the facts in the case. It’s just common sense.


155 posted on 01/22/2013 2:05:16 AM PST by Lonesome in Massachussets (Please, don't tell Obama what comes after a trillion.)
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To: Lonesome in Massachussets
Read the British warning again. It merely states that if you later offer a defense at trial based on facts that could have been offered at the time of arrest, your failure to assert this “defense” at the time of arrest can, correctly in my opinion, be weighed by the jury in determining the facts in the case. It’s just common sense.

The only common-sense conclusion one can draw from that situation is that your lawyer chose your defense poorly. Exactly how does having a bad attorney become an indicator of guilt?

156 posted on 01/22/2013 2:11:31 AM PST by Teacher317 ('Tis time to fear when tyrants seem to kiss.)
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To: supercat

Yeah, I’ve seen “My Cousin Vinnie”, too. Of course, in that case, there was a series of unlikely (and in the real world somewhat implausible) coincidences and faulty eyewitness identifications. Any lawyer worth his retainer could and would show that the allegedly incriminating statements could in that case were at best ambiguous.

In the notorious Boston Strangler case, the alleged perpetrator, Albert Desalvio, was weak minded and talked into a confession by police posing as his friends. He was never tried for any of the murders, and it is unlikely he could have been convicted. That was case where the police were eager to close a case that actually did have the whole town terrified.


157 posted on 01/22/2013 2:13:33 AM PST by Lonesome in Massachussets (Please, don't tell Obama what comes after a trillion.)
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To: supercat

Yeah, I’ve seen “My Cousin Vinnie”, too. Of course, in that case, there was a series of unlikely (and in the real world somewhat implausible) coincidences and faulty eyewitness identifications. Any lawyer worth his retainer could and would show that the allegedly incriminating statements could in that case were at best ambiguous.

In the notorious Boston Strangler case, the alleged perpetrator, Albert Desalvio, was weak minded and talked into a confession by police posing as his friends. He was never tried for any of the murders, and it is unlikely he could have been convicted. That was case where the police were eager to close a case that actually did have the whole town terrified.


158 posted on 01/22/2013 2:13:33 AM PST by Lonesome in Massachussets (Please, don't tell Obama what comes after a trillion.)
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To: RobertClark
Then the point of Miranda would be........? This is almost amusing, it flies not only in the face of Miranda, but also the 5th amendment.

With all due respect, Miranda only applies to Custodial interrogation. The blurb talks about refusing to speak with police prior to arrest which implies a non-custodial interaction where officers are not required to make a Miranda advisement.

Since Miranda is well-settled, and prosecutors cannot comment on someone's silence once they are in custody, the implication here is that some prosecutor is attempting to test the limits of 'silence' and it's intersection with a police investigation.

The theory probably being that if one is innocent they would answer questions posed by police in a non-custodial encounter. (I personally believe that absent a law to the affirmative, one has no obligation to speak to police and case law bears this out...IOW, there is case law that states in a non-custodial encounter police have zero recourse if someone refuses to answer their questions and simply walks away.)

I would hope that SCOTUS would clarify and expand Miranda to the point that a police officer would be required to inform someone that their encounter is clearly non-custodial and that the person is free to leave at any time without answering any questions that the officer puts to the individual and that prosecutors cannot comment on such an interaction during a trial.

But I won't hold my breath.

159 posted on 01/22/2013 2:26:38 AM PST by Abundy
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To: JZoback

Just FYI, I’m a defense attorney in Texas and this is a very contentious and confusing area of the law.
Federal courts have held (incorrectly IMO) that pre arrest silence may be used against the defendant.
The ruling in state courts here depends on the skill of the defense attorney. If I object based on the Fifth Amendment to the US Constitution then I’m overruled, but when I object under Article 1 Section 10 of the Texas Constitution then I’m sustained.
Sadly the error is deemed waived by the defendant if his attorney did not make the proper objection. In that case the court would not consider it on appeal.


160 posted on 01/22/2013 2:35:45 AM PST by Clump ( the tree of liberty is withering like a stricken fig tree)
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