Sadly I don't have any faith in the GOP
to pursue it; I fully expect it to be another Fast & Furious.
— I can't do anything!
Posted on 08/15/2014 3:47:36 PM PDT by Jet Jaguar
Your ruling then is based on relevancy rather than fifth amendment rights. That’s fine. That is discretionary. However this judge ruled it relevant and it was challenged on constitutional grounds.
Do you believe that the defendant’s constitutional rights were violated?
What specifically in the language of the fifth amendment prohibits the prosecution from presenting evidence that you didn’t say anything at the scene of a deadly accident that you caused?
Can you point me to that language?
Do to statements you have made, I’m not convinced of it.
If there is a clause regarding corrupting the process by allowing information in that cannot be judged, then there might be an argument for it.
You simply cannot come to a reasoned conclusion based on the premise he remained silent. He may have felt very bad about what he had done.
Allowing the information in so the jury could rule that he didn’t care would not be conducive to a fact based determination. It would be pure conjecture.
What is your take on Lois Lerner taking the fifth? Would it be unreasonable to conclude that it is evidence of her callous disregard for the rights of tea party people?
I personally believe it is evidence of her guilt. Her refusal to cooperate in an investigation of IRS abuse should be admissible in both criminal and civil lawsuits against the IRS .
Do you disagree?
I don’t know if this has been posted yet...
“WASHINGTON (AP) — The Supreme Court says prosecutors can use a person’s silence against them if it comes before he’s told of his right to remain silent.
The 5-4 ruling comes in the case of Genovevo Salinas, who was convicted of a 1992 murder. During police questioning, and before he was arrested or read his Miranda rights, Salinas answered some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon.
Prosecutors in Texas used his silence on that question in convicting him of murder, saying it helped demonstrate his guilt. Salinas appealed, saying his Fifth Amendment rights to stay silent should have kept lawyers from using his silence against him in court. Texas courts disagreed, saying pre-Miranda silence is not protected by the Constitution.
The high court upheld that decision.”
http://news.yahoo.com/court-says-pre-miranda-silence-used-142855241.html
“Holding: When petitioner had not yet been placed in custody or received Miranda warnings, and voluntarily responded to some questions by police about a murder, the prosecution’s use of his silence in response to another question as evidence of his guilty at trial did not violate the Fifth Amendment because petitioner failed to expressly invoke his privilege not to incriminate himself in response to the officer’s question.
Judgment: Affirmed, 5-4, in an opinion by Justice Alito on June 17, 2013. Justice Thomas, joined by Justice Scalia, concurred only in the judgment. Justice Breyer filed a dissenting opinion joined by Justice Ginsburg, Justice Sotomayor, and Justice Kagan.”
http://www.supremecourt.gov/opinions/12pdf/12-246_7l48.pdf
“On Monday, June 17, 2013, in a closely-contested decision, the United States Supreme Court held that prosecutors can in fact point to an out-of-custody suspect’s silence in response to police questioning as evidence of guilt. (Salinas v. Texas, 133 S. Ct. 2174 (2013).) The only way to prevent the government from introducing evidence at trial of the suspect’s silence is to explicitly invoke the right to say nothing. In other words, without being warned by the police or advised by a lawyer, and without even the benefit of the familiar Miranda warnings (which might trigger a “I want to invoke my right to be silent!”), the interviewee must apparently say words to the effect of, “I’m not saying anything because I invoke my right to silence.”
http://www.nolo.com/legal-encyclopedia/when-how-invoke-your-right-silence.html
Asking me some of these questions is somewhat pointless.
The Fifth Amendment protection about self-incrimination has been around for quite some time. I believe the only way to go after Lerner would be to strike down that protection.
Look, the language may never have been there to begin with. That doesn’t mean that this premise hasn’t become established law. Courts recognize it. It is what it is.
What it tells me about her using it, is that she sees personal liability. In the day, it told me pretty much the same thing about Oliver North. In that day I was fairly happy the Democrats couldn’t touch him. I still saw it as problematic.
Here we are, and now the Democrats are benefiting.
You talk about the Fifth. The 14th doesn’t say that the children of illegal immigrants born here are citizens either.
The Constitution is gamed on these issues. I agree with you.
What do you propose to fix these issues?
Similar but I’m not sure it’s the exact same.
Failure to answer questions which did not in and of themselves require a miranda warning and failure to make extemporaneous comments/questions someone else thinks you should make in a given situation are not necessarily equivalent, although I can imagine the majority opinion likely leaned on this as precedent.
However, thanks for the info. I always appreciate learning something new.
And ... I trust Laz .. so if Laz trusts you - then you are solid in my book.
We can begin by overturning Miranda, Then Roe v Wade, then Obamacare. We can try to insist on places like Free Republic that the courts interpret the constitution in accordance with the framer's intent and not to insist on precedent as a substitute for the actual words of the document.
Think of this in terms of say .. Lois Lerner.
It has been argued she lost her ability to invoke the 5th when she voluntarily made a statement she intended to be entered into the record.
Or, imagine a defendant taking the stand ... they cannot choose which questions they will or will not answer.
I understand these are not directly the same, but a similar concept applies. I think it looks at miranda as a dividing line. The courts have also ruled that even week protest to answering a question trigger miranda... you don’t have to give the movie version ... on advice of counsel had a yada
Imagine you are asked 3 questions... 1 and 3 you answer freely, and 2 you refuse or just stare at the questioner. This ruling says they may reasonably assume you are hiding something, and that they may bring that assumption into court.
I’m not saying I necessarily l like the ruling, but I get it as a reasonable concept.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
By way of the 6th Amendment:
Amendment VIIf something he says could give justify [or contribute to] being accused, prior to any actual accusation, then the only way to avoid all these is to say nothing.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
This sort of situation is morally reprehensible because it is inherently unjust; just like the legal Catch-22 in the trial of Giles Corey.
I don't.
There's enough crap floating around that case that her testimony should be irrelevant to the actual proving of charges.
You forgot Wickard.
I would add in the 14th as well.
Perhaps I don’t have my head glued on straight regarding Miranda, but it does strike me as leaving the the suspect with zero protections.
Why should there be protections for defendants?
Not knowing the law, defendants could and would admit to things that seemed reasoned to them. They don’t understand the law or the process, so they in good conscience own up to what the authorities charge them with. Guilt comes in, and they want to do the right thing. Sounds good doesn’t it.
Unfortunately, the officers involved know damn well that what they have done is entrap the defendant. The defendant doesn’t know the ins and outs, so they plead guilty. The whole thing doesn’t even go to trial. They get what they think will be a sweet deal, because their defense attorney tells them he’s gotten the best deal he can between the D.A., the Judge, and the police. The defendant agree to the deal.
Years later, the defendant realizes that he was set up by the police for the crimes he committed. This guilty party was contacted by the police and asked to participate in illegal activity. This convicted had never done something like this before or after. They never would have if not contacted by a proxy and set up.
This isn’t the only scenario that can take place.
A person uses to gun to defend themselves. They think they have operated within the law. When the police come knocking, they blurt out what took place. Then the officers explain that what the person has just described, is a clear violation of the law, they handcuff the guy and haul him off.
Never-mind that the person he killed was a know felon who had been committing murders and other crimes in the area. The defendant in this situation fired a bullet at someone outside his home. He didn’t have a right to do so.
He goes to prison.
His attorney didn’t have a snowball’s chance in hell of defending the guy, because he had already confessed to everything. Never-mind that he clearly saved his family’s life.
I’m not comfortable with striking down Miranda. Something needs to be put in place to provide protection for suspects. Not everyone arrested is a criminal.
Can you point me to that language?
You think like those who craft hate crime laws. If the courts have an objective standard for reckless driving, then punish the offender for that. He is being punished for something else, lack of remorse from what I can tell. Because he kept his mouth shut, they call that lack of remorse. Hate crime of another color or a thought crime in other words.
Maybe you belong on a left wing site.
I still say nothing. They can now use my silence as evidence that I did something wrong. What if I cannot speak? This will be overturned.
I agree with you, and I think it is unraveling.
I will admit to focusing on the issue of pleading the fifth and the only way to combat that directly.
“This will be overturned.”
It’s the CA Supreme Court deciding on CA law. Who’s to overturn it? He could (and may well) go into federal court, work his way up to SCOTUS, claiming it violates his rights under the Constitution. Long process, that.
I guess that means you have no answer to my question. Don't worry, I won't ask you again.
Sadly I don't have any faith in the GOP
to pursue it; I fully expect it to be another Fast & Furious.
— I can't do anything!
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