Re: SCOTUS Update: Right to remain silent? Suspect better speak up - 
- Edit 1
- Edit 1Before modification by PerrinWT at 01/06/2010 10:11:20 PM
I have a huge issue with this decision, and you can note that I am a conservative.
First, the problem with an "unambiguous" statement. The vast majority of the public lacks the knowledge to do this in a satisfactory way. Examples can be pulled from the "right to counsel." Do you think "I think I need a lawyer" or "Can I get a lawyer?" are unambiguous? You would be wrong. The first statement implies uncertainty when you say "think" and the second example is a query and not a definitive exercising of one's legal rights. The vast majority of people would believe they had properly asked for an attorney, but the courts have raised these technical barrier a laymen does not understand. The police have been trained to exploit this technicality and continue questioning despite the persons obvious intent. The police will use the same tactics to avoid you claiming your right to silence and will try to get you to waive the rights.
Second, the fifth amendment had a protection against compelled self incrimination, meaning the constitution requires that your silence cannot be used against you. Sotomyor (whom I hate to agree with) was right when she said it turns the Miranda on its head. To use the right to be silent you must now speak up? If you do not want to go swimming you must first enter the water? That simply does not make sense. Our founders put this important guarantee into the constitution because they witnessed the horrific abuses against an accused when they did not have a right to remain silent.
The rights given in the constitution were supposed to be available for every man, not just the legally trained mind. When you are being accused of a crime the government can bring incredible resources to bear upon a person, and even an innocent man might concede to a plea deal when the alternative is a stacked deck. Our Constitutional protections are there to even the playing filed so the government cannot dominate its citizens either by brute force or legal technicalities. This decision is a setback for the rights of all Americans.
First, the problem with an "unambiguous" statement. The vast majority of the public lacks the knowledge to do this in a satisfactory way. Examples can be pulled from the "right to counsel." Do you think "I think I need a lawyer" or "Can I get a lawyer?" are unambiguous? You would be wrong. The first statement implies uncertainty when you say "think" and the second example is a query and not a definitive exercising of one's legal rights. The vast majority of people would believe they had properly asked for an attorney, but the courts have raised these technical barrier a laymen does not understand. The police have been trained to exploit this technicality and continue questioning despite the persons obvious intent. The police will use the same tactics to avoid you claiming your right to silence and will try to get you to waive the rights.
Second, the fifth amendment had a protection against compelled self incrimination, meaning the constitution requires that your silence cannot be used against you. Sotomyor (whom I hate to agree with) was right when she said it turns the Miranda on its head. To use the right to be silent you must now speak up? If you do not want to go swimming you must first enter the water? That simply does not make sense. Our founders put this important guarantee into the constitution because they witnessed the horrific abuses against an accused when they did not have a right to remain silent.
The rights given in the constitution were supposed to be available for every man, not just the legally trained mind. When you are being accused of a crime the government can bring incredible resources to bear upon a person, and even an innocent man might concede to a plea deal when the alternative is a stacked deck. Our Constitutional protections are there to even the playing filed so the government cannot dominate its citizens either by brute force or legal technicalities. This decision is a setback for the rights of all Americans.