Miranda – You probably don’t know what you’re talking about!

[Jammer Six]

I know you have a copy of the BoR...read some of the other amendments.

"...nor be deprived of

You probably don't want to go that route.

You'd need cites that say the rights relate to and affect each other.

Not to mention that when you get to the end of that road, even assuming you're right, you're right back where I say you are- with an erroneous statement on your record.

You stated, and I quote, "As you all know, we are born with our rights. No one can take them away, and we possess our rights at all times."

It's one of the premises of your position.

What my claim is, and what you haven't answered, is that rights can and are "taken away", all the time. Every day.

By due process of law, perfectly legally, people loose their rights. The state takes them away.

Therefore the statement "No one can take them away, and we possess our rights at all times" is false.

Remove that premise, and your position collapses.

Now, before you start using this guy, , understand that in spirit, I probably agree with you. At least, I think I agree with what I think your real position is.

What I disagree with is the way you're stating it, which has at least the one hole I'm pointing out in it.

Academically, then, to complete the collapse of your statement, one reason (other than to protect the statement the police are trying to extract) to advise you of your rights when you are placed in custody would be because there does, in fact, exist at least one set of conditions (there are others, but let's keep this simple) under which you don't have those rights, and advising you of them would then be necessary to tell you when you do have them.

My suggestion is to re-state your position, without the logical hole in it.

My objection is not to your point. It's an interesting point.

My objection is that you're not making it very well.

 

[Graystar]

What my claim is, and what you haven't answered, is that rights can and are "taken away", all the time. Every day.

I guess we just each have a different interpretation of the statement. Since it is my statement, I'll try to explain my interpretation as best I can.

"As you all know, we are born with our rights. No one can take them away, and we possess our rights at all times."

I do not consider a violation of our rights equal to that of wiping our rights from existence. The right to keep and bear arms is a perfect example. There are people that believe we have no right to individually possess firearms for personal protection. *That* is the kind of “taking away†that I am referring to.

A person in prison still possesses his rights. However, the state is *depriving* him of his rights, as it says in the Fifth Amendment. Again, to me that is not the same as saying “you don’t possess these rights anymore.â€

This distinction is important, and there are two cases that exemplify why.

United States v. Gomez, 81 F.3d 846 (9th Cir. 1996)
United States v. Panter, 688 F.2d 268 (5th Cir. 1982)

These cases are similar. In both, convicted felons were found guilty of possessing a firearm. In both cases, the appeals court reverse the conviction, finding that during the time the firearms were possessed, the right to possess the firearms for self-defense outweighed the law prohibiting the possession.

So you see, even felons still retain their rights. They are simply deprived from exercising them by the state...*most* of the time.

 

[Ryder]

The good old days

I've always affirmed that I understood what I was told when read Miranda. It doesn't take many experiences though before one learns that the police paraphrase everything you tell them twisting it into evidence against you. So the more serious the situation the less I have to say.

I don't particularly care what they want to know once threats and intimidation begin. That is so juvinile. Very interesting how much one can learn when the cops do all the talking. They would get a lot further by really being freinds instead of just pretending to be.

Beat information out of me? I haven't had that experience yet. I know little fear for myself and feel practically no sudden pain. They're welcome to it I suppose, should I care if there is nothing I can do about it?

These kind of things may be deemed in the state's best interest at the moment but they are not in the personal best interest of the particular officer in the long run. They'd be losing sight of the the very important big picture for insignificant short term gains.

 

[MicroBalrog]

Don't make the protection of our rights conditional. That's the most dangerous thing you can do. *Don't* remember who Miranda was. That has nothing to do with protecting our rights.


Absolutely right, Sir. I don't think I could have said it better. Thank you very much.

 

[Jammer Six]

So you see, even felons still retain their rights. They are simply deprived from exercising them by the state...*most* of the time.

So, then, if I understand you, Canadians have the same set of rights we do? And Iraqis?

And it's only the state standing between the English and Vermont style carry?

If that's your position, then Miranda warnings are necessary to let American citizens know when they have not been deprived of their rights, and are entitled to exercise them.

Which collapses your case by being a second reason (besides protecting the state's case) to advise a person in custody of their rights.

As soon as the pretty lights come on behind me, I'm no longer free to leave, and have lost, at least temporarily, my liberty. Without Miranda, it's logical to conclude that liberty is not the only thing I've lost.

As long as the state can suspend rights (your theory, I don't subscribe to it yet) there is no practical distinction between the state depriving one of one's rights and one having no rights. Furthermore, as long as the state can and does suspend the rights of some but not of others, it has a moral duty to advise those it hasn't suspended of the fact that that person still has intact rights.

Either way you want it, there is at least one reason other than protecting the state's case to advise someone of their rights when placing them in custody.

What did the cases you cited say, and how can I look them up?

I don't know how to look decisions up, and I can see I'm going to have to learn...

It's about to get deep in here.

On top of tracking down cites, how do you find decisions on the subject under debate?

 

[brownie0486]

Miranda was put in place so that the person held/detained for arrrest understands he does not have to talk to the PO and self incriminate. If someone then talks/confesses, I don't see how that protects the state. It gives the uninformed citizen the right to say nothing at all or waive the right and spill his guts.

Brownie

 

[MicroBalrog]

So, then, if I understand you, Canadians have the same set of rights we do? And Iraqis?

Absolutely.

 

[Graystar]

So, then, if I understand you, Canadians have the same set of rights we do? And Iraqis?

ABSOLUTELY!! I think it is appalling that we are holding those men down at Guantanamo Bay for so long without legal representation. They effectively have been jailed without due process.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

And it's only the state standing between the English and Vermont style carry?

I think so, but I could be misinterpreting what your saying...

If that's your position, then Miranda warnings are necessary to let American citizens know when they have not been deprived of their rights, and are entitled to exercise them.

You are missing the point.

The right in question is the right to not be compelled, in a criminal case, to be a witness against oneself. This is why the accused does not have to "take the stand". Regardless of whether we have been read our rights or not, the state should not be attempting to compel self-incriminating statements from the accused. That is because the state has been charged with protecting this right (and all others as well). What the Miranda Warning has done, however, is shift that responsibility to the accused. After reading a person his rights, the police will *still attempt* to compel testimony! Only now, this testimony is protected by the fact that the accused was read his rights. The Miranda Warning is a hindrance to proving that testimony was compelled.

The standard for determining compelled testimony should be whether the testimony was compelled…not whether the accused was read some statement for a card.

What did the cases you cited say, and how can I look them up?

You find cases like this by doing lots of research on the right to keep and bear arms.


United States v. Gomez, 81 F.3d 846 (9th Cir. 1996)
http://www-2.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/us_v_gomez.txt

United States v. Panter, 688 F.2d 268 (5th Cir. 1982)
http://www.healylaw.com/cases/panter.htm

 

[Graystar]

Miranda was put in place so that the person held/detained for arrrest understands he does not have to talk to the PO and self incriminate.

I see that I still have much work to do.

That is NOT why the Miranda Warning is required. According to the Supreme Court, the warning is required so that the prosecution may use self-incriminating statements made by the accused during custodial interrogation.

There has never been any protection for a person that freely confesses. Even today there are cases where the accused confessed freely before being read his rights, and was still convicted based on that confession because the circumstances under which the confession was made clearly ruled out compulsive behavior by the police. Herein lies the problem…if the police can “prove†that you “freely†confessed (as in the Central Park Jogger case in NYC) then it does not matter whether you were given a Miranda Warning. You’re still going to be convicted. However, if the police *do* compel you to confess, it is nearly impossible to assert as such, simply because you had been given the warning.

 

[Obiwan]

Which brings us back to the real reason to say nothing.

Since anything you say can, and probably will, be misconstrued, taken the wrong way, and come back to haunt you.

And unless you are a very knowledgeable and experienced attorney..

you really don't know your rights.not all of them...and not perfectly..since precedent changes them to some extent.....sometimes daily.

 

[answerguy]

Do I understand correctly that it would not be necessary to read the Miranda rights to, let's say a LEO whom you know reads it off everyday, someone who knows them.

 

[Graystar]

Do I understand correctly that it would not be necessary to read the Miranda rights to, let's say a LEO whom you know reads it off everyday, someone who knows them.

The Miranda Warning is read to a person to insure that they are aware of their rights. If a prosecutor could demonstate that the accused knew of his rights, then I'd guess that a conviction based on a confession would be allowed to stand, even if the arrested LEO wasn't read his rights.

This isn't any kind of double standard. The court's main concern is that the accused know his rights. It doesn't really matter how he gets that knowledge, as long as it can be demonstrated that he has it.

Of course, from my position, the court's current view is wrong. Courts' should be more concern with whether the rights of the accused were violated, rather than whether the accused knew his rights.

 

[brownie0486]

Graystar

"The court's main concern is that the accused know his rights"

Thats correct. The courts and the miranda provisio are put in place so the accused can make the decision to speak or not. It's up to you whether you speak or not after they have mirandized you.

It protects your rights, if you give up those rights, of course the court is going to use it against you if they can.

You were given fair warning by being mirandized. They can't be held responsible because you then did not exercise those rights.

It's a two edged sword. The courts will allow you the opportunity to shut up by the cops mandatorily advising you of the right to remain silent.

Pity the fools who don't pay attention when warned. But thats not the courts fault, they have given you the tools, how you use the tool is not determined by them or the cops.

I believe earlier you stated the miranda was there for the courts. Look at what you then wrote in the quote above.

Brownie

 

[Graystar]

Thats correct. The courts and the miranda provisio are put in place so the accused can make the decision to speak or not. It's up to you whether you speak or not after they have mirandized you.

That is not correct. This has nothing to do with any freely made decision to speak or not speak. The issue at hand is *compelled* testimony. Compelled testimony is testimony that was *not* freely made.

If you think that simply knowing your rights will keep you from confessing to a crime you didn’t commit, then you are being ignorant of the history of compelled testimony.

I believe earlier you stated the miranda was there for the courts. Look at what you then wrote in the quote above.

I believe I said that Miranda is there to protect the "state" not the "court". Also, the court I was referring to in that statement is clearly the Supreme Court. Please don't misstate my statements, nor take them out of their context, in order to suggests that I said something I didn't say. If you disagree with me then rather than trying to turn my words into a knot, simply state your view and the reasons why you believe your view is the more valid one.

 

[WYO]

Graystar, you are mixing concepts. Miranda (which only applies to a custodial interrogation, except to the extent that state law varies) merely requires an advisement so that a person will know the ramifications of speaking to the police. Even where Miranda rights are given, the prosecution still has the burden of proving that the admission or confession is free and voluntary. Miranda cannot provide cover for an admission or confession that is not free and voluntary. It CAN serve as an additional fact in determining whether an admission or confession is free and voluntary.

 

[brownie0486]

Graystar:

What do you believe to be compelled testimony?
How does one get compelled to testify.
My understanding is that testimony is under oath, that would indicate before the courts and/or at a deposition, perhaps.

You do no give testimony at the lockup to cops.

The "state" and "court" are one in the same. The courts are the state.

Not trying to turn your words, but it seems you do not think the SC is the state. It is, as in Massachusetts vs. "a person" or "a corporation".

And you just clarified what you meant by court. It would seem any misunderstanding may be due to your lack of specificity in that regard.

Please explain again for me how one is compelled to testify [ your understandings of such ].

If you are read miranda and then talk, thats not compelled to me, but more voluntary. Compelled would seem to indicate one had no choice but to speak.

Brownie

 

[TheeBadOne]

Brownie and WYO have summed it up nicely.

 

[Graystar]

It CAN serve as an additional fact in determining whether an admission or confession is free and voluntary.

Not only is that exactly what it is used for, the Miranda warning is the strongest evidence to prove a confession is voluntary.

The problem is that its use as such is wrong. It CAN'T serve as an additional fact because, by definition, compelled testimony is testimony that would not be given if not for improper influences. So a person that knows his rights might still speak because of improper influences.

 

[Graystar]

What do you believe to be compelled testimony?

Compelled testimony, as defined by the Supreme Court, is testimony given, at a time when the accused would have remained silent, due to improper influences.

How does one get compelled to testify.

By engendering in the mind of the accused a belief that their best course of action is to confess, regardless of the actual truth. How does one engender that belief? If you read the Miranda ruling you'll find references to police manuals that provide those instructions. The ruling contains excerpts from those manuals.

You do no give testimony at the lockup to cops.

The legal definition of testimony is:

"evidence furnished by a witness under oath or affirmation and either orally or in an affidavit or deposition."
Merriam-Webster's Dictionary of Law

That is why confessions are signed. Your signature, attesting to the truth of the statement made, is an oath. And that is why a signed confession is admissible in court as testimony. If you have a cite from a ruling that states otherwise, I'd be interested in reading it.

The "state" and "court" are one in the same. The courts are the state.

But the federal Supreme Court is not the same as the state. Why do people insist on misrepresenting my words?

And you just clarified what you meant by court. It would seem any misunderstanding may be due to your lack of specificity in that regard.

Go back and read the thread from the beginning. The only misunderstanding was when *someone else* said "court" when I had said "state".

Please explain again for me how one is compelled to testify

See above.

If you are read miranda and then talk, thats not compelled to me, but more voluntary.

And it is that belief that has put innocent people behind bars.

 

[Jammer Six]

If you are read miranda and then talk, thats not compelled to me, but more voluntary.

And it is that belief that has put innocent people

Which doesn't make it any less valid.

Your theory is interesting, but I find it irrelevant.

It doesn't matter why Miranda is required, what matters is that people have rights, and the state is required, under most circumstances, to respect them.

In my opinion, a right that the state doesn't recognize is irrelevant and worthless, unless you're going to fight for it.

According to you, the English have the same right to bear arms we do, but according to their government, no such right exists.

My point is that because of the English government's refusal to recognize this "right", unless you're going to take up that cause, and fight, in a courtroom, in Parliment, or in the streets, that right does you no good, and becomes irrelevant.

The conclusion this leads me to is simple.

What you see as a right, granted to you by god at birth, others may well see as undesirable, despicable, and, since they don't believe in your god, nonexistent.

Who, then, decides which are rights, and which are fantasies of over active imaginations?

Governments. States.

Hopefully, governments that represent the views of the governed, but not always.

You can't be granted a god-given right if the god doesn't exist. Talk about an endless loop...

To put it bluntly, if I decide I have rights, granted to me at birth by a panel of my gods, and I then decide to exercise those rights to your detriment, you probably have recourse against me if the acts I choose aren't legal.

That power comes from the law. From the constitution. From the state.

Everything else belongs in church, and is irrelevant to anyone who doesn't believe in that faith, or isn't governed by a government that recognizes whatever right you choose to discuss.

A right that you are prevented by your government from exercising is irrellevant.

 

[brownie0486]

By engendering in the mind of the accused a belief that their best course of action is to confess, regardless of the actual truth. How does one engender that belief?

If he's been read Miranda before that happens, he has only himself to blame for talking after that, doesn't matter what the influences are if they are in the direction of playing to his thoughts of right from wrong, guilt and other emotions that most criminals have after just like the people that don't commit crimes have in their lives.

If thats where you are going with this, it's good police work and no violation of anyones rights. How can it be when you were read your rights and acknowledged you understood those rights, then blabbed your mouth off because they made you feel guilty.

They don't beat people with a rubber hose or worse here, like Iraq. But the police certainly do study the criminal mind in theory and speak/work with professional phychs to better understand them in an attempt to better the success rate of capture and conviction [ meaning off the streets, thats a good thing ].

Cops who have investigated a case for months or years, catch the BG in the end and book him are naturally going to want to get into his head and do everything they can to bring closure to the case.

You know, like good cop--bad cop routines?

Is it abused somewhere, someplace, sometime? I'm sure it is. Miranda was put in place to protect the individual, in so doing it also gives the state teeth if rights were not violated and a confession or statements were made as they may be evidenced into court for the jury of their peers to hear. It doesn't make the states case stronger, it makes the case period.

At arraignment, if Miranda is called to challenge the confession, that determination will affect a case or dismissal. So if they have a case, in all liklihood the state has a strong case based on the confession. Mitigating circumstances not withstanding.

My very smart uncle who lawyered in Boston for 35 years gave me much advice. One of those fits this discussion pretty well.

"Big fish grow up to be big fish because they keep their mouth shut."

If you are not smart enough to already know this when you are arrested, and because it's been a problem in the courts in the past relative you should know, the state has seen fit to give you every opportunity to be "quiet" and ask for an atty.

Now if you are unfortunate enough to let a cop get the best of your emotions, [ and some of them know their job well while others bungle badly ], and open your mouth, like the fish, you're gonna get caught.

I don't see the problem here.

Brownie

 

[Graystar]

How does one engender that belief?

I posed and answered that very question in my response.

I find it in poor taste to ask a question, not read the answer, and then ask the question again (for the third time now, I believe.)

However, if you don't want to do any work for your answer, I will give you the easy 4-step plan.

Step 1 - Arrest suspect and read him his rights.

Step 2 - Put a gun to suspect’s head and say, "If you don't confess I will kill you and say you attacked me and tried to go for my gun."

Step 3 - Immediately video tape suspect saying "I was read my rights. I did it."

Step 4 - Purport video confession as "case closed" evidence to compel suspect to write and sign a confession. Provide suspect with details of the crime for accuracy.

And there you go. Pretty simple. Of course, the suspect can decide not to confess. Too bad his tombstone won’t say anything about how he stuck to his principles and asserted his right to remain silent.

Cops will let details "slip out" when the camera is off, then record the suspect "mentioning details that only the perpetrator would know."

Cops will put witnesses and suspects in the same area. The witness will notice the suspect and might even be told that he was the guy arrested for the crime. Then, the witness picks the suspect out of a line up...not because he's the one that was seen, but because he's the one the witness saw in cuffs.

Cops know all about these techniques to fabricate evidence, as they've been fine-tuning them for over a century. These techniques amount to compelled testimony because the testimonies given are the result of improper influences.

 

[TheeBadOne]

I followed this thread with interest, but with your last post you move, IMHO, into the Tin Hat area.

Sorry

TBO

 

[Steve in PA]

Yeah.......it happens like that all the time!! :banghead:

Someone's been watching too much tv and smoking the wrong stuff


Maybe someone can come up with a retroactive birth control pill

 

[Hkmp5sd]

If you are interested, you can listen to the oral argument of Miranda v. Arizona (MP3 format) before SCOTUS in 1966.