Can and Will be used against you

[justalayman]

Understand that questioning is a fundamental part of police work. Miranda only cuts in when the person is already in custody. A good deal of fruitful police interrogation happens in consensual situations where Miranda warnings aren't required.

Custody has a somewhat nebulous definition. Any time one is not free to leave they are obviously in custody. The problem is, and has been increased by court decisions, when a person believes they are not free to leave is not always accepted as being in custody. That is a perfect example of my point that a typical person often is not aware of their rights and as such, unwittingly relinquishes them.

 

[Taxing Matters]

Have you ever been arrested? If not, it is impossible for you to have a true understanding of my statement. Don’t suggest that you do if you’ve never been there.

No I have not been arrested. But I reject the notion that it is impossible to have an understanding of what a person may be going through without experiencing it myself. I would not have that experience first hand, but then my first hand experience would only inform me what my reaction was, not what anyone else would experience, and thus my reaction might turn out much different than what others experience. I would suggest that you consider that your reaction to your one arrest may not reflect how others who are arrested react. Humans can react very differently to the same situation, a fact which I'm sure you would agree, right? I'm not saying that I could understand it in the same way as those who have experienced it first hand, but talking to them about their experiences can at least give me a pretty good idea of what they are capable of understanding during the process.

I have however represented people who have been arrested I also know a number of attorneys who defend people who have been arrested and have talked with them about what their clients have gone through. There are quite a few arrestees who, while certainly stressed or even freaking out are nonetheless quite able to understand their rights when they are advised of them. What they often lack is good advice as to whether to assert those rights or whether to waive them and talk to the police. And given the pressure applied by the cops (which in most cases is quite legal) they may make a bad choice when they don't have that advice.

While it seems onerous upon society, I see nothing short of no interrogation being valid without an attorney representing the accused. The legal circus is so complex and intimidating that I believe the general populace is actually incapable of understanding the implications of what Miranda says.

I know that simply isn’t going to happen. I have to accept that many people will give up their rights without truly understanding what their rights are. Many people believe “the system” will protect them and their rights. Any knowledgeable person knows that simply is not true. Money buys rights in this country and those not affluent enough to be able to have an attorney on speed dial will be taken advantage of by the system.

Given what I've just said above that focuses the problem more on the lack of advice rather than whether the accused understand his rights, your solution would certainly address that. And as a lawyer myself I'd see value a rule that says a lawyer needs to be present during most questioning and precluding the possibility of waiver. It would avoid clients making statements that then make it much harder to defend. I tend to agree with you that the Supreme Court will never rule that this is Constitutionally required for the simple reason that the Court has always held that most Constitutional rights may be waived, and the 5th and 6th Amendment rights are among them.

 

[justalayman]

No I have not been arrested. But I reject the notion that it is impossible to have an understanding of what a person may be going through without experiencing it myself.

Then tell me how it feels to be shot
Or stabbed
Or have a heart attack
Or die

(Presuming you have experienced none of the above)

You can try to understand but unless it has happened to you, it is impossible to truly understand.

I spoke of my situation because it is first hand. I have spoken with others that felt similarly. Will all people feel that way? Of course not but many will have an even stronger reaction to the situation. I’ve seen people simply fall to the ground and cry. They were in no competent state to understand what their rights were as they were recited.


I’ve never said that everybody has the same experience but that doesn’t matter. The fact that some cannot comprehend what is happening means they are being deprived what the Miranda decision was meant to provide for.


While scotus has agreed one can waive their rifhts, I suggest it was intended to refer to understanding what was being waived and thst is the entire premise of my statements. If one is temporarily incapable of understanding their rights, waiving them is meaningless.

A simple comparison.

Assumed risk

While the courts have determined that many activities have an assumed risk and the participant accepts that risk, they have also determine that if one is not aware of the risk, they cannot be held accountable for the results because they cannot assume a risk unknown to them or thst is reasonable to assume could happen. I can’t find the case quickly but there was an incident where a British woman was attending a baseball game here in the US. She was hit by a foul ball and was severely injured. She sought compensation. The park denied it as it was assumed risk thst one may be hit by a foul ball. The final decision was she won based on an argument she was from England where they do not play baseball and had never in her life seen a game. As such she could not assume an unknown risk that she would have no reason to think could happen.



Just the same is the understanding of our rights. As in Miranda, how can you waive something you don’t know you have, or in my argue,ent that at the moment, comprehend that you have such rights?

 

[quincy]

Then tell me how it feels to be shot
Or stabbed
Or have a heart attack
Or die

(Presuming you have experienced none of the above)

You can try to understand but unless it has happened to you, it is impossible to truly understand.

I spoke of my situation because it is first hand. I have spoken with others that felt similarly. Will all people feel that way? Of course not but many will have an even stronger reaction to the situation. I’ve seen people simply fall to the ground and cry. They were in no competent state to understand what their rights were as they were recited.


I’ve never said that everybody has the same experience but that doesn’t matter. The fact that some cannot comprehend what is happening means they are being deprived what the Miranda decision was meant to provide for.


While scotus has agreed one can waive their rifhts, I suggest it was intended to refer to understanding what was being waived and thst is the entire premise of my statements. If one is temporarily incapable of understanding their rights, waiving them is meaningless.

A simple comparison.

Assumed risk

While the courts have determined that many activities have an assumed risk and the participant accepts that risk, they have also determine that if one is not aware of the risk, they cannot be held accountable for the results because they cannot assume a risk unknown to them or thst is reasonable to assume could happen. I can’t find the case quickly but there was an incident where a British woman was attending a baseball game here in the US. She was hit by a foul ball and was severely injured. She sought compensation. The park denied it as it was assumed risk thst one may be hit by a foul ball. The final decision was she won based on an argument she was from England where they do not play baseball and had never in her life seen a game. As such she could not assume an unknown risk that she would have no reason to think could happen.



Just the same is the understanding of our rights. As in Miranda, how can you waive something you don’t know you have, or in my argue,ent that at the moment, comprehend that you have such rights?

That is one reason why I believe that basic rights should be taught in school.

I think it also would be of benefit if schools distributed to students the "wallet size card" created by the ACLU on what to do if stopped by police.

The public has consistently shown a lack of knowledge of their basic rights, and a total ignorance of or misunderstanding of Miranda.

 

[justalayman]

And in an attempt to understand how one can feel when being arrrested


Have ever had something happen where your mind stops dealing with that experience? Where suddenly you find yourself not thinking about the immediate situation but of something else to such an extent that somebody may have asked if you are ok or,if you heard what they just said, and realized you didn’t hear what they just said? Where you are thinking: this can’t be real and then getting lost in thoughts of what may have caused this to be happening?

Or if you don’t like the possibiiity of being so stunned psychologically that one doesn’t understand much of anything, how about running for a mile and then being tackled by 5 cops and extremely aggressively held down and handcuffed and while in this situation being read your rights

Or having a police dog chewing on your leg and sitting in the cops car after wondering if you are going to bleed out or maybe even have lost enough blood to be in a state of not knowing whwt is happening


Or while your drunk or drugged

How can one be expected to knowingly understand they waiving their rights in such situations?

Yet in every situation I have described there has been a persons read their Miranda rights and it been considered valid.

 

[Taxing Matters]

Just the same is the understanding of our rights. As in Miranda, how can you waive something you don’t know you have, or in my argue,ent that at the moment, comprehend that you have such rights?

As I stated before, if you can prove that the defendant actually could not comprehend what was going on at the time of the alleged waiver then the statement can be suppressed because the waiver was not knowing and voluntary. So that issue is addressed in the case law.

There will always be the issue of how we sort out which defendants actually knew their rights and made a knowing and voluntary waiver of those rights and which ones did not. One can argue whether it ought to be the burden of the state or the defendant to prove it, and what exactly is needed to prove it, and if you asked a dozen people about that you might get a dozen different answers. In the end there will never be a perfect way to do it because there is no way to get inside the head of the defendant and see exactly what he was really thinking and experiencing at the time.

 

[Taxing Matters]

I think it also would be of benefit if schools distributed to students the "wallet size card" created by the ACLU on what to do if stopped by police.

This one idea I'd modify slightly; the card given by the schools should not be identified as coming from any advocacy group, especially one like the ACLU that creates rather strong reactions from people either for or against them and the positions they take. I think that identifying it with such a group could undermine that kind of effort and create opposition that can easily be avoided by making the source more neutral.

 

[justalayman]

As I stated before, if you can prove that the defendant actually could not comprehend what was going on at the time of the alleged waiver then the statement can be suppressed because the waiver was not knowing and voluntary. So that issue is addressed in the case law.

There will always be the issue of how we sort out which defendants actually knew their rights and made a knowing and voluntary waiver of those rights and which ones did not. One can argue whether it ought to be the burden of the state or the defendant to prove it, and what exactly is needed to prove it, and if you asked a dozen people about that you might get a dozen different answers. In the end there will never be a perfect way to do it because there is no way to get inside the head of the defendant and see exactly what he was really thinking and experiencing at the time.

That’s the problem. How do you prove thst at that moment the simple yes was not based on understanding what was asked? It’s hard enough to have a person diagnosed with a mental,disease due to the complexities of the human mind. Do you really believe a 23 year old kid with holes in his only pair of pants and no shoes could ever be able to win such an Argument? Money buys justice in our country.
So no, it isn’t addressed in case law. It’s addressed on fifth avenue.

The truth of the matter is: Miranda is useless as it is applied.

The problem with that is the populace has had it driven into their heads that the minimal and simple Miranda warning is supposed to be answered with: yes. It is driven into our heads with every cop show made. You simply answer yes.

I suggest that every person read their rights respond with a clear: no

And stick with it and answer no other questions until they have a lawyer at their side.

Then when the cop tries to explain them seek to have him charged with practicing law without a license since they are clearly not allowed to give legal advice (although many of them believe they are)

Have you ever known anybody to answer no? If so, what happened?

 

[quincy]

And in an attempt to understand how one can feel when being arrrested


Have ever had something happen where your mind stops dealing with that experience? Where suddenly you find yourself not thinking about the immediate situation but of something else to such an extent that somebody may have asked if you are ok or,if you heard what they just said, and realized you didn’t hear what they just said? Where you are thinking: this can’t be real and then getting lost in thoughts of what may have caused this to be happening?

Or if you don’t like the possibiiity of being so stunned psychologically that one doesn’t understand much of anything, how about running for a mile and then being tackled by 5 cops and extremely aggressively held down and handcuffed and while in this situation being read your rights

Or having a police dog chewing on your leg and sitting in the cops car after wondering if you are going to bleed out or maybe even have lost enough blood to be in a state of not knowing whwt is happening


Or while your drunk or drugged

How can one be expected to knowingly understand they waiving their rights in such situations?

Yet in every situation I have described there has been a persons read their Miranda rights and it been considered valid.

I think perhaps a more common reaction is "motor mouth," where someone stopped by the police can't stop talking and will often unintentionally and/or ignorantly incriminate him/herself when silence would have been legal and best.

But the reactions are unpredictable. While some talk too much, some think it smart to flee and others become zombie-like.

The common thread seems to be that people do not know their rights or how to express these rights in a way that protects them. And perhaps law enforcement officers too often exploit this lack of knowledge to secure arrests and charges.

I have no problem with distributing a wallet-size "rights" card that is not ACLU-connected. Right now, the ACLU seems to be the only organization that has recognized the need, however.

 

[justalayman]

My point here is that often times a person is held accountable for saying yes when asked if they understand their rights when actually incapable of having the mental clarity to do so at the moment. We seem to put less importance into knowing a person is aware of and understands (that part seems to be ignored most of the time) their rights than determining whether a person was mentally competent to enter into a contract

 

[quincy]

My point here is that often times a person is held accountable for saying yes when asked if they understand their rights when actually incapable of having the mental clarity to do so at the moment. We seem to put less importance into knowing a person is aware of and understands (that part seems to be ignored most of the time) their rights than determining whether a person was mentally competent to enter into a contract

And that is a good point. I think the mental state of the one subject to questioning is what drives the different reactions that are seen.

 

[Taxing Matters]

That’s the problem. How do you prove thst at that moment the simple yes was not based on understanding what was asked? It’s hard enough to have a person diagnosed with a mental,disease due to the complexities of the human mind. Do you really believe a 23 year old kid with holes in his only pair of pants and no shoes could ever be able to win such an Argument?

Sure he can, if he has lawyer. And the evidence favors him, of course.

Money buys justice in our country.

There is no denying that money makes things easier. But our system does provide lawyers to those charged with crimes who cannot afford them. Contrary to what seems to be the popular view among non lawyers, public defenders and appointed counsel are not worthless. Just as with prosecutors and the private bar, the quality of the lawyer will vary from one lawyer to the next, course, but overall public defenders are competent lawyers. And with a competent lawyer that 23 year old kid does indeed have that shot to win that argument. Should some states better fund their public defender programs? Absolutely. But resources are a different issue than what the case law says the legal standard is.

So no, it isn’t addressed in case law. It’s addressed on fifth avenue.

The case law provides that the waiver has to be knowing and voluntary. So it addresses your concern that the suspects don't know that they are waiving their rights and then having their statements used against them. That has nothing to do with "fifth avenue".

The issue of proving that they didn't understand it is a function of the evidence available and having a lawyer to argue the matter. If the evidence does not favor the defendant then he should not win the motion, right? And as long as he has a lawyer to advocate for him, the motion can be properly litigated. And if he cannot afford a lawyer, the government will provide him one.

The truth of the matter is: Miranda is useless as it is applied.

That is your perception of it. I disagree. If Miranda was useless to defendants then no defendant would ever win a suppression motion based on Miranda violations and yet some defendants do win such motions. If Miranda was useless, some suspects wouldn't shut up after being told their rights, and yet some do. You don't think the rule does enough to protect suspects and I respect your opinion on that, though I do not entirely share your views on this topic.

The problem with that is the populace has had it driven into their heads that the minimal and simple Miranda warning is supposed to be answered with: yes. It is driven into our heads with every cop show made. You simply answer yes.

I disagree that "the populace has had it driven into their heads that the minimal and simple Miranda warning is supposed to be answered with: yes." I don't see any vast program out there drilling people with the concept that they must answer the questions cops ask. Rather, what I see is that most people know the basic Miranda warning from movies, TV shows, novels, etc and people arrested hear that warning (though the wording varies) when advised by the cops but they don't understand how to effectively use the rights they've heard about. One of the biggest problems I see is not that they don't know that they have a right to remain silent, but rather that they think that what they want to tell the cops will help them or at least not hurt them and end up blundering their way into saying something that does come back to bite them. Even innocent sounding remarks can end up being cast in a bad light when used in conjunction with other things the state has obtained.

I suggest that every person read their rights respond with a clear: no

And stick with it and answer no other questions until they have a lawyer at their side.

I have no problem with that, other than they may need to identify themselves.

Then when the cop tries to explain them seek to have him charged with practicing law without a license since they are clearly not allowed to give legal advice (although many of them believe they are)

Cops are not giving legal advice in those interviews, and very few suspects would believe that is what the cops are doing. They are not viewing the cop as their lawyer, after all.

Have you ever known anybody to answer no?

Sure, I know people who have refused to answer questions asked by cops. You don't think that everyone the cops interrogate agree to talk, do you?

 

[justalayman]

Sure he can, if he has lawyer. And the evidence favors him, of course.

. He doesn’t have a lawyer when they read him his rifhts and he doesn’t understand them yet still confessed.

There is no denying that money makes things easier. But our system does provide lawyers to those charged with crimes who cannot afford them. Contrary to what seems to be the popular view among non lawyers, public defenders and appointed counsel are not worthless. Just as with prosecutors and the private bar, the quality of the lawyer will vary from one lawyer to the next, course, but overall public defenders are competent lawyers. And with a competent lawyer that 23 year old kid does indeed have that shot to win that argument. Should some states better fund their public defender programs? Absolutely. But resources are a different issue than what the case law says the legal standard is.

To prove your point you would have to provide proof that poor people are not charged with crimes more often and that They aren’t convicted more often (proportionate to the numbers a given income class compared to the other income class from which your data is culled). I don’t know if that data is even available but I don’t know expect you to dig it up either. If you believe lower income class people aren’t convicted more often than affluent people or there is a unfair level of sentences based on finances, I think you haven’t ever looked at the matter.

And I’m not disparaging public defenders but the system they work within often does hamstring them.

The case law provides that the waiver has to be knowing and voluntary. So it addresses your concern that the suspects don't know that they are waiving their rights and then having their statements used against them. That has nothing to do with "fifth avenue".

. Again, you miss or ignore the point. Trying to argue a person was in no state of mind to understand their rights is not easy and as you have so clearly proven, not really a reality.

The issue of proving that they didn't understand it is a function of the evidence available and having a lawyer to argue the matter. If the evidence does not favor the defendant then he should not win the motion, right? And as long as he has a lawyer to advocate for him, the motion can be properly litigated. And if he cannot afford a lawyer, the government will provide him one.

what evidence? That’s my point. It may be temporary and fleeting. How do you prove I was in a state of mind that I understood what was being said to me? Of course, you ask the cop: did he appear to be lucid?

What cop that arrested a person that administered the reading of the suspects rights is going to say: no but I read him his rights and questioned him regardless

Against, you show your prejudices in believing if it was wrong, it’s going to be proven so. Life just doesn’t work like that

That is your perception of it. I disagree. If Miranda was useless to defendants then no defendant would ever win a suppression motion based on Miranda violations and yet some defendants do win such motions. If Miranda was useless, some suspects wouldn't shut up after being told their rights, and yet some do. You don't think the rule does enough to protect suspects and I respect your opinion on that, though I do not entirely share your views on this topic.

Some but show me some that were read their rights in due course of the process where it was ruled they didn’t understand what they were being told, or even more specific, that they were temporarily mentally unable to comprehend what they were being told. I suspect the list would be very very short.

I disagree that "the populace has had it driven into their heads that the minimal and simple Miranda warning is supposed to be answered with: yes." I don't see any vast program out there drilling people with the concept that they must answer the questions cops ask.

. I don’t think I’ve ever seen any movie or show where the suspect answered negatively. It’s no different than when you pull up to a parking lot where s sign says: parking. Donation $5 and have the driver know that the parking is actuslly free and they can choose to donate r not


I have been denied a right to a free service becasue I refused to donate.

Just the same in defense of other people understand what it means to post a sign that asks for donations: I have asked what if I don’t wish to donate. Those people said: it’s your choice. When I asked if I still get to park, they said yes. While I was never not going to donate because of what the event was, the point is, most people donate simply because everybody else does without understanding they can refuse to donate and it cannot be the cause of a denial of service. Many people respond affirmatively because that is what they are supposed to say.

Rather, what I see is that most people know the basic Miranda warning from movies, TV shows, novels, etc and people arrested hear that warning (though the wording varies) when advised by the cops but they don't understand how to effectively use the rights they've heard about.

I’ll agree they have heard the Miranda warning andmcan probably recite it but understanding it is something entirely different.

One of the biggest problems I see is not that they don't know that they have a right to remain silent, but rather that they think that what they want to tell the cops will help them or at least not hurt them and end up blundering their way into saying something that does come back to bite them. Even innocent sounding remarks can end up being cast in a bad light when used in conjunction with other things the state has obtained.

some of that stems from the fact the populace is led to believe the police have our best interests in mind but are allowed to lie to us to gain information, including making misleading statements about our rights.

I have no problem with that, other than they may need to identify themselves.

but the system many police work within does have a problem with that which can result in false promises and lies being used to trick a suspect into waiving their rights.

Cops are not giving legal advice in those interviews, and very few suspects would believe that is what the cops are doing. They are not viewing the cop as their lawyer, after all.

cops often give what is classified as legal advice.

Sure, I know people who have refused to answer questions asked by cops. You don't think that everyone the cops interrogate agree to talk, do you?

that’s not what i asked. Have you known any situation where a suspect said no, they dont understand their rights?


And that brings me to a new point.

When asked about understanding their rights, what is often asked is:

Do you understand what I’ve just read to you


Most people understand what was read to,them, unless there was too much ambient noise or,the cop spoke in a garbled voice. There are bunch of words and anybody with much of any intelligence understands what was read. That doesnt mean they understood what it all means and that is what it’s all about. Do you actually understand your rights I’ve rferred to in my reading. To that, a considerable portion of,the us populace would have to say no to.[/QUOTE][/QUOTE]

 

[quincy]

What you have said can especially apply to those with English as a second language.

 

[RJR]

Custody has a somewhat nebulous definition. Any time one is not free to leave they are obviously in custody. The problem is, and has been increased by court decisions, when a person believes they are not free to leave is not always accepted as being in custody. That is a perfect example of my point that a typical person often is not aware of their rights and as such, unwittingly relinquishes them.

"In custody" and "In custody for purposes of Miranda" are two distinct elements of law. I'm sure TM can attest to the fact that the "Lawyer's Edition's" of SC decisions have very good commentary, if you will, on cases. Although many years have passed, I believe Miranda is one of those I read. More insight than a Law Journal Article, imo. Ernesto used to sell Miranda cards, signed, for a dollar.

Miranda is 50 years of common law, so in that respect, too many feathers on the chicken to count to be 100% in agreement by every Court. Simple avoidance of to admit or not to admit as evidence, any statement made, is simply arrest/cite on the evidence. If they are guilty, they know it and have a very good idea of a plea bargain in the future.