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Discussion Starter #1
Per the Supreme Court, as of today you must both explicitly express a wish for an attorney and the desire to remain silent for your Miranda rights to be fully in effect.
 

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This stinks! Police are not required to provide the Miranda Warning UNTIL you're formally under arrest. Recent SCOTUS rulings have decided that police need not provide the "exact text of Miranda" but rather can summarize the points in the warning.

Police may "detain" you for questioning, otherwise question and interrogate, and anything occurring during that detention can be used in court.

Here's a potential "Mirandize" per the new SCOTUS ruling.

"So look -- we're takin' ya in for an XYZ beef. You can clam up now and we got no probl'ms wi' dat. You wanna call yer lawyer, we gotta let ya do that. You got no lawyer, we'll see if we can hook ya up. Technically, we can't muscle ya to spill, but if ya do spill we gonna be comin' back at'cha in court on account o' what'chu say here. You got all that?"

Two statements you make to the police: "Am I under arrest?" and "Am I free to go?" But you knew that.
 

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Discussion Starter #4
J.D. Langendorph said:
This stinks! Police are not required to provide the Miranda Warning UNTIL you're formally under arrest.
Two statements you make to the police: "Am I under arrest?" and "Am I free to go?" But you knew that.
Actually, the warning must be given when you are in a custodial setting. That's NOT under arrest.

Making a formal complaint, such as "That individual attacked me." is going to be far more beneficial than the comment you just made. That one will guarantee you a room at the concrete motel.
 

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William R. Moore said:
[quote="J.D. Langendorph":u3oemt1y]This stinks! Police are not required to provide the Miranda Warning UNTIL you're formally under arrest.
Two statements you make to the police: "Am I under arrest?" and "Am I free to go?" But you knew that.
Actually, the warning must be given when you are in a custodial setting. That's NOT under arrest.

Making a formal complaint, such as "That individual attacked me." is going to be far more beneficial than the comment you just made. That one will guarantee you a room at the concrete motel.[/quote:u3oemt1y]

"Custodial setting" does NOT encompass "being detained by police." And SCOTUS just ruled that you don't need to be informed. SCOTUS also recently ruled that "Miranda" need not be provided verbatim, but rather can be "summarized." That can significantly alter the "setting" and "context" of the defendant being advised, as I noted above. The police are no longer required to "formally" read you "Miranda." They can now toss off parts of it while they're cuffing you, or pinning your head to the ground with their knee.

(Watch COPS on Tru TV.)

The police can ask you all sorts of questions during a traffic stop without providing a Miranda warning. Most police -- during a traffic stop for instance -- are looking for "suspicious activity" and will ask questions just to see if they can't churn up "reasonable suspicion."

LEO has the right to "detain" without arresting you and without Miranda. Asking "Am I under arrest? Am I free to go?" puts them in the position of having to make a decision, because you're not "submitting to detention voluntarily." -- And they will note this in court testimony. "He was voluntarily submitting to detention."

Making the statement, "That individual attacked me." is a bad idea. Counsel will argue that you reacted to a perceived threat where none existed, and that you were "looking for a confrontation."

I absolutely warrant that ANY statement you make to the police can and will be used by prosecuting counsel to undermine your case and support theirs. This is what attorneys are trained to do.

Don't make any statements. Ask two questions: "Am I under arrest? Am I free to go?"

Those are not statements. They're questions, and a prosecuting attorney is going to have a difficult time turning them into incriminating evidence. In fact, your defense counsel will ask the LEO on the stand, when reviewing habeus corpus issues (taking you into custody, detaining you): "Was the defendant under arrest? Was the defendant free to go?" And the legal defense in the LEO's testimony will be, "He was voluntarily submitting to being detained and questioned."

If you're asking, you're no longer a "volunteer."

And then the next question your legal counsel will ask: "Did you provide the defendant a Miranda warning?"

This is the formal legal advice of several colleagues who are practicing attorneys.

Now it looks like SCOTUS is saying police don't need to provide the warning, that the defendant needs to assert it. That stinks! It's the first step to deconstructing the protections against self-incrimination afforded in Article V, Bill of Rights, and in Miranda v. Arizona (1966).

Forgive me here for harping, but this is a pernicious erosion of Constitutional protections afforded under Article IV and V of the Bill of Rights.
 

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Discussion Starter #6
SCOTUS appears to be stating that the subject must specifically invoke his right. IIRC, in that specific case, the Miranda warning had been previously given and the defendant stood mute for an extended period of time. This allowed the police to continue chatting at him, eventually (after several hours) wearing him down. While standing mute may imply a decision to remain silent, the court now requires verbal articulation of the decision.

I don't get my legal advice from TV.
 

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J.D. Langendorph said:
Making the statement, "That individual attacked me." is a bad idea. Counsel will argue that you reacted to a perceived threat where none existed, and that you were "looking for a confrontation."
They are going to argue that anyway. If you keep quiet, and claim self-defense down the road, they'll suggest that you and your attorney cooked it up after the fact: "If he had really been attacked, why didn't he mention that to the responding officers?" Keep in mind we are discussing a justified shooting. There is going to be plenty of physical evidence to show you did it, you want the evidence to show it was justified. One way to do that is to paint the correct picture for the responding officers. If you just keep quiet and ask for a lawyer, they have to sort everything out on their own. The guy on the ground with a bullet hole is doing a pretty good imitation of a victim.
 

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The guy on the ground with a bullet hole is doing a pretty good imitation of a victim.
Ah soo Tim, you do have a wonderful way with words. I'm glad you're not trying out for my job.

Talking to cops is just like posting on the internet: one should engage brain before doing it... :!:
 

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Tim Burke said:
[quote="J.D. Langendorph":328nh6cs]Making the statement, "That individual attacked me." is a bad idea. Counsel will argue that you reacted to a perceived threat where none existed, and that you were "looking for a confrontation."
They are going to argue that anyway. If you keep quiet, and claim self-defense down the road, they'll suggest that you and your attorney cooked it up after the fact: "If he had really been attacked, why didn't he mention that to the responding officers?" Keep in mind we are discussing a justified shooting. There is going to be plenty of physical evidence to show you did it, you want the evidence to show it was justified. One way to do that is to paint the correct picture for the responding officers. If you just keep quiet and ask for a lawyer, they have to sort everything out on their own. The guy on the ground with a bullet hole is doing a pretty good imitation of a victim.[/quote:328nh6cs]
As Br'er Mas puts it, there are only two roles in this little drama: Perp and victim. Whoever steps up first gets to claim the role of victim, and then the cops cast the other player as perp. You want that victim role.
 

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Discussion Starter #11
J.D. Langendorph said:
Yeah? Well a citation would be nice. I'd read the opinion if the case were cited.
SCOTUS has a website where agruments and decisions are posted. I'm surprised your learned collegues didn't advise you of this. Since you felt free to offer an opinion before reading the case, perhaps it's not surprising.

To expand upon the 2 previous eloguent comments, questions about being under arrest at a shooting scene will usually be answered in the affirmative where you are the shooter-if you get the chance to ask the question. You are free to refuse to make a statement/complaint, you're also perfectly welcome to room and board as a guest of the authorities while things are being sorted out. Mas published the case of a gent who clammed up and spent 18 months in the slammer before trial/acquittal. His attorney maintained that his client acted properly by remaining silent, there wan't a published opinion of the dude who spent the time in jail.
 

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Discussion Starter #12
Berghuis, Warden vs Tompkins:

BERGHUIS, WARDEN v. THOMPKINS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 08-1470. Argued March 1, 2010-Decided June 1, 2010
After advising respondent Thompkins of his rights, in full compliance with Miranda v. Arizona, 384 U. S. 436, Detective Helgert and an-other Michigan officer interrogated him about a shooting in which one victim died. At no point did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. He was largely silent during the 3-hour interro-gation, but near the end, he answered "yes" when asked if he prayed to God to forgive him for the shooting.

........................
Held:
1. The state court's decision rejecting Thompkins' Miranda claim was correct under de novo review and therefore necessarily reason-able under AEDPA's more deferential standard of review. Pp. 7-17.
(a) Thompkins' silence during the interrogation did not invoke his right to remain silent. A suspect's Miranda right to counsel must be invoked "unambiguously." Davis v. United States, 512 U. S. 452, 459. If the accused makes an "ambiguous or equivocal" statement or no statement, the police are not required to end the interrogation, ibid., or ask questions to clarify the accused's intent, id., at 461-462. There is no principled reason to adopt different standards for deter-mining when an accused has invoked the Miranda right to remain si-lent and the Miranda right to counsel at issue in Davis. Both protectthe privilege against compulsory self-incrimination by requiring aninterrogation to cease when either right is invoked. The unambiguous invocation requirement results in an objective inquiry that "avoid difficulties of proof and . . . provide guidance to officers" on how to proceed in the face of ambiguity. Davis, supra, at 458-459. Had Thompkins said that he wanted to remain silent or that he didnot want to talk, he would have invoked his right to end the question-ing. He did neither. Pp. 8-10.

b) Thompkins waived his right to remain silent when he knowingly and voluntarily made a statement to police.
 

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"You have the right to remain silent." -- It means just precisely what it says. Any atty. during a trial will address the argument, "The defendant didn't make any statement." with the provisions of the Fifth Amendment, and Miranda. It's a "non-starter," and the prosecution doesn't even want to go down that road. If you shoot someone, you're going to be taken into custody. Get used to that idea. There's no way in hell you're going to discharge a firearm in the course of a confrontation where the police are going to just thank you for your time and "have a nice day."

If you make a statement (hyperbole) to the effect, "Good afternoon officers, nice weather we're having!" The prosecution will use the statement to argue that you're "alert, oriented times three" (It's a clinical specification.) and seemingly unfazed by the whole incident. The inference being that you're a cold-blooded killer.

If you're entirely unhinged and claiming self-defense, prosecution will argue that you're "unstable, and reactionary."

You have ONE "correct answer" to any police questions: "I want an attorney. I decline to make any statements."

That's protected by Miranda, and Fifth Amendment. The prosecution can't make an argument out of it.
 

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J.D. Langendorph said:
That's protected by Miranda, and Fifth Amendment. The prosecution can't make an argument out of it.
That's partially correct. The fact that you kept silent can not be used as evidence of guilt. And, if there is overwhelming evidence that you acted in self defense, even after you clam up and the police start off with the wrong assumptions, you'll get off, eventually, although as noted above it may take 18 months. But remember, we are discussing a justified shooting. You did DO it. Self-defense is an affirmative defense. The burden of proof is yours, now. To justify it, you have to make the case for self defense.
They can very well point out that you made no claim for self defense at the scene. The jury can decide how much weight to give that.
If you shoot someone, you're going to be taken into custody. Get used to that idea. There's no way in hell you're going to discharge a firearm in the course of a confrontation where the police are going to just thank you for your time and "have a nice day."
There are lots of shootings where the shooter is interviewed and released. Is it the norm? No, but it does happen. However, I bet it never happens if the first words out of the shooter's mouth are "I want a lawyer."
 

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I had classes taught by our police attorney almost every year and there was one constant theme that applies equally on either side of the badge...

the use of deadly force is justified if a reasonable man believes that there was a risk of death or serious bodily injury and one must be able to articulate that belief..

whether we like it or not I think any reasonable cop is going to see it as a red flag if your first words have anything even resembling lawyer
 

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I have to respectfully disagree with Mr. Burke in 1 respect--in NY, the law for 33 years has been that a prosecutor may never comment on the accused's invocation of his right to remain silent, or cross-examine the defendant thereon, even if offered to rebut--as a "recent fabrication"--evidence first offered at trial. Given the constitutional protection of the 5th Amendment, there just is no clear inference from simple silence upon arrest. NY relied on the US Supreme Court, which had previously held, in Doyle v. Ohio (1976), as a matter of federal constitutional law, that such questioning or comment is unconstitutional (the so-called "Doyle Rule"). While the Rule has been controversial and criticised in state courts for many years, I would be surprised that it would be the law of another state that a prosecutor could overtly comment on a defendant's post-arrest silence .
 

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Prosecution calls as "expert witness" an atty. who teaches self-defense law to the local constabulary.

"In your classes, what do you teach as a constructive defense in a shooting?"

"We teach the the shooter should be able to clearly articulate that he was in imminent fear for his life or the life of others."

"And so an expression of 'imminent fear' would be a de facto constructive defense?"

"Yes."

"Would you say, in your expert opinion, that this defense is widely held and commonly known?"

"Yes."

"And so if a defendant made the statement to police, 'I was in imminent fear for my life." is there any possibility that the defendant would make such a statement because he understands it to be sin qua non to his constructive defense?"

"I would expect any defendant to understand that such a statement is fundamental to his case and that he's likely been taught in concealed carry classes or on self-defense sites online that he should rehearse and make such a statement if and when he's involved in a shooting."

"So, in essence, 'I was in imminent fear for my life.' might be viewed as a 'Get out of jail free' card?"

"I think that's a fair inference."

"Thank you . . . your witness . . . "
 

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Sorry, this is not expert testimony, but either factual testimony about what he teaches, or his opinion of what the motivation of "some people" (including the defendant) might have been under some circumstances. Irrelevant to the particular defendant's state of mind, or any other issue in such a case, and totally inadmissible.
 

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jagO4 said:
Sorry, this is not expert testimony, but either factual testimony about what he teaches, or his opinion of what the motivation of "some people" (including the defendant) might have been under some circumstances. Irrelevant to the particular defendant's state of mind, or any other issue in such a case, and totally inadmissible.
You should brush up on "rules of evidence." :shocked:
 
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