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Is the Sixth Circuit Overulling Miranda?

Yesterday, Judge Gilbert Merritt of the U.S. Court of Appeals for the Sixth Circuit wrote quite a fiery dissent in Davie v. Mitchell, suggesting that the Court was effectively overruling Miranda v. Arizona.

The majority in this case is reading the AEDPA statute unlawfully to suspend the writ of habeas corpus in violation of the Suspension Clause of the United States Constitution, Article I, § 9 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”). Here, as I shall explain below, the majority is using the AEDPA statute as a license to overrule Miranda v. Arizona and its lineal progeny developed by the Warren-Brennan Court four decades ago to outlaw coerced confessions that abridge the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination. The capital defendant invoked both his right to silence and counsel to no avail before he was then enticed to confess.
He concluded his opinion in similar tones:
I . . . dissent from the effort by my colleagues to bury Miranda under a mountain of AEDPA rhetoric. Until the Supreme Court overrules Miranda, we should follow it, no matter how much we prefer to side with the police against the liberties created by the Fifth and Sixth Amendments.
What could have Judge Merritt so upset? The decision by Judge John Rogers, joined by Judge Guy Cole, to deny the habeas petition of Roderick Davie, who was sentenced to death for the murder of two people and the attempted murder of a third. Specifically, Judge Merritt believes Davie's confession was obtained in violation of his Constitutional rights to remain silent and have the assistance of counsel.

Here is how Judge Rogers describes the circumstances surrounding the confession.

At approximately 8:30 a.m., Davie was arrested, read his Miranda rights, and transported to the police station. At approximately 9:05 a.m. at the police station, Detective Hill read Davie his Miranda rights with Lieutenant Carl Blevins present. Davie initialed the rights form but refused to sign the waiver. At that point, the officers made no attempt to interrogate Davie. At approximately 9:59 a.m., Captain Downs and Blevins entered the interrogation room and again advised Davie of his Miranda rights. Davie initially made some comments, he ultimately declined to speak further with the officers, and the interview ceased. At approximately 12:15 p.m., authorities again questioned Davie. Davie provided some information to police, including the fact that he had his gun with him that morning, but he did not confess to the crime. At 12:35 p.m., Davie indicated that he had nothing more to say and the interview ceased. At approximately 2:00 p.m., Davie indicated that he wanted to speak with Detective Vingle. After Vingle advised him of his Miranda rights, Davie confessed. See 686 N.E.2d 245, 256 (Ohio 1997). At no time during the relevant events did Davie ask for a lawyer.
Based upon these facts (discussed in far greater detail in Judge Cole's concurrence), and the degree of deference federal courts are required to show state courts under AEDPA, Judges Rogers and Cole concluded Davie's confession was voluntary, particularly because he initiated the discussion with the police that led to the confession. Indeed, "even under a nondeferential analysis," Judge Rogers wrote, "the police did not violate Davie's constitutional rights under Miranda v. Arizona. Judge Merritt obviously disagreed, in part because Davie never signed a waiver of his rights.

This case strikes me as something of a close call, and is largely dependent upon how one characterizes the repeated interactions between Davie and the police. If one thinks these interactions were relatively benign and non-coercive, the majority is correct. If, on the other hand, the repeated interactions with the police were more menacing — Judge Merritt characterizes each interaction as a "confrontation" — then Davie's confession may have been obtained in violation of Miranda. Given the deferential standard of review under AEDPA, however, this means the majority is probably correct as a matter of law. And although I live in the Sixth Circuit, I am not about to lose sleep about this alleged erosion of Miranda.

Sixth Circuit watcher (mail):
The "Warren-Brennan" Court?
11.14.2008 11:13am
Andropov Carlisle, IV:
Um, what am I missing - he was read his Miranda rights four separate times.
11.14.2008 11:45am
trad and anon:
And although I live in the Sixth Circut, I am not about to lose sleep about this alleged erosion of Miranda.

Of course not. You're a white law professor.
11.14.2008 11:48am
Oren:
John, you are right in your analysis of the facts in this particular case, but I think the analysis has to start with the inherent tension between the sweeping defendant's rights claims of 60s and the AEDPA. Specifically, the fact that Federal courts ought to let stand State court interpretations of important question of Constitutional rights that they think are incorrect, so long as they are not so incorrect to merit reversal under a deferential standard, is in conflict with the notion of Federal Courts as guardians of our constitutional rights.

Moreover, it shows an even deeper tension between Congress' authority to define the jurisdiction of the courts and the Supreme Court's authority to interpret the scope of the protections in the constitution. For many on the left, it is quite odd that Congress cannot overrule the SCOTUS on the latter, but may amend the former to deny an individual the venue to make that argument (effectively, they say, overruling the SCOTUS by procedural blockage).

This is just another page in the long back-and-forth between Congress and the Court about who dictates the procedures of criminal justice (a very healthy back and forth, I might add).
11.14.2008 11:49am
Light Hearted (mail):
Overrulling?
11.14.2008 11:51am
FlimFlamSam:
I don't think there is much of a back-and-forth between Congress and the Supreme Court on crim pro matters because the Supreme Court is not shy about declaring its view on any issue to be mandated by the Constitution.
11.14.2008 11:52am
trad and anon:
Also, as is bizarrely usual in these sorts of cases, the dissent has a completely different version the facts. Compare, e.g.:

After Vingle advised him of his Miranda rights, Davie confessed.

This strongly suggests that the defendant spoke to the officer because he had spontaneously decided to confess. The dissent's version of the incident:

Davie initiated the conversation only to ask a question. Instead of answering Davie's questions, the officer turned the question around and began to interrogate Davie again. In answer to this interrogation at the sixth encounter, Davie then briefly confessed to the murders ("I went there and shot them up.").
11.14.2008 11:57am
Kazinski:
Trad,
Davie chose the race of the murderer not the police. Davie actually committed the crime, there is no controversy on that fact. So to somehow say Davie was a victim of a racially biased process is ridiculous, he selected himself to participate in the proceedings.

It is amazing how some people get into a lather over a process that while coercive in the sense that the perp is not free to leave, and his freedom and life are at risk, provides justice to both the victim and the perpetrator without threat of physical violence or undue pressure. I certainly don't want a system like Japan's where confessions are routinely coerced from accused that have very few rights, but that is not what happened here.
11.14.2008 12:18pm
Bored Lawyer:

Um, what am I missing - he was read his Miranda rights four separate times


You are not missing anything -- except for a type of psychological lobotomy necessary for someone, let alone a Circuit Judge, to assert that a court is overruling Miranda when the defendant was read his Miranda rights four times
11.14.2008 12:18pm
Adam J:
Andropov Carlisle, IV &Bored Lawyer- It's been a while since criminal law... but I thought there was more then simply reading ones rights to Miranda. He also has to waive said rights, and he refused to sign the waiver, which indicates he did not waive them. I agree with the majority here, since he never affirmatively invoked his right to a lawyer (which I thought was necessary), and I think when he asked for the detective he orally waived his right to remain silent, but I can see how it's a close call.
11.14.2008 12:26pm
Steve P. (mail):
Unless I'm missing something, I thought that the issue is that the defendant was read his Miranda rights, "ultimately declined to speak further with the officers," and was then interrogated again. Theoretically, once you invoke your right to remain silent, the police have to stop asking questions.

Is there another dimension here that I'm not aware of?
11.14.2008 12:29pm
anon345 (mail):
The psychological lobotomy is the one necessary to believe that the repeated interactions were the kind that one has in the faculty lounge or judges chambers.
11.14.2008 12:33pm
Paul Milligan (mail):
The guy was read his rights 4 + times, in front of 4 + witnesses, according to your post. He then at some point chose to speak, and confess.

Your post indicates no duress, no obsfucation by the police, no force, no deceit by the police.

As I understand it, A ) 'Miranda rights' are merely the RECITATION of rights you ALREADY HAVE ( whether someone reads them to you or not ), a REMINDER, an INFORMATIONAL STATEMENT, and B ) Those rights in no place suggest that the police can not ever talk to you again without your attorney present. They state ( remind you of the pre-existing fact ) that YOU have the right to not say anything, not answer questions, etc. If you CHOOSE to, then that is your choice. Miranda is a reminder that you don't HAVE to say anything, not a PROHIBITION against you choosing to speak, or answer questions. In no way does the above post suggest a violation of anyone's rights.
11.14.2008 12:36pm
Thorley Winston (mail) (www):
Unless I'm missing something, I thought that the issue is that the defendant was read his Miranda rights, "ultimately declined to speak further with the officers," and was then interrogated again. Theoretically, once you invoke your right to remain silent, the police have to stop asking questions.

Is there another dimension here that I'm not aware of?


It's been a couple of years since Crim Pro but IIRC the police can continue to interrogate you at a later point after you invoke your right to remain silent but have to reread your Miranda rights (and the courts will still look at the totality of the circumstances to see if any confession was coerced). What the police may not do under Miranda though is continue to interrogate you after you invoke your right to counsel. At that point, the interrogation must stop and can only resume in the presence of your attorney.
11.14.2008 12:37pm
Dilan Esper (mail) (www):
Steve:

Yes, there is. There are two Miranda rights-- to counsel and to remain silent. If you say to the cop "I don't want to talk to you", you have invoked your right to remain silent. If the cop continues to question you, what you say cannot be used against you at trial unless it falls within some exception to Miranda.

However, the cop can come back a day later and say "do you want to talk to me now?". So long as the cop honors your request to remain silent when you make it, the cop can try again.

However, asking for a lawyer doesn't work like that. If you say to the cop "I don't want to talk to you without a lawyer present", you have invoked your right to counsel. If the cop continues to question you, just like with the right to remain silent, what you say can't be used against you at trial. But if the cop comes back a day later, without your lawyer present, and says "do you want to talk to me now?", he is STILL violating your rights, because he is seeking to resume questioning without your lawyer present after you had invoked your right to counsel.

It may seem like angels dancing on the head of a pin, but that's how the Miranda doctrine works.
11.14.2008 12:38pm
Prof. S. (mail):
Apparently there is concern that the murderer may have been tricked into thinking that the federal government retracted the right to remain silent and the right to an attorney between being read his Miranda rights for a fourth time and when he actually confessed.
11.14.2008 12:41pm
Sarcastro (www):
Awesome new police tactic: read accused their rights over and over again till they confess.

It's like super-constitutional! And it doesn't overbear the will at all!
11.14.2008 12:47pm
Steve P. (mail):
Thorley, Dilan - thanks for the clarification. The majority's decision makes a lot more sense, now.
11.14.2008 12:49pm
DiverDan (mail):
Just a couple of questions - were the police interrogations video taped? Did the accused ever, at any time say anything like "I want a lawyer"? Is it possible that the guy NEVER, in the 5-1/2+ hours he was in custody, asked to speak to a lawyer? Despite being reminded 4 times that he had that right? And in light of his admitted invocation of the right to silence, at least three times? Of course, it is possible, but I'll find it hard to believe unless I can see the video tape of each interrogation. Sure, people are usually dumber than I care to believe, and criminal defendants are dumber than the rest. But I will still believe (until I'm shown the video tapes of the interrogations) that with all but the most retarded of suspects, they will, at some time, ask to see a lawyer, especially after being kept in police custody for 5+ hours, most of the time alone in an interview room or small cell.

That being said, I think the majority probably got it right on the law, given the deference to state court decisions required under AEDPA. But I would agree with the dissent that the police and the state court system almost certainly acted with a rather cavalier and disturbing disregard for Miranda in this case.
11.14.2008 12:52pm
ForWhatItsWorth:
Dilan: ".....Yes, there is. There are two Miranda rights-- to counsel and to remain silent. If you say to the cop "I don't want to talk to you", you have invoked your right to remain silent. If the cop continues to question you, what you say cannot be used against you at trial unless it falls within some exception to Miranda. ...."

If that is "the way" miranda now works, it is morphed into something unrecognizable. It would seem to me, a non-lawyer, that when you invoke your right to silence, you must KEEP YOUR PIE HOLE closed and you are letting the police know why you are going to be silent with regards to anything concerning the case. Asking to go to the bathroom would obviously not be a "self violation" of the "pie hole" rule.

But saying anything more about the crime itself, is certainly a remission of your invocation of your right to remain silent. WHAT have you lawyer types done to common sense? Good gawd! :) :)
11.14.2008 1:11pm
ScottB (mail):
DiverDan- you base your opinion that most suspects invoke their sixth amendment rights on what, exactly? How many people have you interrogated? I have interrogated perhaps 200 people, mostly for firearm and gang related crimes. I have had maybe 10 of them invoke their right to a lawyer. Maybe a quarter of the rest invoke their right to silence, pehaps a bit less. And yes, I videotape them.

I think most lawyers underestimate the importance of the relationship between cop and criminal. A good cop ends up as a well known feature of the neighborhood, with personal relationships with almost everyone. I have had friendly conversations with stone cold killers, and some of those killers actually seem to like me. I am honest with them about who I am and what my goals are, and in turn they tend to respect me for it. And in a strange way, they admire someone who can come to their neighborhood and take a gun out of a gangster's pocket and then joke with him afterward.

When it comes time to interrogate them, that relationship enters into the dynamic far more than the lawyers realize. In fact, they probably like me a whole lot more than they like their defense lawyer. Is that coercive? Obviously I play on that relationship, but that wouldn't get an innocent man to confess.
11.14.2008 1:19pm
Bored Lawyer:

Awesome new police tactic: read accused their rights over and over again till they confess.

It's like super-constitutional! And it doesn't overbear the will at all!


I can top that. In a case I once worked on, the cops told the suspect to "Stand there and shut up!" Notwithstanding the instruction to "shut up" the defendant insisted on making incriminating statements.
11.14.2008 1:23pm
Conrad Bibby (mail):
I don't know how this case should have been decided according to the case law, but as a matter of basic constitutional interpretation I've never understood how a suspect's mere right against self-incrimination got twisted and expanded into a formulaic set of affirmative responsibilities on the part of the police. All the Constitution requires is that we not compel a suspect to talk. The suspect in the present case clearly wasn't compelled to talk by any state actor. Ergo, there is no constitutional violation in using his confession.

The only reason this case is controversial is because judges have constructed a labrynth of affirmative procedural requirements and declared that suspects have a constitutional right to have the police comply with those requirements in every detail.
11.14.2008 1:29pm
ForWhatItsWorth:
Oh wait, I get it....... silly me.... lawyers have redefined what "silence" means. I would think that to "be silent" would mean "shut it."

How wrong could I be..... "silence" now appears to mean "yack all ya want and anything I say now CANNOT be used in a court of law?" SAY WHAT?
11.14.2008 1:29pm
hattio1:
ScottB says,

When it comes time to interrogate them, that relationship [good relationship between him and suspect] enters into the dynamic far more than the lawyers realize. In fact, they probably like me a whole lot more than they like their defense lawyer. Is that coercive? Obviously I play on that relationship, but that wouldn't get an innocent man to confess.


The question is what you first asked, was it coercive. I understand why cops focus on innocent and guilty, but when it comes to honoring rights, you should focus on those rights (and for Miranda rights, whether they were invoked). Coercion has nothing to do with innocent or guilty. The problem with mixing up the two concepts is, once cops have convinced themselves that someone is guilty, too many ignore their rights.
11.14.2008 1:34pm
Anderson (mail):
Specifically, the fact that Federal courts ought to let stand State court interpretations of important question of Constitutional rights that they think are incorrect, so long as they are not so incorrect to merit reversal under a deferential standard, is in conflict with the notion of Federal Courts as guardians of our constitutional rights.

That is what I have never understood. It's like telling the state court to defer to the federal court on issues of state law.

Other than encouraging the states to cut corners so as to lock people up (or execute them), I cannot grasp the AEDPA's motive here.

Unlikely to expect an amendment to the statute, but I would like to see the Dems put the interpretation of the FEDERAL constitution back in the FEDERAL courts. Call me quaint.
11.14.2008 1:40pm
JB:
I've never understood how a suspect's mere right against self-incrimination got twisted and expanded into a formulaic set of affirmative responsibilities on the part of the police

It's a misguided attempt to stop coercion. "You have the right to remain silent" is great, unless the cops somehow force you to talk. Because for some reason the law can't just say "Cops are forbidden to do what a reasonable person would say is coercing the suspect to talk," it needs to define in excruciating detail where the boundaries are.

Thus a few assholes ruin it for everyone. But, ultimately, the entire legal system is a response to that, one way or another.
11.14.2008 1:44pm
Kent G. Budge (www):
So, let me get this straight. The suspect was read his Mirando rights four times, including just before confessing to a murder (at a meeting with an investigator the suspect himself initiated), and the one judge wants to fulminate about him being denied his Miranda rights?

I am not a lawyer, and I may never fully understand the legal mind, but I do understand the reasons behind a lot of legal protections and procedures and hair-splitting. But this strikes me as barmy.

You will forgive me for wondering if the real burr up the judge's saddle is the death penalty imposed, rather than the legitimacy of the confession.
11.14.2008 1:45pm
sonicfrog (mail) (www):
Are you sure this wasn't from the Ninth Circuit C.O.A.? It sounds like a ruling that would come from them....
11.14.2008 2:07pm
JohnO (mail):
The dissent loses its force the minute it refers to the "Warren-Brennan" Court. Referencing a Justice other than the Chief Justice immediately signals a lack of objectivity.
11.14.2008 2:07pm
sonicfrog (mail) (www):
Maybe the suspect is haring impaired, or doesn't speak English, and didn't understand the rights as they were read to him....

(just kidding)
11.14.2008 2:08pm
Oren:

I don't think there is much of a back-and-forth between Congress and the Supreme Court on crim pro matters because the Supreme Court is not shy about declaring its view on any issue to be mandated by the Constitution.

And the Congress continues to restrict the jurisdiction of the courts to hear those issues at all. Seems about right to me.
11.14.2008 2:11pm
Dilan Esper (mail) (www):
If that is "the way" miranda now works, it is morphed into something unrecognizable. It would seem to me, a non-lawyer, that when you invoke your right to silence, you must KEEP YOUR PIE HOLE closed and you are letting the police know why you are going to be silent with regards to anything concerning the case.

The whole point of Miranda, however, is to establish a procedure where people who decide to exercise their Fifth Amendment rights aren't subjected to repeated badgering and coercion in an attempt to get them to waive them. (Whether it accomplishes that, of course, is a different question.)

So the idea is that when you say "I don't want to talk to you" to the cop, the cop is required to respect that. He can try again later, but that ends the interrogation now. Same with "I don't want to talk to you without a lawyer present"-- the cop is required to respect that and contact you through counsel.

If it weren't for these rules, police would simply never respect a suspect's invocation of his or her constitutional rights. They would keep on badgering the person over and over again, subjecting him or her to interminable interrogation sessions until they got the confession. This is what we mean when we say that Miranda is "prophylactic"-- it facilitates the rights against self-incrimination and to counsel, by creating a procedure whereby those rights can be invoked and have to be obeyed.

None of this is to say that people who invoke their rights and then go ahead and talk anyway aren't being really stupid. It's just that the reason for these rules is the belief that in order to make the rights mean something, there has to be a procedure whereby if they are invoked, they will be honored.
11.14.2008 2:21pm
The Cabbage (mail):
The "Warren-Brennan" Court?

That jumped out at me too.
11.14.2008 2:26pm
Oren:

Other than encouraging the states to cut corners so as to lock people up (or execute them), I cannot grasp the AEDPA's motive here.

Well, the motive is pretty clear -- the defendant has already had a chance to raise all of those issues and we shouldn't incessantly relitigate (sp?) those issues at great costs.

Now, I am quite sympathetic to the claim that (some) State courts often give short-shrift to Federal constitutional claims. The answer to me would be to strengthen the procedures at the level of the State courts to address the issues properly the first time they arise, instead of constantly playing fix-me-up. One good review at the start saves 12 in the appeals.

Essentially, I wish I could say that all State courts deserve the level of deference that the 6CA is talking about here.
11.14.2008 2:56pm
Just Dropping By (mail):
The "Warren-Brennan" Court?

I prefer to follow the holdings of the Walter Brennan court.
11.14.2008 3:01pm
DiverDan (mail):
ScottB -- I have never interviewed a subject, at least from the pespective of law enforcement (and very few as defense counsel - I avoid criminal practice like the plague), and I have no reason to doubt your statistics. And if the accused in this case never did in fact invoke his right to counsel, and just kept talking, to the point of confessing, then I have no problem frying him -- unlike the Supreme Court, I'm not averse to executing the extremely retarded (which this suspect clearly was, if your view of the facts is accurate), if those supremely stupid susppects have access to weapons and a willingness to use them. It's just hard for me to believe anyone can be that stupid and still know how to load and point a gun. If you are correct that very few criminal suspects ask for a lawyer before confessing, that gives me reason to doubt my belief in evolution -- how can natural selection work if people that dumb can survive and breed?
11.14.2008 3:03pm
Fat Man (mail) (www):
Do you suppose that if they let the perp off, Merritt will invite him to live at with Merritt and his family. After all, he was a good boy being persecuted by Bushitler.
11.14.2008 3:16pm
Anderson (mail):
Essentially, I wish I could say that all State courts deserve the level of deference that the 6CA is talking about here.

Appellate review in the federal courts just *is* the only effective check on slovenly or malicious state-court rulings.

If redundant appeals are the problem, then for one thing, cut out the district courts -- habeas actions should be treated for what they are, an attempt to have the federal court address constitutional issues allegedly flubbed by the state appellate courts.
11.14.2008 3:17pm
pete (mail) (www):
DiverDan, do you really think stupidity is a hindrence to human reproduction? If anything our society rewards smart people for delaying childbirth for as long as possible with material success. How many people think it is stupid to have 4 kids by the time you are 20? One kid before you are 18? Smart people tend to delay childbirth until they are older and tend to have fewer children. Idiocracy may have been a bad movie, but its premise was based somewhat in reality.

And smart people also avoid commtting crimes or are at least better at avoiding getting caught committing crimes. Most criminals are not very bright and/or not very educated. That is why they are committing crimes in the first place.

This story also reminds me of the episode early on in the Wire where the defense attorney smacked one of the drug dealers in the head for talking to the police before he showed up.
11.14.2008 3:32pm
M:
Merritt is deeply opposed to the death penalty. I believe if one went back and checked, he has NEVER voted in favor of affirming a death sentence. He pulls reasons out of thin air.

That said, I think AEDPA is a disaster, has consequences that are unfair (not necessarily unconstitutional - just unfair) to criminal defendants, and make things more difficult for federal courts. We can thank a Republican Congress and President Clinton for this.
11.14.2008 3:34pm
Skyler (mail) (www):
Menacing? What's so menacing? Did they have hot pokers? Did they wave loaded pistols in his face? Were they roughing up someone in the next room?

How many times must a man be read his rights before he knows what his rights are? He called the cop back and confessed. Calling this a miranda violation is Orwellian.
11.14.2008 3:36pm
David Barnett (mail):
The dissent begins by claiming that the majority is not only overruling Miranda but is suspending the writ of habeas corpus in violation of the Suspension Clause. Is the denial of a habeas petition, even if incorrectly decided, really the same thing as a suspension of the writ? I'm not a lawyer, but that sounds like preposterously overheated rhetoric.
11.14.2008 3:42pm
Q:
"'And although I live in the Sixth Circut, I am not about to lose sleep about this alleged erosion of Miranda.'

Of course not. You're a white law professor."

And the defendant here is probably black and definitely a murderer. What is your point? That black murderers' right to not incriminate themselves is more important than white law professors' right to have murderers in their jurisdiction prosecuted and jailed? Miranda rights (like almost all criminal procedure rights) do not exist for the guilty but rather for the innocent, so that the innocent will not falsely confess to crimes they didn't commit - not so that the gulty won't be pressured into confessing. I see nothing here that would pressure an innocent person confess to a crime he didn't commit. Here is how I see the facts: they bring him in a don't question him. An hour later then question him - he makes some "comments." These are probably incriminating comments. At this critical point in the interrogation, an innocent person would probably be relatively convincing in his protests of innocence, even if he were very nervous - here, the guilty person instead incriminates himself. The cops know from his incriminating comments that he may have more to say. After some more questioning he gets nervous and says he doesn't want to talk. The cops leave him alone for an hour to an hour and a half. When they come back in and question him he makes additional, more incriminating comments ("yes, I had my unregisetred gun on me, which happens to be the kind of gun used in the shooting, this morning when I was in the vicinity of the crime scene." The guy knows he's F'ed so he shuts up again. The cops leave him alone (they have a ton of evidence by now, anyway), and about an hour later he initiates a conversation with the cops and confesses because he thinks it will bring him some goodwill and leniency.
11.14.2008 3:43pm
David Barnett (mail):
Reading it one more time, maybe he is saying that the majority is reading AEDPA as if it amounts to a suspension of the writ, but still sounds overheated to me but not as preposterous.
11.14.2008 3:43pm
JorgXMcKie (mail):
As to the intelligence of criminals, my brother, a 31-year retired state trooper (they investigate crimes where I grew up) has told me repeatedly that, when it comes to crimes of physical violence, 95% of all criminals are so stupid they probably need to be told to breathe or he'd never catch any of them.

He also says that about 90% of all the crimes he saw solved were because a criminal did something incredibly stupid. His stories about this make you shake your head in wonderment.
11.14.2008 3:49pm
gasman (mail):

He also has to waive said rights, and he refused to sign the waiver, which indicates he did not waive them.

One may waive rights merely by not exercising those rights. He had the right to remain silent (as they say on TV), but no obligation to remain silent. He chose to speak, as was his right also. The police were under no obligation to gag him until he signed a waiver.
He had the right to speak, he had the right to not speak. Each right is equally precious, and the state cannot determine for him which to exercise. The right to remain silent is meaningless if one is compelled to be silent.
11.14.2008 3:56pm
edhesq (mail):
Does anybody contest his guilt?

Better every guilty man go to prison than one go free.
11.14.2008 4:21pm
hattio1:
Q say;

That black murderers' right to not incriminate themselves is more important than white law professors' right to have murderers in their jurisdiction prosecuted and jailed?


Where do you see a right to have murderers prosecuted and jailed? Look at the case law, there is no right to have people prosecuted. These cases come up all the time.

You also say that our protections exist only for the innocent, not for the guilty. Wrong. Look a the founding fathers. Most of them were criminals* according to a government that overreached frequently. They put in protections that would keep the government from over-reaching.
Finally, you speculate to all sorts of things; what the defendant was thinking, what the cops were thinking, etc. Any evidence? I know you want to assume that the cops always do the right thing, but I'm not sure that assumption is justified.
11.14.2008 4:39pm
Oren:



Appellate review in the federal courts just *is* the only effective check on slovenly or malicious state-court rulings.

If redundant appeals are the problem, then for one thing, cut out the district courts -- habeas actions should be treated for what they are, an attempt to have the federal court address constitutional issues allegedly flubbed by the state appellate courts.

That's fine -- you get one Federal appeals panel (3 judges) plus a chance to ask the SCOTUS for cert. No en-banc, no remands. One chance to make your case and a nice final judgment.
11.14.2008 4:51pm
flicka47 (mail):

"and the state cannot determine for him which to exercise"


Ok so this thread has been active for about 5 1/2 hours,many of you have commented more than once.

What would you do if you were locked in a room and the police kept coming back to question you if you were not a lawyer? No,you probably would not confess to a crime you did not commit assumming that you were mentally compedent,but do you really think that you would remain silent?

Little thought experiment for you all.

You are being questioned in a misdemeanor case,in which you are not the suspect,but the cop feels that you may have info that he wants. You may or may not have that info. The cop for what ever reason feels you do have info that he wants,and starts screaming in your face.

Do you really feel that you're are going to remain silent??
11.14.2008 4:54pm
Oren:
Screaming in your face is coercive under any State court interpretation. Please try again.
11.14.2008 4:59pm
Carolina:
Merritt's dissent is hysterical and overheated.

I don't care for the AEDPA any more than most of the posters here appear to, but the majority's opinion is, IMHO after reading it, a fairly unexceptional application of AEDPA. If Judge Merritt doesn't like it, he needs to take it up with Congress, not engage in unhinged rants about other judges leading us down the primrose path to totalitarianism.
11.14.2008 5:01pm
flicka47 (mail):
It may be coercive,but are you going to remain silent?
11.14.2008 5:06pm
Order of the Coif:
And although I live in the Sixth Circuit, I am not about to lose sleep about this alleged erosion of Miranda.


Of course not, YOU are bright, white, affluent and used to dealing successfully with authority. Besides within an hour you'd have hired a lawyer and had him sitting at your side.

Too bad for those who are ignorant, weak, and Black, huh???
11.14.2008 5:10pm
MCM (mail):
"Screaming in your face is coercive under any State court interpretation."

Which, of course, means it never happens.
11.14.2008 5:14pm
Oren:
MCM, no, it means that no State court will accept any confession (or fruits thereof) following such. I'm sure it does happen.



I don't care for the AEDPA any more than most of the posters here appear to, but the majority's opinion is, IMHO after reading it, a fairly unexceptional application of AEDPA. If Judge Merritt doesn't like it, he needs to take it up with Congress, not engage in unhinged rants about other judges leading us down the primrose path to totalitarianism.

QFT.
11.14.2008 5:46pm
Joe Yowsa (mail):
This effort to read new "rights" into the Bill of Rights has already resulted in our loss of real rights. "[E]nticed to confess" doesn't cut it. Meanwhile take a look at this from the 6th amendment: "to have compulsory process for obtaining witnesses in his favor". That should mean exactly what it says. But try it with a "journalist" in some courts.
11.14.2008 6:30pm
Oren:
Joe, the Federal courts have roundly rejected all attempts to create a "journalistic privilege" exception to subpoena. Please try again.
11.14.2008 6:52pm
whit:
i had a case like this once. 4 different interrogations, over a several week period, before I got a confession. no, it was not suppressed.

the dissenting judge here is wrong. the issue is (at least primarily) - was there a knowing and voluntary waiver NOT whether he signed the waiver form.

in my case, i had a guy who refused to allow a taped statement (which is always preferred in "my book") and refused to sign a statement (he did sign a waiver though).

so, since he refused to sign a written statement, and allow a taped statement, there was a burden on the state (which was met) to prove he did give the statement, and as to what it meant.

the issue is similar here. not signing the waiver does not mean the confession was either not voluntary or not knowing. and based on all the facts and circumstances, there's a pretty darn strong case it was both voluntary and knowing.

a signed waiver is a procedural safeguard, it is NOT a constitutional requirement, or a necessary element to prove a waiver/confession is legally admissable.

as for all this race card crap in this thread. people need to grow up. i see no evidence that race plays any issue in how the cops handled themselves.
11.14.2008 7:06pm
whit:

None of this is to say that people who invoke their rights and then go ahead and talk anyway aren't being really stupid.


i have debunked this ridiculous myth at least a half dozen times.

in many cases (arguably the majority of cases a police officer encounters), people are SMART to talk to police after being mirandized. i've had scores of people talk after miranda (whether or not they initially invoked) that resulted in 1) no charges being brought 2) them being released in the field , etc.

you have a natural bias in that you only see cases where charges ARE brought, and thus don't realize that the best thing (in most cases) an innocent person can do (when read miranda) is to explain why they are innocent.

i have experienced this scores of times.

one example, I took a (lawyer fwiw) in for questioning in a weapons brandishing case. he told his side of the story, post-miranda, writing out a very detailed statement. it was great evidence of self-defense, i released him there, and the prosecutors DECLINED to prosecute because of the evidence HE provided. without his statement, they would have charged because they would have had only one side of the story- the alleged victims.

*if* you are guilty, you are probably (but not always) better off not talking to cops who mirandize you. the fact they mirandize means they probably have a bit more than a hunch. now, in many cases (i can think of a certain serial killer), suspects can talk their way OUT of being a suspect (to a large extent) even if they are guilty, but THAT is risky.

but if you are innocent, you help yourself AND the police (to catch the actual bad guy if there is a crime) by explaining why you are innocent.

the reason you (and many others don't understand this) is the selection bias of only seeing the cases where talking to the police DIDN'T work - iow the ones that get to trial/charging.
11.14.2008 7:13pm
MCM (mail):
What's your perspective on Professor Duane's advice to "never ever talk to the police"?

http://video.google.com/videoplay?docid=-4097602514885833865
11.14.2008 7:27pm
whit:
MCM, it's a moronic concept.

typical of an academic (i might add - divorced from reality).

i can't see the video because i tried the link and it says it is not currently available.

I was stopped once at gunpoint, fwiw and mirandized. i was innocent. i talked to police. i realize this is anecdotal, but i speak not just for my (one) incident, but for the literally hundreds (if not thousands) i have either been primary or secondary investigator on.

the primary error here is selection bias. the other error is (and we especially see this among academics and others who live in their ivory towers) is a bigoted attitude towards the cops, assuming they are stupid, and OUT TO GET ME - "the man is trying to get me".

the MAN is trying to get the bad guys, not you.

again, i see day in and day out where people are BENEFITED from talking to police (whether or not mirandized). it's ridiculous and i doubt many of the people who hold this belief have much street experience.
11.14.2008 7:38pm
hattio1:
Whit says;

i have debunked this ridiculous myth at least a half dozen times.


No, you've explained why you think the advice isn't wise. And, several of those times, I've asked you how many innocent people you've arrested, gone into court and testified against and seen convicted. I don't think you've ever answered, but I could be remembering wrong. And I'll state again what I've said before. I'm not accusing you of intentionally arresting and having prosecuted innocent people. I'm accusing you of having selection bias as well. You don't intentionally target innocent people, therefore, you have no idea how many times you've arrested an innocent person because their story "didn't add up." The fact is cops often believe they know the facts when they don't. If someone tells them a story that doesn't jive with the facts the cops believe to be true, they are often arrested. If someone looks nervous they get arrested. If someone tells a fantastic story, they're arrested. But, sometimes the cops have the story wrong, the innocent get nervous and the truth is pretty freaking fantastic. And you have no way of knowing how often you've arrested innocent people in those circumstances. But, you've said you have nearly 20 years in law enforcement, and I can guarantee you have arrested innocent persons.
11.14.2008 8:01pm
whit:
innocent people get arrested all the time. especially in crimes, like domestic violence, where arrests are MANDATED in any case there is PC of a crime involving violence in the last 4 hrs (law in WA state) or order violation.

statisitcally speaking, i find it more likely than not that i have arrested innocent people, ESPECIALLY considering the above DV considerations (where we must arrest based on PC, without discretion).

the only crime i am aware of where the innocent have a foolproof "out" upon arrest is DUI. cause the breathalyzer is accurate and completely non-biased.

i can state that i have never arrested anybody for a DUI liquor (not referring to DUI drug cases obviously) who blew under a .08 (prima facie limit).

is it possible for there to be probable cause to arrest an innocent person?

of course. only a moron would deny that. therefore, innocents get arrested.

this is of course entirely irrelevant to the fact i was discussing, but this is the internet where irrelevant tangents are expected.
11.14.2008 8:08pm
Oren:

the MAN is trying to get the bad guys, not you.

Whit, you do understand that sometimes the innocent have a strong interest in frustrating the actions of law enforcement, right?
11.14.2008 8:14pm
whit:
sure, like if they disagree with the underlying enforcement.

i, personally, am against the war on drugs.

or are you referring to "stop snitching" lol?
11.14.2008 8:19pm
Vermando (mail) (www):
What was going on over those 5.5 hours? Was he just sitting in there? He said he wanted to remain silent - what is the required next step? How long can they hold him and how many times can they keep trying before they have to process him or let him go? I know that, in Louisiana, you have to have an arraignment within 72 hours, but is there something similar for the amount of time they can interrogate you?

Would love some insight from those more in tune with this topic than I am.
11.14.2008 8:33pm
Bob_R (mail):
"Roderick Davie returned to his former place of employment in Warren, Ohio and ordered three employees, two men and a woman, to lie face down. He shot both men in the head and back. After running out of bullets, Davie chased the escaping woman and killed her. One of the men survived the shooting; Davie tried to kill him by running him down with a truck and then by beating him with a stick. The woman died due to blunt force trauma, the man died of a gunshot to the head."

Completely irrelevant to the discussion, I know, but if the cops really thought he did this and treated him as described I'm glad I'm not a cop and I think they did a good job.

I would not want to be an innocent man subjected to the repeated questions described, but I can't see the cops behavior as a violation of the constitution. There is no way the constitution can protect us all from discomfort and temporary fear when multiple murders are going on in the neighborhood. Looks to me as if we are on a pretty dry flat place on the slippery slope.
11.14.2008 8:37pm
Oren:

sure, like if they disagree with the underlying enforcement.

i, personally, am against the war on drugs.

or are you referring to "stop snitching" lol?

So you can understand why even the innocent wouldn't be eager to converse with the police -- by refusing to talk we force the police to waste time following bad leads.

As to "stop snitchin" (there's no 'g'), I would say the onus is on the local police department to convince residents that the cops are on their side. IOW, stop snitchin is a perfectly logical response by the community when the police don't do anything to solve their crimes but occasionally ride in with massive force and drag people off. Of course, it's counterproductive in the long run because the community needs the police to function properly, but that's besides the point here.

Finally, there is a distinction (rarely made) between 'witnessin' and 'snitchin'. In the former case, a disinterested person happens to observe a crime by happenstance. In the latter, a person takes the initiative to snitch to police about others wrongdoing, often in exchange for leniency, money or the "right" to continue their illegal activity. The last possibility is really abominable and any LEO caught giving criminal free rein in exchange for testimony ought to be put on desk duty.
11.14.2008 8:55pm
flicka47 (mail):
Whit,I can assure you that I am neither a lawyer,and academic or live in any ivory tower. In fact I live over 10 miles out of town in a small rural Calif. city,and have for over the last twenty years only held jobs where I worked almost entirely by my self.

But depite the fact that (although no one is perfect)I truly would never deliberately break any law(Idrive the speed limit,that includes doing 55 on our local highway,where I know I am being tailgated and sworn at on a daily basis;I don't litter; i don't steal;nor would I ever knowingly hurt or harm anyone)Despite this I have had 3 really bad encounters with law enforcement.

So what BENEFIT (which should be a positive thing)is talking to law enforcement that quite obviously is not concerned with upholding the law as opposed to enforcing it?

At what point is it OK for me to stop trusting that they will do their job correctly?
11.14.2008 9:07pm
Dave N (mail):
Anderson wrote:
Unlikely to expect an amendment to the statute, but I would like to see the Dems put the interpretation of the FEDERAL constitution back in the FEDERAL courts. Call me quaint.
Cuz, gosh, them state judges are just too plain stupid to analyze much of anything.

It's not like they went to law school or anything. Only federal judges are darn smart nuf to interpret the Constitution.

Give me a frigging break.
11.14.2008 9:08pm
Dilan Esper (mail) (www):
in many cases (arguably the majority of cases a police officer encounters), people are SMART to talk to police after being mirandized. i've had scores of people talk after miranda (whether or not they initially invoked) that resulted in 1) no charges being brought 2) them being released in the field , etc.

Whit, I actually agree that there can be times when it is smart, in retrospect, for an innocent person to have talked to a cop.

Obviously, if the cop thinks you might have been the guy in the checkered shirt who was seen in front of the bank that got robbed, and some simple questioning clears up that you were absolutely NOT that person, and the cop lets you go, that's a lot better than spending a night at the lockup waiting for your lawyer and then having to clear everything up through counsel. (And even worse if the cop infers you must have been hiding something because you invoked your rights.)

But I think you are missing one thing about the context of my earlier comment as well as one more general point.

1. The context of my post was a person who INVOKES HIS OR HER RIGHTS and then later decides to talk. That is NEVER a good strategy. Once you assert your rights, get a lawyer and talk to the police through counsel.

2. The point you are making, at best, only applies to a subset of innocent people. For people who are guilty, or who are innocent but who the police seriously believe to be guilty, they are NEVER better off talking to the police, because you can always try for leniency later through attorneys (and indeed, the DA has more authority to grant it than the police does). You need to be defending against the state, not giving the police any evidence.

I realize this makes your job harder as a cop, but the fact of the matter is, the state never has the right to a person's confession. It's up to you guys to gather the evidence and prove your case-- something which you guys should be doing anyway, because confessions aren't inherently reliable.
11.14.2008 9:25pm
David M. Nieporent (www):
Of course not, YOU are bright, white, affluent and used to dealing successfully with authority. Besides within an hour you'd have hired a lawyer and had him sitting at your side.

Too bad for those who are ignorant, weak, and Black, huh??
Well, there are no people who don't know that they're entitled to a lawyer. (Maybe Amish people who don't have televisions.) So that takes care of "ignorant." And the poor person gets his lawyer for free; he doesn't have to worry about whether he's wasting money by calling a lawyer unnecessarily.


What is your point? That black murderers' right to not incriminate themselves is more important than white law professors' right to have murderers in their jurisdiction prosecuted and jailed? Miranda rights (like almost all criminal procedure rights) do not exist for the guilty but rather for the innocent, so that the innocent will not falsely confess to crimes they didn't commit - not so that the gulty won't be pressured into confessing.
Indeed. Scalia points out in Minnick that some liberal judges have gotten to the point where they actually seem to believe that there's something wrong with a guilty person confessing.
11.14.2008 9:44pm
MarkField (mail):

Scalia points out in Minnick that some liberal judges have gotten to the point where they actually seem to believe that there's something wrong with a guilty person confessing.


Hadley Arkes -- certainly no liberal -- thinks the 5th A means that confessions should never be admissible. In his view, the prosecution should always have to prove guilt by evidence independent of the defendant's statements.
11.14.2008 9:58pm
jum1801 (mail):
My God, Judge Merritt (and it seems several here as well) would call his statements "involuntary" because he "didn't sign a waiver"?! I have spent almost 30 years as a lawyer, in criminal defense as well as prosecution, and I firmly believe lawyers have done more to undermine the rule of law and reason in the US than any other class, including criminals. We have lost our frigging minds in this country when we have to dither over facts like this.
11.14.2008 10:16pm
Oren:

In his view, the prosecution should always have to prove guilt by evidence independent of the defendant's statements.

To be fair, Scalia believes this too, in the sense that he would not convict a man solely on the basis of a confession. AFAIK, in all the jurisdictions of the US, the state must adduce some independent evidence of guilt for the court just to accept a plea of guilty.
11.15.2008 11:01am
pete (mail) (www):

You are being questioned in a misdemeanor case,in which you are not the suspect,but the cop feels that you may have info that he wants. You may or may not have that info. The cop for what ever reason feels you do have info that he wants,and starts screaming in your face.

Do you really feel that you're are going to remain silent??


No in that case I would make sure to speak up and ask for a lawyer.

I would also wonder silently to myself why this cop is spending all of his day quesioning me about a misdemenor where I am not a suspect and assume that he thinks I committed a felony.

I have only been questioned by law enforcement once like this and talking got us out of it. That and the fact that we had not committed any crime. In high school once we were crossing the border coming back from Mexico and the border patrol's drug dog smelled pot on our vehicle. They ordered us out of the vehicle and the dog searched the vehicle, but found no drugs. The guy in the group who smoked pot a lot (and happened to be the one mexican-american in the group of white guys) had the smell on his clothes and the dog picked up on it. We did not have any drugs on us so they let us go on our way after a lecture on how pot can get you arrested and your vehicle impounded. We all thought this was very funny, but did not tell our parents about it for a while.
11.15.2008 11:02am
Richard Aubrey (mail):
If the suspect initialed but did not sign, doesn't that mean some level of savvy? How ignorant and uninformed could he be?
11.15.2008 11:38am
MarkField (mail):

To be fair, Scalia believes this too, in the sense that he would not convict a man solely on the basis of a confession. AFAIK, in all the jurisdictions of the US, the state must adduce some independent evidence of guilt for the court just to accept a plea of guilty.


Arkes carries this a step further. He argues that courts should not be permitted to accept guilty pleas under any circumstances whatsoever. They simply are not evidence in his view of the 5th A.
11.15.2008 2:51pm
whit:

But depite the fact that (although no one is perfect)I truly would never deliberately break any law(Idrive the speed limit,that includes doing 55 on our local highway,where I know I am being tailgated and sworn at on a daily basis;I don't litter; i don't steal;nor would I ever knowingly hurt or harm anyone)Despite this I have had 3 really bad encounters with law enforcement.



ok. so your n=3.

my n= several hundred (if not thousand).

also note that you had bad experiences. gr00vy. but i was talking about a specific policy - talking or not talking either pre or post-miranda.

fwiw, i had nothing but positive experiences with cops (even as a long haired minority surfer d00d, and even getting held at gunpoint), EXCEPT for the one time I was a complete a**hole to the cop. and guess what, he gave it back to me (verbally). in so many areas of life, attitude helps determine outcome.
11.15.2008 6:09pm
whit:

Hadley Arkes -- certainly no liberal -- thinks the 5th A means that confessions should never be admissible. In his view, the prosecution should always have to prove guilt by evidence independent of the defendant's statements.



saying a confession should not be admissible is ridiculous.

i do agree with the other poster, that in all the jurisdictions i am aware of, merely confessing is nowhere NEAR enough to convict somebody of a crime.

but assuming the confession was gotten in a kosher manner, it should most definitely be admissible. it's just not sufficient in and of itself to warrant charging (let alone convicting) an individual of a crime.

my understanding is that it is enough to detain the person/arrest them and try to verify what they said.

example: guy walks into police station and says "I just killed my wife"

if he starts to turn around and walk out of the police station, can i detain/arrest him? of course.

the obvious course of action is to try to locate his wife, and see if he is telling the truth or not.

if we find his wife - dead (or for that manner- critically injured (he erroneously thought he killed her but just injured her), the confession will certainly be used in court.
11.15.2008 6:16pm
whit:

1. The context of my post was a person who INVOKES HIS OR HER RIGHTS and then later decides to talk. That is NEVER a good strategy. Once you assert your rights, get a lawyer and talk to the police through counsel.


and i continue to disagree. it MAY be a good strategy. or not. but merely because the person invoked doesn't automatically mean he shouldn't (in certain circ's and where he is innocent), turn around and give an explanation.

take the example you gave (checkered shirt guy). let's say that guy did invoke (maybe because he thought he was screwed), then when he finds out the crime happened at 1300 hrs, (and he was 200 miles away at the time, in the presence of dozens of witnesses), he would be better off letting people know that.

note that you are saying NEVER. i am not saying ALWAYS talk to police (the opposite). i am saying in many circ's it's a very good idea.




2. The point you are making, at best, only applies to a subset of innocent people. For people who are guilty, or who are innocent but who the police seriously believe to be guilty, they are NEVER better off talking to the police, because you can always try for leniency later through attorneys (and indeed, the DA has more authority to grant it than the police does). You need to be defending against the state, not giving the police any evidence.


if you are innocent, in many cases you ARE giving the police evidence - but evidence of your INNOCENCE not your guilt.

here's a hint. cops do not work for the prosecution. and their job is not to gather incriminating evidence. it's to gather EVIDENCE - incriminating or exonerating.

and in my experience, HUNDREDS of times I have had people suspected and/or arrested and/or mirandized help themselves (and in many cases help us catch the actual bad guy) by either explaining why the suspected crime isn't a crime at all, or why they are innocent of same.

again, this bright line rule that people spout "never talk to police" or "never talk to police after they arrest you" etc. is completely ridiculous , contrary to hundreds of examples where people help themselves and their case.

is my experience (of hundreds of incidents) somehow unique? get real


I realize this makes your job harder as a cop, but the fact of the matter is, the state never has the right to a person's confession. It's up to you guys to gather the evidence and prove your case-- something which you guys should be doing anyway, because confessions aren't inherently reliable.



first of all, confessions are not foolproof. they are certainly more inherently reliable than many (if not most) victims and witnesses, especially when the latter have reason to lie (see: DV's).

nobody said (nice strawman) the state has a right to a person's confession. my examples were actually the exact OPPOSITE SITUATION.

i was not saying "when arrested or mirandized, CONFESS"

that is what you are implying.

i said when you are INNOCENT, it is usually in your best interest to explain how/why whether before arrest or after.

confession is a word that refers to a guilty person's admission, fwiw, not an innocent person's explanation fwiw, and thus your last paragraph is not relevant to what i am explaining.

but i need to reiterate this - in cases where confessions are obtained properly (ie custodial interrogation) they ARE inherently reliable. false confessions are very rare in such cases, and very often the confession involves information that only the guilty party would know (or at least somebody who was present ), which makes it that much more reliable.

for example, person A does not just admit to the murder, but tells you where he hid the gun.

but again, your entire last paragraph is irrelevant to the point made.
11.15.2008 6:29pm
Ken Arromdee:
if you are innocent, in many cases you ARE giving the police evidence - but evidence of your INNOCENCE not your guilt.


Isn't that hearsay evidence and unadmissible in court?
11.16.2008 2:09am
davod (mail):
"And the Congress continues to restrict the jurisdiction of the courts to hear those issues at all. Seems about right to me."

Until the court decides the restriction is invalid. What then?
11.16.2008 3:55am
flicka47 (mail):
Oren,
Sorry to take so long to reply to your point.But I guess my point is that it is not human nature to remain silent,it is just not going to happen.
In your post the guy is quite apparently guilty,there was a(thankfully alive)eyewitness. And even though they held the guy in an interrogation room for over five hours,from the way it reads he did freely confess.
So this guy should be buried where the sun will never shine on him again. That is pretty much a given.
But what if all other things being true(he is guilty),they forced him to confess? Then what?
Oh,and call a lawyer? Sorry you guys either are lawyers or know lawyers,so that is the way you think. Most of the rest of us do not know any lawyers,and if you are innocent you do not even think to "take the 5th" Why would you? Personal experience-when I have a guy yelling in my face,what do I do? I asked him to call out his supervisor,three separate times...I was way too upset to even think about lawyers!
11.16.2008 3:57am
Sammy Finkelman (mail):
I think the court ruled or understood the law as being that while signing a waiver is a safe harbor for an accusation that Miranda was violated, not signing it is no proof tyhat it was not in fact waived.
11.16.2008 9:18pm
Dilan Esper (mail) (www):
whit:

The problem is that you are ignoring that plenty of times, the police think they have the right man but don't. Not because they are bad cops (though obviously there are a few of those as well), but because they are acting on imperfect information and their best instincts sometimes they get convinced, as all humans do, of a conclusion that turns out not to be true.

And the problem this poses for suspects is that they don't know how open the cops are to claims of innocence, or whether they are simply trying to gather evidence of guilt. That's why I said "in retrospect", because the suspect doesn't know from the start if the cops are willing to consider a claim of innocence. And if the cops are not, you don't want to say a word to them, because anything you say will be used against you.

The result of this is while I would never tell people "don't talk to police", because sometimes, as I admit, you can indeed clear something up easier by talking, the truth is that ON AVERAGE, Mirandized suspects are much better off telling the cops that they aren't going to say a thing without a lawyer present. And I certainly think that once you invoke, the only reason a cop is going to continue trying is to get around Miranda and get a statement for impeachment or some other purpose, so at that point you don't want to say a thing, period.
11.16.2008 11:39pm
whit:

The problem is that you are ignoring that plenty of times, the police think they have the right man but don't. Not because they are bad cops (though obviously there are a few of those as well), but because they are acting on imperfect information and their best instincts sometimes they get convinced, as all humans do, of a conclusion that turns out not to be true.


and if you're not the right man, and you have evidence to prove it, you are better off talking

note that MOST (the vast majority) of these circ's i am referring to are not after custodial arrest, and return to the station and interrogation (even though I have seen dozens of examples where people talked in those circ's post miranda, and it helped them) but also referring to terry stops and other field interviews/interrogations.

we are ALL acting on imperfect information. if you have more perfect information - BRING IT. that's my point.



And if the cops are not, you don't want to say a word to them, because anything you say will be used against you.


again. ridiculous. anything you say that is EXCULPATORY will not be used AGAINST you.

for pete's sake. if you provide (for instance) an alibi, how will that be used against you?

like i said, if you are as guilty as #$(#$(, and are being interrogated, you are usually better off shutting up shutting up, to quote yosemite sam.

otherwise, not so much. it depends.

also, fwiw, many cops (to put it mildly) overmirandize. just because you've been mirandized does not mean (necessarily) you are in custody, or the cops even have probable cause. i have seen this HUNDREDS of times.
11.17.2008 4:00pm
whit:

I think the court ruled or understood the law as being that while signing a waiver is a safe harbor for an accusation that Miranda was violated, not signing it is no proof tyhat it was not in fact waived.



which is of course, correct.


Isn't that hearsay evidence and unadmissible in court?



not necessarily, and not even the point.

how many examples do i have to give? see for example the guy who i took to the station for brandishing, who provided a self-defense explanation in his statement and was never charged.

etc.

when you give evidence of your innocence, i am not referring to merely saying "i'm not guilty" but explaining why, and.or offering up physical evidence, etc.

the point is - if you are innocent and you can help yourself out - do it.

and again, note the VAST majority of cases where being interrogated/interviewd by police are not post-miranda, in an interrogation room. they are also in the field, in the back of a police car, etc.
11.17.2008 4:07pm
Ben S. (mail):
Count me as one more who thought the "Warren-Brennan Court" was an odd (telling) reference. I hope the author did not mean "Warren-Burger Court." And, assuming the author knew what he was doing, why not "Warren-Brennan/Marshall Court"?
11.17.2008 4:37pm
Dilan Esper (mail) (www):
again. ridiculous. anything you say that is EXCULPATORY will not be used AGAINST you.

Sure it will, and here's where you are harmed by being a cop and not a lawyer.

You see, I have sat at depositions while people have said things that they THOUGHT were exculpatory but in fact helped the opposing side's case, because they corroborated some other piece of evidence or were characterized in a manner that was helpful to the other side or some other reason.

Again, I am not comfortable with saying people should never talk to the police. But you are being either a Pollyanna or perhaps malicious (hoping people will be stupid enough to talk to you when they should clam up?) in saying that as long as what you say is exculpatory, there's no way it will harm you to talk to the police.

You also didn't really answer my point that sometimes cops have their minds made up (even when they are wrong), and then there's no value at all to talking to the police.
11.17.2008 5:17pm