right to remain silent...

D

dre83

Veteran
You know it...those typical hollywood budget movies where some to-much-self-sure-cop shout's very loud "you have the right to remain silent", as if the other guy is deaf...

Does this mean the guy just has to "shut up" ? Or can he say someting, but if he says "hééé you... pwooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooop"
That can used against him ?
 
dre83 said:
but if he says "hééé you... pwooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooop"
That can used against him ?
Click to expand...

jif dr who what.gif


:)
 
Are you asking as a scriptwriting exercise, or legal advice?

When someone says you have the right to remain silent, it means exactly that -- you have the right to not answer any questions or make any statements. If you choose to make statements anyway, that's on you, and you may be waiving a very valuable right.

So for scriptwriting purposes, you can have your character ignore the officer and say whatever they want anyway. Or you can have them clam up and refuse to say anything. Either works.

If you're asking for actual legal advice -- you should ask a lawyer. Although you may find this interesting, a law school professor and criminal defense attorney's take on speaking to the police:
 
In the legal sense, they must advise you of your rights before they question you. If you answer any of their questions after being advised, then they are free to use whatever you say against you in court (although there are other rules at play, like hearsay). If they do not advise you, then they (most often) can't use what you said in court. Of course, you can stop answering any time, and you can also ask for an attorney at any time, at which point any questions must stop until the lawyer is present.

If they don't ever ask you anything, they don't have to advise you. So, contrary to how some TV shows and movies make it appear, not being "Mirandized" is not a get-out-of-jail-free card. And inadmissable evidence seldom actually makes it to trial -- it pretty much vetted during the pre-trial process -- so there's almost never a dramatic moment where the defense attorney objects and the evidence is thrown out to the chagrin of Sam Waterston.

Also, no attorney is ever just going to sit there "helplessly" and listen to the client confess to something (much to the chagrin of David Boreanaz).
 
dre83 said:
In the "real world way" (legal way)...
Click to expand...
If that is what you're concerned about, watch the entire video I posted above. It is a criminal defense attorney and a police officer telling you exactly how real-world police interviews work, both informally and formally, before and during court. It's highly informative and somewhat eye-opening for folks who have never researched the subject.
 
dre83 said:
In the "real world way" (legal way)...
Click to expand...

Remember that this is the "legal way" in the US under the Miranda Act (google Miranda Rights if you want more info). Since you're in Belgium, you may have something similar or something totally different. Talk to a Belgian attorney for more on that.
 
... and they're not "Miranda rights", they're constitutionally guaranteed rights that we've always had. The Miranda case just set out that people had to be notified of those rights.
 
David Jimerson said:
Well, it's not the "Miranda Act"; it was decided in a Supreme Court case, Miranda v. Arizona (1966).
Click to expand...


My mistake. Growing up, we often referred to the Supreme Court decision as the "Miranda Act" despite it not actually being an act. That term also comes up in Google searches.

Barry_Green said:
... and they're not "Miranda rights", they're constitutionally guaranteed rights that we've always had. The Miranda case just set out that people had to be notified of those rights.
Click to expand...

Correct... they pertain to 5th and 6th Amendment rights, but they are commonly (if erroneously) referred to as Miranda Rights. That's also a very quick way, again with Google, to locate information. The technical term is "Miranda Warning."

My point, though, was that Miranda is strictly part of the US, since André is in a different country.
 
"The Miranda case just set out that people had to be notified of those rights."

That was set back when the supreme court ruled that the person has to assert his 5th amendment right to remain silent, or lose it.

[h=1]Supreme Court: Suspects must assert Miranda right to remain silent[/h] [h=2]The Supreme Court ruled Tuesday that criminal suspects must clearly state that they don't want to talk with police to exercise their Miranda rights. Silence during interrogation is not enough.
[/h] By Warren Richey, Staff writer / June 1, 2010


http://www.csmonitor.com/USA/Justic...ts-must-assert-Miranda-right-to-remain-silent
 
I Am Not A Lawyer And This Is Not Legal Advice. If You Have Legal Questions, Consult A Qualified Attorney.

A further wrinkle, (not the same thing that mail4joeg posted above) - remaining silent CAN be used against you under certain circumstances - this is a new ruling from last year... there are those who claim that in general there has been a drift to limit such rights, but regardless of where you stand on that question, it is on you to be informed of what the law is. Ignorance of the law is not a defense.

So be warned: Salinas v. Texas [pdf]

Analysis of this ruling: If you want to claim the Fifth

Be extremely careful. You have to claim the Fifth at the earliest opportunity and then fall dead silent, no matter what. Now, mind you, you can't simply assert the Fifth willy nilly - there is information the police have the right to regardless of your right to the Fifth - this too was a Supreme Court ruling from some time ago: there are some differences from state to state, but generally, you have to state your full name and your address. You must supply those, Fifth or not. You have no choice. You claim the privilege of the Fifth if you are detained or arrested. So, if an officer asks you any questions, give them your name and address, then immediately ask if you are free to go. Answer no other question, until you get an answer from the officer - if "yes", then slowly walk away (hands by your sides, no sudden movements etc., as nonthreatening as possible), if "no" and you are being detained, then after you give your name and address you assert the Fifth and fall dead silent, regardless of your guilt or innocence or involvement or not or anything. Never, ever, talk to the police, unless you actually need them and you called them. Otherwise, dead silent, at all times.

This is only applicable as of now - December 2013. The law may change going forward. Note, it has already changed repeatedly in this respect, and there is no reason why it can't continue to do so. So keep informed and up to date - remember again: ignorance of the law is not a defense. Always seek the council of a qualified attorney.
 
I was always bothered by the part that says "anything you say can and WILL be used against you in court." That implies they will use everything you say, even "I'm thirsty."
 
David W. Richardson said:
I was always bothered by the part that says "anything you say can and WILL be used against you in court." That implies they will use everything you say, even "I'm thirsty."
Click to expand...

Conceivably they could use that statement specifically to imply (but not prove) you were high and thus impaired. If an officer gets on the stand and says "He said he was thirsty, which I thought might mean he was high," or "He babbled nonsense words, leading me to question his sanity and/or soberness," it would probably look bad even if that's all hearsay.

A good example of how talking is bad....

According to a post on a legal blog I read on the internet once, My Cousin Vinny is one of the most accurate depictions of the law in cinema.
 
Last edited:
Justin Kuhn said:
Conceivably they could use that statement specifically to imply (but not prove) you were high and thus impaired.
Click to expand...

I understand that they CAN use anything you say -- and that's covered by the part that says "anything you say can.....be used against you." But what's the point of adding "WILL" to that? You are technically and legally being told what you say WILL absolutely be used against you in court. If you say, "I need to go to the bathroom", then -- according to the statement "anything you say can and WILL be used against you", the prosecutor would HAVE to bring out in court that you said "I need to go to the bathroom", even if it's not relevant to anything.

"Can" is all that needs to be said. Your Miranda rights should be read as "Anything you say can be used against you in a court of law." Or maybe "can and MAY be used against you". "Will" is not only pointless, it's completely inaccurate.
 
Absolutely anything you say can be used against you. It may not ultimately succeed, but why take a chance, and why get into the whole system and arrested (arrests stay on your record) and all that aggravation? Many years ago, a guy I was working with got arrested in front of his apartment, in the craziest of circumstances. Apparently a 7-11 on the corner was robbed, and my co-worker had the bad luck of stepping out of his apartment not long after just as the cop cars were roaming looking for the bad guy. They stopped him, and started harassing him "we have a description of a guy in a tan shirt, we think that's you" "oh, you were home, riiiight", for the record he had a white t-shirt on, but they accused him of taking off the shirt and that's why he had a white t-shirt underneath, and on and on about the guy in a tan shirt - he kept telling them, no, he was at home the whole time, he had nothing to do with it. They kept threatening him in various ways, so finally exasperated he said "I'm telling you it's not me, why don't you go and look for the guy in the tan shirt instead" - at that point they arrested him. What was the pretext? That he knew the description of the suspect - because he said "tan shirt". So he had to spend time in jail before he got bailed and it was a bunch of trouble and inconvenience. And now he has an arrest record - and regardless of the fact that nothing came of the arrest, people still note that on job interviews, and also he's in the system now anytime should he be stopped.

That's what happens if you talk - at all - no matter how innocent. It doesn't matter that the arrest is total 100% BS - you don't need the record or the aggravation. He should have kept silent. Name, address, "am I free to go", then you leave, or if "no", assert the fifth and FALL DEAD SILENT.

Cops want to get rid of cases - anybody, innocent or guilty will do. Also, they are judged on stats - number and seriousness of arrests. It is totally in the interest of the LEO to arrest you - and any BS excuse ANY AT ALL, will do.

It makes ZERO difference if you are innocent. NEVER, EVER, EVER, EVER talk to the police - unless it was you who called them and need them. Watch Barry's video. Supreme Court Justices explicitly advise you not to talk to the police. Don't do it. It's not a game - this is your life. Don't fool around - cops are not your friends, they are there to make arrests, period, innocent or guilty or anyone at all. Your iron principle ought to be (1) stay away from the police as much as humanly possible, don't approach, don't look, don't deal with; (2) never, ever talk to them unless you called them and need them - assert your fifth as soon as possible and fall DEAD SILENT.
 
The point of "will" is so that you're not under any illusion that something actually incriminating might not be so used.
 
David Jimerson said:
The point of "will" is so that you're not under any illusion that something actually incriminating might not be so used.
Click to expand...

"Will" means it WILL happen. Absolutely. WHATEVER you say WILL be used against you in a court of law.

If they don't want you under any illusion, then it should be "can and, if incriminating, WILL be used..." Or "can and MAY be used against you..."

"Will" has a specific meaning, and it doesn't fit here. That's all I'm saying.
 
David W. Richardson said:
"Will" means it WILL happen. Absolutely. WHATEVER you say WILL be used against you in a court of law.

If they don't want you under any illusion, then it should be "can and, if incriminating, WILL be used..." Or "can and MAY be used against you..."

"Will" has a specific meaning, and it doesn't fit here. That's all I'm saying.
Click to expand...

I know what you're saying I love to split hairs as well...but I think it pretty much does fit. Anything you say, they will find a way to turn it against you, on the spot and later in court. If you watch the video (not the clip I posted, but Barry's) you'll see how it applies. It's not really hyperbole at all.
 
You must log in or register to reply here.
Back
Top