Practical Application of the Recent USSC Decision on the Right to Silence

Discussion in 'Law and Justice System' started by George Costanza, Sep 30, 2010.

  1. George Costanza
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    George Costanza A Friendly Liberal

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    Remember the Miranda case that came out four months ago - the one that required the suspect to actually invoke his right to silence or he would not be able to claim it? That case was Burghuis v. Thompkins 130 S.C. 2250. It was decided in June of this year.

    In Burghuis, the defendant was advised of his Miranda rights. He was then interrogated for three hours or so. He rarely spoke during the questioning and, when he did, it was only to say "yes" or "no" to meaningless questions. Then, at the very end of the questioning, the detective asked him if he believed in God. He said he did. The detective asked him if he prayed. The defendant said he did. The dectective then asked him if he prayed to God to forgive him for doing the shooting. The defendant said he did.

    At trial, the defense sought to keep the defendant's confession out on the grounds that he had invoked his right to silence by actually being silent throughout the entire, three-hour interview up until he finally broke his silence by answering the question about praying for forgiveness in connection with the shooting.

    The Supremes ruled that, since the defendant did not actually SAY he wanted to remain silent, he had not properly invoked the right and had, in fact, waived it. His admission was allowed to stand.

    OK - I have a case right now with the following facts: The defendant is a 16-year-old youth, charged with robbery. They are proceeding against him in adult court under a procedure knows as "direct filing." The following is an exact quote from the detective's report: "Prior to transporting (the defendant) I read him his Miranda rights. The defendant said he understood each of the questions and agreed to speak to me without an attorney present. After reading the Miranda rights, I asked him if he wanted to talk to me regarding the robbery case. He said, 'I got nothing to say to you.' I then asked him if he was from (the gang in question) at the time he committed the robbery. He said, 'Yeah, but I don't hang out with them no more.'"

    Interesting, wouldn't you think? A number of issues pop out immediately. Here, as opposed to Burghuis, the defendant clearly invoked his right to silence in no uncertain terms. "I got nothing to say to you." The fact that this was the first thing he said after agreeing to speak with the detective means nothing. Once a suspect invokes, game over. "All questioning must cease," per the Miranda decision.

    And yet, the cop just continues blithly along, totally ignoring the invocation of the right to silence, and gets a full confession out of the suspect.

    On October 19th, I will be attempting to keep the confession out at preliminary hearing. I think it is a slam dunk - but we will be in front of a notoriously prosecution minded judge who never saw a defense motion he ever liked. I still think we should win, but have the odds at about 50-50 at this point.

    I am putting this up because I thought some of you might be interested to know that this abstract stuff we argue about here, actually has practical application in the real world. I would be interested to hear thoughts or comments. And I will be sure to come back on here after the 19th to let you all know how it came out.
     
    Last edited: Sep 30, 2010
  2. ConHog
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    ConHog BANNED

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    I think it's funny that you cry about a judge who has never seen a defendant's motion that he likes...
     
  3. jillian
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    jillian Princess Supporting Member

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    good luck with your case.

    i think people are very cavaier about the 5th and 4th amendments because they think that only bad guys are impacted by those things.
     
  4. George Costanza
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    George Costanza A Friendly Liberal

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    Thanks. You are right - it's easy to laugh at the rights of "bad guys" when you do not ever see yourself as being one nor do you think the police are capable of ever crossing over the line.

    The case law is fully on our side on this one. As I said, however, I have a judge that generally finds a way around bothersome details such as irrefutable case law. One of his favorite techniques is to listen studiously to the argument, deny the motion and then refuse to state his basis for the denial.
     
  5. Zander
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    Zander Platinum Member

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    If the confessed criminal that you are defending had said "I INVOKE MY RIGHT TO REMAIN SILENT" then you'd have a stronger case. Saying, "I ain't got nothing to say to you man" falls into a grey area - especially when he kept talking!! Smart criminals (oxymoron?) know how to SHUT THE FUCK UP!!!

    I think your criminal is going to be convicted..........besides - he is guilty! He admitted it!!
    He confessed. He's guilty. I rest my case!! :lol:
     
  6. jillian
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    jillian Princess Supporting Member

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    Well, I always say that certain types of people pick and choose the parts of the constitution they like. There seems to be little understanding that only by protecting the unpleasant are we protected.

    In NY, a judge can't just deny a motion (except maybe a motion to reargue) without setting forth the reasons for the decision. Is that the case where you are?
     
  7. syrenn
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    I think you have a hard one George. You client kept talking. If he had nothing to say that means exactly that, he has nothing to say And he admited to the robbery.

    Is it on tape?
     
  8. George Costanza
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    George Costanza A Friendly Liberal

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    In civil court, we have what is called "Findings of Fact and Conclusions of Law" which a judge must file if requested to do so, following the making of certain types of rulings. Alas, not available in criminal court.
     
  9. George Costanza
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    George Costanza A Friendly Liberal

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    God, I LOVE IT when you talk dirty . . . :cool:

    There are several USSC decisions which say that once the suspect invokes his right to silence, answers given to further questions are the product of improper compulsion and are not allowed. In other words, once he says he doesn't want to talk, no further responses come in, even if he gives them.

    The interview is not on tape. It was conducted in the back seat of a police car. But it wouldn't matter whether it was on tape or not. It is clear what was said - it is in the officer's report as I have quoted it in the OP.
     
  10. George Costanza
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    George Costanza A Friendly Liberal

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    I am not at all concerned about any claimed ambiguity in what my client said. It is difficult to imagine a clearer invocation of the right to silence than the statement: "I got nothing to say to you."

    And, as I mentioned to Sweet Pea here, the cases say that once a suspect invokes, all questioning must cease and responses given to questions asked following an invocation are deemed the product of improper compulsion, and will be excluded.

    But thanks to both you and Syrenn for your comments. One of the reasons I started this thread was to get potentially negative input so that I will better be able to anticipate what happens at the hearing vis a vis what the DA will throw at us.
     
    Last edited: Sep 30, 2010

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