Overboard or not, that's what the Constitution says.

What you're read as part of the Miranda thingy ("You have the right to remain blah blah blah") isn't the actual law - the actual law is the 5th Amendment of the United States Constitution. The Amendment reads: "No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

It is indeed true, at least by the Miranda Supreme Court case, that unless you explicitly give up your 5th Amendment rights anything you say is totally inadmissible. The Constitution, the most basic and authoritative law of the US, says that anything you say can NOT be used against you unless you specifically wish it to.

Berghuis v. Thompkins changes that some, however. Previously it was presumed you had that right no matter what. Now, you must first explicitly retain your rights. At which point, "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." (That's a direct quote from the Supreme Court's Miranda ruling.)

Yes, Miranda is about letting people know they have the right to keep their mouth shut. It also used to be about retaining that right for suspects even if they start to blabber about the case, unless the specifically said they gave up that right.

 

If you tell the cops that you want to exercise your right to remain silent, you actually have to remain silent. If you say you're going to remain silent but you keep on talking, you're still giving the cops evidence that can be used in court.

"No person shall be compelled..." means they can't ask you to incriminate yourself, but if you admit to a crime without being "compelled", that's admissible evidence.

The only thing that happens when you say "I want to remain silent' is the cops have to stop questioning you until you get an atty. They have to stop questioning you, but they don't have stop listening to what you say.

 

You might think that, but my reading of the Miranda v Arizona and 5th Amendment issues contradicts you. This isn't about what's common sense or intuitive or what you and I think should be, this is about what the Constitution, Supreme Court and law enforcement agencies have decided is.

To sum up - if you explicitly state you want to retain your 5th Amendment rights, and subsequently say something that can be used to incriminate you, it absolutely cannot be used in a court of law since the 5th Amendment protects you against self incrimination, regardless of whether the police were actively questioning you or merely recording your mutterings. By invoking the 5th, unless you specifically waive your rights it is presumed any subsequent statement taken by law enforcement is a "product of compulsion."

"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point, he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked." Michigan v. Moseley, 423 U.S. 96 (1975) quoting Miranda v. Arizona, 384 U. S. 436 (1966) at 384 U. S. 473-74.

It appears that continuing to record what a suspect says after he has invoked his Miranda rights, and use that against him in a court, is a violation of the law enforcement's mandate to "scrupulously honor" the suspect's wishes.

(Note that the whole Miranda situation only applies to custodial interrogation by agents of the state. It does not apply to undercover cops noting statements, or other witnesses noting statements, or statements made by the suspect prior to arrest or detainment, etc.)

 

The evidence Moseley (Michigan v Moseley) gave was ruled inadmissible because he was questioned even after he said he wanted to remain silent. Here's what I read:

Moseley was arrested for some robberies. After he was read his Miranda rights, he exercised his right to remain silent and questioning about the robberies ceased.

A few hours later, a second detective questioned Moseley about a murder unrelated to the robberies. Moseley was found guilty of the murder based on the statements he gave the second detective. But the murder verdict was overturned because the detective "compelled" him by asking him about the murder. The second detective should not have asked him about the murder because his right to remain silent carried over from the robbery arrest to the unrelated murder.

If Moseley had incriminated himself to the murder without being "compelled", the conviction would have held.

http://supreme.justia.com/us/423/96/

Respondent, who had been arrested in connection with certain robberies and advised by a detective in accordance with Miranda v. Arizona, 384 U. S. 436, that he was not obliged to answer any questions and that he could remain silent if he wished, and having made oral and written acknowledgment of the Miranda warnings, declined to discuss the robberies, whereupon the detective ceased the interrogation. More than two hours later, after giving Miranda warnings, another detective questioned respondent solely about an unrelated murder. Respondent made an inculpatory statement, which was later used in his trial for murder, which resulted in his conviction. The appellate court reversed on the ground that Miranda mandated a cessation of all interrogation after respondent had declined to answer the first detective's questions.

 

While the appellate court (he Michigan Court of Appeals) reversed the initial conviction, the Supreme Court ultimately upheld the conviction. They reasoned that the retaining of rights the first time did not apply to the second interrogation - before which he was read his rights, but did not state he wished to remain silent. Therefore, ultimately, his self-incriminating statements were admissible.

Held: The admission in evidence of respondent's incriminating statement did not violate Miranda principles. Respondent's right to cut off questioning was scrupulously honored, the police having immediately ceased the robbery interrogation after respondent's refusal to answer and having commenced questioning about the murder only after a significant time lapse and after a fresh set of warnings had been given respondent.

It's a different sort of situation than Miranda, since it involves two interrogations about two different incidents, but the language of the ruling clarifies the results of somebody stating they want to retain their rights. Which includes an immediate cease of all interrogation and, presumably, no recording of what's said afterwords.

Further language from the Supreme Courts decision in Michigan v Moseley states that:

In the Miranda case, this Court promulgated a set of safeguards to protect the there-delineated constitutional rights of persons subjected to custodial police interrogation. In sum, the Court held in that case that, unless law enforcement officers give certain specified warnings before questioning a person in custody, [Footnote 6] and follow certain specified procedures during the course of any subsequent interrogation, any statement made by the person in custody cannot over his objection be admitted in evidence against him as a defendant at trial, even though the statement may, in fact, be wholly voluntary.

So despite Incubus thinking it "sounds a little overboard," that's they way the Supreme Court ruled it. Incubus, I certainly do understand your point, but the Supreme Court has their own and I think they overrule you.

 

The Supreme Court's reversal of that decision was based on the fact that "a fresh set of warnings had been give the respondent" and the respondent waived his right to remain silent the second time. The fact that he waived his rights the second time makes this case irrelevant to your argument that a suspect can say anything he wants to say as long as he invokes his right to remain silent.

You are ignoring an important part of your quote: "unless law enforcement officers give certain specified warnings...any statement made by the person in custody cannot be admitted" - This means that as long as the law enforcement officers do inform the person in custody of his Miranda rights, any statements he makes are admissible in court - but they must be voluntary statements if the suspect invoked his right to remain silent.

 

Whichever one of you is right, I still know I have the option of not saying anything. I also BELIEVE, that anything I say might be used against me; even if I tell someone that I choose to remain silent.

 

Exactly. And it's a pretty common tactic for a cop to engage you in a "casual" conversation after he reads the Miranda to you because he knows you're probably going to say something incriminating eventually.

If you want to read about what you already know check this link:

http://www.kansascity-criminal-attorney.co...-Your-Right.asp

 

Indeed, the actual ruling of Michigan v Moseley is entirely irrelevant to this discussion. That's not why I brought it up, though - the interesting bits in the case are the ones where the Justices discuss the Miranda case.

Anyway, from the Miranda case decision itself:
"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point, he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked."

I think the first one I quoted a few posts above was talking more about statements made in the absence of a Miranda rights warning. My mistake. The above quote, however, clearly is talking about procedures when the Miranda rights were advised, and the suspect indicated he wished to retain them. And the result is that the interrogation must cease, and anything subsequently said by the suspect is "the product of compulsion."

The decision continues a few paragraphs later:
"If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel."

Would speaking aloud to an empty room indicate that "the defendant knowingly and intelligently waived his privilege against self-incrimination"? I think that's up to the judges to decide. :-)

Of course, we're getting into the realm of what constitutes an "interrogation." Is a suspect being interrogated if he's left alone in a room with a running audio recorder? The Miranda decision was in 1966 - perhaps police didn't use tape recorders much back then, the stuff was pretty new - and the word "recording" is not used even once in the decision.

 

This has been one of the most informative Off-Topic threads I've seen on S2KI for a while.

Thank you for the great discussion.

Carry on.