Miranda minged?

[Adam Stenseth <lynx () u washington edu>]

Right on the letter, completely misses the spirit.    The right to not
self-incriminate is and was known by the educated and intelligent
pre-miranda and will still be exercised regardless of this ruling.    The
point of Miranda was that LEOs had to act in a manner that protected the
rights of the people who weren't as well-educated or intelligent; the
functional impact of the ruling was to protect those who don't know any
better.   To some extent, that's gone now.

As far as "you just have to remain silent" goes, they questioned him for
hours.    This is an interrogation tactic, and depending on the minutiae,
can be considered coercive (in military/intel circles, anyway; tho I suspect
his wasn't /that/ long).   The fact that he didn't ever ask for a lawyer or
say he didn't want to answer any questions out loud moves this from black to
gray, and no further.

Still, far from SCOTUS' worst decision of late.

-adam


On Tue, Jun 1, 2010 at 6:28 PM, Larry Seltzer <larry () larryseltzer com>wrote:

> Putting aside for the moment the fact that is really has nothing to do
> with funsec, the dissenting complaint is beside the point. You don't
> have to speak to invoke your right to remain silent. You just have to
> remain silent.
>
> The guy was invoking that right for all the time he was silent, and then
> he stopped invoking it. If he had said he was invoking his rights then
> they wouldn't have been able to question him further (without his lawyer
> present) but all he did was shut up.
>
> -----Original Message-----
> From: funsec-bounces () linuxbox org [mailto:funsec-bounces () linuxbox org]
> On Behalf Of Rob, grandpa of Ryan, Trevor, Devon & Hannah
> Sent: Tuesday, June 01, 2010 9:26 PM
> To: funsec () linuxbox org
> Subject: [funsec] Miranda minged?
>
> I came across a very interesting article today:
>
> http://online.wsj.com/article/SB100014240527487048756045752803927477370
> 22.html<http://online.wsj.com/article/SB100014240527487048756045752803927477370%0A22.html>
>
> It relates to the Miranda decision and warning.  Although this is
> American case law
> everybody knows about it, since it is the basis of the warning, on every
> cop show
> and movie, that the suspect has "the right to remain silent" etc.
>
> This comes from a decision in 1966 that police must ensure a suspect
> understands
> his rights (not to incriminate himself) and waives them only "knowingly
> and
> intelligently."
>
> Now comes a case where a suspect was warned, and was then questioned for
> nearly
> three hours, during which time he said almost nothing. A detective then
> began
> asking the suspect about his religious beliefs: "Do you pray to God to
> forgive you
> for shooting that boy down?"  The suspect said, "Yes," but refused to
> make any
> further confession. The prosecution introduced the statement as
> evidence, and a
> jury convicted.
>
> The case was appealed and went to the US Supreme Court.
>
> Four justices held that allowing the statement turns Miranda upside down
> and that
> criminal suspects must now unambiguously invoke their right to remain
> silent-which, counterintuitively, requires them to speak.
>
> However, five justices held that after giving a Miranda warning, police
> may
> interrogate a suspect who has neither invoked nor waived his rights.
>
> So, I guess the right not to incriminate, in the US, is now opt-in only.
>
> ======================  (quote inserted randomly by Pegasus Mailer)
> rslade () vcn bc ca     slade () victoria tc ca     rslade () computercrime org
> I'm out of my mind just now, but if you'd care to leave a message...
> victoria.tc.ca/techrev/rms.htm blog.isc2.org/isc2_blog/slade/index.html
> http://blogs.securiteam.com/index.php/archives/author/p1/
> http://www.infosecbc.org/links http://twitter.com/rslade
>
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