https://criminal.findlaw.com/criminal-rights/miranda-rights-and-the-fifth-amendment.html
Incorrect. Miranda is about having the right to be informed of things like the 5th amendment, which applies in any situation including people like Cory who are not in custody (and therefore not subject to Miranda).
Totally incorrect. I would definitely suggest that you have a lawyer present for any questioning.
After seeing the amount of misconception even among the usually intelligent folks here, I definitely agree that is a good rule of thumb. But lawyers are not magical, as Miya Ponsetto proved.
Which isn’t what I said or implied. It is STILL a very bad idea to talk to the cops without a lawyer.
For those curious about what he shakes out of the FOIA tree that don’t follow pluralistic.net (though you should).
Partial credit. 5A applies only in criminal court proceedings on its own. Miranda was an extension of the 5A and 6A rights beyond what was delineated in the Bill of Rights.
Can you point toward a source for this assertion that 5A didn’t apply outside of criminal court proceedings until Miranda? I just spent an hour reading about this and couldn’t find that.
The actual text of 5A is ‘nor shall be compelled in any criminal case to be a witness against himself’ saying nothing about courts. Clearly the FBI was investigating a criminal case against Cory. Also clear is that he was not in custody which is the only time that Miranda applies. Miranda was about whether people can waive their rights when they are not aware of them; the ruling seems to assume the existence of the right to silence, not establish it.
You sound like you have some reason to believe that Cory would not have the right to remain silent prior to Miranda. Is that right?
You just answered your own question.
And yes, prior to Miranda suspects were frequently compelled to self-incriminate by police and that testimony was allowed in court, even as they avoided testimony in court that would be self-incriminating under 5A.
From Cornell Law’s page on 5A: “ The Fifth Amendment creates a number of rights relevant to both criminal and civil legal proceedings.” (Emphasis mine) which is to say, during court proceedings not investigations.
Likewise, their page on Miranda Rights: “In Miranda, the Court held that a defendant cannot be questioned by police in the context of a custodial investigation until the defendant is made aware of the right to remain silent…”
It’s also built into the history of Miranda vs Arizona itself. Justice Harlan’s dissent spells it out directly, calling the majority opinion “heavy-handed” and that “nothing in the letter or spirit of the Constitution or in the precedents squares” with the ruling. He went on to say “The Court is forever adding new stories to the temples of constitutional law”
Justice Byron White wrote that the Court announced a new constitutional right when it had no “factual and textual bases” in the Constitution or previous opinions of the Court.
I disagree with the positions of both Harlan and White, but not with their assertion that the 5A doesn’t cover police interrogations in its original text or intent. It doesn’t.
You really should. He’s still doing work on there!
There’s RSS feeds and the plura-list newsletter as well. I run all of these and promise they are as tracker-free and compatible as I can possibly make them.
But the reason for criminal investigations, confessions, and incriminations is to present them in court proceedings. If there is a right to keep them out of court proceedings then the testimony is fruit of a poisonous tree and not valid.
As you note this idea that Miranda was not based on the Constitution is from the losing dissenters. The precedent setting majority said their decision flowed from the 5A. And a subsequent decision reinforced this:
The constitution is based on common law, which the Cornell law page says applied to police interrogation:
At any rate I do appreciate your knowledge and give you partial credit as my reading showed plenty of vagaries and inconsistencies which were not nailed down until Miranda. And there was debate about whether the 5A applied in state courts clouding these cases.
Still it is clear that Miranda and Dickerson purport to be clarifications of the 5A, not legislating from the bench.
I have never heard of someone “pleading the Miranda” when they invoke their right to avoid coerced incrimination.
This concept was literally born from Miranda and didn’t exist before that. If we’re going to have a civil conversation about this, please refrain from retconning history. We’ve had enough of that the last 4 years to fill a lifetime.
Also, answering to police interrogation is not testimony. Usually, that would be pedantic, but it’s the concept you’ve had twisted since you first posted bad legal advice in this topic.
coerced confessions
Miranda doesn’t just cover coerced confessions, it covers all responses to police interrogation until the suspect is notified that they have a right to remain silent and a right to have an attorney present, coerced or not. Simple oversight to read a suspect their Miranda rights, even if the questioning by police is otherwise routine, can make such interrogation inadmissible.
I don’t particularly care whether you interpret Miranda and Dickerson to be clarifications; Both the Warren and Burger courts are notorious for creating constitutional law out of thin air, for which we should all be grateful.
You’ve never heard of “pleading the Miranda” because, again, you’ve conflated testimony in a court of law with interrogation by police. Those are separate things, governed by different laws.
Prosecutors can use a suspect’s silence during informal police questioning as evidence of guilt at a subsequent trial, the US Supreme Court said on Monday.
In a case with important implications for individuals at the early stages of a police investigation, the high court said that a suspect must verbally invoke his or her Fifth Amendment right to remain silent to prevent police and prosecutors from using any resulting silence and incriminating body language as evidence of guilt during a jury trial.
Supreme Court: For right to remain silent, a suspect must speak - CSMonitor.com
https://attorneyatlawmagazine.com/silence-is-no-longer-golden
Supreme Court Rules Silence Can Be Evidence of Guilt - Experienced Criminal Lawyers
I don’t know enough about this to be retconning, but I would assume Cornell law isn’t retconning when they write:
The doctrine was established in 1920 by the decision in Silverthorne Lumber Co. v. United States, and the phrase “fruit of the poisonous tree” was coined by Justice Frankfurter in his 1939 opinion in Nardone v. United States.
Anyway, you make a valid point about my misusing the word testimony for incriminating speech outside of court. And pleading was the wrong word as well. Thanks for the clarification. I am not a legal expert just trying to integrate what you say with what others have written.
So you are saying Cory would be incorrect to say he invokes the 5th, but would be correct to say he invokes his Miranda right to remain silent during his noncustodial interrogation?
Correct. He would be wise to demand his lawyer be present any time a LEO asks any questions, and to refuse to respond until that condition is met. Once a lawyer is present, he can follow their advice about answering questions. That’s Miranda in a nutshell.
ETA: those were rulings about evidentiary procedure, not questioning or testimony; those were added with Miranda.
I thought “Miranda” only applies to when you are detained? But that there’s no law saying you have to talk to the cops when you aren’t detained, so Cory can just say I’ll talk with my lawyer present or not at all?
This is both wrong and a highly toxic idea. Pleading the fifth is an acknowledgement that answering their questions may result in negative outcomes. I can very innocently be on a street where a mugging occurred, but not think it is a great idea to point out I was at the scene of the crime. This has been clearly established case law for decades and has been reaffirmed as recently as 2001.
Ohio v. Reiner
The Supreme Court of Ohio here held that a witness who denies all culpability does not have a valid Fifth Amendment privilege against self-incrimination. Because our precedents dictate that the privilege protects the innocent as well as the guilty, and that the facts here are sufficient to sustain a claim of privilege, we grant the petition for certiorari and reverse.
The view that it only applies to the guilty undermines the right in a really fundamental way. The idea of not being compelled to answer goes back to the fights over oaths ex officio in English common law, even before the fifth amendment was written. Additionally as noted above, this is about questioning outside of a court and that is even more clearly settled that you don’t have to answer.
Not answering is a great first step, but not really sufficient. A lawyer is useful for threading some of the subtle intricacies of the legal system. For example, the denial you just used in your post
could actually open you to legal action if the complaint were found to be justified. That’s pretty much what snagged Martha Stewart, a denial that counts as lying to a cop.
In the Martha Stewart case it’s pretty clear that she was knowingly lying, which is different from stating what one knows to be true.
This raises an issue where I have another controversial viewpoint. If a cop pulls someone over and routinely asks whether they have and drugs or weapons in the car, they say no, and then the cops later find weed, I have never heard of a case where they are charged with lying by originally saying no they have not committed the crime of possession. So I have decided for myself that if I were in such a case I would likely say no I don’t. If the cop is just fishing and doesn’t even have unreasonable suspicion then this may be more likely to end the investigation than saying “I’m not answering any questions” right off the bat. I know this is a lie, and lying is illegal, and so a lawyer cannot and should not advise such. This is a rare example of where lawyering up may work against someone. To be clear I would only advocate this in cases where the officers are just fishing, never when they are investigating specific or especially reasonable suspicions, and definitely not under oath. So I wouldn’t do this when the FBI calls. I understand that this is a minority perspective among people who are book-educated about such matters, even though it seems to be a majority perspective among people who have significant real world experience with such police interactions.
Yes the applicability of Miranda to non-custodial situations that @DukeTrout asserts still baffles me a bit, and I’d love to see some more clarification of how Miranda applies to non-custodial situations.
My understanding is that @DukeTrout is focusing more on the freedom from coercion to speak. The idea being that even if someone has a right to remain silent that stems from common law and/or 5A, that the right is meaningless if they don’t have the right not to be tortured or abusively coerced into speaking. So I think @DukeTrout 's logic is that the right to remain silent only came into existence when freedom from coercion was nailed down, which was mostly in Miranda. Still, I would welcome clarification on how/why Miranda applies in noncustodial situations.
In practice, it doesn’t, because in non-custodial interrogations it is common practice to insist on having a lawyer present. There’s no need to insist upon the right because cops aren’t going to push back. If they do, that’s a huge red flag that screams “STFU and get a lawyer” because what might seem a non-custodial interaction either is going to become one or already is.
If Miranda doesn’t apply to noncustodial interrogations, then I’m confused by your assertion that started our debate:
concerning noncustodial interrogations. Are you saying it is the 5A, Miranda, or something else that grants the right to remain silent in noncustodial interrogations?
The issue is that it can often be hard for the subject to know when they are in a non-custodial or custodial situation. Sure, if someone has been cuffed and arrested, that’s obvious, but when a LEO is “just asking questions” it can be a fluid situation.
In the context of the OP, it shouldn’t be necessary to assert any particular right, as it’s simple just to say, “Let’s schedule a time to talk when my lawyer can be in on the call.” If there is any pushback on that, then alarm bells should be going off. Miranda can be then be invoked.
