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Old 08-15-2014, 01:15 PM
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Ayatollahgondola Ayatollahgondola is offline
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Default State Supreme Court Takes Chunk From 5th Amendment

Catch 22. Waive your right to remain silent, and have your statements used against you without restriction, or remain silent and have your silence used against you anyway. One right at a time many will you have to lose before you declare independence?

The state Supreme Court in a 4-3 ruling said Tom needed to explicitly assert his right to remain silent before he was read his Miranda rights for the silence to be inadmissible in court.
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Old 08-16-2014, 02:18 PM
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ilbegone ilbegone is offline
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The article is distracting from the real issue.

There has already been a US supreme court decision that the detained individual must inform the LEO that he has a right to remain silent.

In other words, the LEO isn't at fault until for trying to compel a statement until he advises of the subject's Miranda rights, unless the subject asserts those rights.

So, if one wishes to remain silent, he has to assert his Miranda rights under the 5th amendment. If he fails to do so, anything he says is fair game for the prosecutor.

This is the REAL issue, and it is frightening as to the potential for prosecutorial abuse:

Prosecutors repeatedly told jurors during the trial that Tom's failure to ask about the victims immediately after the crash but before police read him his so-called Miranda rights showed his guilt.
Prosecutors said Tom's failure to ask about the Wong family while detained showed his guilt.
This would seem to have been an open and shut case without the weird reasoning from the DA : all parties are present, there are witnesses, and there are two crashed cars. However, where there may be some doubt about whether or not the defendant committed a crime, would it be evidence of guilt by the subject not asking questions about an incident he may not have been involved with?

This is some really goofy reasoning, sort of like ducking a suspected witch - if the person drowns then he's innocent, surviving submergence means guilt and summery execution.
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