h a l f b a k e r yPoint of hors d'oevre
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All police officers should be required to state something along the
lines of "I have some questions to ask. Bear in mind with your
responses that you do have the right to remain silent and to not
answer my questions if you choose not to. Any answers you give can
and might end up being used against
you
in a court of law. Knowing
this, will you cooperate and answer my questions?"
This statement (specific wordage can be worked out, but you get the
general idea) should be issued before ANY questions may be asked
by
a police officer.
The reasoning here is that a right to remain silent is pointless if you
are told about it AFTER answering the cop's questions.
Never talk to the police
http://www.youtube....watch?v=6wXkI4t7nuc
Everything you need to know about talking to the cops [ytk, Aug 16 2012]
[link]
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Huh? That's exactly the case now. The police have to read you
your rights before they question you. The wording is actually
pretty close to what you stated here.
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As a matter of fact, the police generally go well out of their way to
make sure that anyone being questioned is well aware of exactly
what their rights are, and explicitly chooses to waive them. And
for a very good reason—courts have repeatedly found that it's not
enough to simply have your rights read to you. In order to consider
your rights waived, the court must be convinced that you actually
/understood/ your rights at the time of waiver. Thus, you can't
read a suspect who only speaks Spanish his rights in English and
expect the courts to uphold the waiver.
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It's really not that people don't know or understand their rights.
The problem is that people, especially people who actually have
committed crimes, think they're clever enough to talk their way out
of whatever mess they're in. In point of fact, they're not.
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Anyway, [marked-for-deletion] advocacy/rant. Sorry, but there's
no actual content here. |
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I know that's how it works once you are in police
custody, in one of their interrogation rooms, but I'm
talking about when an incident occurs which the
police respond to at the scene, and they are
questioning witnesses. Do they currently have to
read the Miranda rights to every person they ask
questions of, while at the scene? I don't think they
do, and that is what I'm calling for. |
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Putting aside the fact that this is then even more
clearly advocacy,
it doesn't even make sense. Of course they don't
read you your
rights when they're just talking to you, because your
rights don't
apply unless and until you're being detained. Up until
that happens,
any conversation you have with the police is strictly
voluntary. Your
right against self-incrimination is only there to
protect you when you
don't have the option to leave. There's no right to
voluntarily say
something stupid that can get you into trouble and
not experience
any consequences. If in the course of a conversation
that you are
having voluntarily with a police officer, you say
something that
causes the officer to have a reasonable suspicion that
you have
committed a crime, well, that's your own fault.
Nobody made you
talk to the cops in the first place.
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Your “Miranda rights” against self-incrimination stem
from the Fifth
Amendment, which I suggest you have a look at. The
relevant text is
“No person… shall be compelled in any criminal case
to be a witness
against himself”, with the key part here being “in any
criminal
case”. A criminal case begins with an arrest, and not
a moment
before that. An investigation doesn't in itself
constitute a criminal
case, in part because in order for there to be a
criminal case, there
need to be specific charges against a specific
defendant. So if
you're not currently under arrest, then there's no
criminal case
against you and your Fifth Amendment right doesn't
apply. The
police can't read you a right you don't have. |
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The problem, as I see it, is that if a policeman is writing your
responses down in a notepad to be presented as evidence in
court, it is not a conversation even though it may seem so and
the officer takes great pains to make it seem like that's all it is.
You don't have to be under arrest to be interrogated. If an
officer is on duty, asking questions about a crime, and taking
notes, then you should be reminded of your Miranda rights. Yes,
I can legally leave any time I want to if I am not under arrest.
But citizens are encouraged to always cooperate with the police,
and I think most of us do want to help in such situations. But
when a police officer is calmly asking me questions, on the edge
of the crime scene with no other officers even in earshot, then
suddenly tells me to put my hands behind my back and informs
me that I not only could have refused to answer his questions
but hints that I probably should have, I feel that an injustice has
been visited upon me. The fact that I was released less than a
day later and the case against me was dismissed only serves to
vindicate my position. I had nothing to hide, so I shouldn't have
had to worry about what I was saying. But as a result, I spent 15
hours in jail, suffered through 3 atrocious meals, and missed a
day of work because I was tricked into filling a cop's quota, and
I'm not the only one who's been subjected to such treatment. |
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//The problem, as I see it, is that if a policeman is writing your
responses down in a notepad to be presented as evidence in
court, it is not a conversation even though it may seem so and the
officer takes great pains to make it seem like that's all it is.//
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If you're free to leave, talking to the police is voluntary. It's no
different than talking to anybody else who takes down notes to
later use against you in court. Your Fifth Amendment right to
remain silent only applies when talking to the police isn't
voluntary.
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//If an officer is on duty, asking questions about a crime, and
taking notes, then you should be reminded of your Miranda
rights.//
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Why? Your Miranda rights don't apply in that situation. They only
apply once you've been detained or arrested. If you're free to
leave, you don't have any special rights against self-incrimination.
Your Miranda rights /only/ apply when you're obligated not to
stay. Your right to a public defender if you can't afford an
attorney, for example, is not a right you normally have unless
you're currently under arrest. So what right are you claiming you
want to be notified of here? Your right to not speak to anyone
you don't want to? Why should the police have any special
obligation to remind you of that right when they're not exercising
any particular police power over you? They're just talking to you.
Anyone could do that, and you'd have no right to be told you can
shut up whenever you feel like it.
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//But when a police officer is calmly asking me questions, on the
edge of the crime scene with no other officers even in earshot,
then suddenly tells me to put my hands behind my back and
informs me that I not only could have refused to answer his
questions but hints that I probably should have, I feel that an
injustice has been visited upon me.//
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But you were aware the whole time that you didn't have to
answer his questions. You chose to do so anyway. You have
nobody to blame but yourself. And if you weren't aware of that
fact, then you need to take a civics lesson, not to mention a
lesson in common sense. Again, nobody to blame but yourself.
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//The fact that I was released less than a day later and the case
against me was dismissed only serves to vindicate my position. I
had nothing to hide, so I shouldn't have had to worry about what I
was saying. But as a result, I spent 15 hours in jail, suffered
through 3 atrocious meals, and missed a day of work because I
was tricked into filling a cop's quota, and I'm not the only one
who's been subjected to such treatment.//
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Your one-sided, self-serving story doesn't even hold up on its face.
An arrest quota? You've got to be kidding. Why would they have
an arrest quota? It's not like issuing tickets, where people usually
just pay them. Arresting somebody is a big deal. You have to be
able to show reasonable suspicion in court, or the arrest isn't valid
and can subject the officer to a harassment suit. And then there's
the time and manpower it takes, not to mention the paperwork.
Arresting a suspect is a costly and potentially dangerous
procedure that isn't taken on lightly by the police, particularly
when there's a low likelihood of a crime actually having been
committed. That you were released only shows that the
prosecutor didn't feel like your case was worth bothering with for
one reason or another. A significant number of arrests, including
roughly a third of all /felony/ arrests, ultimately result in no
charges being filed or the charges being dismissed.
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Here's what most likely really happened: You had a bit too much
to drink, and one way or another started making a nuisance of
yourself. The cops were called, possibly even by you. Once the
officer arrived on scene, he found a drunk and boisterous [21
Quest] who was making a big deal about some perceived wrong
visited upon his person. Seeing the impaired and belligerent state
you were in, he decided, for your own good, to arrest you for
public intoxication and creating a disturbance, and haul you off to
spend a night in the drunk tank before you hurt yourself or
somebody else. The prosecutor decided that you'd probably
learned your lesson, and dismissed the charges once you'd had a
chance to sober up a bit. All in all, I'd say justice was served all
around. |
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//Arresting somebody is a big deal. You have to be
able to show reasonable suspicion in court, or the
arrest isn't valid and can subject the officer to a
harassment suit.//
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Except that they didn't even have a valid reason
for arresting me. When I charges I was being
arrested for, the officer told me it was for
mishandling a firearm. Later the next day, in
court, the judge said I was arrested for
'intimidation with a weapon apparently capable of
causing grievous bodily harm', and she
acknowledged that mine was a case of self
defense, not intimidation, and she threw it out.
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// You had a bit too much to drink, and one way
or another started making a nuisance of yourself//
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Um, no, I was completely sober. If I was drunk I
would've gotten a DUI because I drove myself to
the scene of the incident. I likely would have also
gotten charged with public intoxication. Handling
a weapon while intoxicated would have also
ensured that the mishandling charge did apply. As
is, my
record to this day is squeaky clean.
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//costly and potentially dangerous procedure that
isn't taken on lightly by the police//
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Not when there are already more than half a dozen
officers on the scene to deal with 1 suspect and
the guy who called them, and I had already handed
them my weapon and the magazine for it before
they even started asking me questions. |
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Self Defense is an affirmitve defense. That means that you admit what you did was otherwise in violation of the law, but that you had a legitimate reason to do it. Thus it is generally the case that you will be arrested for something that is later dismissed as self defense. |
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//Except that they didn't even have a valid reason for
arresting me.//
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Yes, they did. Apparently, you shoved the barrel of a rifle
up somebody's nose. That's a valid reason for arresting you.
I would have arrested you had I been the officer on the
scene.
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//When I charges I was being arrested for, the officer told
me it was for mishandling a firearm. Later the next day, in
court, the judge said I was arrested for 'intimidation with a
weapon apparently capable of causing grievous bodily harm',
and she acknowledged that mine was a case of self defense,
not intimidation, and she threw it out.//
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Self-defense is an affirmative defense, meaning that the
charges still apply, but you can raise an excuse. If your
case was thrown out on grounds of self-defense, it means
that the police /did/ have a valid reason to arrest you,
because you did commit an act that would normally be
punishable. It's not the police officer's job to determine
whether your self-defense claim is valid or not—that's the
job of the courts. The police simply arrest anyone who they
reasonably believe has likely committed a crime, and leave
it up to the prosecutor and courts to determine whether the
act was justified or not. Sticking a gun in somebody's face
in public is a crime, even if you're justified in doing so.
Having a valid excuse doesn't make the act itself any less of
a crime, but it means you can't be held liable for that
crime.
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Anyway, your idea still makes no sense. It's meaningless
to talk about your Miranda rights before you're arrested. If
you talk to the police and, based on that conversation, they
decide to arrest you, your rights have not been violated in
any way. Even if your Miranda rights somehow did apply
before an arrest, those rights only affect what evidence
may be introduced at trial. The police can always arrest
you if they think you've committed a crime, even if it turns
out that the evidence on which they based the arrest was
illegally obtained. If that's the case, then the arrest itself
may be declared invalid, or at a minimum that evidence
can't be used against you at trial. You have no right not to
be arrested based on anything you've said. If that were the
case, undercover police operations would be completely
impossible, because they could never arrest anyone who
committed or confessed to a crime while unaware that he
was talking to the police. |
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Yeah, that's pretty much the default for that type of encounter.
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If nobody reads you your rights or fingerprints you, you are viewed as "detained and released", which is different than arrested. They can sit on you for a reasonable period of time (open to interpretation).
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As for a warning not to talk to them, how would they ever figure out what's going on if they encouraged you to keep mum before asking you any questions? |
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Actually they can't sit on you for a period of time. What they can do is arrest you, but not charge you for a period of time (usually one day). If you are not arrested, regardless of what the police say, you have the right to leave whenever you want. |
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So, this whole [21Q] not-so-diplomatic incident
would never have happened if it was illegal for the
general public to carry firearms? Grist for the mill of
commonsense and public order, I'd say. |
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We have guns, Brits have bombs and knives. I'd say
we're about even. Don't know about you Aussies,
though... you guys are trying to arm your 12-year olds
with knives and bows & arrows. |
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//you guys are trying to arm your 12-year olds with knives and bows & arrows.//
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...Based on what, exactly?
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[Bubs] - that's a weak point and you know it. Sure, the gun-up-the-nose incident wouldn't have happened, instead a [21Q]-gets - the-shit-kicked-out - of-him incident happens instead. That may or may not be a bad thing depending on your perspective, but from his point of view, I think he preffers door A to door B.
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The availability of weapons to criminals genie is well and truly out of the bottle. I feel it's like dealing with entropy - no reasonable force or effort is going to disarm the criminal element.
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Living in Australia, I get to feel relatively safe, most of the time. So I don't feel the need to arm myself. If I were living somewhere else, and didn't feel so very safe, I would of course take reasonable steps, such as arming myself, legally or otherwise. |
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//Living in Australia, I get to feel relatively safe//
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Are you serious? Australia is like some sort of real-life
video game—every single goddamn thing from ants to
crocodiles is constantly trying to kill you. |
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That's about a recent BBC article about a law you
Aussie's are debating on whether to allow 12-year
olds to hunt unsupervised with knives and bows. |
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Your folks didn't let you do those things at that age?!
Scandalous! I was given my first rifle at fourteen and told to get the hell out of the house and go play with it. We were allowed to drive on back roads at that age too back then.
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I think that kids suffer from less-and-less challenges until later-and-later ages in our modern society. They are given the least amount of trust right at the ages when they most need and are most eager to learn not to abuse that trust.
To answer your questions; yes. I took my thirteen year old daughter out shooting the 22's day before yesterday, (she's still scared of the 30-30 yet), and I let her drive whatever back roads I feel safe for her to drive when I'm with her. She's getting to be a pretty good shot. The things you learn at that age can be put aside for decades and come back in an instant. What will today's twelve year olds draw on for later skills?... joy-stick controls? textolympics? conform-ation?
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That reminds me, I really need to mail in to apply for the 'government 'acceptance of the high nineties I scored in the restricted and non-restricted firearms ticket course they recently made me pay to take in order to regain a right that's been mine for the majority of my life.
I swear to God, I've been hiking with a rifle for, well shit, it's going on thirty years now, and I've yet to shoot a single critter, (not that I frown on it, I'd feed my family quite well if I needed to with a gun, bow, or traps), but not one single critter yet.
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Oh yeah, Miranda rights...
...I'm for them.
Anyone looking to be a bad-ass learns to shut-t-f-up in grade school. If you're clean then what's the problem? |
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//I'm guessing the Bonnie and Clyde school of shooting and back-road law enforcement avoidance will be about as useful as anything else.//
That's not my point. Those hours driving back-roads taught me instinctive reactions on any driving surface which has saved my life on more than one occasion and firearm training taught me respect for machinery and life in general. I'd lay odds that those kids you see going Columbine were not taught about firearms at a young age by someone who gave a shit. They were self-taught by an un-feeling internet/video game tutorial, and then were backed so far into a corner by the other kids, society seems so designed to accomodate, that they felt fully justified in their actions.
Farming and Carpentry are useful yes but at the ages in and around puberty 'emotion' is the catch-phrase of the day. If no-one has taught these kids to curb those emotions, where those emotions come from, how they'll change in the future, and the possible affects of their actions then... what else do you expect from the few who are driven to the edge at so young an age?
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I know whereof I speak.
{Ooh pretentious-y}
I was less than a curly-blonde-one away from going Columbine more times than I care to remember growing up. Those Bonny-and-Clyde skills may very well have made the difference.
They should not be so easily shat upon by you or anyone else.
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Besides, I can only teach what I know. |
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//After going deer hunting do you watch the Bambi DVD//
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Sorry I tend to slip into slang when I wax hillbillisophic. A blonde-one is slang for less than a pubic hair from crossing... some line or other.
A curly-blonde-one is somewhat less than that, (don't know why, just is), I think 21 was about the time I first got laid. Could have used more advice in that department... not the going off half-cocked department, but a heads-up on the whole predatory-female department would have saved me much grief.
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Forewarned is forearmed... it's not just for breakfast anymore. |
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Dunno. Got my first gun when I was 8... an air
rifle.
First shotgun when I was 10; a .410.
First 12-gauge when I was 12-13. Then a 5-shot
semi-auto when I was 15.
Had access to but used little, a couple of .303 WWI
& WWII rifles, a .22, a .222, a .243 and a 30-06.
Have fired Bren, Vickers and an AR-10 machinegun
and a 3 in. mortar.
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I don't see why people need guns, especially most
of those types I've listed.
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As for Miranda Rights... a peculiarly American
issue, of some limited application outside the US.
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If you have to speak to police, weigh everything
before you say it. If you are cautioned or
detained, shut your mouth and insist on the
presence of a lawyer, regardless of what they tell
you about how nice and friendly they are, or how
little trouble you'll be in if you tell the truth.
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The words "police brutality" appear together for a
reason. |
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I once watched a very interesting talk about why you
should never talk to the police, as explained by both a
law professor AND an actual police officer (link). Very
enlightening and worth watching for, well, anyone. |
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//The police...leave it up to the prosecutor and courts to determine whether the act was justified or not//
Not entirely true. The Police investigate & compile the evidence for the case which they might then pass on to the prosecutor. Or some of it might get lost due to admin errors. |
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