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Old Jun 17, 2013, 06:14 PM   #1
bradl
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SCOTUS rules that pre-Miranda silence may be used in court

This scares me, and I have no criminal record. In fact, we may as well just throw all of Miranda out, now that this has happened.

http://www.huffingtonpost.com/2013/0...n_3453968.html
http://hosted.ap.org/dynamic/stories...MPLATE=DEFAULT

Quote:
Supreme Court Rules That Pre-Miranda Silence Can Be Used In Court
By JESSE J. HOLLAND 06/17/13 11:27 AM ET EDT

WASHINGTON -- The Supreme Court says prosecutors can use a person's silence against them if it comes before he's told of his right to remain silent.

The 5-4 ruling comes in the case of Genovevo Salinas, who was convicted of a 1992 murder. During police questioning, and before he was arrested or read his Miranda rights, Salinas answered some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon.

Prosecutors in Texas used his silence on that question in convicting him of murder, saying it helped demonstrate his guilt. Salinas appealed, saying his Fifth Amendment rights to stay silent should have kept lawyers from using his silence against him in court. Texas courts disagreed, saying pre-Miranda silence is not protected by the Constitution.

The high court upheld that decision.

The Fifth Amendment protects Americans against forced self-incrimination, with the Supreme Court saying that prosecutors cannot comment on a defendant's refusal to testify at trial. The courts have expanded that right to answering questions in police custody, with police required to tell people under arrest they have a right to remain silent without it being used in court.

Prosecutors argued that since Salinas was answering some questions therefore not invoking his right to silence and since he wasn't under arrest and wasn't compelled to speak, his silence on the incriminating question doesn't get constitutional protection.

Salinas' "Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question," Justice Samuel Alito said. "It has long been settled that the privilege `generally is not self-executing' and that a witness who desires its protection `must claim it.'"

The court decision was down its conservative/liberal split, with Alito's judgment joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Antonin Scalia.

Liberal Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented. "In my view the Fifth Amendment here prohibits the prosecution from commenting on the petitioner's silence in response to police questioning," Breyer said in the dissent.

Salinas was charged in 1993 with the previous year's shooting deaths of two men in Houston. Police found shotgun shells at the crime scene, and after going to the home where Salinas lived with his parents, obtained a shotgun kept inside the house by his father. Ballistic reports showed the shells matched the shotgun, but police declined to prosecute Salinas.

Police decided to charge him after one of his friends said that he had confessed, but Salinas evaded police for years. He was arrested him in 2007, but his first trial ended in a mistrial. It was during his second trial that prosecutors aggressively tried to use his silence about the shotgun in closing remarks to the jury.

Salinas was sentenced to 20 years in prison. The Texas Court of Appeals and the Texas Court of Criminal Appeals upheld the conviction, with the latter court saying "pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment right against self-incrimination, and that prosecutors may comment on such silence regardless of whether a defendant testifies."

The case is Salinas v. Texas, 12-246.
If silence pre-Mirandizing can be used, but silence after can not, how could one determine guilt? I really don't get this one, but the conservative justices in this one really opened a can of worms, in making any questioning prior to being Mirandized usable in court. What is now to stop the police from breaking someone down into confession for something, then Mirandizing him, and then using the evidence pre-Miranda in court?

BL.
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Old Jun 17, 2013, 06:22 PM   #2
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Quote:
Originally Posted by bradl View Post
If silence pre-Mirandizing can be used, but silence after can not, how could one determine guilt? I really don't get this one, but the conservative justices in this one really opened a can of worms, in making any questioning prior to being Mirandized usable in court. What is now to stop the police from breaking someone down into confession for something, then Mirandizing him, and then using the evidence pre-Miranda in court?

BL.
I think the idea is that you have to claim possible 5th amendment rights and just not say anything. Which, of course would imply that you know your maranda rights in the first place. Which... negates your maranda rights all together?

Hopefully someone smarter than I am will make sense of this.
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Old Jun 17, 2013, 06:22 PM   #3
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Originally Posted by bradl View Post
What is now to stop the police from breaking someone down into confession for something, then Mirandizing him, and then using the evidence pre-Miranda in court?
Isn't that collusion.
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Old Jun 17, 2013, 06:29 PM   #4
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Originally Posted by MacNut View Post
Isn't that collusion.
Good question. But the way SCOTUS ruled on this makes it sound like it would be admissible, and the way the prosecution argued it, it definitely sounds like it may be admissable:

Quote:
The Fifth Amendment protects Americans against forced self-incrimination, with the Supreme Court saying that prosecutors cannot comment on a defendant's refusal to testify at trial. The courts have expanded that right to answering questions in police custody, with police required to tell people under arrest they have a right to remain silent without it being used in court.

Prosecutors argued that since Salinas was answering some questions therefore not invoking his right to silence and since he wasn't under arrest and wasn't compelled to speak, his silence on the incriminating question doesn't get constitutional protection.
Bold/italic for emphasis. From this, it sounds like if police could bring you in for questioning, not arrest you, but if you answer a question, you've given up your right to be silent, and silence and any question you answer may be admissable. So they could grill you all they want, get what they need, then arrest you, Mirandize you, and use the answers you gave them prior to your arrest in court against you.

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Originally Posted by thejadedmonkey View Post
I think the idea is that you have to claim possible 5th amendment rights and just not say anything. Which, of course would imply that you know your maranda rights in the first place. Which... negates your maranda rights all together?

Hopefully someone smarter than I am will make sense of this.
I'm seriously hoping some of our resident lawyers could chime in on this one. This sounds very nasty, if taken to the extreme.

BL.
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Old Jun 17, 2013, 06:33 PM   #5
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Isn't that why they say you have a right to an attorney. I don't think they can question you if you resist at all if you don't have one present. If you talk before getting council you wave your right to silence.
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Old Jun 17, 2013, 06:40 PM   #6
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Originally Posted by MacNut View Post
Isn't that why they say you have a right to an attorney. I don't think they can question you if you resist at all if you don't have one present. If you talk before getting council you wave your right to silence.
As you are being arrested, yes, they say you have a right to an attorney. But if they haven't arrested you, and you answer questions or are silent during that questioning, those answers and/or that silence may be used.

So what is to stop them from questioning you, getting the answers they want from you (or the silence from you), then using that in court against you, prior to being arrested? If I've interpreted this ruling right, the answer to that question is nothing.

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Old Jun 17, 2013, 06:42 PM   #7
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Originally Posted by bradl View Post
As you are being arrested, yes, they say you have a right to an attorney. But if they haven't arrested you, and you answer questions or are silent during that questioning, those answers and/or that silence may be used.

So what is to stop them from questioning you, getting the answers they want from you (or the silence from you), then using that in court against you, prior to being arrested? If I've interpreted this ruling right, the answer to that question is nothing.

BL.
Something doesn't add up, unless you are an enemy combatant I don't see how they can legally do that.
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Old Jun 17, 2013, 06:48 PM   #8
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Originally Posted by MacNut View Post
Something doesn't add up, unless you are an enemy combatant I don't see how they can legally do that.
Have a look at the article I posted, especially the parts I italicized and bolded. Apparently, the prosecution did exactly that, got the guy convicted, which the guy lost his appeals all the way up to SCOTUS, with the Court of Appeals stating "pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment right against self-incrimination, and that prosecutors may comment on such silence regardless of whether a defendant testifies."

SCOTUS agreed with the other courts (5-4 ruling, mind you). So if they bring you in only for questioning, and you say nothing, they can still use that silence against you. Logically, that also means that if they bring you in only for questioning, and you answer questions, they can use those answers against you.

In short, Miranda only applies the moment after they arrest you and read you your rights. Anything prior to the arrest is fair game, regardless of guilt or innocence.

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Old Jun 17, 2013, 06:54 PM   #9
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Bold/italic for emphasis. From this, it sounds like if police could bring you in for questioning, not arrest you, but if you answer a question, you've given up your right to be silent, and silence and any question you answer may be admissable. So they could grill you all they want, get what they need, then arrest you, Mirandize you, and use the answers you gave them prior to your arrest in court against you.
Miranda is a two prong test: custody and questions likely to elicit incriminating statements. If either element is missing Miranda is not needed. It is that simple.

If you are arrested and taken into custody and the officer ask you a question without a miranda waiver that evokes an incriminating statement, that statement will likely be suppressed.

If you are not in custody any statements you make can be used against you to make an arrest and later in court.

What is custody? That can get a little smokey but court rulings are pretty clear. Custody is when you are under arrest and no longer free to go though physical restraints, locked rooms, etc; or when an officer exerts such objective authority or control over a person they would reasonably feel they are no longer free to go.

Last edited by Gutwrench; Jun 17, 2013 at 07:03 PM. Reason: Typos
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Old Jun 17, 2013, 07:07 PM   #10
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Originally Posted by Gutwrench View Post
Miranda is a two prong test: custody and questions likely to elicit incriminating statements. If either element is missing Miranda is not needed. It is that simple.

If you are arrested and taken into custody and the officer ask you a question without a miranda waiver that evokes an incriminating statement, that statement will likely be suppressed.
This part, we know, and should be right.

Quote:
If you are not in custody any statements you make can be used against you to make an arrest and later in court.
This is the problem. Even if you are not in custody, your silence could be used against you to make an arrest and used against you in court, as it would be up to the authorities to interpret your silence as guilt or innocence. Unless they have some irrefutable evidence that puts you as the perpetrator at a crime (read: trumps your silence), how could they glean your guilt from you not answering any questions?

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Old Jun 17, 2013, 07:13 PM   #11
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He was not in custody so Miranda was unnecessary. Nor, might I add did he make any affirmative action to invoke. Interesting decision but consistent and I tend to agree fully with it.

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He had voluntarily gone to a police station with officers to talk about the murder of two brothers in 1992. He was not under arrest, and was not in custody, so he had no right to “Miranda warnings” telling him that he had a right to silence.

He answered almost all of the officers’ questions, but simply sat silent when the officers asked him if shotgun casings found at the scene would match his gun. He acted very nervous in response, but said nothing. Prosecutors used the fact that he said nothing to help convince the jury that he was guilty. He was convicted and is serving a twenty-year sentence.

The Court rejected the argument by Salinas’s attorney that, since he was not in custody at the time and had not been given warnings about his rights, that he did not have to explicitly claim the protection of the Fifth Amendment when he did not want to answer the police questions about the shotgun casings. The Court had previously said, in a number of other contexts, that one had to invoke the right for it to take effect, but it had never done so in the setting of a voluntary encounter of an individual with officers at a police station.
Quote:
His lawyer wanted the Supreme Court to rule that the simple fact of silence during police questioning, when an individual was not under arrest, could not be used against that person at a criminal trial. The Court did not rule on that issue. Instead, it said that Salinas had no complaint about the use of his silence, because in order to claim the Fifth Amendment right to say nothing that might be damaging, he had to explicitly say something that showed his silence was a claim of that right. Since he did not do so, the Amendment did not protect him, according to the decision.
http://www.scotusblog.com/2013/06/op...h/#more-165262

Last edited by Gutwrench; Jun 17, 2013 at 07:18 PM. Reason: Edit to add another paragraph.
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Old Jun 17, 2013, 07:26 PM   #12
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He was not in custody so Miranda was unnecessary. Nor, might I add did he make any affirmative action to invoke. Interesting decision but consistent and I tend to agree fully with it.





http://www.scotusblog.com/2013/06/op...h/#more-165262
Don't get me wrong here. I'm not arguing about Miranda not being necessary. What I am arguing is how far this ruling reaches, and what tactics that could be used before arrest and Miranda.

If you were brought in for questioning, and through the entire session you say nothing, including not invoking your right to silence or the 5th, your silence could be used against you. The question then becomes how would that silence be interpreted and used? How could they use your saying absolutely nothing as guilt against you? It leaves a lot open for interpretation. A hypothetical:

A child goes missing from a store. You happen to be leaving the store at the same time the child goes missing. Police contact you, and ask you to come down for questioning. You say "yes", and go down to the station.

They sit you down. First question gets asked. You say nothing. Second question: you say nothing. Wash/rinse/repeat for the entire thing. You say nothing throughout the entire session. They let you go.

You hear nothing for 3 days. 4th day, they arrest you, Mirandize you, and are taken into custody. Your day in court, the prosecution aggressively argues your silence throughout the entire questioning as guilt.

How did they glean that from you saying absolutely nothing? So far, the only thing you said was "yes" in regards to going in for questioning. From that to guilt is a far stretch..

BL.
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Old Jun 17, 2013, 07:34 PM   #13
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Originally Posted by bradl View Post
This part, we know, and should be right.



This is the problem. Even if you are not in custody, your silence could be used against you to make an arrest and used against you in court, as it would be up to the authorities to interpret your silence as guilt or innocence.

BL.
I don't think this is what is being said at all and don't think it is anything to worry about. I wouldn't want to face a DA, not to mention a judge, where I hung my hat on an arrest based on a suspect not making a statement.

----------

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Don't get me wrong here. I'm not arguing about Miranda not being necessary. What I am arguing is how far this ruling reaches, and what tactics that could be used before arrest and Miranda.

If you were brought in for questioning, and through the entire session you say nothing, including not invoking your right to silence or the 5th, your silence could be used against you. The question then becomes how would that silence be interpreted and used? How could they use your saying absolutely nothing as guilt against you? It leaves a lot open for interpretation. A hypothetical:

A child goes missing from a store. You happen to be leaving the store at the same time the child goes missing. Police contact you, and ask you to come down for questioning. You say "yes", and go down to the station.

They sit you down. First question gets asked. You say nothing. Second question: you say nothing. Wash/rinse/repeat for the entire thing. You say nothing throughout the entire session. They let you go.

You hear nothing for 3 days. 4th day, they arrest you, Mirandize you, and are taken into custody. Your day in court, the prosecution aggressively argues your silence throughout the entire questioning as guilt.

How did they glean that from you saying absolutely nothing? So far, the only thing you said was "yes" in regards to going in for questioning. From that to guilt is a far stretch..

BL.
I understand. I think the silence showing consciousness of guilt will only go so far in court. It won't amount to anything on the street, in my opinion. But it is an interesting decision. The courts have been moving toward retiring Miranda altogether for years. But I don't it will ever go away completely.

I tend not to like the court mandated Miranda waiver anyway, but do feel it does help keep the government in line.
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Old Jun 17, 2013, 07:51 PM   #14
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If you were brought in for questioning, and through the entire session you say nothing, including not invoking your right to silence or the 5th, your silence could be used against you. The question then becomes how would that silence be interpreted and used?
Although I don't like the ruling, I can see some logic behind it. It sounds as if the guy was answering questions until they got to the one about the shotgun. Suddenly he clams up ... without invoking his right to remain silent.

Bottom line: if you have any reason to believe that you're a suspect, don't answer ANY questions.
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Old Jun 17, 2013, 08:26 PM   #15
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Before, if you open your mouth, you may be guilty.

Now, if you leave your mouth closed, you may be guilty.

Talk about the erosion of our rights and due process. So much for the constitution that the founders came up with and people died for, so much for our rights and civil liberties. Welcome to 1984.
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Old Jun 17, 2013, 08:37 PM   #16
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Bottom line: if you have any reason to believe that you're a suspect, don't answer ANY questions.
I'm gonna take that one step further: If you know you're guilty, don't answer ANY questions.

As previously posted, apparently quoting from the majority opinion:
Salinas' "Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question," Justice Samuel Alito said. "It has long been settled that the privilege `generally is not self-executing' and that a witness who desires its protection `must claim it.'"
So the only reason to say anything is to claim your right to silence under the 5th Amendment. That claim is protected.
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Old Jun 17, 2013, 09:26 PM   #17
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Not knowing the case, was there other evidence to convict him or was it just his silence that won the case? Would they have gotten a conviction regardless or not?
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Old Jun 18, 2013, 12:05 AM   #18
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Not knowing the case, was there other evidence to convict him or was it just his silence that won the case? Would they have gotten a conviction regardless or not?
Salinas had possession of a shotgun that matched the ballistics of the murder weapon and a friend apparently testified that he had confessed to the murders.

The silence was during an interview during which Salinas answered other questions, so the test is that you must not only be silent, but immediately invoke your Fifth Amendment rights and demand a lawyer, or refuse to answer any questions at all.

It's a weird threading of the rights and ultimately gives prosecutors more power to play with people's confusing about the differing state between an interview and in custody.
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Old Jun 18, 2013, 07:23 AM   #19
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Although I don't like the ruling, I can see some logic behind it. It sounds as if the guy was answering questions until they got to the one about the shotgun. Suddenly he clams up ... without invoking his right to remain silent.

Bottom line: if you have any reason to believe that you're a suspect, don't answer ANY questions.

I'd take it a step further, you don't say anything to the police except, I want a lawyer.
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Old Jun 18, 2013, 08:06 AM   #20
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This is one of the most ****ing ridiculous things I've heard of coming out of the SC. From a defendants position, your silence does not incriminate you. An answer can't be demanded and refusal to cooperate earn you guilt. You have the right not to incriminate yourself and (in the past), this could not be used to convict you. Proof and evidence are required besides the accused's refusal to cooperate. This is not the inquisition.

Was there not a time when it was the law that you be read your Miranda rights before being asked any questions?
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Old Jun 18, 2013, 08:24 AM   #21
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Despite my natural leanings towards defense, I think I understand the logic behind this decision. I don't agree with it, but I understand it. This is probably not a case where the guy's conviction hinged on this particular piece of evidence, and strangely I think that matters. Bad facts make for bad law.
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Old Jun 18, 2013, 08:35 AM   #22
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Despite my natural leanings towards defense, I think I understand the logic behind this decision. I don't agree with it, but I understand it. This is probably not a case where the guy's conviction hinged on this particular piece of evidence, and strangely I think that matters. Bad facts make for bad law.
Where this heads: The defendant's refusal to cooperate clearly indicates his guilt...
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Old Jun 18, 2013, 08:39 AM   #23
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Where this heads: The defendant's refusal to cooperate clearly indicates his guilt...
I don't think it goes that far. This guy made himself available to answer questions, and was in fact answering questions. When they confronted him about the shells, at that point, I think the interview goes from being with a witness, to a suspect, and they should have been required to mirandize him. I think anytime the police question you against your interests, no matter the circumstances, you should have constitutional protections. Unfortunately, this decision seems to allow the police the ability to question you as though you were a suspect as long as you don't realize they suspect you.
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Old Jun 18, 2013, 09:02 AM   #24
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I don't think it goes that far. This guy made himself available to answer questions, and was in fact answering questions. When they confronted him about the shells, at that point, I think the interview goes from being with a witness, to a suspect, and they should have been required to mirandize him. I think anytime the police question you against your interests, no matter the circumstances, you should have constitutional protections. Unfortunately, this decision seems to allow the police the ability to question you as though you were a suspect as long as you don't realize they suspect you.
My claim is that is where the road heads. We may or may not get there.
There seems to be two issues here.

1. The individual knows they are innocent or guilty.
2. The individual trusts the authorities to be competent.

If you are innocent, you most likely have no problem with answering questions, unless you don't trust authorities in general. It's a very slippery slope to say the suspect was answering questions, but refused to answer this one, so he must be guilty. I don't know, but I suspect this was how it was argued in court.

There are many examples of the wrong people being convicted. Guilty or not, in a line of questioning, once you realize that you are a suspect, even if you've not been advised of it, you might decide it's time to stop answering questions and if smart, ask for a lawyer. One minute cooperating, the next minute not, might be suspicious, but imo can't be used as an argument of guilt because of your right not to incriminate yourself. Other evidence would be required. And it definitely should not be allowed to be argued in court as a sign of guilt.
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Old Jun 18, 2013, 10:10 AM   #25
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... this decision seems to allow the police the ability to question you as though you were a suspect as long as you don't realize they suspect you.
This is my concern. Police can exploit this by not formally arresting and mirandizing a suspect in order to obtain evidence they might not otherwise get.

This puts the burden on the citizen to understand that any question from a police officer could be used as evidence against them and this could create a chilling effect between civilians and officers, which in the end could hamper an officers ability to do their job.

I'm not involved in the law nor have I ever been questioned by the police, but I wonder how often these kinds of pre-arrest/miranda questionings occur. I suspect often.
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