Shoot First, Ask Questions Later (page 2)

Crazy151drinker

I hate commie bastard criminals, yet the Miranda should stay. I think that all college women should be required to go topless. Now thats a law that should be passed.......

Robdar

Thi chi,

Thanks for posting the other side of the story. I was looking for that myself. What source did you use?

Robyn

Robdar

ThiChi,

So what happened to "poster boy" is a good reason to do away with the Miranda rights?

ThiChi

http://www.usdoj.gov/osg/briefs/2002/3mer/1ami/2001-1444.mer.ami.html

No one is doing away with Miranda Rights. The fact is that the protection centers on using the evidence in court. If no charges are filed, as in this case, then there is no violation.

Edited by - thichi on 6 December 2002 12:39:0

SixofNine

So why haven't there been any charges filed against this guy?

What would be the point, Robdar?

So what happened to "poster boy" is a good reason to do away with the Miranda rights?

What does this have to do with Miranda rights? They didn't charge him, and they didn't take him into custody.

In a variety of other contexts, the Court has confirmed that the Fifth Amendment is not violated by compelled testimony so long as the government makes no use of it in a criminal case. In the so-called "penalty cases," for example, the Court has held that governments may use threats of economic penalties, such as job termination or loss of government contracts, to elicit statements if there are established restrictions on their later use in criminal cases. See, e.g., Lefkowitz v. Turley, 414 U.S. at 84, 85 ("the State may insist that [contractors] * * * either respond to relevant inquiries about the performance of their contracts or suffer cancellation," but "the State must recognize what our cases hold: that answers elicited upon the threat of the loss of employment are compelled and inadmissible in evidence"); Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977) ("[p]ublic employees may constitutionally be discharged for refusing to answer potentially incriminating questions concerning their official duties if they have not been required to surrender their constitutional immunity" against later use of statements in criminal proceedings). See also Wiley v. Doory, 14 F.3d 993, 996 (4th Cir. 1994) (Powell, J.) ("language in [the penalty cases] suggests that the right against self-incrimination is not violated by the mere compulsion of statements, without a compelled waiver of the Fifth Amendment privilege or the use of the compelled statements against the maker in a criminal proceeding"), cert. denied, 516 U.S. 824 (1995).

Likewise, in Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549, 561-562 (1990), the Court held that the Fifth Amendment did not privilege a custodial mother's refusal to comply with a court order to produce a child despite her claim that the act of production would incriminate her, but noted that "the Fifth Amendment protections are not * * * necessarily unavailable to the person who complies with the regulatory requirement [to produce] after invoking the privilege and subsequently faces prosecution." And in Minnesota v. Murphy, 465 U.S. 420, 436 n.7 (1984), the Court wrote that a state may compel probationers to "answer[] * * * even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding."

3. The differences between the Court's Fourth and Fifth Amendment jurisprudence underscore the conclusion that the Fifth Amendment is violated only by the use of compelled testimony, rather than by out-of-court acts of compulsion. In contrast to the Fifth Amendment trial right, the Fourth Amendment "prohibits 'unreasonable searches and seizures' whether or not the evidence is sought to be used in a criminal trial, and a violation of the Amendment is 'fully accomplished' at the time of an unreasonable governmental intrusion." Verdugo-Urquidez, 494 U.S. at 264; accord Balsys, 524 U.S. at 692. Because the constitutional violation is already complete, the "admissibility of evidence obtained in violation of the Fourth Amendment is determined after, and apart from, the violation," by application of a judicially created exclusionary rule. United States v. Janis, 428 U.S. 433, 443 (1976). "In contrast * * * the Fifth Amendment[] [is a] direct command against the admission of compelled testimony." Ibid. As the Court noted in Adams v. Maryland, 347 U.S. 179 (1954), "a witness does not need any statute to protect him from the use of self-incriminating testimony he is compelled to give over his objection. The Fifth Amendment takes care of that without a statute." Id. at 181.5

That difference reflects the Fifth Amendment's core purpose. While the Fourth Amendment protects antecedent interests in privacy and so imposes limits on the primary conduct of law enforcement officers in the field, the Fifth Amendment does not "serve some value necessarily divorced from the correct ascertainment of guilt." Withrow, 507 U.S. at 692. Rather, the Fifth Amendment's "sole concern is to afford protection against being forced to give testimony leading to the infliction of penalties affixed to . . . criminal acts." Kastigar, 406 U.S. at 453 (emphasis added; internal quotation marks omitted; ellipses in original); Brown v. Walker, 161 U.S. at 605-606 ("The design of the constitutional privilege is * * * to protect [the witness] against being compelled to furnish evidence to convict him of a criminal charge.").6

Finally, the difference in the function of the Fourth and Fifth Amendments is reflected in the more elaborate exigent circumstances jurisprudence under the Fourth Amendment. Because the Fourth Amendment regulates primary police conduct, this Court has long recognized a need to exempt police efforts to respond to exigent circumstances. See, e.g., Johnson v. United States, 333 U.S. 10, 14-15 (1948). In the Fifth Amendment context, the need for such an exemption is reduced, because the Amendment itself does not directly regulate primary police conduct. Accordingly, this Court has recognized only a limited public safety exception to the Miranda rule, see New York v. Quarles, 467 U.S. at 655-658, rather than a broad exigent circumstances doctrine. And, precisely because the Fifth Amendment does not directly regulate primary police conduct, some Justices questioned the need for even a limited exception. Id. at 686 (Marshall, J., dissenting); see also pp. 23-25, infra (arguing that standards for admitting evidence should not be equated with standards for permissible police conduct).

Edited by - thichi on 6 December 2002 12:42:17

Robdar

What does this have to do with Miranda rights?

Six,

Good question. Why are the Miranda rights being threatened?

In what may be a landmark Supreme Court case to overturn the Miranda decision, the court is scheduled to hear arguments from Solicitor General Theodore Olsen on December 4, 2002.

I have to leave now to go Xmas shopping. I'll check later. Thanks for all your responses.

Edited by - robdar on 6 December 2002 12:42:47

ThiChi

The problem is the false claims you are quoting as fact. Just because the claim is made, that does not make it true. Whoever is writing this stuff, is twisting the facts and using the "sky is falling" tactic.

jack2

Interesting issue Robyn; from what I've read it does appear that the struggle between ensuring security for law-abiding citizens and providing rights of due process has always been a tough line to walk. And now since 9/11, the pendulum may indeed swing toward increased police powers in the name of security, which does frighten many people.

Edited by - jack2 on 6 December 2002 12:51:31

Robdar

ThiChi,

From your own source is the following, What was that source, by the way?

Salinas maintains that respondent attempted to flee; respondent claims that he offered no resistance and Salinas tackled him without provocation. A struggle ensued. Officers Salinas and Pena testified that respondent drew Salinas' pistol and pointed it at them (see C.A. App. 68-71, 183-185); respondent alleges that he grabbed Salinas' hand to stop him as he drew his pistol from its holster

The problem is the false claims you are quoting as fact.

Just because YOU don't believe them, does not mean that they are not fact. It swings both ways, Thichi.

BTW, I have worn a badge. Yep, I was a Police Officer. I know that things can get out of hand and in the heat of the battle you are not alloted time to second guess what is happening.

Thanks for your comments.

Robyn

PS, now I really have to get to my shopping.

Edited by - robdar on 6 December 2002 12:58:6

Edited by - robdar on 6 December 2002 13:2:46

Shoot First, Ask Questions Later

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