Latest Brain Twister From the US Supreme Court

[Bob Schroeck]

Remaining silent in the face of police questioning does not automatically invoke your right to remain silent.  According to this new ruling from the SCOTUS, it doesn't count unless you actually say, "I'm invoking my right to remain silent."  Until then, the cops can do anything they want to try and trick you into incriminating yourself.
Three guesses how the voting shakes out on ideological grounds, and the first two don't count.  And remember, this is the same court that decided your right to an attorney has a two-week expiration on it.
-- Bob
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Then the horns kicked in...
...and my shoes began to squeak.

[ECSNorway]

I don't see what's so head-twisty about it.

The Miranda Warning explicitly says: "You have a right to remain silent. Anything you say can and will be used against you in a court of law."

They have a right to ask questions.
You have a right not to answer.
If you choose to answer, that's evidence.
--
Sucrose Octanitrate.
Proof positive that with sufficient motivation, you can make anything explode.

[Bob Schroeck]

The braintwisty thing is that being silent doesn't mean you've invoked your right to silence. Actually using the right doesn't legally confer upon you the use of the right in a court of law -- you have to explicitly say out loud that you're going to use your right to silence. I know I'm not the only one who sees an untenable paradox in that requirement -- Justice Sotomayor said as much in the dissenting opinion, noting that the decision

..."turns Miranda upside down."

"Criminal suspects must now unambiguously invoke their right to remain silent - which counterintuitively requires them to speak," she said. "At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded."

-- Bob
---------
Then the horns kicked in...
...and my shoes began to squeak.

[ECSNorway]

...

I still fail to understand your way of thinking.

By choosing to speak, in what way are you NOT choosing not to excercise your right to remain silent?

All they're saying is that once you say outright "I choose to excercise my right to remain silent", the cops have to stop questioning you.

Nothing in "You have the right to remain silent" says "You have the right not to listen to cops asking you questions".
--
Sucrose Octanitrate.
Proof positive that with sufficient motivation, you can make anything explode.

[Bob Schroeck]

Actually there is. When you exercise your right to remain silent, the cops apparently have to stop asking you questions -- it says as much in the linked article. (Presumably to avoid any appearance of attempting to force or intimidate the suspect.) The ruling essentially says the cops are not obligated to regard complete silence as exercising your right to remain silent.
-- Bob
---------
Then the horns kicked in...
...and my shoes began to squeak.

[khagler]

The magic words for any encounter with the police, regardless of how innocuous it might seem to you at the time: "I'm going to remain silent. I want a lawyer."

[Jinx999]

While Bob's view makes more sense from a strictly logical point of view - it would mean that police would have to stop questioning someone the moment they close their mouth.

[Sofaspud]

The magic phrase here is one police have to ask you before questioning begins.  It is (I'm trying to quote but I may be paraphrasing, it's been a long time since I read the procedure manuals): "Keeping in mind the rights I've just explained to you, are you willing to answer some questions?"
As things stood before this decision, if you answered "No" to this, that doesn't stop the police from questioning you, but it does make it very hard for anything you say to be used legitimately in court -- because, by answering "No", you invoked your right to remain silent -- your right to not incriminate yourself.
This decision, however, means that instead of that protection kicking in the moment you say "No", it now requires you to speak up and deliberately invoke your right to remain silent.
It's putting the onus on the suspect rather than the police, and is a huge, huge concern, precisely because so many people don't know how to correctly respond and are (possibly innocently) terrified of the police.

--sofaspud
--"Listening to your kid is the audio equivalent of a Salvador Dali painting, Spud." --OpMegs

[ECSNorway]

Nowhere in the Constitution does it say you have a right not to be asked questions.

All it guarantees is a right not to answer if you so choose.
--
Sucrose Octanitrate.
Proof positive that with sufficient motivation, you can make anything explode.