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  #1  
Old 08-18-2014, 07:39 PM
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You can't remain silent anymore....

Ok then, the California Supreme Court has decided that unless you specifically invoke your right to remain silent, by so stating, your silence can be used against you.

Go figure............. So, as I will now tell anyone who asks, if you are arrested, and even before given your "Miranda" warnings, you should expressly state,

"I am exercising my right to remain silent!"

because, even a fish wouldn't get caught if it kept its mouth shut.

(Now, don't get me wrong, I'm not against the guy being convicted in this case, but I think that making an argument that because he didn't ask about the victims shows his guilt, goes too far.)

[SAN FRANCISCO (AP) — The California Supreme Court has ruled that the silence of suspects can be used against them.

Wading into a legally tangled vehicular manslaughter case, a sharply divided high court on Thursday effectively reinstated the felony conviction of a man accused in a 2007 San Francisco Bay Area crash that left an 8-year-old girl dead and her sister and mother injured.

Richard Tom was sentenced to seven years in prison for manslaughter after authorities said he was speeding and slammed into another vehicle at a Redwood City intersection.

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.

Legal analysts said the ruling could affect future cases, allowing prosecutors to exploit a suspect's refusal to talk before invoking 5th Amendment rights against self-incrimination.

"It's a bad and questionable decision," said Dennis Fischer, a longtime criminal appellate lawyer.

Tom's attorney Marc Zilversmit said he is deciding whether to petition the U.S. Supreme Court to take up the issue or renew his arguments in the state court of appeal.

"It's a very dangerous ruling," Zilversmit said. "If you say anything to the police, that can be used against you. Now, if you don't say anything before you are warned of your rights, that too can be used against you."

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.

Tom has been freed on $300,000 bail pending his appeal.

Tom was arrested after his Mercedes sedan plowed into a car driven by Lorraine Wong, who was turning left onto a busy street.

Prosecutors argue that Tom's car was speeding at 67 mph in a 35 mph zone when the collision occurred. He was placed in the back of a police cruiser but was not officially arrested and advised of his rights until later in the day.

Prosecutors said Tom's failure to ask about the Wong family while detained showed his guilt.

Justice Goodwin Liu dissented.

"The court today holds, against common sense expectations, that remaining silent after being placed under arrest is not enough to exercise one's right to remain silent," Liu wrote.
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Old 08-18-2014, 09:04 PM
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Re: You can't remain silent anymore....

So you only have rights if you announce them?
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  #3  
Old 08-18-2014, 09:17 PM
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Re: You can't remain silent anymore....

Quote:
Originally Posted by jimmm
So you only have rights if you announce them?

Seems to be the case, and to announce them you've got to know them. A bit ironic when you consider the "Miranda" case stemmed from a desire to assure that we knew our rights so we could elect to use them, or not.

So I suppose now if you're stopped for speeding, and the LEO says, "Do you know how fast you were going?" You're better off responding, "I chose to exercise my right to remain silent." Because if you don't the LEO could testify, "I asked the defendant if he knew how fast he was going, and he didn't say anything." And from that silence you are then presumed to have knowledge of your guilt.

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Old 08-19-2014, 12:22 AM
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Re: You can't remain silent anymore....

Quote:
Originally Posted by CJS350
So I suppose now if you're stopped for speeding, and the LEO says, "Do you know how fast you were going?" You're better off responding, "I chose to exercise my right to remain silent." Because if you don't the LEO could testify, "I asked the defendant if he knew how fast he was going, and he didn't say anything." And from that silence you are then presumed to have knowledge of your guilt.

That is a standard question, admit your speeding and your done. You have just testified against yourself. Work around it and don't be a smart ass.
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Old 08-19-2014, 05:03 AM
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Re: You can't remain silent anymore....

I always wondered what it would be like to live in a totalitarian country... not anymore...
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  #6  
Old 08-19-2014, 10:29 AM
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Re: You can't remain silent anymore....

Quote:
Originally Posted by Beech
That is a standard question, admit your speeding and your done. You have just testified against yourself. Work around it and don't be a smart ass.

Well sure, I've seen it court where a driver / rider gets a ticket for 50 in a 35 for example and tells the judge, "I wasn't going 50, at best I was doing 40", and that's a guilty finding without anything more.

As for dealing with the police at traffic stops, I suspect as most of us have discovered, there are times when nothing you say is going to get you out of a ticket. Yet based upon my experience, and probably that of most others, being polite gives you the best chance of getting away with it. I still would never respond to the questions, "Do you know why I stopped you?" "Or do you know how fast you were going?" With, "Why sure officer I was doing at least 90", or "Why sure officer, I just rolled that stop sign." I don' think there's any upside to those questions or responses.
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Old 08-19-2014, 11:13 AM
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Re: You can't remain silent anymore....

So California is the bellweather for trends? I don't think so.
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Old 08-19-2014, 03:19 PM
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Re: You can't remain silent anymore....

Quote:
Originally Posted by sparkyblue
So California is the bellweather for trends? I don't think so.

Actually, the CA Supreme court was simply following the US Supreme Court's earlier decision in, now get this, Salinas v. Texas, yes, that's right, Texas. http://www.supremecourt.gov/opinions...2-246_7l48.pdf

In that case prosecutors described the defendant's uncomfortable reaction to being questioned about his shotgun, and commented at trial about him being uncomfortable and remaining silent.

The defendant argued this violated his Fifth Amendment rights: He had remained silent, and the Supreme Court had previously made clear that prosecutors can’t bring up a defendant’s refusal to answer the state’s questions. This time around, however, Justice Samuel Alito (a GW B appointee) responded that Salinas was “free to leave” and did not assert his right to remain silent. He was silent. But somehow, without a lawyer, and without being told his rights, he should have affirmatively “invoked” his right to not answer questions. Two other justices signed on to Alito’s opinion. Justice Clarence Thomas and Justice Antonin Scalia joined the judgment, but for a different reason; they think Salinas had no rights at all to invoke before his arrest.

Trust me, your civil liberties are slowly being eroded. And this is not Obama's fault. The judges in question were appointed before he was elected. This is not a democrat v. republican thing, this is simply an erosion of rights we've long held to be inviolate. To me its worrisome.
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Old 08-19-2014, 03:19 PM
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Re: You can't remain silent anymore....

Quote:
Originally Posted by sparkyblue
So California is the bellweather for trends? I don't think so.

Only for bad ones!
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Old 08-19-2014, 08:50 PM
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Re: You can't remain silent anymore....

Quote:
Originally Posted by sparkyblue
So California is the bellweather for trends? I don't think so.

1984 is finally getting to the US.
So much for freedom.
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Old 08-20-2014, 12:14 AM
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Re: You can't remain silent anymore....

Is it just me or does anyone else see this as strangely contradictory coming out of California? Several much more conservative states would present themselves as prime candidates for such silly legislation long before CA. If not told, I would never have guessed from whence it came.
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  #12  
Old 08-21-2014, 01:58 PM
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Re: You can't remain silent anymore....

Quote:
Originally Posted by CJS350
Well sure, I've seen it court where a driver / rider gets a ticket for 50 in a 35 for example and tells the judge, "I wasn't going 50, at best I was doing 40", and that's a guilty finding without anything more.

As for dealing with the police at traffic stops, I suspect as most of us have discovered, there are times when nothing you say is going to get you out of a ticket. Yet based upon my experience, and probably that of most others, being polite gives you the best chance of getting away with it. I still would never respond to the questions, "Do you know why I stopped you?" "Or do you know how fast you were going?" With, "Why sure officer I was doing at least 90", or "Why sure officer, I just rolled that stop sign." I don' think there's any upside to those questions or responses.
But Craig that goes in the face to what worked for me a few years ago. I was on my way to lunch and got pulled less then a mile from my house on the bike. He informed me that I had been pulled over for speeding. While removing the seat to get the registration card, he asked, "are you aware that your state inspection has long ago expired?" to which I responded "why yes I am". That of course prompted a perplexed look by the officer who said, do tell. I explained that I ride the bike on a racetrack at over 150 mph. I told him that it was quite apparent to me that my life meant more to me then it has any safety mechanic I've previously talked to. I explained that my safety inspection included an in depth look into the mechanics of the bike and not simply a review that the horn made noise, headlight produced light and the turn signals worked. The cop [county] told me that I had a good point and suggested that I have a nice lunch and slow it down a bit.
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Old 08-21-2014, 03:17 PM
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Re: You can't remain silent anymore....

Matt, I don't necessarily disagree. I think that being polite and courteous are the most likely ways to avoid getting a ticket.

I got stopped for a blatant DYL violation and wound up getting an ear plug ticket instead of the costly DYL ticket, and the reduction wasn't based on anything that would have been an admission of a violation, rather I believe it was my demeanor when talking to the cop.

And yet while this might not impact any of us, and hopefully it won't, if you are ever questioned by the police about something more serious than a traffic ticket, when the police have you in their sights as a suspect, whether you are placed under arrest, or not, my advice would have to be to say, "I reserve my right to remain silent. I request that my attorney be present during any questioning, and I will not answer any questions until my attorney is present", and then shut up.

As a prime example, you'll recall that Martha Stewart went to prison. The common belief is that she was imprisoned for insider trading, not so, she was imprisoned for lying to a federal officer - she was not represented when the made the allegedly false statements. If she had refused to respond, there likely would have been no case.

Unfortunately, we've long come to believe that we have a "right to remain silent", but unless we expressly reserve our right to remain silent, we may not have that right. And again, the California Supreme Court was following an 2013 precedent of the US Supreme Court. It all strikes me as Kafkaesque.
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Old 08-21-2014, 04:21 PM
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Re: You can't remain silent anymore....

Well, with all these combative law enforcement people... it never hurts to be nice.

This story is not about the police, but the TSA.

I was going back to Nicaragua from Milwaukee.
Bringing a bunch of tools.
My bag went over 50 lbs, and I was told I could carry the rest on my backpack (weighing now almost 40 lbs).

When I got to security, I reported the TSA lady that I had some tools, and before I went through, it'd be good for her to check them out.

She told me I had to get rid of the larger wrenches and other stuff.
I asked her, if she could please not throw them away, but I was gifting the tools to her.
She said "these tools are awesome, no way we are throwing them away!".

So, she proceeded to carry my stuff, asked me to go with her, and we went to the airline checking stands.
The TSA lady ask the airline people to get my bag.
They told her, my bag was already at 50 lbs. To which she reply, "I don't care".
She asked me to put ALL my tools in the bag, and off she went.

Isn't that cool or what?

Cool lady (well, probably younger than me).

So, when I'm in the US, I'm overly nice.
and most people are very nice back.
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Old 08-21-2014, 05:23 PM
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Re: You can't remain silent anymore....

I don't know how to remain silent...
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Old 08-21-2014, 06:04 PM
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Re: You can't remain silent anymore....

Quote:
Originally Posted by Louis
I don't know how to remain silent...

That is the ONE absolute truth!
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Old 05-07-2018, 02:22 PM
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Re: You can't remain silent anymore....

Quote:
Originally Posted by CJS350
I still would never respond to the questions, "Do you know why I stopped you?" "Or do you know how fast you were going?" With, "Why sure officer I was doing at least 90", or "Why sure officer, I just rolled that stop sign." I don' think there's any upside to those questions or responses.
How about, "you wanted to get a better look at my _______________?"

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Old 05-07-2018, 02:38 PM
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Re: You can't remain silent anymore....

How about, "what did you stop me for, I don't have no donuts". Works every time, try it.
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Old 05-07-2018, 02:42 PM
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Re: You can't remain silent anymore....

Quote:
Originally Posted by Capnrip
How about, "what did you stop me for, I don't have no donuts". Works every time, try it.

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Old 05-07-2018, 02:44 PM
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Re: You can't remain silent anymore....

Buddy gets pulled over at 10am after drinking with our fellow AF buddies until 430am in Cleveland, I'm in the passenger seat.
Large state trooper comes up to the window and asks him if he's been drinking. He says NO SIR, we stopped several hours ago. trooper asks me how many beers I had (I'm assuming, he wants me to drive), I respond with "At least 30 sir". He looks at me and says "30 son?"
I said, "Yes sir but that's a low estimate because only drunks count".
He was almost humored at the comment but was still concerned so he went to the back seat guys and asked them how many they might have had and the first guy says "That guy in the passenger seat is the lightweight, we all had more than him"
He told me to drive and don't come back.
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Old 05-07-2018, 02:47 PM
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Re: You can't remain silent anymore....

Quote:
Originally Posted by Louis
I don't know how to remain silent...


I know your pain!!
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Old 05-07-2018, 02:59 PM
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Re: You can't remain silent anymore....

I got pulled over in my Bubba truck one afternoon. The kids were with me and we were having one hell of a good time. The officer later admitted that he pulled me thinking that I was drunk (says A LOT about my driving I guess). At the time we had just picked up doughnuts and some BBQ and THIS video clip was all I could think of.

https://youtu.be/a77Dw3tNv8o?t=1m20s
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Old 05-07-2018, 03:36 PM
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Re: You can't remain silent anymore....

Craig, As site counsel perhaps you could go over to the BRPR thread and weigh in. Posts 132 to 137 ought to do it. Other excellent legal minds there include Joe, Matt, Stevie, Pete and myself. A college textbook is sure to follow.
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Old 05-07-2018, 03:50 PM
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Re: You can't remain silent anymore....

Quote:
Originally Posted by Capnrip
Craig, As site counsel perhaps you could go over to the BRPR thread and weigh in. Posts 132 to 137 ought to do it. Other excellent legal minds there include Joe, Matt, Stevie, Pete and myself. A college textbook is sure to follow.

I'm afraid that there is nothing that I can say, or do, that will save anyone that dares to participate. Just remember, even a fish wouldn't get caught if it just kept its mouth shut!
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Old 05-07-2018, 06:35 PM
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Re: You can't remain silent anymore....

Quote:
Originally Posted by mondrage
Well, with all these combative law enforcement people... it never hurts to be nice.

This story is not about the police, but the TSA.

I was going back to Nicaragua from Milwaukee.
Bringing a bunch of tools.
My bag went over 50 lbs, and I was told I could carry the rest on my backpack (weighing now almost 40 lbs).

When I got to security, I reported the TSA lady that I had some tools, and before I went through, it'd be good for her to check them out.

She told me I had to get rid of the larger wrenches and other stuff.
I asked her, if she could please not throw them away, but I was gifting the tools to her.
She said "these tools are awesome, no way we are throwing them away!".

So, she proceeded to carry my stuff, asked me to go with her, and we went to the airline checking stands.
The TSA lady ask the airline people to get my bag.
They told her, my bag was already at 50 lbs. To which she reply, "I don't care".
She asked me to put ALL my tools in the bag, and off she went.

Isn't that cool or what?

Cool lady (well, probably younger than me).

So, when I'm in the US, I'm overly nice.
and most people are very nice back.
I had driven a U Haul cross country and was flying back. UHaul door would not lock so I took a steering wheel lock with me, the brand was "The Club". Dam things are 30-40 bucks so I took it back with me. At the airport, bag gets the exray treatment, alarm goes off. Several people gather around looking. I get asked whats in the bag. I explain all about steering wheel locks and say the brand name, as at the time it was advertised on the boob tube, thinking someone might have heard of it. Well all anyone heard was "CLUB!" Same as yelling "BOMB" i found out. Several poeple were acting like Chicken Little, some calling for more security. Finally someone with brains comes over and asked again what was in the bag. I explained it again, heavy on the broken door lock and what a steering wheel lock does, and he got it! I drew a picture of what it looked like, how it worked, ( I offered to take it out of the bag and show them, but fuck no.) He went and looked again at the exray, turned the bag over, looked again, and gave the bag to me and let me go. I was thinking it wasn't a good time to say "Allah Akbar" or whatever it is they say before the kaboom.
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Old 05-09-2018, 07:37 AM
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Re: You can't remain silent anymore....

Quote:
Originally Posted by CJS350
"Do you know why I stopped you?"

Believe it or not, I’ve used “ That depends. How long were you following me?” with some success...
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Old 05-09-2018, 11:58 AM
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Re: You can't remain silent anymore....

Thanks for this info, Craig. I’m passing it on.

Riding in the truck, returning from riding bikes & camping along the Kern River in CA, now in the very flat lands of the west TX cotton fields, I’m laughing my ass off at the stories provided by the I-BMW inmates in this thread. Thanks for the entertainment, guys.
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Old 05-09-2018, 01:21 PM
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Re: You can't remain silent anymore....

Quote:
Originally Posted by Louis
I don't know how to remain silent...
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Old 05-09-2018, 02:53 PM
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Re: You can't remain silent anymore....

Ron White said it best, "I had the right to remain silent, I just didn't have the ability."
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Old 05-09-2018, 06:03 PM
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Re: You can't remain silent anymore....

Craig, thanks for the posts. This is worrisome. Once you start down the road of a “living Constitution” no one has the certainty of specific rights. You’d think the 5th Amendment is pretty clear on this point. The California case and the Texas case have interesting facts, but both let the camel’s nose into the tent.

Of course, what’s this to Matt? I swear, he can sure land on his feet!
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Old 05-09-2018, 07:35 PM
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Re: You can't remain silent anymore....

Quote:
Originally Posted by CJS350
Ok then, the California Supreme Court has decided that unless you specifically invoke your right to remain silent, by so stating, your silence can be used against you.

Go figure............. So, as I will now tell anyone who asks, if you are arrested, and even before given your "Miranda" warnings, you should expressly state,

"I am exercising my right to remain silent!"

because, even a fish wouldn't get caught if it kept its mouth shut.

(Now, don't get me wrong, I'm not against the guy being convicted in this case, but I think that making an argument that because he didn't ask about the victims shows his guilt, goes too far.)

[SAN FRANCISCO (AP) — The California Supreme Court has ruled that the silence of suspects can be used against them.

Wading into a legally tangled vehicular manslaughter case, a sharply divided high court on Thursday effectively reinstated the felony conviction of a man accused in a 2007 San Francisco Bay Area crash that left an 8-year-old girl dead and her sister and mother injured.

Richard Tom was sentenced to seven years in prison for manslaughter after authorities said he was speeding and slammed into another vehicle at a Redwood City intersection.

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.

Legal analysts said the ruling could affect future cases, allowing prosecutors to exploit a suspect's refusal to talk before invoking 5th Amendment rights against self-incrimination.

"It's a bad and questionable decision," said Dennis Fischer, a longtime criminal appellate lawyer.

Tom's attorney Marc Zilversmit said he is deciding whether to petition the U.S. Supreme Court to take up the issue or renew his arguments in the state court of appeal.

"It's a very dangerous ruling," Zilversmit said. "If you say anything to the police, that can be used against you. Now, if you don't say anything before you are warned of your rights, that too can be used against you."

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.

Tom has been freed on $300,000 bail pending his appeal.

Tom was arrested after his Mercedes sedan plowed into a car driven by Lorraine Wong, who was turning left onto a busy street.

Prosecutors argue that Tom's car was speeding at 67 mph in a 35 mph zone when the collision occurred. He was placed in the back of a police cruiser but was not officially arrested and advised of his rights until later in the day.

Prosecutors said Tom's failure to ask about the Wong family while detained showed his guilt.

Justice Goodwin Liu dissented.

"The court today holds, against common sense expectations, that remaining silent after being placed under arrest is not enough to exercise one's right to remain silent," Liu wrote.
This seems counter to the constitution. If I choose to bear arms, I don't have to tell a cop I am doing so. If I choose to vote, I don't have to report my intent to do so. If I don't want to incriminate myself, I don't have to call 911 and declare the desire. The rights are ours, they can't be taken away, and therefore I should not have to declare my intent to exercise it.
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Old 05-09-2018, 08:58 PM
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Re: You can't remain silent anymore....

Quote:
Originally Posted by CJS350
Actually, the CA Supreme court was simply following the US Supreme Court's earlier decision in, now get this, Salinas v. Texas, yes, that's right, Texas. http://www.supremecourt.gov/opinions...2-246_7l48.pdf

In that case prosecutors described the defendant's uncomfortable reaction to being questioned about his shotgun, and commented at trial about him being uncomfortable and remaining silent.

The defendant argued this violated his Fifth Amendment rights: He had remained silent, and the Supreme Court had previously made clear that prosecutors can’t bring up a defendant’s refusal to answer the state’s questions. This time around, however, Justice Samuel Alito (a GW B appointee) responded that Salinas was “free to leave” and did not assert his right to remain silent. He was silent. But somehow, without a lawyer, and without being told his rights, he should have affirmatively “invoked” his right to not answer questions. Two other justices signed on to Alito’s opinion. Justice Clarence Thomas and Justice Antonin Scalia joined the judgment, but for a different reason; they think Salinas had no rights at all to invoke before his arrest.

Trust me, your civil liberties are slowly being eroded. And this is not Obama's fault. The judges in question were appointed before he was elected. This is not a democrat v. republican thing, this is simply an erosion of rights we've long held to be inviolate. To me its worrisome.
I think it is a story of erosion of knowledge. When I see people complaining about suppression of speech when a private person is in a private setting (concert, theater, campaign stop, etc...), it is obvious that they don't understand the constitution. Schools aren't really teaching it anymore and by not teaching it, they actually weaken it by omission. If you don't know your rights, you don't fight for them.

There are several things which are ignored or simply glossed over in society and people take their rights as talking points... the kids fighting gun control, for example, complain about clear backpacks being a violation of their first amendment rights yet the actual one would be the fourth amendment. This just serves to show that our activists are merely passing talking points and parroting what they are told. Still... plenty of people fall victim to listening to such nonsense because they themselves don't know what the constitution actually says.

People don't read the constitution and we are getting dumber for it. I read it quite regularly because I don't want to be the guy citing it and then mistaking one amendment for another.
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Somewhere a True Believer is training to kill you. He is training with minimal food or water, in austere conditions, training day and night. The only thing clean on him is his weapon and he made his web gear. He doesn't worry about what workout to do - his ruck weighs what it weighs, his runs end when the enemy stops chasing him. This True Believer is not concerned about 'how hard it is;' he knows either he wins or dies. He doesn't go home at 17:00, he is home.
He knows only The Cause.

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