http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=226x6253This is from the "civil liberties" forum on Skins's island.
Yeah, yeah, I know; Skins's island has no civil liberties, and no civility either.
emperor124 (82 posts) Mon Apr-21-08 02:39 PM
Original message
Question about the 5th amendment
About 12 years ago my cousin was hanging out with a bunch of his friends in this half finished house that his father was building. They were playing some pretty loud music and wound up getting the cops called on them.
My cousin and one of his friends each had one beer from a 6 pack. By the time they dragged everyone to the police station my cousin and his friend both tested negative for alcohol. One of the cops then said something to the effect of "We can't arrest any of you for possession of alcohol because you all tested negative, but just out of curiosity, who all had a beer?"
My cousin and his friend admitted to it and they went ahead and arrested them anyway! He was later convicted of a Minor in Possession. My question to you is this: Does this violate the 5th amendment clause against self incrimination? It seems like it would.
AngryAmish (1000+ posts) Mon Apr-21-08 02:42 PM
Response to Original message
1. No
Police do not have to tell the truth. They were not compelled to confess or testify (5th Amend. violation). They did confess by admitting to the beer. Never talk to the police. Ever.
Tangerine LaBamba (940 posts) Mon Apr-21-08 02:48 PM
Response to Reply #1
5. There's a landmark case
Regarding self-incrimination. A little girl had been missing, everyone assumed she was dead, and the police arrested a likely suspect. But, he didn't confess, and, ultimately, they were going to have to let him go, since they had no direct evidence against him.
In the police car, as they were transferring him from one facility to another, maybe to the courthouse, a police officer said to the detainee, "At the very least, let her parents give her a Christian burial. Tell us where you hid her body."
And the guy did.
This one went all the way up to the Supreme Court, where his conviction was thrown out because it was an illegal interrogation without counsel present.
Brewer v. Williams, as I recall.
AngryAmish (1000+ posts) Mon Apr-21-08 03:26 PM
Response to Reply #5
8. I think that only applies when counsel is obtained
Again we don't have all the facts but assumming there was no need to Mirandize (petty offense) then Brewer would not apply. But I don't know what state, necessity of Miranda, etc. so I may well be wrong. But in Illinois, the police conduct was kosher (knowing the little I do know).
DefenseLawyer Donating Member (1000+ posts) Mon Apr-21-08 04:12 PM
Response to Reply #8
9. I know of no Miranda exception for petty offenses
There is no requirement for Miranda when questioning a person about an infraction, such as "Do you know how fast you were going?" but if the person is in custody Miranda would be required before asking a question in which the answer would tend to incriminate the person of an arrestable offense.
Miranda would only become unnecessary if the person was no longer in custody, as the question is clearly incriminatory. If they are still at the police station, even after being "cleared" that is still a pretty close call.
Brewer involved a man that was with out question in custody and had already invoked his right to remain silent and had an attorney. The question was whether the officers transporting him "tricked" him into confessing by talking about the case without directly questioning him. Except for the "trick" element, it isn't very similar, given the limited facts we have.
A spammer jumps in (don't know why, but the font is Courier, rather than what Skins uses):
Madame_Karnak (1 posts) Thu May-22-08 03:55 PM
Response to Reply #1
13. A Little Knowledge Is A Powerful Thing
Some friends and I have had many experiences with the law enforcement types due to our politics. What we have found is that most police officers are counting on you not knowing what the actual rules are. We decided to form something like Triple A for civil liberties. It would be a membership organization that teaches you how to respond and ensures that informed members show up to document your experience. The organization's name is: CopperCards.
The best time to get good advice is at the moment when you can apply it. That is what CopperCards does. It gives you the advice and one number to call to alert a group of people to your situation. The police are only brave if they feel that you are an isolated individual without resources. Not all police are rule-benders either, just those with those tendencies to begin with.
midnight Donating Member (1000+ posts) Journal Wed May-28-08 10:24 AM
Response to Reply #13
14. Do you have a phone no. for that organization-coppercards.
Tangerine LaBamba (940 posts) Mon Apr-21-08 02:42 PM
Response to Original message
2. How old was your cousin?
Was he arrested?
If so, was he read his Miranda rights?
emperor124 (82 posts) Tue Apr-22-08 03:19 PM
Response to Reply #2
10. He was 19 at the time I believe
And no they weren't officially arrested, they were just dragged down to the station.
MercutioATC Donating Member (1000+ posts) Mon Apr-21-08 02:43 PM
Response to Original message
3. Nope. The police are permited to lie to solicit statements.
We may have an "innocent until proven guilty" system, but it's also "know the law or get screwed"...
zonmoy (1000+ posts) Mon Jun-02-08 12:00 PM
Response to Reply #3
15. Surprised that if they are able to lie to get statements
they aren't able to lie for any other reason.
KSinTX Donating Member (1000+ posts) Mon Apr-21-08 02:43 PM
Response to Original message
4. I'd say no
Your cousin had the right against self-incrimination by saying "Prove who had beers." By answering, he waived that right, as I understand it. Kids relate very differently to authority figures and that's why usually a parent needs to be around. I take it these kids were older than 16 but younger than 21.
DefenseLawyer Donating Member (1000+ posts) Mon Apr-21-08 02:51 PM
Response to Original message
6. It would depend on whether they were still in custody at the time of the statement
Miranda requires that before questioning a person in custody, that person must be advised of his or her write to remain silent, right to an attorney, etc. However, Miranda only applies to persons in custody, that is under arrest, or detained in a situation where a reasonable person would not feel he was free to leave.
If they had just been told they were not under arrest and were free to leave, the state could argue that they were not in custody and therefore the officer did not have to read them their miranda warnings before asking the incriminating question.
Of course, it is also possible that the officers had already read them their miranda warnings when they first took them to the station, in which case it wouldn't be a violation in any case. (It would still be dirty, and certainly not in the spirit of Miranda, and I can see some judges that would frown upon it, but others that are prosecuting from the bench would probably encourage it).
If your cousin was not just a minor, but also a juvenile, that adds another wrinkle, as generally the police can not question a juvenile without an express waiver from a parent. At this point, 12 years later, there probably isn't much recourse in any case, but that is just my opinion.
Warpy Donating Member (1000+ posts) Mon Apr-21-08 03:18 PM
Response to Original message
7. They could have and should have refused to answer.
Never volunteer anything to the police. Wait until a lawyer is present.
Popol Vuh Donating Member (1000+ posts) Sat May-03-08 09:45 PM
Response to Original message
11. No
As the others have mentioned the police can lie to illicit you for information in their investigation. However, in this case since the police didn't witness a crime and the answer was given before Miranda was cited to him, the police will need corroborating evidence to secure a guilty decision.
If while in court the young man was to say he was upset and was just being smart with the police. Without corroborating evidence showing he was indeed under the influence. I cannot see he a guilty could be secured.
Here's a good video from the ACLU on how to protect your rights if confronted by the police: http://www.youtube.com/watch?v=yqMjMPlXzdA Pay attention to the word games police are trained to use.
They are trained to exploit your natural desire to be considered a good person instead of a uncooperative one.
readyforreason Donating Member (12 posts) Thu May-15-08 04:57 PM
Response to Original message
12. shame
Shame they got punished for telling the truth.
AtheistCrusader (113 posts) Sat Jun-14-08 04:33 PM
Response to Original message
16. Never talk to the police under any circumstances.
Best youtube videos I've ever watched.
Part 1
http://www.youtube.com/watch?v=i8z7NC5sgik
Part 2
http://www.youtube.com/watch?v=08fZQWjDVKE
I dunno. franksolich talks to law enforcement all the time, and has no problem.
