Everyone knows the Miranda rules, including the right
to remain silent.

However, it seems, in real life and teevee, the arrestees
choose to talk. In newspaper reports, it's routine;
"The suspect told police he found the backpack in a dumpster ..."

What happens if you simply clam up? Can they use
that against you in court? If that's your constitutional
right, it shouldn't be allowed to prejudice the jury.
Will a judge qaush any such strategy, attempted by the prosecution?

I can't recall seeing this scenario on the teevee shows -

--
Rich

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On 12/21/2021 9:25 PM, RichD wrote:

Everyone knows the Miranda rules, including the right
to remain silent.

However, it seems, in real life and teevee, the arrestees
choose to talk. In newspaper reports, it's routine;
"The suspect told police he found the backpack in a dumpster ..."

What happens if you simply clam up? Can they use
that against you in court? If that's your constitutional
right, it shouldn't be allowed to prejudice the jury.
Will a judge qaush any such strategy, attempted by the prosecution?

I can't recall seeing this scenario on the teevee shows -

If you clam up, they can't use it against you. But it's important that
you tell them you're "clamming up".

The US Supreme Court has ruled on that question. On one hand, the Court
says you have the right not to make any statements:
"No person...shall be compelled in any criminal case to be a witness
against himself" And that applies to questioning before the trial as well.

On the other hand, the Court has ruled that if you fail to mention
something that you then want to use in court, the prosecution can point
out that you didn't mention it when the police first asked.

But if you say, "I am invoking my right to remain silent", or anything
else that makes it clear you are exercising your fifth amendment right
(e.g., "I prefer not to make any statements without my lawyer present",
or "I'm taking the fifth". Typically, when the cops arrest you they will
"read you your rights" (in many departments the cops carry a little card
with the exact wording, and they literally read it to you.

Usually that's something like:
"You have the right to remain silent. Anything you say can be used
against you in court. You have the right to talk to a lawyer for advice
before we ask you any questions. You have the right to have a lawyer
with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to
answer questions now without a lawyer present, you have the right to
stop answering at any time."

After that, they will ask, "Do you understand each of these rights as I
have read them to you?" and if you answer, "Yes" they will ask if you
want to give up your right to remain silent. This would be a good time
to say, "No."

In fact, as soon as they start asking questions -- even if you're not
yet under arrest, they are "just chatting" with you, most lawyers would recommend you say something like the above and then keep your yap shut
-- say nothing it all.

In fact, one Quoran suggested you answer "No" to that first question (Do
you understand...?) on the grounds that even most lawyers don't
understand all the implications, much less the average citizen. But I'm
not a lawyer and I also can't claim to understand the exact effect of
saying "No" to that first question.




--
I do so have a memory. It's backed up on DVD... somewhere...

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Barry Gold <[email protected]> wrote:

RichD wrote:

Everyone knows the Miranda rules, including the right
to remain silent.

However, it seems, in real life and teevee, the arrestees
choose to talk. In newspaper reports, it's routine;
"The suspect told police he found the backpack in a dumpster ..."

What happens if you simply clam up? Can they use
that against you in court? If that's your constitutional
right, it shouldn't be allowed to prejudice the jury.
Will a judge qaush any such strategy, attempted by the
prosecution?

If you clam up, they can't use it against you. But it's important
that you tell them you're "clamming up".

The US Supreme Court has ruled on that question. On one hand, the
Court says you have the right not to make any statements:
"No person...shall be compelled in any criminal case to be a
witness against himself" And that applies to questioning before
the trial as well.

On the other hand, the Court has ruled that if you fail to mention
something that you then want to use in court, the prosecution can
point out that you didn't mention it when the police first asked.

But if you say, "I am invoking my right to remain silent", or
anything else that makes it clear you are exercising your fifth
amendment right (e.g., "I prefer not to make any statements
without my lawyer present", or "I'm taking the fifth". Typically,
when the cops arrest you they will "read you your rights" (in many departments the cops carry a little card with the exact wording,
and they literally read it to you.

Actually in practice that's one thing the TV shows get wrong. The
police don't normally "read you your rights" when they arrest you.
They're not required to do that until just before they question you.
So if you blurt out something that's not in response to a question by
the police, they CAN use that against you.

The police have, from time to time, tried to take advantage of that.
They might say or do things (without specifically asking a question)
designed to get an arrested suspect to say something incriminating.
The courts have not been kind to those kinds of tactics. But if, in
the silence of a police car on the way to jail, the suspect says
something that might be incriminating, it can be used in court.

--
Stu
http://DownToEarthLawyer.com

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On 12/22/2021 8:43 AM, Stuart O. Bronstein wrote:

Actually in practice that's one thing the TV shows get wrong. The
police don't normally "read you your rights" when they arrest you.
They're not required to do that until just before they question you.
So if you blurt out something that's not in response to a question by
the police, they CAN use that against you.

The police have, from time to time, tried to take advantage of that.
They might say or do things (without specifically asking a question)
designed to get an arrested suspect to say something incriminating.
The courts have not been kind to those kinds of tactics. But if, in
the silence of a police car on the way to jail, the suspect says
something that might be incriminating, it can be used in court.

What can I say? The one time I was arrested (marijuana possession) the
cops gave me the whole Miranda thing on the way to jail.

--
I do so have a memory. It's backed up on DVD... somewhere...

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Barry Gold <[email protected]> wrote:

What can I say? The one time I was arrested (marijuana possession)
the cops gave me the whole Miranda thing on the way to jail.

Maybe those cops watch too much TV. :-)

--
Stu
http://DownToEarthLawyer.com

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On December 22, Barry Gold wrote:

Everyone knows the Miranda rules, including the right
to remain silent.
However, it seems, in real life and teevee, the arrestees
choose to talk.
What happens if you simply clam up? Can they use
that against you in court? If that's your constitutional
right, it shouldn't be allowed to prejudice the jury.
Will a judge qaush any such strategy, attempted by the prosecution?

If you clam up, they can't use it against you. But it's important that
you tell them you're "clamming up".

My question is, during a trial, can the prosecutor point out
that the defendant was recalcitrant at the time of arrest,
he refused to answer questions?

Or, if an officer testifies, can prosecution raise this topic, asking
about the defendant's behavior?

--
Rich

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On 12/27/2021 10:22 PM, RichD wrote:

On December 22, Barry Gold wrote:

Everyone knows the Miranda rules, including the right
to remain silent.
However, it seems, in real life and teevee, the arrestees
choose to talk.
What happens if you simply clam up? Can they use
that against you in court? If that's your constitutional
right, it shouldn't be allowed to prejudice the jury.
Will a judge qaush any such strategy, attempted by the prosecution?

If you clam up, they can't use it against you. But it's important that
you tell them you're "clamming up".

My question is, during a trial, can the prosecutor point out
that the defendant was recalcitrant at the time of arrest,
he refused to answer questions?

Or, if an officer testifies, can prosecution raise this topic, asking
about the defendant's behavior?

"Recalcitrant" would mean he refused to "come quietly," perhaps
disobeyed orders, but not rising to the point of "resisting arrest",
which would be charged separately.

If the prosecutor asked whether the defendant refused to answer
questions, the defense would object, and the judge would (at the least) reprimand him for it.

It's the sort of thing that could lead to a mistrial if the defense
requested it. Or even a mistrial "with prejudice", which is what
Rittenhouse's defense lawyer requested. But the judge decided
(correctly, as it turned out) that the jury could disregard the
prosecutor's "indiscretion" and find in accordance with the facts and
the law.

("With prejudice" means the prosecution cannot try again. The case would
be over, unless an appeals court overruled Judge Schroeder.)

--
I do so have a memory. It's backed up on DVD... somewhere...

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RichD <[email protected]> wrote:

Barry Gold wrote:

Everyone knows the Miranda rules, including the right
to remain silent.

If you clam up, they can't use it against you. But it's important
that you tell them you're "clamming up".

My question is, during a trial, can the prosecutor point out
that the defendant was recalcitrant at the time of arrest,
he refused to answer questions?

Or, if an officer testifies, can prosecution raise this topic,
asking about the defendant's behavior?

In a criminal case they cannot mention that a person exercised his/her
right to remain silent. In a civil case they can.


--
Stu
http://DownToEarthLawyer.com

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