5 ms·

> this case turns on one of the most fundamental protections in our constitutional system: an accused person’s ability to exercise his Fifth Amendment rights wi

by dahart 5y ago

> this case turns on one of the most fundamental protections in our constitutional system: an accused person’s ability to exercise his Fifth Amendment rights without having his silence used against him. A very interesting tidbit I learned here on HN a couple years back — the Supreme Court ruled in 1992 that you have to declare out loud an intent to invoke your Fifth Amendment rights, if you haven’t been formally arrested yet. Literal “silence” may be acceptable after being Mirandized, but not necessarily before. https://harronlaw.com/blog/miranda-rights-texas/ https://harronlaw.com/blog/miranda-rights-texas/ https://www.oyez.org/cases/2012/12-246 https://www.oyez.org/cases/2012/12-246 “Question: Does the Fifth Amendment's Self-Incrimination Clause protects a defendant's refusal to answer questions asked by law enforcement before he has been arrested or read his Miranda rights?” No, by 5-4 vote.

titzer 5y ago
> No, by 5-4 vote. I was curious who voted which way. I was not surprised one bit.
- syspec 5y ago
  Share?
ashtonkem 5y ago
Then there’s the absurd case where a defendant was found to have not invoked his 5th amendment rights by saying “I want a lawyer dawg”. The court, with laughably straight faces, decided that he might have been asking for a dog lawyer. Courts can be shockingly corrupt.
- jaytaylor 5y ago
  I was skeptical, but a quick web search verified that this 100% happened - recently even, in 2017. https://www.washingtonpost.com/news/true-crime/wp/2017/11/02/the-suspect-told-police-give-me-a-lawyer-dog-the-court-says-he-wasnt-asking-for-a-lawyer/ https://www.washingtonpost.com/news/true-crime/wp/2017/11/02... > The Louisiana Supreme Court ruled that the suspect was, in fact, asking for a “lawyer dog,” .. That's bad, dawg.
  - deleted 5y ago
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  - deleted 5y ago
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  - ChrisKnott 5y ago
    From reading the actual concurrence [0] I would say that, yes, it does appear from the way he quotes "lawyer dog" near the end, that the judge thought the suspect was making a flippant remark referring to a theoretical dog that is a lawyer, however, (as the quotes from the lawyers later in the WP article point out) it would seem the actual key point was that he prefaced his request for a lawyer with an 'if' clause, and the precedent is that the request must not be "ambiguous or equivocal". The full quote - "This is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer, dawg, ’cause this is not what’s up." - can be argued to be equivocal. It's a common construction to express a hypothetical, e.g. "well if that's how you feel we should cancel the wedding" etc. The precedent should really be the other way around. You should treat any reference to wanting a lawyer as legitimate unless unambiguously established to not be. [0] https://www.lasc.org/opinions/2017/17KK0954.sjc.addconc.pdf https://www.lasc.org/opinions/2017/17KK0954.sjc.addconc.pdf
    - jakelazaroff 5y ago
      In the WaPo article, it's the DA who is saying that the request could be interpreted as subjective, not the Supreme Court justice. The relevant line in the concurrence: > In my view, the defendant’s ambiguous and equivocal reference to a “lawyer dog” does not constitute an invocation of counsel that warrants termination of the interview and does not violate Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). "Equivocal" probably refers to Demesme saying "if y'all think I did it", but nonetheless it's hard for me to read the concurrence as anything other than a bad faith interpretation of his request for counsel.
      - ChrisKnott 5y ago
        Yeah, I wasn't trying to suggest that the quotes were from the judge, just that they imply the issue that was actually being argued over in the case.
- aksss 5y ago
  What case is that, and what court?
  - Kranar 5y ago
    Louisiana Supreme Court: https://slate.com/news-and-politics/2017/10/suspect-asks-for-a-lawyer-dawg-judge-says-he-asked-for-a-lawyer-dog.html https://slate.com/news-and-politics/2017/10/suspect-asks-for...
- markjenkinswpg 5y ago
  Tell me an appeals court was unimpressed, dawg.
  - ashtonkem 5y ago
    I have bad news, dawg. Louisiana Supreme Court declined to hear the case, effectively upholding it.
wahern 5y ago
There's a certain irony in people thinking this was a bad decision. Let me explain: The right against self-incrimination originally arose because of a quirk in English law relative to continental European law, and middle-age French law in particular. See, in France judicial execution was only permissible if the accused confessed. You couldn't use evidence as justification to execute someone; the defendant had to confess. This was considered humane and progressive--evidence might be false, but surely nobody would confess to a capital crime they didn't commit. But this logic led down a terrible path. You could have the most brutal murderer in your hands, whom everybody knows without a doubt was guilty, but unless they confessed you could never execute them. (Life in prison just wasn't a thing because the state didn't have such an apparatus, at least not for common criminals.) So in a cruel twist of logic, there developed the system of torture for extracting confessions. Torture couldn't commence without eye witnesses, but this type of evidence wasn't taken in a proper trial (certainly not like we have today, or even as the English had at the time), AFAIU. So ultimately what you had in France and some other European countries was the most brutal criminal system imaginable, all because they were too absolutist and ideological in their understanding of how evidence can or should be used to mete out justice in light of the risk of error. By contrast, what developed in England was a much different framework. In England any probative evidence could be used as proof of a crime, even a capital crime, so long as it convinced a jury, and so long as the defendant could likewise introduce any probative evidence that could exculpate himself. The English thought the French system of torture and extracted confessions abhorrent (just as the French, ironically, thought it unthinkable the English could execute someone based on circumstantial evidence alone), though that abhorrence was slow to become comprehensively enshrined directly in the constitutional law, thus the notorious instances and regimes of torture and extracted confessions in England. But those instances don't detract from the overall weight and theoretical foundation of the law. Anyhow, my point is that in the spirit of English Common Law, the foundational rule is that any probative evidence should be admissible. Silence can certainly count as probative. And the core constitutional principle isn't that self-incrimination, per se, is bad, but that reliance on it can incentivize inhumane treatment of people. Furthermore, Miranda Rights are like a secondary or tertiary safeguard in service of preserving the core principles. All of which is to say that, while I'm not sure I would have decided the same way as those conservative judges, and to the extent we presume their sincerity, I can certainly appreciate the reluctance to exclude probative evidence based on an overly rigid and absolutist conception of how the government can make its case. Because history has proven that you can easily end up with the precise, extreme consequences--an unfathomably inhumane system--you're trying to avoid. The societal need to prosecute criminals will never go away, so there's always a balancing act at play. The lesson the English system took to heart is that, all things being equal, the more relevant facts you permit, the better. EDIT: Much of the above was said more succinctly by the 15th century Chief Justice John Fortescue in De Laudibus Legum Angliae: > For this reason, the Laws of France, in capital cases, do not think it enough to convict the accused by evidence, lest the innocent should thereby be condemned; they choose rather to put the accused themselves to the Rack, till they confess their guilt, than rely entirely on the deposition of witnesses.... By which over cautious, and inhuman stretch of policy, the suspected, as well as the really guilty, are, in that kingdom, tortured so many ways, as is too tedious and bad for description.

by dahart 5y ago

titzer 5y ago

> No, by 5-4 vote. I was curious who voted which way. I was not surprised one bit.

syspec 5y ago
Share?

ashtonkem 5y ago

Then there’s the absurd case where a defendant was found to have not invoked his 5th amendment rights by saying “I want a lawyer dawg”. The court, with laughably straight faces, decided that he might have been asking for a dog lawyer. Courts can be shockingly corrupt.

jaytaylor 5y ago
I was skeptical, but a quick web search verified that this 100% happened - recently even, in 2017. https://www.washingtonpost.com/news/true-crime/wp/2017/11/02/the-suspect-told-police-give-me-a-lawyer-dog-the-court-says-he-wasnt-asking-for-a-lawyer/ https://www.washingtonpost.com/news/true-crime/wp/2017/11/02... > The Louisiana Supreme Court ruled that the suspect was, in fact, asking for a “lawyer dog,” .. That's bad, dawg.
- deleted 5y ago
  [deleted]
- deleted 5y ago
  [deleted]
- ChrisKnott 5y ago
  From reading the actual concurrence [0] I would say that, yes, it does appear from the way he quotes "lawyer dog" near the end, that the judge thought the suspect was making a flippant remark referring to a theoretical dog that is a lawyer, however, (as the quotes from the lawyers later in the WP article point out) it would seem the actual key point was that he prefaced his request for a lawyer with an 'if' clause, and the precedent is that the request must not be "ambiguous or equivocal". The full quote - "This is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer, dawg, ’cause this is not what’s up." - can be argued to be equivocal. It's a common construction to express a hypothetical, e.g. "well if that's how you feel we should cancel the wedding" etc. The precedent should really be the other way around. You should treat any reference to wanting a lawyer as legitimate unless unambiguously established to not be. [0] https://www.lasc.org/opinions/2017/17KK0954.sjc.addconc.pdf https://www.lasc.org/opinions/2017/17KK0954.sjc.addconc.pdf
  - jakelazaroff 5y ago
    In the WaPo article, it's the DA who is saying that the request could be interpreted as subjective, not the Supreme Court justice. The relevant line in the concurrence: > In my view, the defendant’s ambiguous and equivocal reference to a “lawyer dog” does not constitute an invocation of counsel that warrants termination of the interview and does not violate Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). "Equivocal" probably refers to Demesme saying "if y'all think I did it", but nonetheless it's hard for me to read the concurrence as anything other than a bad faith interpretation of his request for counsel.
    - ChrisKnott 5y ago
      Yeah, I wasn't trying to suggest that the quotes were from the judge, just that they imply the issue that was actually being argued over in the case.
aksss 5y ago
What case is that, and what court?
- Kranar 5y ago
  Louisiana Supreme Court: https://slate.com/news-and-politics/2017/10/suspect-asks-for-a-lawyer-dawg-judge-says-he-asked-for-a-lawyer-dog.html https://slate.com/news-and-politics/2017/10/suspect-asks-for...
markjenkinswpg 5y ago
Tell me an appeals court was unimpressed, dawg.
- ashtonkem 5y ago
  I have bad news, dawg. Louisiana Supreme Court declined to hear the case, effectively upholding it.

wahern 5y ago

There's a certain irony in people thinking this was a bad decision. Let me explain: The right against self-incrimination originally arose because of a quirk in English law relative to continental European law, and middle-age French law in particular. See, in France judicial execution was only permissible if the accused confessed. You couldn't use evidence as justification to execute someone; the defendant had to confess. This was considered humane and progressive--evidence might be false, but surely nobody would confess to a capital crime they didn't commit. But this logic led down a terrible path. You could have the most brutal murderer in your hands, whom everybody knows without a doubt was guilty, but unless they confessed you could never execute them. (Life in prison just wasn't a thing because the state didn't have such an apparatus, at least not for common criminals.) So in a cruel twist of logic, there developed the system of torture for extracting confessions. Torture couldn't commence without eye witnesses, but this type of evidence wasn't taken in a proper trial (certainly not like we have today, or even as the English had at the time), AFAIU. So ultimately what you had in France and some other European countries was the most brutal criminal system imaginable, all because they were too absolutist and ideological in their understanding of how evidence can or should be used to mete out justice in light of the risk of error. By contrast, what developed in England was a much different framework. In England any probative evidence could be used as proof of a crime, even a capital crime, so long as it convinced a jury, and so long as the defendant could likewise introduce any probative evidence that could exculpate himself. The English thought the French system of torture and extracted confessions abhorrent (just as the French, ironically, thought it unthinkable the English could execute someone based on circumstantial evidence alone), though that abhorrence was slow to become comprehensively enshrined directly in the constitutional law, thus the notorious instances and regimes of torture and extracted confessions in England. But those instances don't detract from the overall weight and theoretical foundation of the law. Anyhow, my point is that in the spirit of English Common Law, the foundational rule is that any probative evidence should be admissible. Silence can certainly count as probative. And the core constitutional principle isn't that self-incrimination, per se, is bad, but that reliance on it can incentivize inhumane treatment of people. Furthermore, Miranda Rights are like a secondary or tertiary safeguard in service of preserving the core principles. All of which is to say that, while I'm not sure I would have decided the same way as those conservative judges, and to the extent we presume their sincerity, I can certainly appreciate the reluctance to exclude probative evidence based on an overly rigid and absolutist conception of how the government can make its case. Because history has proven that you can easily end up with the precise, extreme consequences--an unfathomably inhumane system--you're trying to avoid. The societal need to prosecute criminals will never go away, so there's always a balancing act at play. The lesson the English system took to heart is that, all things being equal, the more relevant facts you permit, the better. EDIT: Much of the above was said more succinctly by the 15th century Chief Justice John Fortescue in De Laudibus Legum Angliae: > For this reason, the Laws of France, in capital cases, do not think it enough to convict the accused by evidence, lest the innocent should thereby be condemned; they choose rather to put the accused themselves to the Rack, till they confess their guilt, than rely entirely on the deposition of witnesses.... By which over cautious, and inhuman stretch of policy, the suspected, as well as the really guilty, are, in that kingdom, tortured so many ways, as is too tedious and bad for description.