4 ms·

So we are now in a situation where if I am not under arrest, the things I don't say may be used against me, unless I explicitly assert that I am not waiving my

So we are now in a situation where if I am not under arrest, the things I don't say may be used against me, unless I explicitly assert that I am not waiving my rights as soon as possible.

bobwaycott 13y ago
> ... unless I explicitly assert that I am not waiving my rights as soon as possible. ... and it is determined that I am in a situation in which I am deemed lawfully allowed to have asserted said rights.
DannyBee 13y ago
To be clear: This was always true (legally), and this decision doesn't change this. As long as it was not a custodial interrogation, and you had not been formally charged, your words could be used against you (ignoring other procedural evidence rules for a second) without Miranda or other warnings. The only thing his decision changes is a long-standing open issue of when silence can be offered as proof of guilt.
- rflrob 13y ago
  >> The things I don't say may be used against me >This was always true (emphasis mine) On the other hand, the fact that there was a SCOTUS case about it means that while it may always have been true, it wasn't clear to everyone that it was true.
  - sageikosa 13y ago
    That was my emphasis as well. There are all sorts of internal internal-psychological/perceived-sociological reasons someone may go silent when in the presence of seemingly friendly authority (if one comes from an authoritarian household or religious background) that suddenly appears to turn on you. The layman who hasn't had a brush with adversarial police investigation techniques and doesn't have an explanation for a (seemingly) factual assertion by the police may simply not know how to respond, knows he needs to tread carefully lest something get pinned on him, but is unaware that silence is not considered careful at this moment (since, if he remembers, he is talking to the police without being cautioned or under custody).
  - DannyBee 13y ago
    It is still always true, legally, it just never made it to the supreme court in most contexts. SCOTUS held it could be used for purposes of impeachment in Jenkins. Most courts had held it could be used for all purposes, though there were some divisions, which were just resolved by the supreme court. So the view presented here, which seems to be "they just took away a right from me", is false.
passwdispasswd 13y ago
They are simply describing your reaction to the question, and when you are formally in custody you have an immunity to that reaction being described, is the best I can dumb it down. It's sad that the legal context of your presence would be the basis for whether or not you have a constitutional safe harbor that you can rely upon. But that seems to be Scalia's reasoning.

So we are now in a situation where if I am not under arrest, the things I don't say may be used against me, unless I explicitly assert that I am not waiving my rights as soon as possible.

bobwaycott 13y ago

> ... unless I explicitly assert that I am not waiving my rights as soon as possible. ... and it is determined that I am in a situation in which I am deemed lawfully allowed to have asserted said rights.

DannyBee 13y ago

To be clear: This was always true (legally), and this decision doesn't change this. As long as it was not a custodial interrogation, and you had not been formally charged, your words could be used against you (ignoring other procedural evidence rules for a second) without Miranda or other warnings. The only thing his decision changes is a long-standing open issue of when silence can be offered as proof of guilt.

rflrob 13y ago
>> The things I don't say may be used against me >This was always true (emphasis mine) On the other hand, the fact that there was a SCOTUS case about it means that while it may always have been true, it wasn't clear to everyone that it was true.
- sageikosa 13y ago
  That was my emphasis as well. There are all sorts of internal internal-psychological/perceived-sociological reasons someone may go silent when in the presence of seemingly friendly authority (if one comes from an authoritarian household or religious background) that suddenly appears to turn on you. The layman who hasn't had a brush with adversarial police investigation techniques and doesn't have an explanation for a (seemingly) factual assertion by the police may simply not know how to respond, knows he needs to tread carefully lest something get pinned on him, but is unaware that silence is not considered careful at this moment (since, if he remembers, he is talking to the police without being cautioned or under custody).
- DannyBee 13y ago
  It is still always true, legally, it just never made it to the supreme court in most contexts. SCOTUS held it could be used for purposes of impeachment in Jenkins. Most courts had held it could be used for all purposes, though there were some divisions, which were just resolved by the supreme court. So the view presented here, which seems to be "they just took away a right from me", is false.

passwdispasswd 13y ago

They are simply describing your reaction to the question, and when you are formally in custody you have an immunity to that reaction being described, is the best I can dumb it down. It's sad that the legal context of your presence would be the basis for whether or not you have a constitutional safe harbor that you can rely upon. But that seems to be Scalia's reasoning.