Does Miranda Help or Hurt Us?

Over the last couple of years, we have seen a ton of clamoring from both sides of the political spectrum over the fact that those who have committed alleged terrorist acts have been read their Miranda rights upon capture. Those on the right tend to lean towards their actions falling under an act of war, and therefore, the defendant should not be treated as a criminal, but instead as a war criminal (where no Miranda is necessary, but informing of a right to counsel is under some circumstances). Those on the left tend to feel that those who commit acts of terror are criminals just like any other, and therefore, they should be read their Miranda rights as required. I want to first state that I personally don’t think that the reading of Miranda rights to these terrorist suspects means a single thing. After all, it certainly doesn’t seem to stop us from getting the information that we are after….

Let me be clear here. When we no without a doubt that someone has blown up a bomb and killed innocent women and children, I really do not give a rat’s ass about their rights under Miranda. I don’t care if they get a lawyer or not. They killed innocent people in an act of terror. Screw em. That isn’t to say that I believe that they have NO rights, because that certainly isn’t the case. We cannot authorize true torture or forced confessions. But when a guy sings like a canary under questioning, I don’t care if someone informed him that he didn’t have to admit what he did before hand. If he admits it, he did it. If you want to eliminate the false issue of false confessions under physical duress, simply require all interrogations to be taped, and don’t allow any evidence gathered through false coercion. But the idea of Miranda rights seems like a flawed concept in the first place from where I sit.

Let me first lay out the requirements under Miranda law. The law states that the suspect must be informed that they have the right to remain silent, that they have the right to have an attorney present for questioning, and that if they cannot afford an attorney, one will be provided. The Miranda rule applies to the use of testimonial evidence in criminal proceedings that were obtained in the process of custodial police interrogation. Miranda right to counsel and right to remain silent are derived from the self-incrimination clause of the Fifth Amendment. Therefore, for Miranda to apply six factors must be present:

  1. Evidence must have been gathered.
  2. The evidence must be testimonial.
  3. The evidence must have been obtained while the suspect was in custody.
  4. The evidence must have been the product of interrogation.
  5. The interrogation must have been conducted by state-agents.
  6. The evidence must be offered by the state during a criminal prosecution.

The Miranda decision was controversial when handed down, and now appears to be accepted without question. My opinion is that, without taking the actual Supreme Court decision into account, the 5th amendment does not support Miranda. The section cited is “nor shall be compelled in any criminal case to be a witness against himself,” otherwise known as the self-incrimination clause. It is my opinion that the court went to far in the decision, doing as the Supreme Court often does, rather than simply interpreting the law, they added to the law. Justices Harlan, White, and Clark agreed with my opinion on this.

As one little piece of historical trivia, it should be noted that the historic case of Ernesto Miranda, the trial was redone after the Supreme Court Decision without the use of his confession, and Miranda was convicted of the Kidnap and rape of the 18 year old in question. He was sentenced to 20-30 years, beginning in 1967. He was paroled in 1972 and was stabbed to death in a bar fight in 1976. Too often I have heard people claim that the case was one that involved an innocent man who was coerced into confessing something he didn’t do. I just wanted to point out that this was not the case.

Now, as to the terrorist suspects that we are discussing in the news today. They are, under the request of the Obama administration and Eric Holder, being read their Miranda rights and are, at that point, able to clam up and answer no questions. NOT all of them are doing so. From the reports that I have read, it appears that at least some of the suspects continue to talk and give information after being informed of their rights. Others are completely shutting down and saying nothing, under the guidance of their defense lawyers.

The way it goes is that if a defendant requests a lawyer, no further interrogation can occur until the lawyer is present. There is, however, a way around this in the event that the suspect may have information pertaining to imminent danger to the public. This is called the “public safety exclusion”. That means that if a suspect may be aware of another attack, or the placement of a weapon of mass destruction, for example, they may be questioned without being informed of their Miranda rights and the information that they provide is admissible, even though it may incriminate them. This may become an important issue soon, as Eric Holder the other day stated that, “the administration needs to consider at least modifying the public safety exception for reading a suspect his rights.”

I guess the question that I have is whether, first, the Miranda law really is supported by the self-incrimination clause of the 5th Amendment. I understand what the court was saying, but I think they went too far in doing so. Questioning a suspect and attaining a confession seems reasonable to me. Torturing a person and attaining a confession does not. So ban the torturing, and allow the questioning. But I don’t believe that the Constitution supports the Court’s ruling. Then again, a majority of the Supreme Court Justices on that particular court think I am wrong, so maybe I am (but I don’t think so).

What purpose does the Miranda law actually serve? I know supporters will say that it is keeping innocent people from confessing to crimes that they did not commit. First, if a person confesses to a crime they did not commit, they are a dumbass. But realistically, I think this would be a VERY rare occurrence. On the other hand, we have people who are guilty, but are released because of a Miranda violation. There are actually people who admit they did the crime publicly, under no duress, but walk away free because of a technicality on the Miranda law. How does this make any sense at all? No person who is guilty should ever walk away free on a technicality. That is not an example of us being a better society living under the laws we create. That is an example of a stupid society that is so blinded by law that they fail to properly hold the guilty accountable.

As a side note, I am not a fan of any of the “technicality” rules that limit the ability to prove the guilt or innocence of a person who commits a crime. The idea that we have emails where they talk about planning a crime, but those emails cannot be admitted as evidence because they weren’t obtained with the proper paperwork is insane. Likewise, the idea that evidence showing innocence can be suppressed because it doesn’t meet some false level of bureaucracy is equally horrible. There was a case here in NC lately where a man spent 17 years in jail for a crime he didn’t commit because of a State Bureau of Investigation “protocol” didn’t allow for the three DNA tests that exonerated the guy to be presented at trial after the first DNA test showed him guilty (Gregory Taylor, released this year).

In the end, my personal opinion is that it does not matter one bit whether these suspected terrorists are read their Miranda Rights or are not read their Miranda Rights. The media on both sides of the issue tend to blow the subject up, but I think it is nothing more than a fluff piece to get people riled up. The conservatives, simply because it is a liberal administration, will yell and scream that terrorists should not be treated like regular criminals. The liberals, simply because it was a GOP administration previously, will yell and scream that these monsters were not treated fairly because of a lack of Miranda. I say they are both full of crap. Whether they are read their Miranda Rights or not matters not one whit in the big scheme of things, and it is an argument we should ignore from this point forward.

I am, of course, open to hearing differing opinions. So what do all of you think? Should we be reading Miranda to terrorist suspects? Does it matter? What about the entire concept of Miranda as a whole? Was the court right in their interpretation of the Constitution’s 5th Amendment on this issue? Is the Miranda rule something that we even need, or conversely, does it simply apply a band-aid to a gushing wound of flawed justice system inadequacies? Does the Miranda law help our justice system or does it hurt our justice system?

Advertisements

Comments

  1. Its too early to think just yet but I just wanted to be the first one to comment. First time for everything.

    Good Day Everyone !

    • I agree, the brain is still in neutral. I’ll have to catch up later after a long day of contract talks (boring). I can see where a moment of calmness (the giving of the Miranda rights) could help deflate a tense moment during an arrest. I’m not a cop, but would be a bit uptight if I was arresting a child rapist, and maybe reading those rights wuld be enough to calm things enough that the child rapist don’t end up with a complete butt whoopin.

      However, G.A.Rowe and some others are more qualified on this subject. But, will add, in the defense of one’s person or property, they have no rights except to be afflicted with lead poisoning, (enter the EPA 🙂 ).

      Have a good Monday!

      G!

  2. PeterB in Indianapolis says:

    OT for today, but everyone should read up as much as they can on the “European Nuclear Option” which was used to stabilize global markets. This is “Fiat Bailout Part IV” in which yet another $1 Trillion was created out of thin air and loaned to the PIGS countries in order to stave off massive defaults and the possible collapse of the Euro.

    “LOANED???” Give me a break! People and countries are expected to REPAY loans. That will NEVER happen.

    World financial markets will skyrocket today. Pay no attention to that. Watch the price of gold instead. We are now up to over $3 Trillon “created” worldwide by the “central banks” of the world. Ultimately, not a single dollar of that $3 Trillion will be worth anything.

    They did EXACTLY what any sane person will tell you SHOULD NEVER BE DONE! They postponed the crisis without SOLVING the underlying reason for the crisis, which in the end will make the ultimate collapse far worse than it could have been.

    This also had the effect of reinforcing the “global market” idea. The problem with that is that when the massive collapse comes, it will not be possible to contain it to one country or even one continent. We have now pretty much guaranteed that when one domino falls the whole stack will go along with it.

    As JAC says, “WE ARE SO SCREWED”.

    Special thanks to Marx, Lenin, Stalin, Hitler, Keynes, and every modern “Politician” for completely failing the entire world economically speaking.

    The window of opportunity to ACTUALLY FIX THE PROBLEM _MIGHT_ still exist, but if it does, it is closing fast, and is going to require a quick and decisive complete paradigm shift in order to avert global financial collapse.

    Unfortunately, I for one am not optimistic.

    I would love to see Mathius, Buck, Chris, and a few others explain in concise and easy to understand terms exactly how all of these US and European “bailouts” are ACTUALLY GOING TO WORK and not cause the collapse I have described.

    No jargon, no gobbledygook, just a clear, concise, forthright answer as to why I am incorrect. The gauntlet has been laid down!

    • Mathius says:

      My father is a wise man. He likes to say that when the economy is doing well, people believe that it will continue to do well forever, and when it is going poorly, people believe that it is in a death spiral.

      The world economy will not collapse entirely. At the worst, we enter a protracted period of Great Depression caliber on a world scale. But the economy will recover, and the US will be here when it does. So let’s say you’re right and the royal shit does hit the royal fan. Sooner or later, things will level off and we’ll claw our way back to the good times.

      How’s that?

      • PeterB in Indianapolis says:

        Mathius,

        Yes I am probably over-reacting a bit. Most likely there will be a vast global depression, and it is at least fairly likely that the US will still be here to claw our way out of it when we are done.

        However, the magnitude of the depression will likely be STAGGERING since the world has created somewhere north of $3 TRILLION that did not previously exist, and ALL of this 3 trillion has been magically created in the past 2 years.

        Phantom currency creation has NEVER occurred on that scale that quickly. We are in uncharted territory my friends, and most of us do not even comprehend the creation of $3 Trillion out of thin air. Such a thing will have ramifications which we do not begin to suspect as yet.

        • Mathius says:

          Could be.

          Then again, maybe it won’t.

          Economics is somewhat hit-or-miss when it comes to seeing the future.

          But I could sit here all day listing for you disasters that people thought were coming that never materialized. Likewise, I could sit here all day listing for you disasters that people never saw coming.

          The list of disasters that occurred and that we saw coming in advance is far shorter.

          • Mathius,

            Economics is not hit-and-miss in its future predictions – if your economic theories are such, they are flawed!!

            MY economic theories so far have been 100%.

            • Mathius says:

              Wow.. I’m in awe.. can you tell me what Friday’s close of the DOW will be? I’d like to buy some options.

              • Matt

                The DOW is not an economy.

              • Mathius,

                JAC is correct.

                The DOW is NOT economics.

                It is investing (or speculating).

                I can say that if you flood a nation with fiat currency, you will get inflation.

                If you monetize the debt, you will get inflation.

                If you do not monetize the debt of the government, you will get a Depression.

                You can play the game of inflating/deflating – causing booms and busts – for a long time.

                One day, the game will not play.

                Then you get economic collapse.

                That is what economics says.

        • Bama dad says:

          Peter to comprehend how large a number 3 trillion is, look at it this way:

          3 trillion seconds is 95,064 years.

          • Mathius says:

            3 trillion Angstroms is 984 feet.

            3 trillion miles is a little more than 1/2 a lightyear.

            3 trillion Zimbabwean Dollars is roughly 80 cents.

            • Bama Dad says:

              “3 trillion Zimbabwean Dollars is roughly 80 cents.”
              And if we keep printing money and running up more debt our US dollar will equal the same.

              • Bama Dad,

                First, the good news.

                The US$ will never fall to that level.

                Now the bad news…..

                It only has to fall 1/100,000 the way and the end of civilization as we know it will happen.

              • So at that point one dollar = what?

  3. Mathius says:

    Having rights is not enough if people do not know that they have the rights.

    For example, in NYC, cops who suspect individuals of drug possession will say something like this: “I know you have drugs on you. Take them out and give them to me now. If I search you and find them myself, you will be in much more trouble.” What they don’t say is that they have no right to search you and that if you don’t turn out your pockets, you can walk away without any trouble.

    You see, you have the right to not be searched without due process, but the cops will deliberately make it seem that no such right exists. In this way, they have arrested and fined hundreds of thousands of people who did not know their rights.

    Without Miranda, I find it likely that police would employ similar tactics to make it seem that you don’t have the right to remain silent or have a lawyer present, etc.

    • I agree that Miranda rights are necessary to be read to criminals/potential criminals/individuals being arrested…under (and I hate to say it like this) normal conditions.

      When the crime is something like 9/11 or the shoe bomber, the underwear bomber, or the more recent incident of car bomber, I believe if there is a relatively good chance they may know of more of the same type crimes either planned or about to be comitted then the reading of those rights can at least wait until it determined the perp. has no such information, or if the information is obtained.

      • Mathius says:

        Either we are a nation of laws or we are not.

        We cannot have the government choosing when to and when not to honor people’s rights.

        Strangely enough, you’re basically arguing my side of things: that sufficient reward justifies trampling some rights. I do wonder what the pirates in these waters would have to say about that….

        • An ecellent point Matthius.

        • Bama dad says:

          I get the part where we are a nation of laws, so yes the law needs to be followed when dealing with criminals. Terrorism is not a criminal act IMO, it is closer to an act of war.

          • I agree-most everyone admits that we are in a different kind of war-one where a specific country can’t be pointed too-something which I think is intentionally done by some countries as a new covert strategy of war. We need to address this difference and make new laws that apply.

            • Mathius says:

              I see.. and you are the one who gets to decide who is entitled to Classic-American brand justice and who gets the special post-911 brand?

              What criterion do you intend to use in your new role?

              • It seems obvious that the post 9-11 version isn’t working very well-every time another attack happens no one seems to know who should handle what or what rules apply so it seems prudent to address this problem and put some concrete rules in place that apply. Do you have a problem with different rules when a country attacks or do all situation require the exact same rights and procedures be followed?

          • Mathius says:

            OK.. and where does one draw that line? What metric do you use?

            Is gang violence part of and act of war? When hoodlums do a drive-by in an attempt to intimidate a neighborhood, how is that different than a terrorist trying to blow up a car in times square? Is it that they’re using guns instead of explosives? Should we be able to treat gang bangers as ‘enemy combatants’?

            If you want to treat someone as an enemy combatant, in my humble opinion, they had better be engaged in an organized combat operation authorized and funded by an enemy country or organization. Otherwise, they’re just criminals.

            A crazed man trying to blow up his shoes is just a criminal. To treat him otherwise, is to elevate him. It is saying he is special. Not only is it drawing an arbitrary and unjustified distinction, but it is holding him up as a role-model for other crazed individuals.

            • Bama dad says:

              I agree a lone crazed man trying to blow up his shoes is a criminal. But when he is trained, financed and supplied by an organization whose stated goal is to kill innocent people he then becomes a terrorist, not a criminal.

            • Good questions-the answer is how we choose to define an act of war- but planning an attack on American soil with people from another country in support of their ideology I believe qualifies as a pretty good distinction between a criminal and a terrorist.

              • Mathius says:

                So when a Mexican gang plans a murder on American soil, that would qualify? (their ideology is that they can do whatever they want)

              • If the Mexican gang members plan such killings in league with a group or organization in or from Mexico. Yes

              • Right now….the Mexican Gangs are criminals. The minute that they become state sponsored….they become an army.

              • D13

                At what point does State sponsorship occur?

                I assume it is more than members of the govt who contribute support on the sly, like Saudis.

                Is there an accepted threshold?

              • Hi JAC….yes…I think that would be so. It would have to be condoned and carried out by the state…and not just someone on the government take….but like Iran sponsors Hamas and Hezbollah…they are state supported terrorists.

              • D13

                So in your view there are those in an army and those who are criminals. Is that right?

                If they are state sponsored and thus soldiers without uniforms, then are they not also spies and/or saboteurs if caught attacking US citizens or installations?

                In my view this means they would be subject to the Geneva Conventions.

                But when they are caught we do not know who is state sponsored and who is not. So we still have the Miranda issue until we can find the evidence connecting them to a State sponsor. Would you agree with this also?

                I am looking for some simple definitions that can be applied easily in deciding who is a soldier and who is a criminal.

                Feel free to help out on this one.

                🙂

                Are ALL acts against civilians terrorism?

                If so, does it apply only to non-uniformed state sponsored soldiers

            • Mathius, you said:

              “OK.. and where does one draw that line? What metric do you use?………………….

              If you want to treat someone as an enemy combatant, in my humble opinion, they had better be engaged in an organized combat operation authorized and funded by an enemy country or organization. Otherwise, they’re just criminals.”

              Did you not answer your own question in the same post?

              • Mathius says:

                I was asking for Bama’s answer. For me to categorize someone as a combatant, they have to be engaged in combat. Seems obvious enough to me, but I was interested in his take.

              • It does take on a rather obvious view…

            • Matt says: “they had better be engaged in an organized combat operation authorized and funded by an enemy country or organization.”

              D13 responds: There is no country on this earth that has the capability nor the will power to engage the United States like the “old” days. The new war is state sponsored terrorism. That is a fact. Not an over seas frigging contingency or man made disaster…state sponsored terrorism. The Somali Pirates are criminals. The Crips and Bloods are criminals. Islamic……..ISLAMIC…..terrorism is state sponsored and the new armies. IED’s, shoulder fired missiles are the new armaments of the new armies. State sponsored terrorism is a declared war. it does not take a congress any longer.

              China, Iran, Russia, North Korea….cannot field an army that can conquer. They cannot field an air force that can go further than 700 miles without losing everything they have. They cannot put a navy on the high seas that DPM could not beat by himself with a broadside from Thor.

              The lone shoe bomber is the same as a platoon or company or brigade. The times square bomber is the same as a platoon, company, or brigade. It is not the size of the army that matters any longer unless you wish to conquer territory on a quick basis. These individuals are not by themselves and are not criminals in the civil sense.

              • Dread Pirate Mathius says:

                Y’AARGH. Me ships name be Thor’s Hammer. She deserves her full name when be speaking of her. But, aye, ye speak true – there be not a single vessel upon the seven seas that could take her in a fair fight (or an unfair fight for that matter). Adamantium armor (yet she floats anyway), photon torpedoes, and a rail gun, and best of all, she’s docked at the Freedonia seaport.

              • Mathius says:

                Hail, hail Fredonia..

              • D13…..(bowing low…but keeping eye contact with Dread Pirate lest I get a cutlass)…My apologies for not offering the entire name of Thor’s Hammer….A mighty ship she is…I noticed an addition to your crow’s nest to look out for para-raptors….good thinking…

                Be mindful of the consumption of grog by your crew, sir….they were singing so loudly the other night…they did not heed the approach of my sub-rapto-marine. It does not have stealth tech yet….Damn rapto captain keeps sticking his head out of the conning tower instead of using the periscope….hard to train sometimes.

        • PeterB in Indianapolis says:

          The pirates would say that the recognition of rights should be universal, regardless of the “crime”.

        • ******* thud ******** D13 passed out straight away.

          Matt says: “Either we are a nation of laws or we are not.”

    • Mathius,

      While your argument does describe a problem (Police lying), the solution you present, I believe, does not solve it.

      I do not like Miranda at all. In this, I agree with USWep. It is a wrong answer to the wrong problem.

      Too often, a criminal will confess, without coercion, and later his attorney will successfully have it negated because he happened to blurt it out before “miranda”ized his rights.

      The knowledge of your rights are yours to learn – no one else’s duty to teach you.

      However, police lying to obtain a confession should invalidate the confession. This will, correctly, create circumstances of what constitutes a lie or not, but the question exists in the correct framework – police lying – instead of determining an increase or decrease in human rights.

      • Dread Pirate Mathius says:

        The threat of the imposition of force upon the non-violent civilian by the government (as personified by the police) is sufficient to coerce a confession of the perceived crime so as to mitigate the possible damage of a worse conviction. That is, regardless of what you know to be your true rights, you operate within the framework of a superior force and must be advised of what rights are recognized within that framework. That you know you have the right to remain silent is great, but if you are in North Korea, you are best advised that that right will not be recognized and the exercise thereof will be met with violence upon your person. That said, it is only fair that if a freeman such as ourselves is accosted by an officer of the government, it is only fair that he advise us of which rights he is willing to recognize. It is my duty to know my own rights, but if someone else intends to overlay an artificial set of rules, it is his obligation to advise me of them.

        While I recognize that deliberate deception is at issue with the example Mathius provided, so too is the lack of notification of which rights will be respected by the enforcers of societal rules.

        <Too often, a criminal will confess, without coercion, and later his attorney will successfully have it negated because he happened to blurt it out before “miranda”ized his rights. Perhaps, sir, perhaps. But, firstly 99 times out of 100, these crimes are not true crimes but simply things that society has decided to make into crimes but which freemen would be entirely within their rights to do. Secondly, this probably happens extremely rarely despite the media hype when it does. But that is all irrelevant. If we accept that allowing society to imply that it will not acknowledge your rights is tantamount to not acknowledging your rights (you will not exert them for fear of repercussions via government force) then we must acknowledge that not telling you that you can safely exert your right to stay silent is equivalent to not allowing you to safely exert your right to stay silent. Thus, it is robbing me of my rights by threat of force. As such, though some guilty parties will escape conviction, others would have had their rights violated.

        You, too, are a pirate, and you tell me the obvious answer: can I deprive one man of his rights so that another man will face justice?

        • To your question; No.

          Response to the rest of your piece:

          Your argument is very good and compelling.

          However, it makes an assumption – that the imposition of force is a right.

          You argue that a man – who is about to shatter the rights of a non-violent man – must agree to the non-violent man’s right to know what his rights are!

          “So I can break your rights, you have the right to know what few rights you have left before I break the one you have.”

          A bit strange, no?

          Thus, the exercise is precisely that – by Mirandizing, and accepting its existence creates the argument that it is ok to crush human rights as long as you have the right not to talk.

          Thus, I do not support Miranda – since I do not agree in the breaking of the rights in the first place – I will not agree by inference either.

          • Dread Pirate Mathius says:

            I think you’re misunderstanding me a little bit. If I am going to violate your rights, I am ethically bound to mitigate the resultant harm from doing so. That is, while I am in the wrong to violate your rights in the first place, I must do what I can to reduce the damage.

            Society has said “I am entitled to override your rights.” This is immoral. Beyond the obvious, it also means that you must figure out which of your rights are being overridden by threat of violence and which remain in effect. However, someone’s immoral actions cannot morally create cannot create an imposition on you. (If I break into your house and make a mess, it’s my obligation to clean it up, not yours). So it is society’s obligation when acting immorally to do bear the burden of making sure you understand what it is and isn’t doing. Agree?

            In short: why should we have to do more work to figure out society’s artificial rules if society is in the wrong to force them on us in the first place?

            • Mathius,

              As I said, your argument is quite compelling, though a bit contradictory.

              Relief of one contradiction by another…. but, I must admit, you put up a strong argument here.

              I’ll have to digest it for awhile.

              • Dread Pirate Mathius says:

                Digest away. I have a house up on the hill by the sea in Freedonia – stop by for some grog if you like. I hear it aids digestion.

                Adding, I don’t see the contradiction.. can you clarify?

              • Dread Pirate.

                The ethical standard is to NOT initiate violence or force against an innocent person.

                The minute you violate the rights you also violate the ethic. Thus you have already eliminated your supposed ethical need to mitigate the taking of the right.

                The contradiction is taking the right then trying to claim the ethic which stands upon the right itself.

              • Dread Pirate Mathius says:

                #12 below

      • USWeapon says:

        Excellent BF!

        I agree that the rights that we have are ours to learn, not their to inform us about. I also like your approach to a solution. What we need to eliminate is the belief by police authorities that they have the right to lie or unfairly coerce someone into a confession. The question is who decides what a lie is and how do we enforce it?

        In today’s age, it would seem much easier to me to handle this through the mandatory recording of all questioning and interrogating. Doing so in today’s world in cheap and easy to store. Digital recording means you don’t need a gigantic warehouse to store this information in. A few sufficiently large hard drives would do the trick. Record everything, make sure it is available, and then everything is admissable unless the same jury convicting feels that the information was obtained through dishonest tactics and whether it was credible. Much easier for 12 peers to get a grip on whether you were giving an honest confession when they see the tape. And it would hold our law enforcement to a higher standard of conduct.

        Your thoughts?

        • USWep,

          I agree with the 12 peers idea – you can fool a few, but you can’t fool us all — and if you can, you’re darn good at it, and should get away with it, anyway! 😉

        • Dread Pirate Mathius says:

          What you are effectively saying is this: If someone imposes on me immorally, it is my obligation to figure out what they are and aren’t doing. In other words, your immoral actions create an obligation on me, but you are somehow not morally obligated to take care of it – I am.

          If you see me wandering around your property laying bear traps, you would say that I have an obligation to remove them. If I exert my might-makes-right superior force to refuse to do so, you would probably argue that I, at least, have an obligation to leave you a map of the traps so that you don’t step in one.

          This is exactly what is at work here. The government is violating your rights left and right, and declares through force that it may do so if it likes. Given that it will continue to do so whether you like it or not, it at least has an obligation to give you a map of your rights so you know which you still have and which you do not.

          (Note: Mathius has a different argument for this but feels that the Dread Pirate will be more persuasive)

          • Dread Pirate.

            Your placing traps on my property is trespassing. If I ask you to remove them and you become belligerent then I will shoot you and hang your hide on the fence. I will keep your traps as compensation for my troubles and to help prevent further trespasses.

            Making a map is not an obligation. Asking for one is a surrender of the one imposed upon. Mathius would probably call that a “compromise”.

            • Dread Pirate Mathius says:

              You may not impose violence on some except in self defense.

              And I, the trespasser, have an obligation to minimize my harm (Mr. Flag established this a few months back when we discussed accidental trespass). I am obligated to fully redress my harm, but I would argue that a man who refuses to do so fully is still obligated to take the lesser step of partially mitigating his harm. Though this does not alleviate his obligation to mitigate further damage, he still has a duty to do the half-measure. (If you owe me 1,000 gold coins but only are willing to pay me 100, you have to pay me the 100. You will still owe 900, but that does not mean you’re off the hook for the first payment).

          • Dread Pirate

            Govt has no obligation to inform you of anything, unless we the people require the government to do so. And of course, even that is not enough to guarantee that govt complies with what we tell it to do.

            This is where the Courts were wrong with devising the Miranda criteria. There was no such obligation and the Court simply made it up.

            But Congress later codified it into law. Thus it is now an obligation created “supposedly” by the people’s representatives.

            • Dread Pirate Mathius says:

              The government is morally obligated not to impose on me. It chooses to do so anyway. Therefore, it is still obligated to impose on me as little as possible. I interpret that to mean that it is obligated to be clear in letting me know what rights it is infringing upon and which it is not.

              If you do something immoral, you have to take responsibility for the repercussions. If you infringe upon my rights, you have to help me make the best of the resultant situation. If you burn my house down, you have to help me build a new one. If you take away some of my liberty, you have to make it clear to me what I have left.

              Forget the laws, we’re talking ethics here.

        • I think the idea of recording every interrogation and even the arrests themselves is a good one. It would definately hold police to a higher standard. In the absence of resources to record such things, having more persons present for all interrogations would be a requirement.

          And those recordings, uncut, should be able to be subpeonaed by the defense.

          • Dread Pirate Mathius says:

            The government is morally obligated not to impose on me. It chooses to do so anyway. Therefore, it is still obligated to impose on me as little as possible. I interpret that to mean that it is obligated to be clear in letting me know what rights it is infringing upon and which it is not.

            If you do something immoral, you have to take responsibility for the repercussions. If you infringe upon my rights, you have to help me make the best of the resultant situation. If you burn my house down, you have to help me build a new one. If you take away some of my liberty, you have to make it clear to me what I have left.

  4. I don’t have a big issue with Mirana rights, they do not seem that far out of the scope of the 5th amendment except for the attorney part. I think that attorneys should be present for court cases, not the parts before that. The right to remain silent, however, should still be in place and it should be communicated.

    I do not believe that people should get off on technicalities. Such things frustrate otherwise good police work just because something was missed in procedure. Criminals sure don’t follow such a code. I do think, however, that those who did not follow procedure should be punished for it. In cases like Matthius mentions where they did what ammounts to a coersive act, they should be suspended. If they go further and do an illegal search, they lose their badge. Period. And if they broke and entered onto private property as well, they should face B&E charges. Two wrongs do not make a right, meaning that a cop who did something wrong should not exhonerate a guilty party, but neither should the cop get away with a rights violation.

    I think Terry has a point abot the circumstances of an arrest, but I will have to think more on that one…

  5. Displaced Okie says:

    Mathius said:
    “For example, in NYC, cops who suspect individuals of drug possession will say something like this: “I know you have drugs on you. Take them out and give them to me now. If I search you and find them myself, you will be in much more trouble.” What they don’t say is that they have no right to search you and that if you don’t turn out your pockets, you can walk away without any trouble.”

    Displaced Okie says:
    Ok, here’s the deal, We can’t just walk up to people search them. We usually have to develop Probable Cause first. I have seen the scenario Mathius describes play out many times, but never on just some poor dude walking down the street. It has always been post arrest for something worse–I mean if I arrest you for a felony, why would I want to do all the work to slap an extra misdemeanor on you?(of course that just might be me and my aversion to paperwork…) 🙂

    Anyway, my thoughts on miranda warnings as they stand now in regard to terrorists(this is pretty much the same as my views with appointing counsel). If we are going to charge them with a crime and put them through the Criminal Justice system, we have to play by the rules. It is as simple as that. Now, don’t get me wrong, I am not a big fan of my tax dollars going to defend these guys, but if we start making exceptions now it can only lead to bigger problems and abuses of the system later. Selective enforcement of laws should scare all of us.

    Oh and one more thing, just because a person does not have a miranda warning read to them they don’t get to just walk free. It just means that information obtained from the questioning is not admissable in court. Take the attempted attack in Times Square for example, If they have enough physical evidence from the crime scene to get a conviction they really don’t need a confession.

    Ok, last thing regarding Miranda warnings(I swear). If ignorance of the law is no excuse, then why is ignorance of your rights?

    OK, done now.

    Stay safe and Live Free,
    Displaced Okie

    • PeterB in Indianapolis says:

      Good stuff Displaced Okie, especially that last part 🙂

      • Displaced Okie says:

        Thanks Peter,
        Do you think there can be such a thing as a cop/pirate? 🙂

        • PeterB in Indianapolis says:

          Certainly, although they are rare.

          A cop/pirate would primarily care for the protection and defense of the rights of free people, and would strongly favor laws that actually made sense in terms of freedom and individual rights, while rejecting laws which actually violated individual rights and restricted freedom.

          Such beasts are rare, but I think I spotted one in the north woods a few years back… or was that Sasquatch…

          ??
          🙂

  6. Cyndi P says:

    posting for comments

  7. PeterB in Indianapolis says:

    I think it might be useful sometime for BF, perhaps myself, perhaps Jon Smith, and anyone else who wishes to participate to have some discussions on exactly where we are now, where we SHOULD be, and how to get from A to B. Frequently any idea whatsoever on how to get from A to B is completely missing, and I feel that that confuses a lot of folks.

    For example, today BF stated that he does not like Miranda, because it should be your own personal responsibility to know your rights. I agree with him.

    However, we have this little problem that currently reciting Miranda warnings to people being arrested is the current rule. As a practical matter, if you are arrested or if you are making an arrest in this country currently, that rule simply cannot be ignored without obvious adverse consequences.

    So, we have a conflict. In the “ideal world” we would have no Miranda warning, simply because everyone was responsible for knowing their own rights. In the “current world” the Miranda warning is a requirement, at least in this country.

    The missing steps are the steps which get us from “current” to “ideal”.

    IMO, it is great to describe the ideal situation, and tell why you think it is ideal, but we must come up with the beginnings of a roadmap to get there, or most people will simply persist in claiming, “you are just a crazy idealist… that would never actually work!” (Which is the #1 complaint that us “no-government” types get on a daily basis, no?

    • I would LOVE that. I have tried to devote a lot of thought and some of my writing to the “how do we get there from here” subject. It is not easy, and I found it hard to stay on task, especially since the philosophical differences always come up, and I tend to gravitate to those. I would welcome a group effort between some of the great minds here to hammer that A to B stuff out tho. Just pick a subject. We can do it here or on my blog or somewhere else. Heck, we can do it by phone or email. 🙂

      • USWeapon says:

        I love that idea as well. That was kind of the idea that I was having when I started the “Let’s Fix It” series a month or two ago. I am still planning on continuing it even though it was only lukewarm in reception previously. What I need to get is a list from everyone on what things they would like to see tackled in this type of format. I currently plan immigration, social security, welfare, medicare, and now possibly this subject. What other areas should we be attempting to discuss a A to B fix for?

        USW

        • I would like to see education (especially since that is at the root of many other issues), the middle east and other foreign military action or bases, farm and other business subsidies, the FDA, FCC, and the drug war added.

          • USWeapon says:

            Jon,

            Education being my number one issue today means that you will see education again and again. I should have included it above. There is nothing more imperative than fixing the education system in America. It will serve many purposes doing so.

            USW

    • I offer referee skills. 🙂

  8. PeterB in Indianapolis says:

    Technically speaking, under the current rules there COULD BE different rules applied depending on whether an act was considered a CRIME, or an ACT OF WAR. Regardless of the fact that Event A happens on American soil, it can still be treated completely differently depending on whether it is classified as “crime” or “act of war”.

    So, the key to the whole argument of whether or not to Mirandize would seem to rest on how we CLEARLY define “crime” vs. “act of war” and consitently apply the distinction. Unfortunately, such clarity is completely lacking at this time, and I see little hope for clarification any time soon.

    It seems like the current administration leans towards classifying anything that happens on American soil as a “crime” and they basically ignore the possiblity of classifying it as an “act of war”, but I only say “seems” because I have not heard an official statement on their position yet.

    • USWeapon says:

      Peter,

      You stated, “Unfortunately, such clarity is completely lacking at this time, and I see little hope for clarification any time soon.” I think that you hit on a key problem in the debate on terror suspects vs. criminals. At this point I tend to lean towards the vast majority of acts being criminal, including the Fort Hood shooting and the Times Square attempt. As such they must be classified as such and treated as such. I think that we must remain above the fray and narrowly define “act of war” to what is really an act of war. Once that narrow definition is clearly spelled out, EVERYTHING ELSE becomes criminal and treated accordingly.

      Also interested in your thoughts on my solution of recording everything above.

      USW

  9. Bama dad says:

    Should we be reading Miranda to terrorist suspects? I say no as I don’t think terrorist are criminals.

    Does it matter? Yes if a captured terrorist clams up knowing of another threat and more people die it matters greatly.

    What about the entire concept of Miranda as a whole? Don’t have a problem with it.

    Was the court right in their interpretation of the Constitution’s 5th Amendment on this issue? While not having a problem with it, I think they overstepped with how they applied the 5th.

    Does the Miranda law help our justice system or does it hurt our justice system? It hurts our system if a criminal and his attorney use a technicality to set a guilty man free.

    • USWeapon says:

      When it comes to a terrorist having knowledge of another event or something along those lines, the public safety exemption kicks in and Miranda can be bypassed. Is there another reason why we wouldn’t read them their rights?

      • Does the determination of which governmental agency would best handle the investigation enter into this discussion?

      • Bama Dad says:

        I am having a hard time wrapping my head around this issue. After reading Peters post above maybe a better definition of what is a crime or a terrorist attack would be the way to go in determining what to do.

  10. Cyndi P says:
  11. Cyndi P says:

    OT again….

    from Detroit:

    http://detnews.com/article/20100510/BIZ/5100335

    Anyone surprised here?

    • The only surprise I have is that anyone would be surprised…

      • Cyndi P says:

        Hi Terry,

        I’ve actually been taken to task here on SUFA for mentioning that Dear Reader was installed into office.

        There are those who will never believe the truth about their leader, no matter what.

  12. Dread Pirate Mathius says:

    JAC said:Dread Pirate.

    The ethical standard is to NOT initiate violence or force against an innocent person.

    The minute you violate the rights you also violate the ethic. Thus you have already eliminated your supposed ethical need to mitigate the taking of the right.

    The contradiction is taking the right then trying to claim the ethic which stands upon the right itself.

    Dread Pirate Mathius Replies Y’arr.. I’m naught but a humble pirate. Could you simplify further so I can understand?

    • Dread Pirate

      You can not claim you are mitigating the damage by spraying water on the ashes AFTER you burned the house to the ground.

      • Dread Pirate Mathius says:

        But the house has not burned down entirely. The house is on fire, and I am demanding that, while they are busy pouring gasoline on the living room, they take some time out pour water on the hallway to let me get out before the roof collapses.

        • Dread Pirate

          You are claiming that a man, or govt, who has declared himself to be immoral has some moral obligation to mitigate or at least make you aware of his immoral intentions.

          That my dear friend is a contradiction, it is illogical. The immoral has eliminated morality and thus ethics from the equation at this point. He is “obligated” to do nothing that is ethical, he has established that he is untrustworthy and ethics are meaningless to him.

          Restitution is a matter for the offended to impose, not for the immoral to take upon himself. He then has a choice. Make restitution or suffer the alternative isolation and possible banishment.

          I think perhaps your assumption that the immoral is ethically obligated to mitigate harm goes to your faith in government itself. Govt acting immorally has no obligation to act in an ethical manner. That is the entire point of having a monopoly on the use of force.

          So back to the Miranda point. The govt is not obligated to tell us crappola. It is only because we made a law telling govt it must tell us that obligates it in any way. But then see how it tries to avoid even that simple requirement.

          A truly moral govt wouldn’t need to issue a Miranda because it would never use coercive force on a suspect. Because we are ALL innocent until proven guilty no force would be used until the guilty verdict was rendered. Proof of guilt would have to be found the old fashioned way, by earning it through solid detective work.

          • Dread Pirate Mathius says:

            Just because an entity chooses to act immorrally in one capacity does not obviate it’s duty to be moral in other ways. If you murder someone, that does not mean you are now off the hook if you also choose to steal. The government’s crimes against liberty do not excuse it’s independent duty to mitigate harm from it’s actions.

            An immoral man may choose to no longer follow his moral duty elsewhere because he is so far gone along the path, but he is still morally bound to do mitigate his harm.

            What you are saying, in essence, is this: the government acts immorally, thus it is has no duty to act morally.

            Adding, I, the Dread Pirate, have no faith in government. You besmirch my good name for saying such a thing. You must have me confused with that bleeding heart liberal, Mathius.

            • Dread Pirate

              You use words involving “obligation” and “duty”, all of which express some “captive” nature of ethics and morality.

              You will have to explain by what mechanism man becomes a slave to any particular moral or ethic.

              What is “moral duty” and why do you believe there is such a thing?

              What is “moral obligation” and why do you believe there is such a thing?

              I think your keeper has been playing mind tricks on you while you sleep off the grog liberated from his stash.

              • Dread Pirate Mathius says:

                Re Liberated Grog: It is my grog. I brew it in the basement. He steals it, claiming it as rent (for a service I never wanted). Does this sound familiar?

                Re Moral Duty: Your only moral obligation is to do no harm. Failing that, you default to doing as little harm as possible. You agree, I think, that if I burn your house down, I am morally obligated to repair the damage, or are we already at cross purposes?

              • Dread Pirate

                We are already crossing swords.

                I see no MORAL obligation in the sense that you are proposing.

                I am more inclined to use the word “responsibility”.

                However, you did not answer the questions I posed.

                Let’s start with your answers instead of chasing mine.

                Then the grog is truly liberated by you is it not?

              • Mathius says:

                I’m sorry, but you two will have to have this out another time.. I’d confiscated the Dread Pirate’s iPad. Let’s come back to this next open mic night.

              • Mathius and DPM

                Sorry but I will be gone Wed at O dark thirty and will not return until late Friday.

                So we will have to put off further exploration until next week. Unless you two are lurking around on the weekend.

      • I really don’t understand the logic here-what do I care if one telling me my rights is using ethics to justify something they have already done wrong-if the telling me of my rights helps me to fight them. And why should those who know their rights benefit simply because they know and those who are ignorant be taken advantage of, does their ignorance make their rights any less binding?

        • USWeapon says:

          No it doesn’t, but why is it required that someone else inform you of your rights to resist them? They are your rights, why am I required to inform you of them. Why don’t you know them?

          • I suppose that depends on your purpose-is it to make sure people are assured their rights or to punish the ignorant.

  13. Ah, Ernesto Miranda. May he rest in peace . . . or not.

    I think we all have missed the real problem here. The real problem is what is now being taught in the law schools of this country instead of teaching Constitutional Law. The emphasis is now on CASE LAW, not Constitutional Law. The difference? Case Law focuses on what Jurists (including Appellate Court judges) deem as fair and reasonable in reaching what ever decision they have reached. Example; If a person is found guilty of a crime based on evidence at the scene of said crime, then in the appeal of that verdict it is noted that the police officer(s) did not follow the protocol of evidence handling and transfer of said evidence during his/her investigation of that crime, then that person was found guilty by the presentation of possibly contaminated evidence. Guilty verdict overturned. Therefore in all future cases of this type crime, if evidence is not handled in an exact and specific nature, the evidence cannot be submitted in the suspects trial.

    Now, because of case law, municipalities are forced to create and maintain very expensive crime labs and the highly paid technicians to man those labs. With all the budget crunches now in effect, cases have been dismissed because the labs cannot get through the mountains of evidence that are backed up in their labs.

    It ain’t like on T.V or the Hollywood movies, folks. I have boxes of notebooks locked in a safe deposit vault that covers my entire law enforcement career just in case one of those characters gets a retrial and I have to go back and testify again . . . And I retired over ten years ago.

    Reading Miranda Rights to potential suicide bombers . . . What kind of Case Law Precedence are we setting there? And when and if they ever do go to trial, just where are we going to find a jury of their actual peers?

    By abandoning Constitutional Law in favor of Case Law, we have opened Pandora’s Box and caused such a convulsion in our legal system that I know of no reasonable way to set it back on the right track.

    We are in for one helluva roller coaster ride, folks, and letting go of the security bar is not an option!

  14. Murphy's Law says:

    Don’t know that I can add any real meat to this discussion, as I am not trained in law……but I will say that I do NOT believe that we should be reading terrorists their Miranda rights. In fact, that previous statement contained a contradiction, I believe, as IMO they don’t possess any rights to begin with under our laws. One, they are not citizens, and two, they have committed an act of war against us. Doesn’t just common sense scream that Miranda has no place in this scenario?

    If certain that a terrorist is guilty (ex. the panty bomber…..hard to convince me that there is any shred of doubt with that one). Go through the military trial or whatever is necessary and then EXECUTE THE A$$HOLE!!!!

    As for Miranda rights in general- haven’t we always been told that ignorance of the law is no excuse? Why does that not apply here? I feel that USW has brought up a good point with that discussion. It does make me wonder if the “cure” Miranda brought is far, far worse than the ill it was intended to address.

  15. Saw several SUFA topics on Fox today– Miranda on O’reilly and Beck..Michigan school about racism on Beck…LaRaza video on Beck.. They’re watching us..imagine that !

    • TexasChem says:

      Not surprising.This site stays ahead of current events and has had great discussions and debates.

  16. MorningStar says:

    If given a choice, I would take Miranda than live in a country without it…..just for my protection although it does help the guilty.

  17. TexasChem says:

    Miranda right given to citizens of America I agree wholeheartedly.
    Given to those we are at war with is politically correct BS.
    Allowing those we are at war with to immigrate to our country is politically correct BS.
    Allowing Miranda rights to a person in our country illegally is politically correct BS.

    By the way I responded to your reply JaC and BF in our last debate in topic (Why The Michigan Trip was Dumb, but not Wrong) and anxiously await your replies.I’m not going to hijack this thread with it so will see you there.

    • TexasChem says:

      That’s following the discussion under post #40 if you need help getting there.Forgot to put that in above post.

  18. Flaunt the American Flag Day Wednesday May 12th

    http://www.freerepublic.com/focus/f-news/2510090/posts

  19. Combination hijack from the blog posted on 18:

    Freedumb = A government which robs Peter to pay Paul can always count on the support of Paul.

  20. @JAC: Good Morning, Sir. I did not see your post until this morning. Great questions all and I will try to address them from the perspective of D13.

    JAC asks: “So in your view there are those in an army and those who are criminals. Is that right?”

    D13 responds: “Correct”.

    JAC asks: “If they are state sponsored and thus soldiers without uniforms, then are they not also spies and/or saboteurs if caught attacking US citizens or installations?”

    D13 raises an eyebrow on this question: ” Hmmmm….if we stay with the strict interpretation of the rule of warfare and the Geneva Convention…one could easily assume that since the rules have not changed (ie. a uniformed soldier is not subject to summary execution, etc.) strict interpretation of the rule would imply that they are saboteurs or spies. I have long argued that uniforms change. They do not have to have a stripe down the pants leg or ribbons or name tags. The modern day uniform is now anything and that to determine military or war status must depend upon the goal and strategy and the methods employed.

    JAC says: “In my view this means they would be subject to the Geneva Conventions.”

    D13 concurs: “Yes, sir and, therefore, not subject to Miranda or civilian law. This is to be interpreted to mean…as long as the war continues, they can be held indefinitely without charge. They can be subject to military tribunal. They are not held in civilian jails and prisons. They get their Red Cross package and censored mail. They have no lawyers or family visitors…etc.

    JAC asks a great question: “But when they are caught we do not know who is state sponsored and who is not. So we still have the Miranda issue until we can find the evidence connecting them to a State sponsor. Would you agree with this also?”

    D13 says: “No, sir. I do not agree. I surmise that the conduct of war has changed. There are no front and rear lines…no boundaries. Since we know that Islam or a faction thereof, has officially declared war, then I believe that we do not give benefit of doubt. I tend to believe the other way around. They are prisoners of war until they are determined to be a common criminal. I believe that a military tribunal can find things out better than any civilian methodology. If a prisoner is determined to be a common criminal, then turn them over to the civilian authorities…not unlike those that profiteer. I believe that it is imperative to describe “state sponsored”, however. Here is an example. I will pick on Iran for two reasons….(1) They are a state and, (2) they have a history of sponsorship of terrorist organizations. I consider the Taliban an army and not a criminal organization. It has been proven that most of its funds come from Iran….directly. Not from an individual. I consider Hamas an army. I consider the PLO an army. I consider Hezbollah an army. All receive direct aid from the governments of Iran, Syria, Libya, and Pakistan. There are probably more, but I know of the direct links to these governments. It is well known that there is indirect aid from individuals in Saudi Arabia…but this indirect does not change the definition to criminal. Why? Because they are already state sponsored. State sponsorship also extends past supplying money. It also extends to aid and comfort…meaning equipment and housing and safe haven. If a drug gang in Mexico has direct or even indirect connections to Iran…or any government for that matter….and receives aid and comfort, then that gang becomes an army. You can have an army of one or an army of ten thousand.

    Jac asks: “Are ALL acts against civilians terrorism? If so, does it apply only to non-uniformed state sponsored soldiers.”

    D13 says: ” No, sir…not all acts against civilians qualify as terrorism as we currently define it. Example…a drug gang that comes across the Texas border and kidnaps a female to be forced into prostitution is a criminal. An Islamic faction that is supported by a State that comes across the border and kidnaps the same woman is an act of war. In my opinion, it is not the crime against the person…it is the who.

    I also think we need to redefine the word terrorism. It has so many definitions and meanings and has become convoluted. Any uniformed army, including the United States, can be guilty of terrorism simply by the methods used.

    Does this help, sir?

  21. The Miranda rights reading should be replaced with asking the suspect if he/she is aware of his/her 5th Amendment rights.

    But NEVER to a foreign terrorist!

%d bloggers like this: