RE: Your Right to Remain Silent Means You’re Guilty

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RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 11:43:49 AM

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quote:

ORIGINAL: Wendel27

''In the US remaining silent and not answering police questions is not supposed to be even mentioned during the trial. The right against self incrimination is very broad''

How does that work DomKen? If you say nothing and are arrested then you are interviewed. If you continue to say nothing you're very likely to be charged and the interview becomes evidence in court. Just the same as any reply to caution is evidence including if that ''reply'' is silence. Questions before caution you're free to ignore without anything being inferred from your silence though you can still make significant statements...at least in Britain. The idea behind this is if you refuse to say anything up until court the jury can infer that you have used the time between now and court to make up a convincing story. I'm surprised that it's much different in America.

''The only way the defense could bring in testimony about the behavior of the defendant is to have him testify. Doing so would waive his right against self incrimination and the prosecutor could ask him just about anything.'' If the alternative is to be seen as guilty due to inferences drawn from previous silence that seems a reasonable alternative.

No. If you say nothing besides asking for an attorney the prosecution cannot discuss it. To do so would be considered prejudicial.

The jury instructions in all criminal cases is supposed to include the caution by the judge that the fact that the accused did not testify should not be considered at all.

(in reply to Wendel27)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 11:46:53 AM

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And that includes saying nothing after legal counsel Ken? During interview? That really is quite different then more so than I would have thought.

(in reply to DomKen)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 11:47:05 AM

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Indeed! Actually, I really like this one:

quote:

ORIGINAL: Wendel27

That's one of the biggest difference between policing here and in America. British police cannot lie or use decpetion during interview to get a confession and to do so is a very serious offence.

That would be so nice in a perfect world. Unfortunately, it's very rare that you would see a conversation in an interrogation room go along the lines of:

Cop: "Where were you on Tuesday?"
Suspect: "at the 7-11 on Main Street"
Cop: "Do you know the clerk was killed there on Tuesday?"
Suspect: "Of course I do. I shot him!"

I think I should point out that while our cops are able to deceive (within reason. There have been cases thrown out when a cop out-and-out lies), prosecutors are not. It's a fine line but, I think it's an important one.

A cop's job is to gather evidence and present who they think is the guilty party to the prosecutor for action. Their job isn't necessarily "truth" or "justice". Again, in a perfect world, it would be nice if that were their job.

Peace and comfort,

Michael

_____________________________

A Stone in My Shoe

Screen captures (and pissing on shadows) still RULE! Ya feel me?

"For that which I love, I will do horrible things"

(in reply to Wendel27)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 11:55:18 AM

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quote:

ORIGINAL: KittyDeVille

Emotions (the interpretation) aren't facts, if they were, they would be called facts.
If someone is convicted because of the interpretation of emotions, just seems like the judicial system isnt doing their job.

What about any reasonable doubt ?

Not really.

If you asked your partner if they were cheating on you and they avoided eye contact or even left the room, while answering in the negative, would you feel secure in the answer?

I'm not saying these reactions all by themselves are grounds for a conviction but I think they are evidence of something. How much wieght one puts into the evidence is based upon personal experiences.

Personally, I would put a whole lot more weight in physical evidence and opportunity and means but motive (which emotions can give evidence to) is one of the elements of a crime.

Peace and comfort,

Michael

< Message edited by DaddySatyr -- 7/1/2013 11:57:00 AM >

_____________________________

A Stone in My Shoe

Screen captures (and pissing on shadows) still RULE! Ya feel me?

"For that which I love, I will do horrible things"

(in reply to KittyDeVille)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 11:55:36 AM

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It's swings and roundabouts Satyr here you can't use deception in interview [which can be a hamstring in some cases] but then on the other hand powers of search and entry are so much further reaching. British police can enter properties and search them along with people and buildings with far more ease than our counteroarts across the seas...which one more is a double edged sword with pros and cons.

(in reply to DaddySatyr)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 11:57:38 AM

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quote:

ORIGINAL: Wendel27

It's swings and roundabouts Satyr here you can't use deception in interview [which can be a hamstring in some cases] but then on the other hand powers of search and entry are so much further reaching. British police can enter properties and search them along with people and buildings with far more ease than our counteroarts across the seas...which one more is a double edged sword with pros and cons.

And remember. Even if British police enter and search illegally, and find evidence that they can use to prosecute an offence, it matters not how they found the evidence, that evidence is still admissible in court.

(in reply to Wendel27)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 11:58:48 AM

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quote:

ORIGINAL: truckinslave

You have cited not a case, but a law firms opinion of a case. The case about which they opine is a civil matter in federal court and as such has little or no bearing to this discussion.

Further, even then, the opinion referenced said:

Supreme Court clarified that holding and explained that an adverse inference may not be drawn from silence alone, and must be considered as one of several factors. Se

The admissibility of police testimony in state court in criminal cases remains, evidently, a matter for the ststes.

Do you read these things before you post them?

Start with Doyle v Ohio

(in reply to truckinslave)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 12:01:34 PM

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quote:

ORIGINAL: Wendel27

And that includes saying nothing after legal counsel Ken? During interview? That really is quite different then more so than I would have thought.

No attorney worth a damn will let you answer any questions at all.

(in reply to Wendel27)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 12:09:15 PM

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''And remember. Even if British police enter and search illegally, and find evidence that they can use to prosecute an offence, it matters not how they found the evidence, that evidence is still admissible in court. ''

Are you sure that's right Missdressed? Certainly they can seize and evidence if they're searching for something else and come across it as evidence under section 19 of P.A.C.E. Possibly if a search is deemed by a court to be illegal then conceivably any evidence seized might still be admissable though officers involved would be wide open to disciplinary actions.

(in reply to DomKen)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 12:14:52 PM

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Absolutely sure. I shall dig out my crim and evidence law notes and double check.

Yes the officer might be liable to disciplinary action, but PACE is not meant to be a means to punish an officer.

If you gimme 10 mins I can go to the shed, get the books and notes and quote the cases at you

< Message edited by Missdressed -- 7/1/2013 12:15:12 PM >

(in reply to Wendel27)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 12:20:58 PM

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No no i'm willing to believe it Missdressed it's just something I haven't come across yet. I'd presume it's for cases where a court decides there wasn't sufficient evidence given for reasonable grounds to suspect [or believe] depending on the type of search... but what was found was so incendiary it can stand anyway. I'm still surprised though.

''but PACE is not meant to be a means to punish an officer'' but if one breahes it there are many designs to do just that ;)

(in reply to Missdressed)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 12:31:15 PM

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Any American still wondering about a few of the amendments in the Bill of Rights? Searches without warrants and saying you're guilty if you don't talk to the police?

(in reply to Wendel27)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 12:33:09 PM

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OK ...

Under the common law in R v Christie “it is desirable in certain circumstances to relax the strict application of the law of evidence”

Also

“….whether in the light of the considerations ……the evidence, if admitted, would undermine the justice of the trial…. For the conviction of the guilty is a public interest as is the acquittal of the innocent”

As Per Lord Scarman Sang [1979] at 456

Again,

“… the function of the judge at a criminal trial as respects the admission of evidence is to ensure that the accused has a fair trial according to law. It is no part of the judge’s function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them”
Per Lord Diplock Sang [1979] at 436

Sang - Affirmed judicial discretion to exclude evidence if prejudicial effect outweighed its probative value
Not concerned with how evidence obtained but how used by the prosecution at trial
Refers to evidence collected after the commission of the offence is completed

Leatham (1861) 8 Cox C.C. 498 at 501
“It matters not how you get it, if you steal it even, it would be admissible in evidence” - still good law today

R v Christie [1914] AC 545 at 546

R v Payne (1963) 1 All ER 848 is the only example of the common law being used to exclude evidence

S 82 (3) PACE 1984 preserves common law discretion of the judge to exclude if he deems it appropriate

I'm most familiar with PACE NI Order, but the provisions are mirrored in the UK order, just the Section Nos are different - Art 70 (3) of PACE NI Order states Nothing in this Part shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.

The statement in PACE is
In any criminal proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

You will note, it's only whether it would be fair or not for the evidence to be admitted, and not a duty to exclude if improperly obtained.

It can be excluded as a breach of PACE but this is at the discretion of the judge, it is anything but automatic.

Entrapment is covered in PACE, but I'm losing the will to live, basically In deciding whether to exclude evidence the court will consider
Whether the officer was enticing the defendant to commit an offence
The nature of the entrapment
How active or passive the officers role was

Under City Council v Amin [2001] 1 W.L.R 1071
The accused ‘should not be incited, instigated, persuaded, pressurised or wheedled into committing the offence.’

But remember entrapment is not a defence at law to a criminal charge.

The improper searches cases are

R v Leatham (1861)
Jones v Owen (1865) 8 Cox CC 498 at 501
Mc Cleod v UK [1999] 27 EHRR 493

The Sang case was confirmed in Morgans v DPP as follows :

”As a general rule evidence is admissible irrespective of the means used to obtain that evidence: Reg. v. Sang [1980] A.C. 402. The question whether or not an offence was committed in the course of obtaining evidence by intercepting a communication by post or by means of a public telephone system is, in the absence of a statutory provision to the contrary, irrelevant to the admissibility of that evidence. “

Also, there may be a challenge under the Wednesbury unreasonable test, and also the defendant would be entitled to ask questions of the police as to how the evidence was obtained and ask in a voir dire if the court would exclude it. If it were included, the defendant would be entitled to have the police officers questioned in open court.

That's just from brief notes, I can be more comprehensive if required.

(in reply to Missdressed)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 12:34:33 PM

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Try not to be jingostic about it Ken. You're not guilty if you refuse to speak to the police but guilt can be infered from it without reasonable explanation. It simply means you do not have carte blance to clam up until you can think of a decent story [if you're guilty]. By the same token broader search powers are balanced against things such as it being illegal touse deception or lies during interview to obtain confession.

(in reply to DomKen)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 12:36:11 PM

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quote:

ORIGINAL: Wendel27

No no i'm willing to believe it Missdressed it's just something I haven't come across yet. I'd presume it's for cases where a court decides there wasn't sufficient evidence given for reasonable grounds to suspect [or believe] depending on the type of search... but what was found was so incendiary it can stand anyway. I'm still surprised though.

''but PACE is not meant to be a means to punish an officer'' but if one breahes it there are many designs to do just that ;)

It took me so long to type that I x-posted with you!

I had to go and find out the actual cases

I'm like that. Even though I don't practice criminal law.

(in reply to Wendel27)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 12:36:55 PM

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MissDressed i'd be interested to talk about that but it'll ahve to wait for half an hour Only Connect has just started!

(in reply to Wendel27)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 12:37:50 PM

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The changes in the UK to the right to silence came in for Northern Ireland a few years before the rest of the UK.

There has been academic study done that shows it has made no discernible difference to the number of convictions for terrorism offences.

And studies across the UK show that it has made no real difference.

I can go to the shed again ....

(in reply to DomKen)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 12:43:02 PM

Posts: 19457
Joined: 7/4/2004
From: Chicago, IL
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quote:

ORIGINAL: Wendel27

Try not to be jingostic about it Ken. You're not guilty if you refuse to speak to the police but guilt can be infered from it without reasonable explanation. It simply means you do not have carte blance to clam up until you can think of a decent story [if you're guilty]. By the same token broader search powers are balanced against things such as it being illegal touse deception or lies during interview to obtain confession.

I don't care about police using deceit or lies. I would never ever speak to the police after being taken into custody and in general don't answer any questions put by LEO.

I do care very much that police could show up without a warrant and simply rummage through my home till they find something to convict me on.

(in reply to Wendel27)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 12:53:39 PM

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If I remember correctly (I'm guessing I'm for back out to the shed for more notes lol) the police in the UK, even with the tightening of the regulations under PACE, only need a "reasonable suspicion" or words like that to suspect there may be a breach of the peace and they can enter a property without a warrant.

But I should really go and check that.

(in reply to DomKen)

RE: Your Right to Remain Silent Means You’re Guilty - 7/1/2013 1:21:24 PM

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Police cannot just turn up at your home and rummage through till they find something to convict you for. If you are arrested for an offence that is indictable your home can be searched for evidence pertaining to that crime and crimes of a similar nature under Section 18 or 18/5 of P.A.C.E.. If you are arrested for an indictable offence and have immediately left a property that can be searched to under section 32 of P.A.C.E. If you have reasonable grounds to suspect life or property might be in serious danger you can enter a property. You can also enter undfer section 17 of P.A.C.E. to arrest someone in the property or if you have reasonable grounds to believe they are there. You can also enter to prevent a breach of the peace. During any of these searches or entries you can seize evidence pertaining to other crimes under section 19 of P.A.C.E. However the caveat to that is your search has to be proportionate to what you are searching for. for example if you're looking for a person you couldn't search in someone's sock drawer.

You can't just kick someone's door because you feel like it and rummage about.

''I don't care about police using deceit or lies.'' And that's your perrogative but please don't tuen this into some shite about how it's MERICA LAND OF THE FREE BABY THE BRITS LIVE UNDER THE HEEL OF TYRANNY because it's simply not true.

(in reply to Missdressed)

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