So we started last post with a healthy cry of “Death to America” after a trigger happy cop made me throw up in my mouth quite a bit with his gleeful tale of “shoot first, detain later”…

to a post where the Court has stepped back a bit on Miranda, and I won’t cry DTA/Police State (though commenter Greenfield might disagree, and I’m sure he has seen far more police abuses than I will in my next 10 years of criminal practice).

I am referring to This recent 9-0 decision. The kneejerk reaction to this is ZOMG police state. I disagree. Let’s go back to crim pro 101.

The Miranda rule is generally this: The cops must warn you of your right to remain silent and your right to counsel if you are subject to “custodial interrogation.” Custodial interrogation basically means: 1. You are not free to go and 2. The questions are reasonably expected to illicit an incriminating response. Its modified by something called the “Edwards rule” that says they can’t come back and talk to the guy some other day while he’s still in custody. This protects the remand/no bond crowd or the poor who can’t bond out. If you’re stuck in jail awaiting trial, the cops can’t come knocking on your cell door every week to entice you to blab.

If you read this blog you should be able to figure out how this is supposed to work.

But in this situation, the guy is in custody, claims his 5th right, and then gets sent upstate on an unrelated matter. 2 and a half years into his ride, someone comes out, he’s in gen pop, and asks him about a child abuse case, and he freely admits. (Probably because he thinks he’s going to get concurrent time, and he might actually have it, but as we all know cops are allowed to lie out their asses to get you to blab if you choose to do so. I don’t care for that one bit.)

The court came down 9-0 on this one. We normally expect 5-4 jobs on this one where one side will exclaim its “judicial activism” or “police state.” When Stevens, Ginsburg, Breyer, and Sotomayor agree with the ruling and Scalia writes the opinion, it’s safe to say this was a gimme and not some horrible destruction of basic constitutional law. The bill of rights is supposed to restrict the government, but you can’t yell fire in a crowded theater, and at some point an assertion of 5th amendment rights has to expire, especially when you’re not under the custody of the interrogating leo’s. Scalia mused that with such a recidivism rate, an infinite 5th amendment application would be ridiculous in the long run.

Hell it’s a friggin miracle if I get a Defendant savvy enough to assert it in the first place. Unfortunately the guys who come into my office who know 5th amendment principles pretty well and know “never talk to cops” are usually the biggest drug dealing scumbags. Oh well thats life in the toilet.

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