May It Please The Court

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May It Please The Court
by Leonard Rivkin
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Quote of the Day - I will not hide behind the Fifth Amendment. - Bart Simpson
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What Rights Are Left For Criminal Defendants? Miranda And Now, The Fifth.

Criminal defense lawyers decry the loss of Constitutional and procedural rights for criminal defendants.  Courts, Congress and law enforcement (if you missed the analogy there, those are the three branches of government) have regularly chipped away at the protections afforded criminal defendants.

The citizenry is generally not fazed by these changes, gradual over time but largely eroding the presumption of innocence.  That is until someone near and dear is accused of a crime, then the system is against all of us and needs to be righted.  But on the whole, only the ACLU and a few other organizations regularly register protests.

So where do we turn for an explanation of criminal rights?  Television.

That's right.  Television. 

Let me prove my point by quoting a recent case from the Ninth Circuit Court of Appeals.  "From television shows like 'Law & Order' to movies such as 'Guys and Dolls,' we are steeped in the culture that knows a person in custody has 'the right to remain silent.  Miranda is practically a household word. And surely, when a criminal defendant says, 'I plead the Fifth,' it doesn't take a trained linguist, a Ph.D. or a lawyer to know what he means," wrote Judge McKeown. 

McKeown, on a three judge panel, reversed the murder conviction of Jerome Alvin Anderson, who claimed the statements after he asked to remain silent were used to incriminate him.  Anderson told an officer, "I plead the Fifth."  The officer then asked, "Plead the Fifth? What's that?" and continued to question Anderson, ultimately drawing a confession.

The judges ruled the officer "violated the Supreme Court's bright-line rule established in Miranda. Once a person invokes the right to remain silent, all questioning must cease."

In other words, the cop's behavior was illegal because "You saw it on TV."  Courts respect these rights just because they're so prevalent on television.  They wouldn't dare directly overrule Miranda, even though for all intents and purposes, the effect of it has been gutted since police can question a suspect even after invoking Miranda.

Now, however, all you have to do is plead the Fifth.  Then they really know you're guilty. 

Posted by J. Craig Williams on Monday, February 18, 2008 at 23:50 Comments (0)


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