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#15 Berghuis v. Thompkins
27 Plays1 month ago
In this episode we re-argue the Supreme Court case Berghuis v. Thompkins.
A man is arrested, informed of his rights, and interrogated. But for two hours and 45 minutes of questioning, he is mostly silent. At trial he argued that he was exercising his right to silence under Miranda v. Arizona, and police should have stopped the interrogation. The Appeals Court thought so, too.
The question before the court: was the Appeals Court correct in its interpretation of the right to remain silent?
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For complete episode information, check out our episode guide on our website at https://relitigated.com/2025/07/29/15-berghuis-v-thompkins/.
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Transcript
Podcast Introduction
00:00:00
Speaker
Hi there, welcome to Relitigated, the show where five friends who are absolutely not lawyers attempt to retry a real Supreme Court case. I'm your host, Jarrett, and this is episode 15, Burgess v. Tompkins, which was decided in 2010.
00:00:16
Speaker
A quick note before we get started. As always, we try our best to represent the facts and decisions in the case as accurately as possible, but we're not lawyers and nothing in this episode should be taken as legal advice.
00:00:27
Speaker
Okay, with that out of the way, let's start the show.
Meet the Hosts and Justices
00:00:32
Speaker
I'm not sure that person thought Chernobyl is real, to be frank. but That's besides the point. Like, from the video game stalker? Like, what are you talking about? Yeah.
00:00:44
Speaker
Hi there. Welcome to the Relitigated Podcast. I'm your host, Jarrett. I'm joined by my co-host, Nikki. Hello, Nikki. Hello. We also have with us three friends who will be role-playing as our justices for this episode.
00:00:57
Speaker
First, we have Associate Justice Mike. Guys, he said I'm a friend. I have friend. No, I can't believe any either. Next, we have Associate Justice Graham.
00:01:10
Speaker
Hi, everybody. And lastly, we have, against our better judgment, our Chief Justice Adam. I can't believe we're all back together again under my wise and judicious tutelage.
00:01:23
Speaker
ah yeah And modest. Yeah. So humble. yeah There's a reason I was made chief, guys. The most humble. I get things done. and you would you You are so modest. If there was a modest competition, you would wipe the floor with everyone. I'd take everyone's ass for sure. 100%. Yeah. not odd You know me.
00:01:43
Speaker
If you're new to the show, here's how this works.
Podcast Format Explained
00:01:46
Speaker
Nikki and I have selected a real Supreme Court case, and our justices do not know what case we have selected. Nikki will introduce the case to us and walk us through the facts so we can all get familiar with the details.
00:01:57
Speaker
The justices are free to ask factual questions during this time, and we will answer them as best as we can. Next, we'll move into oral arguments where Nikki will role play as the petitioner and I will role play as the respondent.
00:02:09
Speaker
We each get seven minutes to make our case, during which the justices can interrupt us and ask probing questions. When the arguments are over, the justices will deliberate and deliver their own opinions.
00:02:20
Speaker
The final rulings do not need to be unanimous. Majority opinion wins. Even if two or more justices agree in principle, they can disagree as to why specifically. Once we've had our fun with our mock hearing, Nikki and I will reveal what the Supreme Court really decided and talk about how we feel about the actual results and why this case matters.
00:02:40
Speaker
Sound good to everyone? Sounds great. Sounds great. Awesome. I'm going to turn it over to Nikki for the facts of the case.
Case Background: Burgess v. Tompkins
00:02:50
Speaker
Okay.
00:02:51
Speaker
So we brought you guys here to talk about police interrogations. Yay, Round two. I love it. My favorite topic. I was just like waiting waiting all day for this. Send the Marines in is what I said. My favorite thing is building carefully considered police strategy through the judicial bench. Let's do it.
00:03:12
Speaker
In response, in follow-up to... ah Butler v. North Carolina, which will be a previous episode in your feed if you'd like to go back and listen.
00:03:22
Speaker
Or was it North Carolina v. Butler? It's going to be one of those two. Yeah. I mean, those are the people involved. So, our case for this episode is Burgess v. Tompkins.
00:03:36
Speaker
It all begins with the shooting outside a mall in Southfield, Michigan, that killed one man and wounded another. The suspect in the crime, VT, fled the state, but was found a year later in Ohio.
00:03:50
Speaker
So two Southfield officers traveled to Ohio to question VT about the crime before their transfer back to Michigan. The interrogation took place in an eight by 10 foot room with VT seated in a kind of school room style chair desk combo.
00:04:11
Speaker
At the start, the officers provided VT with a form concerning their Miranda rights that read as follows. ah So this is a notification of constitutional rights and statements.
00:04:24
Speaker
One, you have the right to remain silent. Two, anything you say can and will be used against you in a court of law. Three, You have a right to talk to a lawyer before answering any questions, and you have the right to have a lawyer present with you while you are answering any questions.
00:04:44
Speaker
Four, if you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one. Five, you have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk to a lawyer while you are being questioned.
00:05:05
Speaker
To confirm that VT could read and understand English, the officers asked them to read this fifth statement out loud, which VT did.
00:05:17
Speaker
Then the officers read out the first four statements to VT and asked them to sign the form to acknowledge that they understood their rights, but VT declined to sign the form.
00:05:30
Speaker
It's possible that VT verbally acknowledged that they understood their rights, but the record is conflicted on this point. Following the Miranda warning, the officers began their three-hour interrogation, and for about two hours and 45 minutes, VT remained mostly silent.
00:05:48
Speaker
There were a few small verbal responses, mostly things like, yeah, no, or I don't know, as well as some head nods. VT also stated he didn't want a peppermint when asked and that his chair was hard.
00:06:03
Speaker
Apart from these few interactions, as noted in a Wall Street Journal article, the police themselves considered it, quote, nearly a monologue, unquote. During this period of near silence, VT never said that they wished to invoke their right to remain silent or their right to an attorney.
00:06:21
Speaker
Instead, they were just mostly silent.
Legal Path and Supreme Court Involvement
00:06:25
Speaker
At the end of the interview, the officers changed tactics and asked VT if they believed in God. According to officer testimony, VT's eyes, quote, welled with tears, and they replied, yes.
00:06:39
Speaker
The officer then asked, do you pray to God? And again, VT replied, yes. Finally, the officer asked, do you pray to God to forgive you for shooting that boy down?
00:06:53
Speaker
And VT also replied, yes.
00:06:57
Speaker
VT was ultimately charged with first degree murder along with firearms related crimes. At trial, their defense moved to suppress the statements that VT made during the interrogation, arguing that VT's silence during almost the entire interview was a clear invocation of his Fifth Amendment right to remain silent.
00:07:15
Speaker
The motion was denied. Ultimately, VT was convicted by a jury on all counts and they were sentenced to life without parole. Something else to note about the trial before we move on ah there were a couple of other things that happened concerning the testimony of another person who was allegedly in the vehicle with VT at the time of the shooting and ineffective counsel.
00:07:36
Speaker
But to keep things simple, we're going to disregard all of that for this episode and we're just going to focus on the interrogation and its results. So following the trial, VT appealed their conviction to the Michigan Court of Appeals, arguing that the trial court should not have allowed VT's statements at the end of the interrogation to be used against them, since they had been clearly invoking their right to silence.
00:07:59
Speaker
The appeal was rejected by the Michigan Court of Appeals on the grounds that VT had not invoked their right to remain silent. Next, they filed a petition for a writ of habeas corpus with the U.S. District Court for the Eastern District of Michigan, but the petition was rejected as the district court also found that VT had not invoked their right to silence.
00:08:21
Speaker
Undeterred, VT appealed to the U.S. Court of Appeals for the Sixth Circuit, arguing once more that they had not waived their right to silence. This time, the court agreed and reversed the decisions of the previous courts.
00:08:34
Speaker
They wrote in their decision that VT's, quote, persistent silence for nearly three hours in response to questioning and repeated invitations to sell tell his side of the story offered a clear and unequivocal message to the officers.
00:08:48
Speaker
VT did not wish to waive their rights, end quote. In response to the reversal in the U.S. Court of Appeals, the state of Michigan appealed the ruling to the Supreme Court, meaning is up to our justices to decide.
00:09:02
Speaker
Do you have to state explicitly that you are invoking your right to silence or is remaining silent enough? Now, if you're thinking that this case sounds a little familiar, it's very similar, but not exactly the same as North Carolina v. Butler,
Interrogation Practices and Rights Discussion
00:09:18
Speaker
which the three of you heard in a prior episode.
00:09:20
Speaker
ah So as a quick reminder, in that prior case, ah WB refused to sign a form acknowledging their Miranda rights, never asked for a lawyer, participated in the interrogation, and then appealed their conviction on the grounds that their statements to police should have been suppressed since they never declined a lawyer and a lawyer wasn't present.
00:09:38
Speaker
The Supreme Court disagreed, arguing that talking to the police implied that ah he was waiving his right to counsel. All right. Be good. Everybody got it. Any questions?
00:09:50
Speaker
We are quickly becoming experts on how and to what limit the police can interrogate people. Very exciting. Establishing a niche in the law.
00:10:01
Speaker
Also, this feels little bit clear cut to me, and I hope to eat those words as the complexity of this case unfolds before us. But like right now, like like it's like that riddle where you have two two guardians in front of the door, and they're all like, one of them always lies, and one of them always tells the truth.
00:10:19
Speaker
how do you It's a paradox. How do you invoke your right to be silent unless you don't be silent? I digress. i I rest my case.
00:10:32
Speaker
and many Any factual questions for us before we get into arguments? No, no, no, no. Just rhetorical navel gazing. um Factual questions. Yeah. So one factual question would be when it says almost a monologue, like, so is it just the peppermint and the chair thing? Was that the only things that he said other than those final three leading questions?
00:10:55
Speaker
As far as we can tell, Yeah. and yeah it's So in the documentation, we don't have the transcript of the interrogation. In the documentation from the Supreme Court and what we could find, they did note, or at least the officers noted, that there were ah couple of times where there were like head nods or they would say the individual said,
00:11:18
Speaker
Yeah, or like one word sort of perfunctory responses, but we do not know to what questions or even if they were questions that they were responding to.
00:11:30
Speaker
And the primary thing that he was convicted on were those last three leading questions.
00:11:36
Speaker
Yeah, what was the conviction based on? So there was other, and think that's what some of the other arguments hinged on, but the statements made to the police was definitely included in the evidence against him. Yeah, but I'm curious as to what. He was also soaked head to toe in blood. Yeah, I mean, was there other damning evidence? How much did...
00:12:01
Speaker
Just this last question seems like is, is that the evidence of, Hey, we got an admission? That was basically my question. Yeah. Yeah. Do we have bullet matches up and we found the gun that was used at this, like, you know, you know, i can, I'm going to look it up real quick, but I'm also going to comment that one um thing that law people complain about is that juries expect too much in terms of evidence.
00:12:27
Speaker
Wait, that's a complaint? That's the most terrifying thing I've heard in a minute. That sounds like the law person's problem, not the jury's Like a lot of, ah you know, just ah every, based on, ah you know, watching the CSI shows, everybody's always expecting like DNA and stuff.
00:12:44
Speaker
um
00:12:47
Speaker
Throwing that in there. Well, I'm not looking for DNA here, but do we have like... Witnesses recognized him. We found a weapon that matches the weapon used in the... Like, you know. So while Nikki's looking that up, my response to that question is it won't be relevant to the legal question at hand.
00:13:10
Speaker
Shut up and focus, dummy. But um basically they do have testimony from basically a co-defendant. And I'm trying to, I'm looking through things and I'm trying to sort out the prosecution theory versus what was actually, you know, stated, testified to. maybe we can theorize that the nod that he prays for the victim is like the cherry on top for the jury. Like, oh man, that makes him look real guilty in addition to the pocket full of spent shell casings.
00:13:41
Speaker
Yeah, I mean, I guess it doesn't affect the actual question we're going to answer, but still some context of the case, I think, would be helpful. Yeah, if I remember correctly, there were this was a drive-by style shooting. I just think they were actually maybe stopped at like a stoplight or something like that.
00:13:57
Speaker
But there were three people, allegedly there were three people in the vehicle, and this individual was the one who fired the shot that wounded one person and killed another.
00:14:09
Speaker
The person who is driving was acquitted, I remember correctly. And when they testified at trial, they never identified this suspect. They said, I was looking at the floor trying to fix something. Yeah, I was bending over the floor. I'm not aware who fired the shots.
00:14:31
Speaker
You don't snitch. um But then did see after... the shooting, um you know, VT holding a pistol.
00:14:43
Speaker
Oh, well, okay. Kind of snitched.
00:14:47
Speaker
Apparently, if you want to go back afterwards and actually read up on the case, apparently that was a bit of a bone of contention. oh yeah. Potentially between that individual and our... Yeah, there was a lot of... family Back and forth with the, ah there was a lot of kind of stuff going on also with the, ah with the co-defendant and, you know, cause each person had their own kind of.
00:15:10
Speaker
and they did Did they do the prisoners dilemma thing? No, not for interrogation. Yeah, no, they did not flee together. Hmm.
Argument on Waiver of Rights
00:15:19
Speaker
I was promised there wouldn't be any game theory in this episode.
00:15:25
Speaker
That is, that is a thing that we, we put on the release form, uh, you know, for you. So that is fair. Yeah. Yeah. No cognito hazards. Thank you. So Rocco's basilisk.
00:15:37
Speaker
so Yeah. Yeah. So yeah, so not germane to the legal question, but hopefully that provides you some context. All right. Fair enough.
00:15:48
Speaker
Yeah. I'm just trying to get in the head of when they go to appeal it. Was it like an absolute Hail Mary appeal or was it like, dang, the whole court case like rested on this? Of course I'm going to appeal it. There were a lot of different arguments that were made for like some like varying in how um obscure they were. um So there were like multiple, which is actually pretty common. Like,
00:16:10
Speaker
Hey, I want to appeal my case because of this this this this, this, this, and this problem. And so the court has to kind of work through all of them.
00:16:18
Speaker
any other Any other factual questions before we we move on?
00:16:24
Speaker
don't think so.
00:16:29
Speaker
Cool. do Do we know why the he was only asked to read the fifth statement? You got time to sit there and listen to someone read five different statements? Come on. my My guess is the idea is they just pick a number and they ask the person to read that one in order to determine if they understand English and could respond.
00:16:51
Speaker
And are actually able to respond to instructions. And actually are reading versus like parroting. Right. yeah So he actually read it. Yes.
00:17:02
Speaker
And then they that's what they use to say, you know, we believe that this person ah speaks English, understands English, and can read English. And there wasn't, I think, like the like was the last case or one of the other cases, there was an issue about maybe being drunk or something.
00:17:20
Speaker
No, that wasn't one of our cases, but no no issues of that in this case. No issues of any alcohol or substance intoxication. No no issues raised with ah reading levels.
00:17:35
Speaker
So to summarize, Guy signified that he understood his rights, yet did not sign the waiver to remain silent, but then just stayed silent.
00:17:48
Speaker
um I think that's the general gist of it, yeah. It's like, I do not waive my right to remain silent. It wasn't a- I guess that means you don't have to talk. like It wasn't a waiver. It was just a form basically acknowledging that they'd been informed and understood.
00:18:05
Speaker
Wait, so that's what he wouldn't sign, is the yeah form that says I- Correct. Yeah. these that i have I have received the instructions of my rights. I'm acknowledging that you did your job.
00:18:17
Speaker
Yeah, not not a waiver of rights, a acknowledge acknowledgement of having been read rights. Another question. Is it common police practice to conduct an interview for two hours and 45 minutes where the person you were interviewing says essentially nothing?
00:18:36
Speaker
Slow day, Graham.
00:18:39
Speaker
Were they blurred? So I think I have a little something in here. I don't know if there's any, you know, um ah stats in terms of like and people not saying anything, but ah most interrogations last 30 minutes to two hours with the mean length of 1.6 hours. And this is from a review by ah um Kasson and colleagues.
00:19:06
Speaker
Holy shit. I mean, I guess it depends on how effective your torture method is. Yeah. The bad cops are going get real bad. Are they like speed running it?
00:19:18
Speaker
Yeah. you feel You go right to pulling off fingernails with pliers. You probably get that interview done pretty quick.
00:19:27
Speaker
Any more factual questions? Nope. Nope. I think we're good. Awesome. Okay. So Nikki is the petitioner in this case, which means Nikki will be representing the Burgess who was a warden, I believe, at the prison where yeah he was being held. Yeah, it's warden. Yeah. Which basically means Nikki is representing the state of Michigan.
00:19:56
Speaker
Yeah. if you're If you run a prison or if you're in charge of a prison, you're just getting named as a defendant in lawsuits. like i was actually going to ask, well, why is his name on it? What did he do? Because he was the guy whose name was on top of the letterhead.
00:20:08
Speaker
so It's not Michigan versus Tompkins. It might have been a woman.
00:20:16
Speaker
ah just Yeah, Mary Burgess. If we can gender this person just based off name alone. Look at us, assuming male-only wardens.
00:20:28
Speaker
yeah Okay, I have put seven minutes on the clock for Nikki. Her time will begin as soon as she does. Okay.
00:20:40
Speaker
i Sir Justice, and if it please the court, here we are again, hashing out yet another unnecessary Miranda issue.
00:20:56
Speaker
We've already talked about this. We've been over this in Butler, and yet here we are again in search of a magical incantation.
00:21:07
Speaker
Here we are again searching for the forest amongst all these trees. The Fifth Amendment grants us protection from compelled self-incrimination.
00:21:20
Speaker
There was no compulsion here and therefore no violation of the Fifth Amendment. As the court has held, it's about whether the defendant knowingly and voluntarily waived his rights and VT did that here.
00:21:37
Speaker
This court previously held in Butler that silence and understanding of one's rights and a course of conduct that indicates a waiver is in fact a waiver of rights.
00:21:51
Speaker
We don't need a stack of paperwork or a magical phrase and the court has previously recognized the implicit waiver. VT read the form out loud.
00:22:04
Speaker
The form clearly laid out his rights. He did not say that he was unwilling to waive his rights. He did participate in the interview.
00:22:15
Speaker
He just participated selectively. He chose to answer some questions just as he chose not to answer others. When he chose to answer a question, he then waived his right to silence.
00:22:33
Speaker
This is the essence of knowing and voluntary participation. There is nothing that occurred before, during, or after this interview to suggest that he was impaired in his understanding or his ability to understand the rights that he was informed of.
00:22:50
Speaker
There is no reason in the record to date to think that he did not know that he didn't have to answer questions. As stated in Butler, a waiver of rights can be inferred from the individual's awareness of or having been informed of their rights and then engaging in behaviors that indicate that they are choosing not to exercise those rights and behaviors that specifically communicate that they are not exercising their rights.
00:23:17
Speaker
Once again, we don't need a precise phrasing. We can draw the inference from the individual's words and actions. The point of Miranda was to make sure that a suspect was informed of their rights when interrogated.
00:23:30
Speaker
The courts just need to consider the facts and circumstances of the case and consider the context. In this case, VT was informed of his rights and behaved entirely voluntary.
00:23:41
Speaker
The police didn't threaten him. They didn't harm him. They didn't make any improper promises to him. So the police satisfied the requirements of Miranda and as such, they have discharged their duty.
00:23:52
Speaker
um I think with that, I will take some questions. I don't have any. So what, I'm just going to be pro-cop again? Yeah, it's it's it's a compelling argument so far. I want to see what Jared cooks up. Justice Graham, I would say so. It's it's pretty cut and dry.
00:24:12
Speaker
Well, you would say that, which is why we have- Yeah, be of course you would.
00:24:19
Speaker
This whole, yeah, so I may have acknowledged verbally his rights. Record is conflicted. Did he mumble something? ah So there's a lot of back and forth about he said, yeah, i received them or yeah, I understand versus, you know, claiming he didn't.
00:24:37
Speaker
um But in any case, there's nothing to suggest any inability to understand. Did he say why he refused to sign the form? ah So I think a reasonable interpretation could just be caginess, not wanting to sign anything, wanting to listen to what police had to say, maybe answer something, but not answer others.
00:25:02
Speaker
So I'm not sure that this question is directly for you, but maybe just it's a global question, but like, is silence interpreted in the US s court system as like, literally like, like sounds coming out of your mouth flapping?
00:25:16
Speaker
Or does silence also connote like, britain written words on a note, you know, or or sign language? um I think if ah the if this individual were were deaf and communicating in sign language, that would be considered speech that wouldn't be remaining silence. So I don't think it's, um you know, a strict literal interpretation.
00:25:37
Speaker
What if they like wrote, I did it a hundred times on a note while one is else is in the room, and then they crumpled it up and put it in their pocket? Is that silence or not silence, I should say? Is that breaking your silence? mean, if it's within view of other people or within view of cameras- And it's expression and therefore- Or somehow retrievable, yes. Okay, interesting.
00:26:00
Speaker
What about interpretive dance?
00:26:04
Speaker
right, nevermind. So i'm I'm just trying to say like like silence, I guess, shouldn't be considered just in the context of somebody speaking, right?
00:26:15
Speaker
it's It's broader than that. Mm-hmm. therefore his nods are effectively communication. It's conveying information in response to questions put to him.
00:26:26
Speaker
I'm going to side with the cops again. All right. No further questions. Yeah, this might be a tough one, Jarrett. knew it. I'm looking forward to it actually. Yeah, no pressure.
00:26:39
Speaker
Maybe I'll ah yield the last 45 seconds or I'll save that for- ah You should sing a song.
00:26:47
Speaker
I'll, what is it? What's the rule? How's that work? I'll save it for later. Quickly. There's only a few seconds left now. yeah That actually helped your case immensely counselor. I will preserve 45 seconds for you. If you'd like for a song.
00:27:00
Speaker
Yeah, sure. To be used only for a song. well Only for a song.
00:27:08
Speaker
Oh man. I love going second and hearing. I agree. Nikki. Yeah. Unfamiliar spot for you, for sure. Yeah, no, i've never I've never experienced such a... This is your show. You don't have to do this to yourself.
00:27:25
Speaker
They make me.
00:27:28
Speaker
It's the shadowy cabal of producers who bankroll us. ah Yes.
00:27:35
Speaker
That said, looking for sponsors. Non-shadowy cabal. Step right up. Bombasox, where you Relitigated.com. Look us up.
00:27:46
Speaker
I would love to read your three and a half minute sponsorship message.
00:27:52
Speaker
All right. I am, I am ready. Whatever you are, Nikki. Okay. Since it doesn't matter. Apparently. Hey man, listen, just, just cause I was, i was excellent, you know, no, no reason to be bitter. It's fine.
00:28:07
Speaker
Uh, but yeah. Ready when you are. Okay.
Prolonged Interrogation Criticism
00:28:11
Speaker
Hmm. Mr. Chief Justice, and may it please the court, very basically, if the police inform you that you have the right to remain silent, doesn't it make sense that in order to assert that right, you remain freaking silent?
00:28:28
Speaker
At the heart of this case is a contradiction of procedure that I believe this court can fix. In Miranda v. Arizona, the court asserted that the police must advise you of your rights and that you must waive your rights in order for your statements to be admitted admitted into evidence.
00:28:43
Speaker
So if my right is to remain silent and you just told me that it's my right to remain silent, why do we expect people to say anything in order to be silent? In Butler v. North Carolina, the court said that you only get a lawyer if you specifically request one.
00:29:00
Speaker
That makes some sense. You can't leave and get a lawyer while you're detained, so you have to ask for one. But this case is not the same, no matter how much the petitioner wants it to be, because I don't have to ask for anything to be quiet.
00:29:14
Speaker
I can just be quiet. How long does someone have to give you the silent treatment before you realize that they're giving you the silent treatment? If someone doesn't respond to three, maybe four direct questions, wouldn't we all assume that they're giving us the silent treatment?
00:29:31
Speaker
Two hours and 45 minutes of talking at someone wasn't enough to make the police think, hey, you know what? Maybe this silent person heard us say you have the right to remain silent and is doing just that.
00:29:44
Speaker
After 15 minutes, this interrogation should have ended with the obvious conclusion that the police informed the respondent of their right to remain silent, and the respondent then remained silent, thus asserting their right to silence.
00:29:58
Speaker
The state will say that the respondent did respond to questions about wanting a mint or how comfortable their chair was, so they were cooperative and answered the police questions. Is the state serious?
00:30:10
Speaker
Those were not questions about an alleged crime. Those were pleasantries. Let's take their logic one step further. Did the respondent answer any questions about the crime after refusing the mint, since that was such a huge sign of cooperation?
00:30:23
Speaker
No, they remained silent. So maybe we're talking about different kinds of questions here. The respondent was smart enough to recognize this. Why can't the state...
00:30:35
Speaker
Why is the standard that the citizen, alone in an unfamiliar room, under bright lights and in an uncomfortable chair, is expected to boldly and without error assert with perfect clarity their rights?
00:30:47
Speaker
With all the power and resources of the state, shouldn't the default be that the citizen waives their rights when they make it clear that they wish to waive their rights? This is a system that is set up to prey upon the poor and the poorly educated.
00:31:00
Speaker
Citizens who do not have the knowledge or the means to fight their detention must square off against trained interrogators with all the power and resources of the state. They're expected to be experts, and the experienced police officers only ever have to use basic common sense when it's in their favor to do so.
00:31:19
Speaker
this This doesn't make any sense. This should be reversed. This is a classist system. And given our history as a nation, that often means it is also a racist system as well.
00:31:31
Speaker
Finally, consider this. For two hours and 45 minutes, the police questioned a witness who was silent and would not even look at them, except to refuse a mint and remark that their chair was uncomfortable.
00:31:43
Speaker
Almost three hours of this, when it's so obvious they don't want to talk, is coercive. The police obtained their flimsy admission by placing someone under strain and hitting him with wave after wave of question for nearly three hours, pulling teeth.
00:32:02
Speaker
Put yourself in their place. At what point would you crack? At what point would you say something sarcastic? Because let's face it, that's everyone on this call would probably do that.
00:32:13
Speaker
It's not like you know that there's a time limit. You just want to get out of the room. Justices, that is a that is coercive at minimum, and it is torture at worst.
00:32:24
Speaker
What part of this feels willing and voluntary to you?
Silence as Invocation of Rights
00:32:29
Speaker
So if the Fifth Amendment means anything, and if the Miranda v. Arizona decision means anything, you must strike the respondent statement under the du under duress from evidence.
00:32:41
Speaker
Thank you, and I yield to questions.
00:32:45
Speaker
Every now and again, I just think that I might just be gullible because I'm back in. I'm back in. Anti-cop. I'm in. Let's go. um i actually do have a question. Going back through the facts of the case notes,
00:32:57
Speaker
You mentioned the chair and you mentioned the peppermint, but it clearly states here, he occasionally responds with things, two things, with a yeah, no, or I don't know, or a nod.
00:33:08
Speaker
What questions were those in response to? Conveniently, the state did not tell us to which questions those were in response to. Perhaps they asked him if he would like a coffee. Do we have a recording?
00:33:25
Speaker
Not in the record. you probably don't, but like, is there a recording? Not on the record. Not on the record. Hmm. Is there some sort of requirement for, okay, so if I allegedly am at my job, allegedly at working from home and I'm away from my computer for a long time, allegedly,
00:33:46
Speaker
My Microsoft Teams goes from green to yellow, allegedly, and I have to wiggle my mouse to where it goes back to green. Is that the same kind of principle that the police are using when they're asking him, to your point, counselor, these pleasantries?
00:34:00
Speaker
um Is there some sort of time limit that they have to ask one of the, that they have to receive a response before they can terminate the interview or they are forced to terminate the interview? Do they wiggle this man?
00:34:11
Speaker
Uh, it's the police's contention is probably no, we will keep you here as long as we want to and ask you until you finally start talking to us. Uh, which I believe is, is a, is a coercive move on behalf of the state and should not be allowed.
00:34:28
Speaker
that's there the i'm I'm asking for the court to perhaps put in place some boundaries upon the state to say, hey, use common sense. this clerk This person who you told you know you have a right to remain silent is doing that.
00:34:43
Speaker
And, you know, it needs, the state needs to have some onus here. Right now, the onus is entirely on the citizen. You know, if you don't perfectly say the magic words, then you don't get a thing as a citizen. That is ridiculous. The state should have the burden, not the citizen.
00:35:00
Speaker
So when somebody in real life, like following a courtroom drama on TV says, I want my lawyer, lawyer shows up. Can the police, do the police have any latitude to like question the lawyer or like filter questions to the defendant or or suspect, I should say, via the lawyer?
00:35:17
Speaker
Like what happens then? like All of the questions are asked. All the questions ah in that case, all the questions are asked to the ah suspect in front of their lawyer. ah And their lawyer has the opportunity to. decline, to answer. To confer with their but their client.
00:35:34
Speaker
Okay. so So essentially the interrogation continues, but you have an advisor on your side. So theoretically the entire proceedings in this case, the two hours and 45 minutes, those could have happened exactly the same way.
00:35:48
Speaker
If he had said up front, I want my lawyer, lawyer had showed up, they could have proceeded with that two hour and 45 minute rigmarole, just the same. Except ah it's possible a lawyer, if a lawyer had been there, would have said, guys, it's been 15 minutes and he said nothing.
00:36:04
Speaker
Yeah. or Or actually probably lawyer would have said we're asserting right to silence. I know we're at time, but I want to pursue this for a second. What if lawyer says it's been 15 minutes. This guy's not saying anything.
00:36:16
Speaker
Cops say don't care. You want gum? No, he wants a mints. No, you want some runs. I think the way it works is the lawyer says assertion to write us to write of silence.
00:36:28
Speaker
Get up and walk out. Okay. Or you can detain, you can continue detain him, but we are done answering questions. Uh, the police just offered you nerds. I advise you take them.
00:36:39
Speaker
Very good. and all right. That answers my question. I am out of time, but Nikki has 45 seconds. i Come up with song.
00:36:51
Speaker
Uh, no, I am not a songwriter at all. I just have a few thoughts that I'd like to share. um One being that ah Jarrett really hasn't explained, given that the person is the expert in their own experience, how offering a mint and inquiring after one's comfort is inherently coercive.
00:37:15
Speaker
And, you know, as, as justice Adam was kind of asking about in his questions, you know, silence is not an absence of communication. And so what to make of a nod or a head shake or a dance, especially even after being informed that anything they say can and will be used against them.
00:37:36
Speaker
And VT understood that there's no question in the record of any of his understanding of this. And I'm at time. time I didn't realize you could do that. I didn't realize you could reserve time and and save it up for a retort.
00:37:52
Speaker
That's awesome. Oh, Jared's done that. This is like high level street fighter. This great. Well, you know, that's what court is. or You know how back in the day we had trial by combat and then we're like, that's too bloody. Like this is lawyers are basically the the modern day.
00:38:08
Speaker
Gentlemen, like we should punch each other with words. I'm going to need you all to not give the, you know, the current powers that be any suggestions.
00:38:18
Speaker
I mean, I'm just saying in theory, in theory.
00:38:24
Speaker
Point and counterpoint. I think even in, think we have this, we this notion of like, you know, prosecution gets to ah ah question a question of witness and then they are done with that witness and then defense gets to, but it actually goes, can go back and forth. It goes back and forth.
00:38:39
Speaker
You know, they just keep redirecting. Yeah, there can be redirect to clean up anything that came out on cross, and then there can be re-cross in order to get on anything that came out and re- and there can be re-re-re-re- like until everybody's like tired. three Yeah, it's not just, it's not, you know, just it's not just one and done. so i So I see that very rarely, but occasionally on courtroom dramas.
00:39:03
Speaker
Well, they've only got 30 minutes.
00:39:07
Speaker
Everyone is done. But courtroom dramas are our number one means of educating the public on how the court system works. Unfortunately. i say, you know, actually 100% seriously.
Legal Procedure Changes Debate
00:39:23
Speaker
And if that's realistic, then enhance.
00:39:30
Speaker
Enhance.
00:39:32
Speaker
I think we're all out time. I think we have to move into deliberations, unfortunately. Unfortunately. I would love to answer more questions, but I do not have the time for that. do actually have a question. Definitely not giving Nikki any more time.
00:39:48
Speaker
This doesn't mean not necessarily asking you as your lawyer self over there. You guys are real lawyers, right? 100%. Okay, just making sure. Oh, yeah. Damn it. We have been over this.
00:40:04
Speaker
yeah Yeah, I went to the school of my imagination, got my legal training there. It was great. Yeah, Wikipedia you. now Did VT eventually get a lawyer and when did the lawyer enter the case?
00:40:20
Speaker
um That, I don't think we could really tell. Post interrogation. I guess. i When it was too late. Did he get a lawyer? Was like a state appointed after they were done?
00:40:33
Speaker
I mean, usually if a person doesn't like invoke, then it's like when they're they're held and then they go to court to be arraigned and like formally notified of their charges, that's when they get the lawyer.
00:40:46
Speaker
um But we don't know, based on this record, you know what happened in this case. Okay. Hmm. Nikki and I have returned to to being clerks.
00:40:57
Speaker
We have reached the deliberation phase. Good luck, justices.
00:41:04
Speaker
This one's tricky. Because on the one hand, like pretty clear like what Jarrett was saying. like you don't How else do you invoke your right to remain silent other than just shutting up?
00:41:19
Speaker
Like it's counterintuitive. You have to break your, your silence to invoke it specifically, whether, you know, you're breaking that silence verbally or doing it in writing or interpretive dance or mime or, you know, whatever.
00:41:34
Speaker
So that makes sense. But on the other hand, he did kind of incriminate himself. He did nod when asked a very incriminating question. And that, in my opinion, is breaking silence through a gesture. However, that happened after an inordinate amount of time in captivity when it was obvious to Jarrett's point that this man did not want to be answering any questions.
00:41:57
Speaker
So this case is not about this case, man. It's about how long the cops can hold you reasonably when questions are not being answered, I feel like. And given that that's kind of what it distills down to for me, I feel like the cops held him too long.
00:42:14
Speaker
I actually think I... I agree. I think that the if we are operating under the confines of kind of the law as we know it, the status quo as we know it, I think that he... I find it i find it hard not to agree with Nicky. However, i think the bigger picture, the bigger point is kind of crazy that they held this man for two hours and 45 minutes and he was saying nothing or essentially nothing.
00:42:44
Speaker
That is a little psychopathic. It's nuts. so i I think that if we are – I'm in favor of ruling to change some of the rules, if you will, change some of the laws around, can we do that?
00:43:02
Speaker
Can we change rules? We're the Supreme Court. We can do what we want. We can do anything. We're all too powerful. Who's going to stop you? The cops have to answer a question for every question that they ask to keep it fair.
00:43:17
Speaker
No? Okay. We'll try again. We'll workshop that one. If he doesn't answer by the time his team's notification allegedly changes to yellow. You cannot waggle the suspect under any search circumstances.
00:43:30
Speaker
I know that I and everyone else will regret the following, but you can, if you choose, create some sort of rule or test that
00:43:44
Speaker
ah They have to define what an R square is and interpret a linear regression. This is just reminding me of the shenanigans doctrine or whatever it was.
00:43:57
Speaker
i guess the question would be if you're going to unambiguously, if you don't have to unambiguously invoke your right to silence, which is the question, can it be implied that We're going to go with law stuff here.
00:44:14
Speaker
We need to have some hard and fast rule for what is implied, right? Law axiom. Silence is silence. I'm going to go ahead and make that bold proclamation.
00:44:28
Speaker
I would love to know the context in which they like, I know they said the last 15 minutes when is when they started getting the yeses out of him. You know, the do you believe in God? Yes. With tears in his eyes, first of all, very specific detail that the cops threw in there. While he's still nodding, agreeing to that question. Like, did you kill that man? Do you feel bad about it? He's like, still nodding. Yeah, I'd love to. I'd love to, you know, get a feel for the timing of all of that.
00:44:55
Speaker
But murder says what?
00:44:59
Speaker
That is not admissible in court, sir. Yeah. it's and And furthermore, like. Innocent man wants a peppermint? i
00:45:14
Speaker
Only guilty men like breath mints. So, yeah, that that last 15 minutes thing is kind of interesting because, like, it it's based on the the sporadic, like,
00:45:26
Speaker
non-answers throughout the thing. Like all of a sudden he's like nodding along some questioning. It's kind of interesting. He must've hit some physical threshold at some point. Maybe he needed to pee really badly. ah he did say the chair was very uncomfortable and maybe hit, maybe it had sapped all of his hit points and he was about to die.
00:45:42
Speaker
um so I, am curious about what, what the state of mind was in those last few minutes.
00:45:50
Speaker
I don't know. I am having a lot of trouble sympathizing with the state on this one.
00:45:56
Speaker
I mean, I'm on board with the, maybe you don't have to un- Well, I guess actually the question is a little different. question is, do you have to unambiguously invoke your right? But Jared's argument was he did unambiguously invoke his right.
00:46:11
Speaker
By being silent. Yeah. But then that does raise a difficult antitest for the police of like, how long do they have to remain silent? Is it like 20 minutes? And then they're like, OK, it seems like you're not saying. How many tests? Like, if you've read the paper, what else? Yeah, and I think that there's potential then for people to game the system. I mean, I joke about the wiggling your mouse, but I do feel like Allegedly wiggle your mouse. Allegedly. Allegedly. I said allegedly. You can't prove I didn't.
00:46:47
Speaker
You want to make sure that we have a test that doesn't just open itself up to the police now being able to game the system to where they have these interviews extending for longer and longer and longer and longer just because somebody is satisfying some sort of test.
00:47:07
Speaker
Yeah, I mean, it's like, if not saying anything implies that you are invoking your right to silence, what's the limit on that?
00:47:20
Speaker
Like,
00:47:23
Speaker
Sorry, say that again, Mike. Well, okay, we're saying, okay, if the person doesn't talk, then we're saying, no, they've implied that they are invoking their right to silence.
00:47:35
Speaker
Like how many questions do you ask before it's like,
00:47:41
Speaker
because we're going to put this into like a ah law thing. We need to have some like actual standard quantitatively here. Right. That's what i was saying. Like, is it 20 minutes of, of not answering? And that would point you like, okay, this man is silent. He has invoked it. He's invoked silence. Do you do you ask, you, do you invoke your right to silence? And then what if he, what if it doesn't answer that?
00:48:03
Speaker
Oh no. Okay. Okay. Universal gesture. You got to go and then throw the way key. And that's, that is the nonverbal affirmation that you have invoked your right to silence.
00:48:15
Speaker
I mean, should the state just straight up ask at the, do you invoke your right to silence? Was that ever asked? and we Are we about to reinvent Miranda? Wait, are we, are we, i wait, is the state even allowed to ask that though? Wasn't that the point of the form that he was supposed to sign?
00:48:30
Speaker
Yeah. We've come full circle. The, the form was just acknowledgement. of you know that the rights had been explained but not wait I feel like this form needs to be amended a form yeah the form is like when you go to the doctor's office and they give you like the HIPAA policy and then they have you sign a form that says they gave you the HIPAA policy Yeah, but in this case, it would be like a form, like you got it, and do you agree with the HIPAA policy, which is not, the analogy breaks down, but like when want- Do understand your rights, and like do you wish to invoke any of these rights? We just need another checkbox on the form, and we're golden, I feel like. There's our test.
00:49:11
Speaker
Is that ADA compliant? Is that bureaucracy to grow? This is a UX problem.
00:49:17
Speaker
So instead of a a fun, pithy, branded um new judicial ruling- or test for the future. We're just going to- More paperwork.
00:49:28
Speaker
Yeah, make a mundane operational paperwork modification. Just update the PDF. Yeah, we'll get the interns on it. It's actually a chat GPT problem. We'll take care of it.
00:49:43
Speaker
Yeah, I think we did justice, guys. We fixed the clerical process and made a great justice in the process. No, wait, we're off track. Hold on. There are bigger questions at hand here. The biggest question I really think at hand here is like, how long can they reasonably hang you out in that awful room before they have to let you either go or arrest you?
00:50:06
Speaker
Doesn't that feel like the question, Ria? Like lawyer or not, you're, ah if if you are not responding or you have invoked your lawyer and the lawyer has advised you to not respond to these questions, in either case, I think the outcome's the same.
00:50:19
Speaker
How long can that go on? Should that go on before they're just like, okay, You're to go or we have to arrest you. That feels like something that could have a definitive standard put in place.
00:50:31
Speaker
but Does
Defining Silence in Legal Context
00:50:32
Speaker
that exist? You're arrested either way. I guess it's how long does the questioning go on for? it does kind of get us back though, because what defines him not answering?
00:50:42
Speaker
you know Our definition of not answering could be two two hours and 45 minutes of near silence or almost silence as the police describe it. But... You know, you would feel like it would need to be complete silence.
00:50:55
Speaker
You know, what yeah if he's responding to anything, then the police. Timer resets. Right. The timer resets. Timer nods. and Also, nodding. Nodding is an ambiguous form of communication. Like you could be nodding because you're falling asleep.
00:51:09
Speaker
Yeah. Different cultures have different uses of nods. That's true. That's very true. i forgot what we're supposed to be ruling on right now.
00:51:23
Speaker
what is What is the core question at play here? We've gone way off track. you have to unambiguously invoke your right to silence or can it be implied by just being silent?
00:51:34
Speaker
And at which point should police stop the entire interrogation? Yeah, I think that you it's implied. Silence is silence and not silence is not silence. And you invoke your right by being silent. And then I think the question is just a matter of how long can they keep you?
00:51:54
Speaker
Okay. So I think we're all in agreement on the first part of that, right? Like, yes, if you're silent, you're evoking your right to be silent. I think that if I may, there's,
00:52:07
Speaker
It is our responsibility as this high court to make sure that the laws are precise and clearly defined. And so I think that we need to be very specific as to what silent means.
00:52:19
Speaker
Does silent mean no nodding, no nothing, you are sitting completely still? Yeah. or you know, what is silence? Because I think that if we are not precise, then there will be cases down the line where we will have to relitigate this.
00:52:33
Speaker
Two things. That that is one. relitate I see what you did there. You see? on it You see? you see know Two things. Yeah, so that, and then ah what is the like time threshold at which... All right, you've reached the test of being silent for... You've done what we consider being silent for long enough that you are now considered silent. Yeah.
00:53:02
Speaker
congratulations, here's your hat or whatever. a do you the The crazy thing that I'm, as I rethink about the the core question is I think that by asking all of these questions, we are answering kind of the question, the question at the center of this, which is, can it be implied? It's like, yes, but like there is a. Is this like the porn thing where like, I can't define it, but I know it when I see it.
00:53:28
Speaker
It really is because if if they're if they're like grinning and nodding to everything the police are saying and then shaking their head to other things the police are saying, like that's clearly communication. But if they're just like nervously rocking and the police say that that's nodding,
00:53:43
Speaker
That's a very different thing. so Or if they just say, I'm not invoking my right, but then just stare ahead unblinking for four hours.
00:53:54
Speaker
Or make like a high-pitched sound in response to everything the police say, which is not technically being silent, but you're not conveying anything meaningful. yeah Just answer every police question with a question. Oh, this is complicated Oh, damn it. Got us again. Yeah, what if they answer every question with a question?
00:54:11
Speaker
You made me think again. Yeah. answering What if they answer in a complex series of riddles that just bewilder and confuse the police and make some of them vaguely upset with longing and ennui they can't explain?
00:54:23
Speaker
yeah That would be upsetting. I think that we can, I almost feel like i i want to take slices of both of this, right? and but Both sides of this. Slice it up. I think that you have to unambiguously invoke your right to silence.
00:54:37
Speaker
However, I think that we can put a standard in place where there isn't the two hours and 45 minute quote unquote monologue from the police to the person they are questioning. Like we can put standards in place to where it's not such a ridiculous,
00:54:54
Speaker
amount of time instead of the circumstances. But I do think that there has to be a very specific, that has to be a very specific answer. And also it is preferred if you just unambiguously invoke your rights of silence.
00:55:07
Speaker
is just Just tell us you're invoking the damn right, the silence. Come on. Damn it. We're about to just, we're about to, we're about to, we're about to do it, aren't we?
00:55:17
Speaker
where we're We're right back to update the form. that that's our That's our dramatic Porcanolo's dose for this episode is update the PDF. yeah yeah
00:55:29
Speaker
Yeah, I think we're in agreement. um The man was invoking his right to be silent by being silent. When you put it that way, it seems so obvious. So it sounds like that it...
00:55:42
Speaker
Sounds like you're coming down on the – I'm actually not sure. Which side are you coming down? Who are you siding with? Yeah. What is your – What is any of this? We have no idea. We are creating in circles.
00:55:54
Speaker
We were trying to get away with this, but no, you you're requiring us get more specific. we need We need like a one-liner for like the the episode wrap-up. Can we unambiguously rule on this or rule can it be implied? Yeah.
00:56:08
Speaker
ah
00:56:11
Speaker
So imagine that all these legal scholars are going to be reading what you have to say and like analyzing it deeply and teaching it in law schools. What, what is it that you?
00:56:22
Speaker
Yeah. I think we both, we all came down on the right that if you're being silent, you've you're, you're being silent, but then we have to have the second part. I don't think we got the answer, which is like, what is the, like the time limit on questioning that makes that,
00:56:39
Speaker
go from implied to unambiguous. I'm going to go i'm goingnna go ahead and call this the cold pizza ah question. It's how cold does a pizza have to get before you don't want to eat it no more?
00:56:50
Speaker
um That's so stupid because like I will just eat pizza out of the fridge. I am always as hungry as there is pizza in front of me. Maybe this is too subjective. Pizza out of the freezer? Okay, freezer. right yeah But let's just get me actively make that cold. I thought you were going to say you get as long to question somebody as it takes for the pizza you ordered to get cold.
00:57:12
Speaker
Oh, yeah yeah. That's absolutely what I meant and failed to articulate. hundred percent 100%. Pizzas take a while to get they come right out of the oven, though. Last time I had a pizza. And and and what counts as cold?
00:57:25
Speaker
Yes. We need temperatures here. Oh my God. which has um those Are we measuring the bottom of the crusts? Yeah. Bottom line is if you're silent, you're silent and the cops shouldn't be able to hold you for an excessive period of time.
00:57:38
Speaker
What is excessive? That's for another episode, view listeners.
00:57:45
Speaker
So basically long enough, like if you're silent for long enough, The cops should figure it out. i remember the last thing we said, it was it was like the pornography thing of like, I can't define it, but I know it when I see it.
00:57:59
Speaker
um I feel like we can try to define it here. at least we can put some bounds on it if we can't define it exactly. But it's a difficult question because if if the suspect is like maniacally smiling and nodding along to some questions and shaking their head to others,
00:58:15
Speaker
That's clearly communication, even if they're being verbal and silent. would say that's not being silence. It's verbal silence. but so Silence, like commute non-communicative. yeah Let's replace silence with lack of communication. Yeah, yeah, yeah. that's I think that' that's the biggest problem with the right to remain silent part of the Miranda rights.
00:58:34
Speaker
yeah is is Yeah, it should be verb any communication whatsoever. You have the right to bring remain non-communicative. How long... or what the degree of no communication before it kicks into being unambiguously, okay, you have like triggered your right to remain silent. Like the, if then statement has gone to true and we are now silent officially.
00:59:02
Speaker
Yeah. i I really like Jarrett's pizza doctrine. Uh, and we're going to have to, we're going to go, we're going to, We're going to go one layer deeper. We're going to make it the Chicago deep dish pizza doctorate. The amount of time that a Chicago deep dish pizza takes to get cold, which by my reckoning is an hour.
00:59:18
Speaker
We have to time that. We have do some tests with a pizza. And like what part of the pizza are we like talking about? Cause like a Chicago deep dish, like the inside, it's going to be warmer for longer. a Probe thermometer in the middle and it comes up the same temperatures. If you stick the probe thermometer in the middle of the room.
00:59:36
Speaker
Yep. That's the test. The air conditioning is on. Well, the pizza box is open. um scar You're really messing with my metaphor again.
00:59:46
Speaker
I'm just thinking like um'm just thinking like a lawyer. Okay. Maybe pizza is not the best medium for this doctrine. and um An hour. One ice cube out of the freezer. You put it on the table.
01:00:02
Speaker
Is it a big whiskey cube? Is it round? It is a one inch by one inch by one inch ice cube. In a 70 degree room. We're going to find an SI measurement for the legal ice cube.
01:00:13
Speaker
On a wood table that is at room temperature. i love this actually. Yeah, 25 degrees Celsius. We have the power to do this. This is a great. this We're going to make this judicial law. We could just make it an hour.
01:00:25
Speaker
We actually have units for this sort of thing. We give every cop a laxative and they have to a question has to be answered when you got but before a co her cop leaves.
01:00:38
Speaker
Or the syrup of Ipecac test, like in ah Family Guy. but Just... Cops constantly puking in every interrogation. I mean, would be incentive for the cops to really make sure that they had the right person. They were going to go through all that.
01:00:54
Speaker
Can we just make it a law that there's just always a lawyer? Huh. Even though it's not going to be the permanent lawyer for the case, that there's got to be some representation. If we can post- No question.
01:01:07
Speaker
You get a lawyer for the initial questioning. You can change lawyers to your preferred lawyer after- but there has to be a lawyer. If we can post up a traffic cop at every single work site in the state, we can do this.
01:01:22
Speaker
You just need a lawyer in a 15 minute radius of every, every municipal jail, every holding cell. I don't think that's that hard to do, honestly. Like that seems actually pretty reasonable. Be the lawyer on duty at the police station for the day.
01:01:36
Speaker
Yeah. Good way to give a leg up to junior lawyers. Like every lawyer, like you know, you get jury duty. Every lawyer's got like, Public Defender Week. Okay, you're at the station. If there's things that come in for questioning- Oh, thought you were going to imply we just like i mean draft lay people to be the lawyers.
01:01:50
Speaker
They have lawyers. They have that duty lawyers at the courthouse. If somebody comes in or they're just fresh arraigned or something, and it's like, who's their lawyer? They don't have appointed or their regular lawyer is gone. Then just some random lawyer will be like, I'll be their lawyer for this. Well, no, I mean, I could easily structure it's that every police interrogation had to have a lawyer present.
01:02:09
Speaker
Oh, so just like- Yeah, yeah. and It's got to be independent. It can't be someone who's like, because because you then it would just be like, oh, it's the police's lawyer. It's the police lawyer. Yeah. There's got to be some separation there. That's why I think like a rotating, like it's not the same guy, like, you know, actual lawyers in the state, like they serve.
01:02:27
Speaker
You can have celebrity guests. Out year or something. Yeah. And it's just, we get, we just, all of these problems go away because like this whole thing, like there's a lawyer to answer these questions. And so it's not even about like, it's just automatically like, oh, we want to ask you some questions. And then it's just like, here's your lawyer for this interrogation. It's just automatic. We're going to question you.
01:02:47
Speaker
We are. Lawyer has to come in before questions can proceed. We are the most activist court in history. And I mean like, if, if the, person in question has their own lawyer they can call, they have the option of, okay, let me call my lawyer.
01:03:00
Speaker
If they don't, then they have a lawyer fight. Hey, Bob lawyer is on duty today. He's, he's your lawyer for this. You can change lawyers at another point, but you have legal representation.
01:03:12
Speaker
Oh man. I love it. I love this. I love our sweeping changes. I'm actually happy with this idea. Yeah, you cooked. That was good. Mm-hmm. Took us a second, but we got there. So we have a ruling and then some.
01:03:25
Speaker
I would love to have a criminal defense lawyer on to just comment on just that, this ruling right here. Every private law firm in the country is salivating about this. yeah Oh my God, think about the Bill of Blowers.
01:03:40
Speaker
Well, no, it's it's it's press public service. So it's like jury duty. Yeah, every lawyer is obligated to donate you know a proportion of their time. and Every single lawyer just turned off the podcast.
01:03:51
Speaker
Well, no, because I think that's a thing. It's like out of the year or something. I feel like that's a reasonable ask. I think with a lot of licensed professionals, there is kind of like, hey, you should really consider if you can donate some of your professional time doing something. It's like lawyer national guard. I love it.
01:04:06
Speaker
Okay. but it's It's like lawyer jury duty is what it is. Yeah. Okay. like It's just like it's your obligation as a citizen. If you get a lawyer law degree, then you're in criminal law especially. yeah to be bar certified.
01:04:18
Speaker
Yeah. like It's just a thing you have to do.
01:04:22
Speaker
I believe that at least one state does have, i think it was Louisiana. i think it This American Life. Shout out to This American Life had an episode where in Louisiana, i guess they have a rule that says if there's not enough public defenders...
01:04:42
Speaker
then they will like pick somebody at random from the list of people who have passed the car and assign them. And this like personal injury lawyer got a you know a criminal case, and he looked at it, and he was just like, was like, I don't want to do this. This isn't what I want to do. And then he looked at the case, and he was like, the prosecution has nothing. Let's do this. Yeah, but i think in this case, it's and it's like like the lawyers aren't like,
01:05:11
Speaker
they're not beholden to anything like past the questioning. Right. Like the lawyer is just there for the initial contacts of the police. And so they're just, they're the interrogation lawyer.
01:05:22
Speaker
Yeah, essentially. Right. And that they're there until the real, well, not the real, but like the the chosen lawyer comes in or, you know, the interrogation runs its course. Yeah. yeah And I think, I think a lot of these problems kind of,
01:05:36
Speaker
other problems will probably show up. But I think a lot of these like last bunch of cases we did, like that solves a lot of it. Oh yeah. And then if the person just invokes the right to not talk to the police, then like the lawyer is there to be like, he's invoking his right. he's using his We're not doing this.
01:05:52
Speaker
We're out in an, in and out five minutes. They've done their, their, their thing. Love it. Really like this. Yeah. Really like this. Yeah. Feel strongly.
01:06:04
Speaker
And then we think about how much this is going to cost. Don't think about that. Don't think about that. That nothing to do with anything. no you don't cost. It's a public service. It's like the jury duty. It's a public service. It costs to nothing. But even the administrative overhead of selecting the people and cycling in and out and all that. like i I feel like that's a reasonable cost.
01:06:20
Speaker
Fair. Fine. My taxes can pay for that. I'm fine. Yeah. that's the The extra 0.002 cents per year that would cost that. it means a few suspects get to keep their fingernails. I'm all about it.
01:06:31
Speaker
Yeah. All right. This feels very much like a Mike rule mike has written
Supreme Court Ruling and Dissent
01:06:37
Speaker
written an opinion. i have, yes. And everybody has signed on to that opinion. Does anybody have any addendums or anything else? Or it's just like, this is a unanimous. Or separate concurrences. or Yes.
01:06:50
Speaker
I'd like to express my disappointment that we didn't get a song this episode, but that's it. right, guys. Well, I guess now our last thing to do is define pornography. And define it.
01:07:04
Speaker
It sounds like we have a unanimous concurrence on Mike's opinion, which if I understand it correctly, on the first part of the question, which is like, do do we need to throw out this person's admission of guilt ah such as it was?
01:07:20
Speaker
The answer is yes, because they clearly were trying to remain silent and it doesn't seem like they were really all that cooperative. And three hours is a long time to be talking to a wall Followed up with this notes or this really kind of points at the fact that like everyone should just get a lawyer when the cops talk to you.
01:07:42
Speaker
Is it at the point of of detention? If it's at the point like where they're going to Mirandize you, because like the cops can just talk to you and not Mirandize you. If you're not like the person they're investigating, if they're not interrogating. Get to the point where, OK, we're at the point where we need to start reading Miranda rights. Then a lawyer needs to automatically be.
01:08:01
Speaker
Okay. you you have a right too You have a right to an attorney. If you don't have an attorney, this is Bob. Yes. if you have an attorney, Bob's going to sit here until that attorney gets here. you know yes He's chained to the radiator. He can't go nowhere.
01:08:19
Speaker
ah Cool. All right. We have our opinion. Wow. And it is unanimous. I'm going to quickly comment on that. on that opinion and that, uh, well, I love it.
01:08:30
Speaker
Every police interrogation will go thusly. Here's your Miranda rights. Where were you on the, Oh, you're being informed that you shouldn't answer any of my questions and you're not going to talk to me.
01:08:41
Speaker
Cool. Have a nice day. i mean, I mean, it's going to make the cops do the job, right? Like do the, the groundwork, do the investigating. Oh no, the cops are going to have to do the job. Yeah.
01:08:57
Speaker
No more shortcuts. I'm fine with that outcome. That outcome seems like the way it should be. Yeah. Okay. Yeah. All right. We're going to force these pilots to actually fly the planes.
01:09:08
Speaker
We'll get next time when we just straight up abolish the police.
01:09:14
Speaker
Well, Nikki, tell them what they've won. Anarchy. Yeah, this was like a really cool discussion. All right, so the real case was argued March 1, 2010. Ooh, that's one our most recent ones.
01:09:33
Speaker
Decided June 1, 2010. It was a 5-4 decision. The majority opinion was written by Justice... I think it's supposed to be Kennedy.
01:09:44
Speaker
So basically... The court, the majority found that ah VT's argument that he'd invoked his right by remaining silent to be unpersuasive.
01:09:55
Speaker
um So basically, he didn't say that he wanted to remain silent. He didn't say that he wanted to remain silent. He didn't say that he didn't want to talk to the police, and which would have been a clear indication of his right.
01:10:08
Speaker
So according to the court, The purpose of Miranda is to make sure that the accused of ah is advised of their rights and understands them. And so, you know, silence along with, you know, the person understanding the rights and then behaving in you know, in a way sort of that, you know, it can be can be taken as a waiver, as an implicit waiver of one's rights.
01:10:33
Speaker
So if the prosecution proves that, you know, the Miranda warning was given and that the accused understood it, then as long as there was no coercion, then whatever statement they make, that's an implied, you know, waiver of their right to remain silent.
01:10:50
Speaker
Yeah. So yeah, so they're saying, you know, basically the the court had previously held in in Butler that like a suspect has to unambiguously invoke their rights like to a lawyer.
01:11:01
Speaker
So like if they make an ambiguous, equivocal or no statement about a lawyer, then they haven't invoked the right to a lawyer. The police don't have to end the interrogation. They don't have to seek clarification that the person wants to invoke the rights.
01:11:14
Speaker
This is kind of new because it's talking about silence specifically, but they're like, there's no reason to require a different standard. um We can just do the same thing. And, you know, if you make it very clear, if the person actually unequivocally states that they want to remain silent, then that provides the police with objective information on how to proceed rather than requiring police to, quote, make difficult decisions about an accused, unclear attack.
01:11:41
Speaker
intent and face the consequence of suppression if they guess wrong. And so they also say, ah suppression of a voluntary confession in these circumstances would place a significant burden on society's interest in prosecuting criminal activity.
01:11:57
Speaker
And in the decision, they're like, well, maybe the suspect wants to listen to the interrogation questions to get additional information. You know, maybe, you know, this gives them the opportunity to really think about what they're doing and make a more informed decision about speaking with police.
01:12:13
Speaker
So his answers to the questions about praying to God for forgiveness, basically the guy waived his right to remain silent as did his sporadic answers to the interrogation. If he wanted to remain silent, he could have just remained silent, literally, or unambiguously invoked his rights and ended the interrogation.
01:12:34
Speaker
Therefore, after giving a Miranda warning, police can interrogate a suspect who has neither invoked nor waived his or her Miranda rights. And they are not required to obtain a waiver before moving on to the interrogation.
01:12:49
Speaker
So that was the main opinion. ah Justice Sotomayor had some shit to say about this. I can only imagine. I have some shit to say about it. um So she was like, yo, Miranda specifically state that like police have to, you know, tell suspects of their rights and and that Miranda was and in its subsequent cases were based on this idea that custodial interrogations are inherently coercive.
01:13:17
Speaker
And she's like, yo, this court has previously held that if an individual indicates in any manner at any time prior to or during questioning that he wishes to remain silent, or if he states that he wants an attorney, the interrogation must cease.
01:13:33
Speaker
And their statements can't be admitted. Basically, the state has a heavy burden. And she's like, y'all are just shifting this burden away from the state, which was not the original intent of um ah Miranda.
01:13:46
Speaker
And she was like, I don't know, it was really striking that he was just not responsive. Like, you know, the police were kind of after him and telling him that this is his opportunity to give his side of the story.
01:13:58
Speaker
And she was like, despite this, the court decided that he waived his right because he talked, he didn't want a peppermint. And because his chair was hard. That's insane. You have to say, i ain't squealing coppers or else they dragging. So she was like, don't know. I question whether this guy actually waived his rights.
01:14:18
Speaker
And she's like, this is a direct quote. I cannot agree with the court's much broader root at ruling that a suspect must clearly invoke his right to silence by speaking. She's like, this is bananas.
01:14:30
Speaker
Like the guy was being silent. So let him be silent. And she's like, by this logic, if you're saying that somebody has a right to remain silent, that you're not, that doesn't necessarily convey that they have to speak to protect their right to silence.
01:14:46
Speaker
And like, why would the police like explain this distinction? So, and then she's like, there's a lot, there's ample evidence that suspects often use equivocal or colloquial language. in attempting to invoke their rights. So she's like, this basically gives police the green light to just interrogate somebody at length, even if they refuse to answer questions, in the hope that they get like a single incriminating response that can prove that they waived their rights. so Maybe you just want to practice a Shakespearean monologue and like, oh, captive audience.
01:15:16
Speaker
Mm-mm. Finally, my one man play can go on.
01:15:23
Speaker
um So, yeah, that's what the court had to say. And there's actually a lot of research on police interrogations. And actually, a lot of it's done by psychologists. So there was, and and of course, legal scholars as well. So basically, well, I'm just going to kind of summarize, um you know, some of the research stuff that's come up because there have been ongoing questions about whether just telling people their Miranda rights is actually effective, especially given evidence that interrogators have tactics to override resistance and to elicit a confection.
01:16:01
Speaker
You know, there's like training and stuff that that police get on how to be interrogators. And Saul Kasson and colleagues recently, like within the past, I don't know, three, four months, published a scientific review paper.
01:16:17
Speaker
This is a second paper. There was a first paper from years ago that was like, here's everything we know. And then they did an update of like, here's all you know stuff that we've learned since. So basically, and it was basically most anybody who's ever done research on interrogations who kind of joined forces to write this.
01:16:36
Speaker
So interrogation is described as a guilt presumptive process. So it's this interaction that's led by an authority figure who has formed a strong belief about the suspect and who measures their success in terms of like whether they're able to extract a confession.
01:16:58
Speaker
And so interrogations are designed to increase the anxiety associated with denying an accusation and to decrease the anxiety associated with confessing.
01:17:10
Speaker
So research indicates that about 80% or more of individuals waive their Miranda rights to silence and counsel when they're questioned by police. So this makes your idea of like an automatic lawyer at the station, like Super interesting, just in light of that.
01:17:31
Speaker
And where this comes to be really problematic is with individuals who are innocent. No. You don't say. That's crazy.
01:17:43
Speaker
So people who are innocent tend to not really appreciate the significance of their of their rights. And so psychological literature discusses, it's called a phenomenology of innocence.
01:17:56
Speaker
So there's this belief that because they didn't do anything wrong, they have nothing to hide. Everything's going to be straightened out eventually. This is also really naive.
01:18:08
Speaker
And this leads people into a trap that could result in the phenomenon of false confessions. um so They also don't do well under torture at all.
01:18:19
Speaker
um Yes, although you could say you could say that the Supreme Court outlawed that in Brown v. Mississippi in 1936. We're going to gloss right over the Chicago Brown sites that they were finding that existed up until the, what, 80s, 90s? Anyway, ah we're going to... Moving right along. We're literally sending people to Guantanamo Bay as we speak right now. Oh, Guantanamo Bay exists in a hammer space that's outside of the Constitution.
01:18:48
Speaker
Cuba.
01:18:52
Speaker
Hammer space. but's Also known as Cuba. Yeah. Also known as cube. I mean, as far as, yeah. Yeah. Um, but yeah, I mean, basically like, yeah. So research indicates that most adults just don't fully understand and appreciate their rights.
01:19:11
Speaker
People can be prone to inaccurate beliefs about their rights. So like, you know, once you give up your right to silent, like if you do it once and it's like permanent or that you can ask for something to be off the record and it can't be used against you. That's not a thing.
01:19:27
Speaker
That's not a thing with police. Um, and Officer off the record. Yeah. Off yeah the record though. I did. but Oh
Misconceptions and Legal Education
01:19:34
Speaker
yeah. No, I killed that guy. Yeah. um ando Don't write that down. was off the record.
01:19:42
Speaker
And making equivocal statements, so saying like, I don't know, I might need a lawyer. Do I need a lawyer? That is not invoking your right to a lawyer. People tend to think that just mentioning one is invoking, and it's it is absolutely not.
01:19:58
Speaker
And a lot of people tend to believe that if you invoke your rights, then the police and the courts will just interpret that to mean that you're guilty. And that's actually a judgment that people do.
01:20:10
Speaker
make So there's studies of lay people. There's one done by Lawrence and colleagues where lay people associate silence with guilt, but in the legal setting, like it's specifically written and documented that like, you can't like, you can exercise your rights and, and a criminal proceeding and that can't be held against you.
01:20:27
Speaker
But lay people don't know that, you know, but then also research evidence shows that people who are guilty and people who've been previously involved in the legal system tend to invoke their rights more often than innocent people do.
01:20:39
Speaker
So, and there's been, you know, studies of both lay people and and students earning degrees in like law enforcement fields to kind of show that people tend to associate invocation of rights with guilt.
01:20:52
Speaker
Also, according to research from the Innocence Project, since 1992, when the Innocence Project was founded, false confessions contributed to nearly 30% of DNA exonerations in the US.
01:21:04
Speaker
what Wow. I would expect that to be in the teens at most. That's incredibly disappointing, but also somewhat not surprising. Yeah. I mean, you know what, you know, I might solve a bunch of these problems.
01:21:18
Speaker
Just having a lawyer there automatically. Did we name our doctrine? Did we, were you unanimous on the name? Oh, I don't think you guys didn't. wouldn't thought of a name. don't think we named it yet We have to work. anyway Should I run for Congress? yeah that Do I have the chops? I don't know. I think this is a good idea. do you have the money?
01:21:35
Speaker
No. Yeah. you money Run for Congress. You can take my idea. yeah I mean, right i got to get all that i get so i guess I have ton of money. Yeah. yeah Yeah. You got to run for Congress.
01:21:49
Speaker
Ah, fine.
01:21:54
Speaker
So, and, and Jared made mention of vulnerable populations and there is something to that. Um, you know, there's, you know, people with limited education, people of minoritized status, people lacking experience, communities lacking experience with the American legal system.
01:22:10
Speaker
cultures that place high value on on compliance with authorities, yeah, they might be more at risk here. And psychological literature identifies vulnerabilities associated with impaired understanding of rights and the implications of rights and coping abilities, abilities to cope with its interrogation. And that includes limited language proficiency, a lack of intellectual capacity. So like due to some sort of developmental disorder,
01:22:35
Speaker
or mental health problems, substance use. Also life adversary adversity and post-traumatic stress has been identified as a vulnerability. And youth, like young people, like 15, 16, 17 year olds, don't don't really get it as much as, you know. I think that goes into early 20-hood.
01:22:54
Speaker
Yeah, I mean, this does kind of dovetail with the literature about you know the ah the maturation of executive functions and and you know and brain development. I had a buddy when I was younger who who truly and genuinely believed that constables couldn't pull you over. Huh?
01:23:12
Speaker
Why? He was 17 at the time, so I... I don't know. i'm just good shit that's That's my contribution there. Disability with young people is just that they're dumb. yeah Yeah. I mean, that's basically, yeah like they're yeah, they're young, they're dumb, they don't have the life experience, they just believe things.
01:23:28
Speaker
But then again, there are plenty of middle-aged sovereign citizens, so, you know. Also, Facebook has really upped that to middle-aged and seniors as well. I mean, okay, but 15-year-old has an excuse.
01:23:40
Speaker
Yeah, yeah, that's true. was traveling. Yeah, yeah. Like a 15-year-old, it's like, you know, yeah, we get it. You'll, you know, we we understand. You'll grow out of this in a few years. of Eventually, we'll ask chat GPT what the law is. and oh We're in the worst timeline.
01:23:58
Speaker
but But that's why this podcast is so important, you guys. To show that we should have automatic lawyers at police stations? Yeah, seriously, if you're a lawmaker and you happen to stumble upon this episode...
01:24:11
Speaker
born with that. did to Do that thing that we said. Make it happen. Yeah. um my so i So what on this one? Because I always like the so what.
01:24:26
Speaker
why did we Why did we bring you this case? Well, number one, would make you suffer a little bit by making you do it. A very similar case twice in a row and make your brains hurt a little bit. And so I feel like. Three times in a row at this point, right?
01:24:41
Speaker
What's that? Three times in a row. Yeah, because we had Connelly. Connelly. Yeah. Yeah. Okay. um Yeah. So there's that. ah Nikki had mentioned to me research around, you know, how young people don't really understand the Miranda rights, their Fifth Amendment rights or whatnot. And so part of it being an educational podcast was selecting cases that we thought, you know the turnage was fun.
01:25:06
Speaker
That's episode 10, season one. ah horse poop That's the horse poop episode. but We have we have fun. We have fun here. But I don't think that, you know, that episode is maybe the most educational, apart from... Speak for yourself. As Mike put it in that episode, if I'm close enough to the back of a horse that it can poop on me, I'm too close to that horse.
01:25:28
Speaker
yeah ah that that is That's educational. But yeah I digress. A case like this, I think, is really important from an educational perspective because...
Podcast's Educational Purpose
01:25:40
Speaker
you You might think it seems pretty intuitive when they say you have the right to remain silent. And so you shut up. But they keep asking you questions. How long are they going to keep asking me questions? How long do have to sit here? It's like, no, no, no. There are specific magic words that you kind of need to know.
01:25:58
Speaker
And you need to know when to use them. it's it's It's a little, it's not dissimilar from what sovereign citizens think. It's just sovereign citizens. It's like ordering from the five guys menu. you have to Right, yeah. What's the secret menu of of ah of civil rights, you know?
01:26:15
Speaker
So, but I think the the big thing from a historian's perspective, looking at putting my history hat on, is the court that decided Miranda and the courts that have come since Miranda,
01:26:30
Speaker
are very different courts. And what we have seen since Miranda was, you know, I think it was a very liberal court that had expanded your civil liberties And since then, it has been more conservative courts constraining that idea and trying to sort of work within the Miranda framework while at the same time strangling it a little bit more each time. and So to me, i personally, I like the idea of like, look, if the cops are going to are going to come, if the state's going to come at you, you get an appointed lawyer, period, end of discussion.
01:27:09
Speaker
The other thing that I was thinking coming into this episode was just sort of like this idea that that any part of this is is ever implied or like it when we're talking about trying to get to like absolute truth, right? That is the point of having a trial is, or at least coming to an agreement on a version of the events that happened, right? That's kind of what a trial does.
01:27:32
Speaker
it prevented It allows two different sides to explain what what the events were and how they transpired. And then 12 people, if it's a jury trial, get to decide which one of those seem to be the most compellingly accurate version of events.
01:27:49
Speaker
right So it's why you can say stuff in the real world that when put under oath in a courtroom, you would never say, right because you don't have to be truthful out in the real world, but you do have to be truthful out.
01:28:03
Speaker
At least as far as we can prove that you are or aren't in court. And I kind of thought as I was reading through through this case and the and the results that and there's so much squishiness.
01:28:20
Speaker
And the courts seem to be okay with with a certain level of squishiness. And I really just thought, you took it one step further than I was thinking. I was just thinking like, the cops don't get to ask you a question until you tell them definitively, yes, I will answer your questions, right?
State's Role in Legal Fairness Debate
01:28:36
Speaker
You you like the extra checkmark on the PDF document.
01:28:39
Speaker
but Yeah. cetera But like, you know, in a way that's, you know, why is it why do we leave it up to the I mean, I said this in my argument, why do we leave it up to the citizen? When, when the state has these incredibly well trained, high budgeted people who we could place burden on instead?
01:28:59
Speaker
Well, you know, like that extensive discussion that these justices were doing about, well, what's silence and is it communication and like the pizza rule? I feel, and this is just as an uninformed lay person, that the court was kind of like, we don't want to do all that. Like, y'all figure it out. Like, we're we're not trying to get into this whole conversation about, you know, the cold pizza rule.
01:29:20
Speaker
I do think also, too, we have to remember that whether something gets into evidence, There is a process for that. And so what we're doing here is informing the people who actually make those decisions, by which I mean, when you go to trial, your trial judge determines what does or does not end up in evidence, not the Supreme Court, except so far as the Supreme Court says, here are the rules we would like you to abide by.
01:29:51
Speaker
If the trial judge decides otherwise, it'll probably get challenged if it's egregious enough. And so the Supreme Court ruling absolutely matters. But it's that person in that moment who actually makes the decision.
01:30:05
Speaker
It's not like the Supreme Court is reviewing all of the all of the evidence everywhere. So they're trying to lay out a framework that allows other decision makers to sort of like hold something up like a flow chart and say like, okay, you know,
01:30:20
Speaker
In the spirit of, you know, Burgess v. Tompkins, you know, the person didn't explicitly say they were asserting their right to silence. so But then you could always, the other thing too that but bothers me a little bit about this is, even in Miranda, it says, you have a right to remain silent.
01:30:39
Speaker
You can opt in and out of that right at any time. So you could talk to the police for 20 minutes. And then you can be silent. Or you could not talk to the police for 20 minutes, and then you can talk to them.
01:30:52
Speaker
It doesn't say, once you've invoked, that's it forever. It's up to you. ah and But the fact that they leave it, that there's any that any of it is implied and it's not like explicit, that part boggles my mind.
01:31:09
Speaker
Because why why would we introduce doubt or interpretation. Like, oh, he scratched his nose when I asked that question. i think that was I think that was kind of responding.
01:31:27
Speaker
So we're going to ask another three hours of questions. Wink, wink, nudge, nudge. Right, yeah, like, come on. Yeah, or like rocking back and forth is nodding. Yeah. Yeah, so like so who's to decide? And I guess ultimately it's the it's the trial judge.
01:31:44
Speaker
ah But Still though. Just put a lawyer there from the beginning. Just put a lawyer there from the beginning. That should be the name of the doctrine. Yeah. Just put a lawyer everywhere. Put a lawyer from the beginning doctrine. Yeah.
01:31:59
Speaker
Put a lawyer on it. All right. So now that this podcast is going to change law in America, you think someone's going to like, listen, this be like, wait, how come we never thought of that? Good news, everyone. Your taxes are going up.
01:32:11
Speaker
Yeah. No. Well, your taxes are going up in order to protect your civil liberties. Although I feel like what would also happen or probably happen is just like, I mean, it would just be under the same budget as like public defense services and just public defenders would just have. That's why I think it's an on-call thing.
01:32:32
Speaker
Yeah. it's It's like most people have, I have jury duty this week. I haven't been called in because there's been no jury cases, but like if you're a lawyer, you've taken the bar exam.
01:32:44
Speaker
okay, there's one one week out of the year where you're on call. Oh, so it's like the National Guard of lawyering? Yeah. Well, this way, because you don't want it to be a state prosecutor in any way.
01:32:59
Speaker
um You don't want it be someone who's always at the police station because you want that separation. So I think you cycle through, okay, if you're in this state and you are a lawyer in this state, one week out of the year, we might not call you in, but you're on call we have to question somebody, you know, you got to be there or got to find someone who's going to be there.
01:33:22
Speaker
So the only thing that I think is missing is some sort of extra piece of administration.
01:33:34
Speaker
Like, like when it's all over, you have to get like emailed like a survey Would you recommend your lawyer? yeah and it doesn't to be that That person's not the lawyer for the whole case.
01:33:50
Speaker
That person is just there for the interrogation. They're on call. They don't have to stay at the police station. They're on call. It could be remote at this point. could zoom in on it. It's the quality control that I think is worth considering.
01:34:03
Speaker
yeah like like cat filters and everything it's just it's the quality control that i think is worth considering but this was a wild one yeah i was i was actually expecting you guys to go with jared you know like i thought like this would be the line and you kind you kind of did but you got you gave my thing a lot more thought than what i thought you would you went first yeah yeah yeah definite first mover disadvantage this game yeah
01:34:38
Speaker
Hey, I'll take what I can get. Right? You scrapped one out, man. You did it. Oof. i i On the website, I don't know if we're going to do this, but I would like to do this. I mean yeah i i don't want to necessarily win-loss records. I want to do number of justices who have agreed with you.
01:34:58
Speaker
Right? Because it's like, well, you could lose, but you could still convince one person to come to your side, right? like Yeah, get poor you can get points. You should get a point for that. yeah if we didn't I mean, we we didn't agree with the court on this one, but I feel better about our ruling. Yeah, our ruling is dope.
01:35:15
Speaker
I do think that like criminal defense attorneys would basically like 100% agree. Cause like pretty much any lawyer that I've talked to has, you know, it where something like this has come up, it's just been an unequivocal, don't talk to the cops.
01:35:30
Speaker
just don't talk to the cops. And if there was like, and if there was constantly, um you know, a defense lawyer available at a police station. Don't answer that. Don't answer that. or they would They would take them into a room And then, and then step out of the room and then be like, my client's not talking to you Like the police would never talk to anybody.
01:35:52
Speaker
the The lawyer just be like, no, you're the, my client's not talking to you. You can put them in custody or release them or whatever, but you're not, you're not talking to them. But I mean, people do talk to the police in the presence of their lawyers. like if there's Yeah. And a lot of times there's like a lot of discussion with the lawyer, a lot of whispering.
01:36:13
Speaker
um And it's not uncommon for people to only accept questions through their lawyer. And a lot of times in writing, oh, you have questions for me, send them to my lawyer in writing, and then i will send you a response through my lawyer in writing. Yep. And so those are the people have the advantage of actually having a lawyer from the start. People that don't have a lawyer from the start are the people that get screwed.
01:36:34
Speaker
Our solution would give everybody that same level of justice. This is the Oprah lawyer doctrine. You get a you yeah lawyer. You get a lawyer.
01:36:49
Speaker
just so Just to finish things out, for for anyone who hasn't seen it, anyone here or anybody who's listening to the podcast who hasn't seen it, there is a professor at Regent University named James Dwayne who...
01:37:03
Speaker
At the moment, it was 13 years ago, but there's a YouTube video you can find. It's called Don't Talk to the Police. It's a 46 minute lecture. He does the first half and then he invites a police officer up ah to do the second half.
01:37:17
Speaker
It is excellent. It's funny. Mm hmm. absolutely worth watching. Cannot recommend it enough. it is Don't Talk to the Police, Regent University School of Law, YouTube channel, James Dwayne, Professor joway ah James Dwayne.
01:37:32
Speaker
ah Go watch it. He also has a book, which I believe is called... Have the Right to Remain Innocent. Yes, which is also very good. And you can go read that if these topics interest you. Mm-hmm.
01:37:45
Speaker
But I think that will do it for us here at Relitigated for this episode. Thank you so much to our justices. Thank you, as always, to my co-host, Nikki. ah Thanks for being here. Thanks for listening. And we will catch you in the next one. Bye.
01:38:00
Speaker
Bye. Thank you, friends. See you.
01:38:05
Speaker
Well, there you have it. A unanimous decision from our justices in favor of Tompkins with a decree that everyone should automatically get a lawyer for any police interrogation. That's it for this episode. But before we go, thanks again to my co-hosts and to our justices.
01:38:19
Speaker
The music in this episode was written by Studio Columna and Toby Smith and provided by Pixabay. Research was done by Nikki. Audio mixing and producing was done by me. Thanks for listening. Please subscribe, rate, and comment so other people can find us.
01:38:35
Speaker
For complete episode information, including references, please check out our website at relitigated.com. You can also catch us on YouTube, Instagram, Facebook, Threads, and Blue Sky.
01:38:46
Speaker
Please help us spread the word. All right. Until next time, I'm Jarrett, and this has been Relitigated. Take care.