I'm So Tired Of This Shit... Calling All Law Experts/Buffs...

[WillyT]

Brass tacks... Nuts and bolts here...

Am I right in thinking that as soon as you detain somebody (not allow them to go on their merry way) you have to do it by authority of law???

Wouldn't it be considered kidnapping if you did not?

And in the case of the so-called "Christmas Bomber", who makes the initial detention?

Let's say the passengers on the plane along with the Captain and crew make the original detention. Wouldn't that be a sort of citizen's arrest? Or maybe the captain of an airplane, like the captain of a ship is accorded more powers than the average citizen???

My point, before I get totally off track, is wouldn't you have to have military personnel at every airport in a case like this? If you want to turn them over to a military tribunal?

I'm thinking that the passengers and crew originally detain the suspect, but don't really have the authority for a legitimate arrest. They call ahead, if they have the time, and are ready to hand the suspect of to legitimate authorities, to take over the detention, and make the formal booking.

Wouldn't they HAVE TO GIVE MIRANDA unless there were actual military MP's there to take said suspect onto the path that leads to a military tribunal ???

I am SO TIRED of hearing about the audacity of Mirandizing this guy, while nobody speaks to how that would work in the real world in real airports.

Any expertise in this matter would be greatly appreciated.

Thank you.

:kick:

[DirkGently]

1. Not a criminal lawyer

. . . but I think Miranda comes into play when you want to use an arrestee's statements against him or her in court. The rightwing noise machine, besides just politicizing every single terror-related incident as much as possible, is essentially supporting the notion that anyone accused of terrorism is in that Bushian Never-neverland wherein they have none of the rights, such as the right against self-incrimination against which Miranda protects, accorded to American citizens. Giving Miranda is also the first step in a process to try someone in the court system, rather than a military tribunal (or preferably, I suppose a waterboard) so giving the Miranda warning is immediately getting off on an overly civilized foot for these people.

Edit: To clarify, you can be *arrested* without Miranda. Your statements would just be subject to being barred as being used as evidence against you in a U.S. *court of law.*

[WillyT]

2. I Thought Mirandizing Someone Let Them Know They Were Being Placed Under Arrest

that way they are warned that anything they said could be used against them in a court of law.

If you don't Mirandize somebody, how are you allowed to keep them against their will?

And what if, when you put on the handcuffs, they asked for a lawyer, Mirandized or not?

You cannot detain somebody without putting them under arrest, and you can't arrest somebody with out giving them their Miranda Rights, right???

:shrug:

[DirkGently]

6. Don't think so

This is coming from Criminal Law class many years ago, but Miranda is not an actual prerequisite for arrest itself. As you point out, citizens have limited power of arrest, as do quite a few different people in different situations. Miranda was a case in which we established that the right against self-incrimination was meaningless if the arrestee isn't given clear notice prior to questioning, so failure to give it can "poison the tree" of any subsequent admissions. The supposed issue here is that suspected terrorists should not be arrested like civilian criminals, but should presumably be trussed up and tossed into a hole with venomous squirrels until they testify that Iraq had WMD.

The problem for Republicans taking the "no Miranda" position is that every terrorist ever arrested in the U.S., including the "shoe bomber," McVeigh, etc., was treated as a civilian criminal, given Miranda warnings, and where appropriate, successfully prosecuted and imprisoned, from which none have escaped, nor have the town in which they are imprisoned become terror magnets as suggested by Cheney, et al.

[msanthrope]

13. You need to Mirandize before questioning following detention.

YOu can be detained without a reading of your rights. Cops need only have a reasonable suspicion to do so, briefly.

You can be asked things without Miranda--a cop can walk up to you and start asking you stuff.

However, you cannot be detained, and then questioned without Miranda....most people think cops recite Miranda at arrest. That very seldom happens.

[Statistical]

26. That is the source of your confusion

Miranda doesn't mean being put under arrest.

Miranda is a notification of your rights and if Police fail to give you your miranda rights anything you say *may* be unusable in court of law.

As a matter of protecting any information they may obtain the Police mirandize suspects as quickly as possible.

However Mirand isn't required to arrest someone.

[WillyT]

30. It's Not The Only Source, LOL !!!

:silly:

And thank you for all your responses, Statistical.

:hi:

[rgbecker]

4. As it turns out the constitution works for everybody, not just citizens.

"These people" included. When I was in grade school, it was made pretty clear to me the idea of the trial was to determine the facts....you know, things like what happened, who did what, who is who...stuff like that. Without the trial you're just going by rumor, hearsay, what the strong guy says, what the mob believes happened etc.

Here's Article 3, Section 2: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

[1awake]

15. yes...

Miranda has nothing to do with being arrested or not. You can be arrested and never have been given Miranda, and there's nothing wrong with that. The only reason Miranda needs to be given is if you plan on using statements made by someone or those given under questioning. This does not cover spontaneous utterances which do not require Miranda before hand. Beyond that, any statement given without Miranda is looked on by some as what's called "fruits of the poisonous tree", all of which are inadmissible in court.

[WillyT]

17. But Isn't That The Rub ???

Wouldn't any arresting authority Mirandize just to cover their bases in case the guy starts to talk ?

I guess what I'm trying to get to is...

The RWers are aghast at this guy being Mirandized and not tossed into the brig for a Military Tribunal.

And I'm wondering just how that would happen in the real world without Military Authorities being stationed at every airport.

How do you detain the guy at the airport legally, AND hand him over to the Military in a timely matter.

And what if he starts talking at any point BEFORE the Miranda warning is given?

:shrug:

[1awake]

18. well..

Wouldn't any arresting authority Mirandize just to cover their bases in case the guy starts to talk ?

Yes.. any law enforcement person not green would perform Miranda as soon as the situation was over. That might be directly after, or in some cases hours after. If the "suspect" started spouting confessions during the incident, that would be considered a spontaneous utterance and could be used even though Miranda was not issued before. Once the situation is over, Miranda would be required or all statements would most likely be tossed.

The RWers are aghast at this guy being Mirandized and not tossed into the brig for a Military Tribunal.

The RWers are using this issue as a political tool, nothing more. The civilian authorities have jurisdiction until otherwise stated by someone alot higher up than those involved.. or unless prior arrangements have been made, which I would strongly doubt (mainly because this would call into question a line in the sand I'd rather not have to see crossed).

How do you detain the guy at the airport legally, AND hand him over to the Military in a timely matter.

It would depend on who is doing the detaining (not physically, under whose authority).

[WillyT]

20. LOL... Thank You !!!

I'm cracking up because I KNOW the RWers are using this argument as a political tool.

I'm just wondering why, with all the lawyers that inhabit the Democratic Party, NOT ONCE have I heard one of them knock down this obvious ploy?

And I do thank you, and everybody else in this thread for their responses.

Thanks again!

:hi:

[DefenseLawyer]

19. So if I get what you are saying

If OBL shaves his beard and moves to Newark and gets popped trying to blow up a mailbox in the bus station, he's going to be arrested and in all likelihood Mirandized before anyone figures out who he is and calls the Pentagon. The fact that all that happened wouldn't change a thing. And I don't think "timely manner" enters into it. Ask the poor bastards that have been in gitmo for almost 10 years.

[WillyT]

22. No... I'm Trying To Counter The Phony RW Ploy Of Being Horrified That This Guy Was Mirandized...

And I'm wondering why at least ONE of the lawyers/lawmakers that inhabit the Democratic Party can't put together a cogent argument that knocks their talking point down.

That is all.

And thanks for the info.

:hi:

[RB TexLa]

3. Kidnapping is only if you wrongly hold someone against their will

If you hold a suspected criminal after witnessing a criminal act it would be doubtful you have committed kidnapping or false imprisonment.

[WillyT]

7. But How Do You Hold Them (Against Their Will) Without Arresting Them ???

It's one thing if they agree to go with authorities for an "interview", but holding somebody against their will without the legal status of arresting them has got to be considered kidnapping, or hostage taking, illegal detention, or something...

:shrug:

[RB TexLa]

11. If you hold someone for the police to interview in a situation where a reasonable person would feel

the police would want to detain the person and that the person would not willingly wait for the police would not be committing a crime by holding them against their will.

[Statistical]

27. Not at all.

It is called "false impisonment" for a reason.

The Police are given substantial latitude in holding a person without charging them with a crime. Police have a limited amount of time to hold a suspect while gathering evidence.

Guy has bomb strapped to his nuts and tried to light it and crew had to beat crap out of him and tie him up with seatbelts.

Police may not know exactly what happened or what crime was committed but they have enough probable cause to hold the person while they investigate what crime was committed.

Of course there are limits on hold long someone can be held without charges (well except under BushCo terra system). Lawyer for defense will make a motion to have suspect release if charges are not filed in timely manner.

[sharesunited]

5. It's a two edged sword.

If you don't Mirandize, you can't use his statements against him in a civilian trial.

But when you Mirandize, he could take the warning to heart and stop talking, which could deprive you of information having immediate usefulness concerning a wider conspiracy to commit terrorism.

Mirandizing someone is not mandatory, subject to the loss of admissibility of confession as evidence.

Mirandizing someone does not prevent their trial by military tribunal.

[DefenseLawyer]

8. No one is required to be Mirandized to be legally arrested.

Miranda has nothing to do with being arrested. It has to do with being questioned while in custody. As a practical matter, most police officers are trained to read the Miranda warnings as soon as they make an arrest. This is because any questioning of the defendant after he is in custody will be inadmissable unless he is first advised of those rights. The result (especially from seeing it on tv) is that most people think an arrest without Miranda is illegal. The fact is, unless a suspect is questioned, Miranda has no impact on anything.

[WillyT]

9. OK... Got That... But To My Original Quandry...

So what I'm getting, is that the local authorities could arrest this guy without Mirandizing him, and then call the Military and hand him over to them for the path to a Military Tribunal?

Is that the way it would work?

And what happens if the suspect asks for a lawyer before being handed over to the military, Mirandized or not?

:shrug:

Thanks for your input, BTW!

:hi:

[DefenseLawyer]

12. The authority to "hand him over" is a bit hazy

But I would say that if they believe they have that authority, anything that happens with civilian authorities wouldn't matter. Miranda warnings wouldn't come into play, asking for a lawyer wouldn't come into play. Hell, my guess is he could be taken to trial and acquitted and still be handed over to a military tribunal after. Scary stuff.

[msanthrope]

14. Yes. You can be arrested without Mirandizing.

But they could not question him.

Should a suspect assert 6th amendment rights, they must be respected. A lawyer would be called for and the suspect would be allowed to see the lawyer, either before questioning, or before charging--i.t. the first appearance before a magistrate. This could take hours to days.

[1awake]

16. Yes,

But once the Military takes control, none of that may apply.

[Statistical]

28. Well all that is gray area now because of BushCo.

However asking for a lawyer doesn't grant you instant access to a lawyer.

If suspect asks for a lawyer then Police must stop all interogation until lawyer is present however that doesn't mean that you get a lawyer in 5 minutes, 2 hours, or even 48 hours. It simply means the Police can not continue interrogation until a lawyer is present (however long that might take).

So there is nothing to prevent Police from handing him over to military while he waits for his lawyer.

[D-Lee]

10. Airline captain, ship captain, really are captains of their ships

The captain does traditionally have the power to exercise authority, and can direct action in relation to a poorly behaving passenger.

Miranda is relevant only to criminal prosecution and law enforcement personnel (a ship or airline captain usually doesn't fall into that class).

Hope these two basic observations help!

[ddeclue]

21. FAR 91.3a) The pilot in command of an aircraft is directly responsible for, and is the final

authority as to the operation of the aircraft.

b) In an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency.


i.e. in flight whatever the PIC (captain) says goes and can take whatever action he/she thinks is in the best interest of the safety of the aircraft, the crew, the passengers, the cargo, people and objects on the ground and in other airplanes. It really IS like 18th century ship's captains' authority in its sweeping scope of power over all the souls on-board.


Doug D.
PPSEL

[happyslug]

23. Civilian Arrest is still a Valid arrest

In fact FBI agents have no power to arrest (They have to get a US Marshall to do any actual arrest). This does NOT mean FBI agents can NOT make a Citizen Arrest i.e. if they see someone do a felony, the FBI agent have the same power as any other Citizen to make a Citizen Arrest. Please note this is only for Felonies you have actually seen, Police can arrest on reports of non-Police officers if the crime is a Felonies, but NOT Misdemeanors (But Police can arrest if they see the actual Misdemeanors).

In the case of the Bomber, he was doing a Felony, i.e. Blow up the plane. That is a felony so anyone who saw him try (And that means everyone on the Plane) can make the arrest.

The Miranda rule, only applies to Law Enforcement Officers, they can NOT question anyone if that person is a suspect without telling that person his or her rights. In a Citizen Arrest of a non law enforcement officer Miranda Rights need not be given through please note that if it is an FBI Agents that made the Citizen's arrest, the agents, even through the FBI agents do NOT have the power of Arrest, are still law enforcement officers and before any questioning MUST give the person they arrested and are questioning their Miranda Rights).

[WillyT]

24. OK... So How Do We Fulfill The RWers Wet Dream Of Putting This Guy Into A Military Tribunal ???

Not that we'd want to, but for the sake of argument...

Who detains the guy, who arrests the guy, how does he end up in Military custody without any Miranda given?

:shrug:

[Statistical]

29. He ends up in miltary custody by whatever mechanism gets him there (w/ or w/o Miranda)

Miranda is unrelated to the (quasi) legal mechanism used to transfer authority to military (detaining as enemy combatant). Now the exact legal mechanism for transfer to military authority is kinda gray area because BushCo wrote it on the fly however without or without Miranda it would work exactly the same.

Miranda warning is simply a precaution to ensure anything suspect says can be used against him in CIVILIAN COURT.

Lack of Miranda doesn't prevent arrest.
Lack of Miranda doesn't prevent transfer to another authority (such as military or foreign govt).
Lack of Miranda doesn't even prevent civilian trial (suspect could be convicted without his confession).

Lack of Miranda ONLY makes anything the suspect says to incriminate the suspect (in most cases there have been some exceptions).

Note also Miranda only applies against the suspect not a co-conspirator. So say there were two bombers. Neither was Mirandized. Anything they say about themselves is inadmissible but anything they say that can convict the other guy is.

[happyslug]

31. Once a person is arrested he MUST be taken to a Judge

The Judge then decides what to do with the person Arrested. A bond maybe set, the person may be jailed. The court has to decide which court has jurisdiction over the case (Is this a state crime or a federal Crime?). Once in front of a Judge the Judge gets to decide. Most Judges would have Jailed this person on the grounds that they was Probably Cause to show the Defendant has committed a crime. The Judge may decide to turn him over to the Military or not based on what is presented to the Judge.

Now, if the plane landed on a Military base the Military may take charge of the Suspect. The Right wing does NOT want that for then the suspect is subject to the Uniform Code of Military Justice (UCMJ). The Right wing wants a Military Tribunal that does NOT come under the UCMJ for the UCMJ gives defendants to many rights (the UCMJ was based on the Old Articles of War that had originally been Written by Olive Cromwell in 1649, modified in 1774 by the English Parliament and adopted by the Continental Congress in 1775, modified over the years till it was replaced by the UCMJ in 1954, the problem with the UCMJ and the previous Articles of War was it gave to much rights to the Defendants).

What the Rights Wing want is an expansion of Military Tribunals first used during the Mexican War for NON-Military personal (and thus NOT subject the the Articles of War) during the US occupation of Mexico at the end of the Mexican War. General Scott ordered that Military Tribunals be set up to hold trials in such cases. The US Courts upheld those trials but on the very narrow grounds that they was no other courts in operation and since no other court was in operation the Military had to set up a court system to try cases normally held in civilian Courts. These Military Tribunal were used during the Civil War in similar Situation (And restricted to areas with no Civilian Courts). The next time you hear of such Military Tribunal was during WWII and that was for one trial only (Which involved the Saboteurs landed by Nazi German Submarine). FDR ordered that Military Tribunal and again it was upheld by the Supreme Court do to the fact the US was at war (The real reason for the Military Tribunal was to cover up the fact that the Military and FBI had failed to arrest the saboteurs even after one of them tried to turn himself and the others in. The cover-up was so complete that the Tribunal sentenced all of the Saboteurs to death, including the ones who turned them in to the FBI, a newspaper article reporting HOW the FBI "solved" the case was released just before all of them were to be executed and asked WHY were we executing the people who TURNED IN THE SABOTEURS? Military Tribunals during the Civil War had similar bad reputations yet the courts have constantly upheld them).

Just a comment on WHY the underwear Bomber ended up in a Civilian Jail in front of the Civilian Judge. No one is saying he should be tried by the Military under UCMJ, but the right wing is still pushing for Military Tribunals like the ones I discussed above to try then so to guarantee Convictions.

[WillyT]

32. Thank You For That... Very Informative !!!

:applause:

:hi:

[1awake]

25. sure they can,

The Miranda rule, only applies to Law Enforcement Officers, they can NOT question anyone if that person is a suspect without telling that person his or her rights.

Sure they can. whether the resulting information remains usable is a different story. I know.. it's splitting hairs, but in practice their is a big difference.

[happyslug]

33. Federal Law on the subject of Miranda is older then Miranda

From Note 52 in Miranda vs Arizona:

In 1952, J. Edgar Hoover, Director of the Federal Bureau of Investigation, stated:

"Law enforcement, however, in defeating the criminal, must maintain inviolate the historic liberties of the individual. To turn back the criminal, yet, by so doing, destroy the dignity of the individual, would be a hollow victory.

. . . . .

"We can have the Constitution, the best laws in the land, and the most honest reviews by courts - but unless the law enforcement profession is steeped in the democratic tradition, maintains the highest in ethics, and makes its work a career of honor, civil liberties will continually - and without end - be violated. . . . The best protection of civil liberties is an alert, intelligent and honest law enforcement agency. There can be no alternative.

. . . . .

". . . Special Agents are taught that any suspect or arrested person, at the outset of an interview, must be advised that he is not required to make a statement and that any statement given can be used against him in court. Moreover, the individual must be informed that, if he desires, he may obtain the services of an attorney of his own choice."

Hoover, Civil Liberties and Law Enforcement: The Role of the FBI, 37 Iowa L. Rev. 175, 177-182 (1952).

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=384&invol=436

Similar Language appears in the Uniform Code of Military Justice, 10 U.S.C. 831 (b)::
(a) No person subject to this chapter may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him. (b) No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial. (c) No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him. (d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.
http://vlex.com/vid/compulsory-self-incrimination-prohibited-19217678

Just to show what we call "Miranda Rights" were already applied to Federal Law Enforcement by the 1950s. Federal Rule of Criminal Procedure actuality REQUIRED appearance before a Judge As soon as possible after an arrest (i.e. NO questioning was take place between the Federal Arrest and Arraignment before a judge) thus it was HARD to question a defendant BEFORE a hearing in front of the Judge and by that time the defendant either had an attorney or had been told to get one by the Judge. In the actual Miranda Decision the Supreme Court noted that Federal rule prevented the need for the Court to rule on something like Miranda for over 25 years but the states had no similar rule and thus why the case that decided Miranda was a State Crime case NOT a Federal Crime Case. The court also noted that the British Courts has adopted a similar rule to Miranda in 1912 for the same reason the Court was extending the right in Miranda, Police had to much ability to intimidate a suspect without it.

[1awake]

34. I'm sorry

If I came across as disputing you. I was not. I was only pointing out that a law enforcement officer can speak directly to a suspect prior to Miranda being advised. That does not mean the suspect can be forced to speak, nor forced to meet. Nor does it imply any information can be used in any official way. That's all I was saying.

[happyslug]

35. My Comments was more directed at other comments on Miranda

Miranda applies to Law Enforcement only and several comments prior to yours made statements that show a misunderstanding of Miranda and I decided to use yours to clear it up a bit. Nothing more.