Monday, January 10, 2005
Breaking Case News: 8th Circuit Holds Custodial Pre-Miranda Silence Can Be Used in Prosecution's Case in Chief
The Eighth Circuit held on Friday in U.S. v. Frazier that a defendant's post-arrest but pre-Miranda silence can be used against him in the prosecution's case-in-chief. The defendant's silence in this case was particularly incriminating, because when the officer accused him repeatedly of criminal violations, he made no comment and showed no reaction.
Crime & Federalism Blog does an excellent job blogging this case, including excerpts from the opinion and a discussion of the law on this topic here. [Mark Godsey]
Friday, December 31, 2004
Monday, December 27, 2004
Wednesday, December 22, 2004
TalkLeft reports: "A document released for the first time today by the American Civil Liberties Union suggests that President Bush issued an Executive Order authorizing the use of inhumane interrogation methods against detainees in Iraq. Also released by the ACLU today are a slew of other records including a December 2003 FBI e-mail that characterizes methods used by the Defense Department as 'torture' and a June 2004 'Urgent Report' to the Director of the FBI that raises concerns that abuse of detainees is being covered up. 'These documents raise grave questions about where the blame for widespread detainee abuse ultimately rests,' said ACLU Executive Director Anthony D. Romero. 'Top government officials can no longer hide from public scrutiny by pointing the finger at a few low-ranking soldiers.'" [Mark Godsey]
Wednesday, December 15, 2004
A German prosecutor says no. In September, 2002, two officers threatened a suspected kidnapper to get him to disclose the location of the 11-year-old victim, the son of a wealthy banker. Upon hearing the threats, the kidnapper admitted the boy was dead, at the bottom of a lake. The kidnapper is serving a life sentence. The officers are now being prosecuted for the threats, which evidently violate the German constitution. The prosecutor is seeking fines against the officers. ``The door to a very dark room was opened and this door needs to be shut again,'' the prosecutor told the court. ``A person in custody has the right to be treated with human dignity.'' A verdict is expected later in December.
On a related topic, here is a paper by Minnesota CrimProf Oren Gross, "Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience" and here is "Torture" written by Loyola CrimProf Marcy Strauss. But of course, torture is not the precise problem presented in the German case, because there is a big difference between threats of torture and torture. See, e.g., Arizona Revised Statutes section 13-407(A) which permits threats of deadly force to terminate a trespass, but not the actual use of deadly force. In many cases, a successful, empty threat of deadly force would be better than actual use of lawful, non-deadly force; I'd rather have cops make peaceful arrests, for example, by threatening to shoot a resisting subject rather than requiring them to use a nightstick, mace or Taser. [Jack Chin]