Is Miranda warning enugh??
September 9, 2002 8:26 AM Subscribe
Is Miranda warning enugh?? An amitted child molester may walk because he wasn't allowed to contact his consulate, why isnt this added to miranda?
To ensure compliance, Ortiz de Rosas and others say the penalty for failing to give notice should be severe: suppression of any statements made after the arrest.
Given the current political climate I'm betting the result of a move like this would be a complete US withdrawal from The Vienna Convention, not better enforcement of its terms.
posted by PinkStainlessTail at 9:00 AM on September 9, 2002
Given the current political climate I'm betting the result of a move like this would be a complete US withdrawal from The Vienna Convention, not better enforcement of its terms.
posted by PinkStainlessTail at 9:00 AM on September 9, 2002
Question: how do you ensure that the Vienna Convention is not violated?
Do you have to assume that every citizen is a foreign national? What if the accused does not speak English? What good does telling them "if you are a foreign national, you have the right to speak with a consulate from your country" do if they can't understand English? So let's say a person speaks....Tagalog. And there isn't a Tagalog interpreter anywhere nearby. Can the police detain the suspect until a translator is found?
posted by jennak at 9:25 AM on September 9, 2002
Do you have to assume that every citizen is a foreign national? What if the accused does not speak English? What good does telling them "if you are a foreign national, you have the right to speak with a consulate from your country" do if they can't understand English? So let's say a person speaks....Tagalog. And there isn't a Tagalog interpreter anywhere nearby. Can the police detain the suspect until a translator is found?
posted by jennak at 9:25 AM on September 9, 2002
jennak: Well, I would assume so, actually.
PinkStainlessTail: but yeh, with all the 'indefinite detainment' going on these days I don't think one case is going to set pressident that all these other ones arn't.
posted by delmoi at 10:06 AM on September 9, 2002
PinkStainlessTail: but yeh, with all the 'indefinite detainment' going on these days I don't think one case is going to set pressident that all these other ones arn't.
posted by delmoi at 10:06 AM on September 9, 2002
From the Vienna Convention on Consular Relations, the text in question states (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;
The "without delay" language isn't specific as with Miranda, which is primarily an antiseptic notification before a suspect can begin abrogating his own Fifth Amendment rights. The Vienna Convention contact rights, however, aren't contradictory with investigating, questioning, arresting, or even convicting and sentencing a foreign national. The claim in the appeal that it should overturn the conviction is unlikely to be upheld. The appellant is also unlikely to "walk free" -- even if the conviction is overturned, the DA can still bring a new trial, and it's almost certain that the appellant will be deported if that doesn't happen.
Not all rights violations are sufficient to endanger a conviction. In respect of the claim being made, the Miranda warning itself already informs the arrested of his rights to remain silent and obtain counsel. There is nothing gained by contacting the consulate in terms of further protecting one's rights. US consular officials can't do much to help US nationals arrested in foreign countries, either! The point of the convention isn't making sure that people can't be prosecuted for crimes they've committed -- it's making sure that foreign nationals achieve equal status and treatment. There's nothing to indicate that he was treated any differently because he was a foreign national.
posted by dhartung at 10:32 AM on September 9, 2002
The "without delay" language isn't specific as with Miranda, which is primarily an antiseptic notification before a suspect can begin abrogating his own Fifth Amendment rights. The Vienna Convention contact rights, however, aren't contradictory with investigating, questioning, arresting, or even convicting and sentencing a foreign national. The claim in the appeal that it should overturn the conviction is unlikely to be upheld. The appellant is also unlikely to "walk free" -- even if the conviction is overturned, the DA can still bring a new trial, and it's almost certain that the appellant will be deported if that doesn't happen.
Not all rights violations are sufficient to endanger a conviction. In respect of the claim being made, the Miranda warning itself already informs the arrested of his rights to remain silent and obtain counsel. There is nothing gained by contacting the consulate in terms of further protecting one's rights. US consular officials can't do much to help US nationals arrested in foreign countries, either! The point of the convention isn't making sure that people can't be prosecuted for crimes they've committed -- it's making sure that foreign nationals achieve equal status and treatment. There's nothing to indicate that he was treated any differently because he was a foreign national.
posted by dhartung at 10:32 AM on September 9, 2002
Thats my point....how many "line" cops even know of the vienna convention...The only reason most americans know about it(the right to contact an embasy) is because in movies and tv after getting into trouble some dumb american citizen keeps yelling "im an american I want to call my embassy, Ive got rights) Americans assume other countries are going to follow the RULES even if we disregaurd them or even worse dont inform our police about how to obey them
posted by hoopyfrood at 10:43 AM on September 9, 2002
posted by hoopyfrood at 10:43 AM on September 9, 2002
Well, there's no point in getting upset just because someone *raises* a legal point. This case will have much more relevance after the court makes a ruling...and even then, it's possible that the Supremes will weigh in on it.
Now, that being said...Hoopyfrood dude, the spell checker is there for a reason. Nobody wants to see that many misspellings on the front page of MeF. It costs you nothing to use...makes us all look a little better, ya know?
posted by dejah420 at 10:57 AM on September 9, 2002
Now, that being said...Hoopyfrood dude, the spell checker is there for a reason. Nobody wants to see that many misspellings on the front page of MeF. It costs you nothing to use...makes us all look a little better, ya know?
posted by dejah420 at 10:57 AM on September 9, 2002
dejah420....my firewall dosn't allow the checker to work and I WONT turn it off to make assholes like you happy. If there are too many spelling errors dont read it, I dont stand on my spelling but my content.
posted by hoopyfrood at 11:02 AM on September 9, 2002
posted by hoopyfrood at 11:02 AM on September 9, 2002
that many spelling errors I count 3 I can see, I forget everyone here is a PHD and beyond spelling errors.
posted by hoopyfrood at 11:04 AM on September 9, 2002
posted by hoopyfrood at 11:04 AM on September 9, 2002
so was the assholes like you really necessary, touchy #15732?
posted by y2karl at 11:10 AM on September 9, 2002
posted by y2karl at 11:10 AM on September 9, 2002
If there are too many spelling errors dont read it, I dont stand on my spelling but my content.
Um, your spelling obscures the content. What the hell does "amitted" mean? Do have such a low opinion of your own content that you cannot bother to check spelling?
posted by Ayn Marx at 11:11 AM on September 9, 2002
Um, your spelling obscures the content. What the hell does "amitted" mean? Do have such a low opinion of your own content that you cannot bother to check spelling?
posted by Ayn Marx at 11:11 AM on September 9, 2002
Being ignorant to the laws is not an excuse. Bet we've tried this too to a policeman: Uh, I wasn't going faster than the posted speed limit officer, by the way what is it.
posted by thomcatspike at 11:13 AM on September 9, 2002
posted by thomcatspike at 11:13 AM on September 9, 2002
dejah420....my firewall dosn't allow the checker to work and I WONT turn it off to make assholes like you happy. If there are too many spelling errors dont read it, I dont stand on my spelling but my content.
posted by hoopyfrood at 11:02 AM PST on September 9
1)Afraid of apostrophes, are we?
2)Dejah gently pointed out your errors. You call her an asshole. What are you, twelve?
Hey Matt, I think someone needs a light tap with the timeout stick.
posted by PinkStainlessTail at 11:15 AM on September 9, 2002
posted by hoopyfrood at 11:02 AM PST on September 9
1)Afraid of apostrophes, are we?
2)Dejah gently pointed out your errors. You call her an asshole. What are you, twelve?
Hey Matt, I think someone needs a light tap with the timeout stick.
posted by PinkStainlessTail at 11:15 AM on September 9, 2002
Watch out, New Troll!!
Back on topic:
Under the Vienna Convention on Consular Relations, Tumbaco-Chavez argues, West Linn police also should have told him of his right to talk to the Ecuadorian consulate about legal assistance.
Dosn't this cover that:
3. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. Do you understand?
I would think that would cover access to all kinds of legal assistance. I woun't think the police would have to go into detail right there on the spot. And he was told he didn't have to say anything?
posted by Steve_at_Linnwood at 11:52 AM on September 9, 2002
Back on topic:
Under the Vienna Convention on Consular Relations, Tumbaco-Chavez argues, West Linn police also should have told him of his right to talk to the Ecuadorian consulate about legal assistance.
Dosn't this cover that:
3. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. Do you understand?
I would think that would cover access to all kinds of legal assistance. I woun't think the police would have to go into detail right there on the spot. And he was told he didn't have to say anything?
posted by Steve_at_Linnwood at 11:52 AM on September 9, 2002
A consulate is not an attorney, and the Convention states that "any communication" from the prisoner should be forwarded to the consulate, not necessarily only those to do with legal advice. I don't think the Miranda statement suffices.
It seems clear enough that the cops violated the Convention. Whether or not the terms of that Convention are unrealistic is another question.
posted by IshmaelGraves at 12:19 PM on September 9, 2002
It seems clear enough that the cops violated the Convention. Whether or not the terms of that Convention are unrealistic is another question.
posted by IshmaelGraves at 12:19 PM on September 9, 2002
my firewall dosn't allow the checker to work
there are other options.
beyond that, just be nice.
posted by tolkhan at 2:03 PM on September 9, 2002
there are other options.
beyond that, just be nice.
posted by tolkhan at 2:03 PM on September 9, 2002
From what I understand about the Vienna Convention, is that it doesn't require the officers to *inform* the person arrested of their rights to contact the consulate, but only to do so, if the person asks.
It's the responsibility of anyone travelling abroad to understand their rights abroad, and be aware of the rules, pitfalls, and so forth.
I mean, should some tourist's family sue Australia if one of their big-ass poisonous spiders bites them and they die? "Oh, but Australia didn't warn them that spider was dangerous."
If you're going outside your country, do your homework.
Now, if the person asks and then it never happens.. well, that's a different matter entirely.
posted by rich at 10:04 AM on September 10, 2002
It's the responsibility of anyone travelling abroad to understand their rights abroad, and be aware of the rules, pitfalls, and so forth.
I mean, should some tourist's family sue Australia if one of their big-ass poisonous spiders bites them and they die? "Oh, but Australia didn't warn them that spider was dangerous."
If you're going outside your country, do your homework.
Now, if the person asks and then it never happens.. well, that's a different matter entirely.
posted by rich at 10:04 AM on September 10, 2002
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He was not a US citizen and the police didnt follow international treaty law so seems a pretty cut and dry violation of his rights. If he walks or not will be up to the judge. The Vienna Convention goes both ways, we sued Iran under the exact same premise, the embassy hostages were not given access to counsel.
posted by stbalbach at 8:42 AM on September 9, 2002