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  1. #51
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    Quote Originally Posted by FBinNY View Post

    Leaving the scene is epidemic in California, and some cities report that it occurs in almost 1/2 of all accidents. I suspect that if the DA felt he had a makeable case, he'd pursue it in an effort to make an example of the driver.
    There was a time when motor vehicles were not required to have many of the safety features that are now mandatory, like lights. Time and experience march on to, hopefully, improve roadway safety. As you note, the worst motorists among us seem to also be prone to not taking responsibility for their ill deeds. This can be rectified by requiring the driver to "sign in" in order to make a car function. When there is probable cause that a car was involved in a hit and run, the driver can then be firmly established.

    No one's due process rights are violated by this. However, it does strip people of their anonymity while operating deadly machinery, but there is no right to drive; it is a regulated privilege, thus such an intrusion should be Constitutionally permissible.

    Let's face it, our current way of doing things involves an assumption that people are basically civilized and somewhat responsible citizens. Clearly there are far too many folks who don't measure up. I'm sick of giving them a pass, especially when that pass is written in the blood of cyclists, pedestrians and other innocent victims (even other motorists).

    The alternative is that more and more of these crimes will be solved with the use of surveillance equipment. This will lead to even more public support for our trend towards a total surveillance state, since (almost) everyone likes it when an evil person who tries to get away with murder gets caught.

  2. #52
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    Quote Originally Posted by B. Carfree View Post
    There was a time when motor vehicles were not required to have many of the safety features that are now mandatory, like lights. Time and experience march on to, hopefully, improve roadway safety. As you note, the worst motorists among us seem to also be prone to not taking responsibility for their ill deeds. This can be rectified by requiring the driver to "sign in" in order to make a car function. When there is probable cause that a car was involved in a hit and run, the driver can then be firmly established.

    No one's due process rights are violated by this. However, it does strip people of their anonymity while operating deadly machinery, but there is no right to drive; it is a regulated privilege, thus such an intrusion should be Constitutionally permissible.

    Let's face it, our current way of doing things involves an assumption that people are basically civilized and somewhat responsible citizens. Clearly there are far too many folks who don't measure up. I'm sick of giving them a pass, especially when that pass is written in the blood of cyclists, pedestrians and other innocent victims (even other motorists).

    The alternative is that more and more of these crimes will be solved with the use of surveillance equipment. This will lead to even more public support for our trend towards a total surveillance state, since (almost) everyone likes it when an evil person who tries to get away with murder gets caught.
    It's interesting, but in most hit and run cases the car itself isn't identified either. The case in this thread is more of an exception than the rule.

    I have mixed feelings about the "surveillance state". I don't like it, but it isn't the surveillance itself that bothers me. It's the data mining. Years ago after a pattern of vandalism at my warehouse, I installed passive cameras that are focused on the street in front. They are not connected to the internet, and record with the file written over every 7 days or so. If nothing happens, it's a no harm, no foul situation because what's recorded will never be seen. OTOH, there's a record if there's a valid reason to examine it. In the years since I installed the system, I've never had a reason to see the recorded images. The motion activated lights, and possibly the sight of cameras seems to have solved the problem.

    Nothing we do will stop the proliferation of video recording of public areas, so I think it's important to have a public discussion and establish policies about how long the images can be kept, whether they can be mined, what would justify saving and examining them, and how they would be used. This is one area where law in the USA is severely lagging behind technology.
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  3. #53
    Senior Member eja_ bottecchia's Avatar
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    Quote Originally Posted by FBinNY View Post
    There are two separate issues here. Civil liability and criminal liability.

    Civil law varies among the states, but in New York, good evidence that the car was involved would make the owner and his insurance liable. Reporting a theft 8 days after the fact wouldn't change this, so the victim could recover damages from the car owner, regardless of who was driving.

    OTOH, a criminal action for leaving the scene or any other related crime requires putting a particular driver behind the wheel. If the owner has clear proof that he was out of town it leaves him out, and puts the spotlight on his roommates. OTOH, being one of a pool of suspects, even if it's proven that it had to be one of them isn't enough to charge, much less convict. Without evidence putting a specific person behind the wheel at the time, there's no criminal case.

    Some people may not like this, and I suggest they move to France where under the Napoleonic code the driver and his roommates could be charged, and the burden of proving they didn't do it would fall on them. As for me, I'm happy with innocent until proven guilty even if it means that some of the worst scum gets away with stuff like this.
    I agree with your analysis comparing and contrasting civil vs. criminal liability. I am currently a prosecutor; prior to that, however, I spent many years doing insurance defense...so your analysis is right on target.

    Where I disagree with you is your statement that an accused is innocent until proven guilty.

    The correct statement of the law is: the accused is presumed innocent until proven guilty.

    If you think about it, both statements are quite different.

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  4. #54
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    Quote Originally Posted by FBinNY View Post
    Nothing we do will stop the proliferation of video recording of public areas, so I think it's important to have a public discussion and establish policies about how long the images can be kept, whether they can be mined, what would justify saving and examining them, and how they would be used. This is one area where law in the USA is severely lagging behind technology.
    +1.

  5. #55
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    Quote Originally Posted by eja_ bottecchia View Post

    Where I disagree with you is your statement that an accused is innocent until proven guilty.

    The correct statement of the law is: the accused is presumed innocent until proven guilty.

    If you think about it, both statements are quite different.
    Point taken, you're absolutely right. There's a world of difference between the legal presumption of innocence and actual innocence.

    In this thread I used the term innocent to mean presumed innocent. OTOH- as I described the situation, it's very possible that one or two of the likely suspects are not only presumed innocent, but might actually be so, and since there's no way of knowing which is which, I feel obligated to worry about all three.
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  6. #56
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    Simply asking three people to take polygraphs will point a finger at the guy that did it. Will not even require administrating the polygraphs. Then the cops can concentrate on the proof needed for court for a single person.
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  7. #57
    Senior Member asmac's Avatar
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    Quote Originally Posted by genec View Post
    I don't think anyone really has an issue with innocent until proven guilty... what we have a hard time with is the appearance of a lie being told by someone, based on the lack of further investigation by police to confirm the alibi and the fact that car thieves rarely return a car to the spot from which it was stolen... in other words, the story stinks to high heaven... coupled with the fact that a cyclist was injured.

    Maybe everyone is telling the truth... in which case a car thief returned the car, or the car did the deed itself... neither very plausible. But the fact is a cyclist was hit and it could have been anyone of us in the same bike shoes.
    Perhaps the owner should be charged with filing a false police report thereby turning a misdemeanor (if the incident was actually an accident) into a felony.

    People go to jail for much less and (admittedly without knowing all the facts) the police seem quite uninterested in pursuing this case.

  8. #58
    Senior Member dynodonn's Avatar
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    Quote Originally Posted by FBinNY View Post

    Nothing we do will stop the proliferation of video recording of public areas, so I think it's important to have a public discussion and establish policies about how long the images can be kept, whether they can be mined, what would justify saving and examining them, and how they would be used.

    I have archived close to 95 percent of all my bicycle ride videos of the last few years, thanks to the advent of larger capacity hard drives. What maybe considered mundane at the time of the video, ends up being one part of a long list of chronicled procession of changes in my locale.

  9. #59
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    Quote Originally Posted by CB HI View Post
    Simply asking three people to take polygraphs will point a finger at the guy that did it. Will not even require administrating the polygraphs. Then the cops can concentrate on the proof needed for court for a single person.
    You do understand that the police cannot force anybody to take a polygraph in the USA.
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  10. #60
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    Quote Originally Posted by asmac View Post
    Perhaps the owner should be charged with filing a false police report thereby turning a misdemeanor (if the incident was actually an accident) into a felony.

    People go to jail for much less and (admittedly without knowing all the facts) the police seem quite uninterested in pursuing this case.
    How is it a false police report? If none of the roommates wants to fess up to borrowing the car, who exactly borrowed it?

    Going after the owner of the car is malicious and un-just. Like I said, its pretty common practice to leave car keys with roommates, when traveling. The owner of the car is likely the most innocent of everyone involved, given that he was out of town.

    You're making a presumption here that the owner of the car knows who borrowed it. Unless of them confessed to the owner, and with a police investigation going they would be stupid to do so.

  11. #61
    Senior Member Number400's Avatar
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    Leaving your keys available to anyone is just like leaving a *** available to anyone. The owner can be held liable in either case if someone gets hurt.

    Baltimore, MD. I let a friend borrow a motorcycle when we were teens. He only had a learner's permit and was pulled over. The policeman called me (the registered owner), and told me to come get my bike. When I got there to pick it up, I was given two choices. I could report it stolen and hang my friend out to dry, or acknowledge that I let an unlicensed driver use my motorcycle and get a ticket. I opted to come clean and got off with a warning.

    So if the driver was really out of town and had an alibi, then he is still at fault for leaving his car keys accessible to roommates. If he offered his car to his roommates than he can also be liable for damages as he authorized the roommates to drive his car. The real wrench here is the owner reporting it stolen after the fact. That shows guilt to me and he should be cited for filing a false report and the incident should be investigated further by the police.
    Last edited by Number400; 11-22-13 at 10:58 AM.

  12. #62
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    Quote Originally Posted by Number400 View Post
    Leaving your keys available to anyone is just like leaving a *** available to anyone. The owner can be held liable in either case if someone gets hurt.

    Baltimore, MD. I let a friend borrow a motorcycle when we were teens. He only had a learner's permit and was pulled over. The policeman called me (the registered owner), and told me to come get my bike. When I got there to pick it up, I was given two choices. I could report it stolen and hang my friend out to dry, or acknowledge that I let an unlicensed driver use my motorcycle and get a ticket. I opted to come clean and got off with a warning.
    A refreshing example of good police work. The officer was focused on solving a problem rather than issuing citations.
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  13. #63
    Senior Member eja_ bottecchia's Avatar
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    Quote Originally Posted by FBinNY View Post
    You do understand that the police cannot force anybody to take a polygraph in the USA.
    Polygraph evidence is not admissible in most USA jurisdictions. In fact, I can't remember where it would be admissible in a criminal proceeding.

    On the other hand, the police have ways of interrogating subjects that do not require polygraph and yield admissible evidence.
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  14. #64
    Senior Member asmac's Avatar
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    Quote Originally Posted by gsa103 View Post
    The owner of the car is likely the most innocent of everyone involved, given that he was out of town.
    Except for maybe filing a false report presumably to cover himself with his insurance company.

    Don't get your shirt in a knot. I'll contact the DA and let him know he doesn't have to do as I instructed.

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    Quote Originally Posted by CB HI View Post
    Simply asking three people to take polygraphs will point a finger at the guy that did it. Will not even require administrating the polygraphs. Then the cops can concentrate on the proof needed for court for a single person.
    Quote Originally Posted by FBinNY View Post
    You do understand that the police cannot force anybody to take a polygraph in the USA.
    I think CBHI was supporting having the police mislead the suspects into believing they could force them to submit to polygraphs. While we are not allowed to lie to the police, they are allowed to lie to us. Such a bluff probably would only be effective if it was played very early in the game, before anyone had a chance to consult experts about what can and can't happen.

  16. #66
    Cycle Year Round CB HI's Avatar
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    Quote Originally Posted by FBinNY View Post
    You do understand that the police cannot force anybody to take a polygraph in the USA.
    Of course I do and even noted there was no need to even perform the polygraphs. Simply asking the question of each person will provide a significant amount of information for the police.

    The innocent are likely to say, no problem.
    The guilty guy is likely to get nervous, back away, etc.

    Then the police know who to concentrate their effort on in trying to get a confession or other evidence which is admissible in court.
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  17. #67
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    Quote Originally Posted by CB HI View Post
    Of course I do and even noted there was no need to even perform the polygraphs. Simply asking the question of each person will provide a significant amount of information for the police.

    The innocent are likely to say, no problem.s
    The guilty guy is likely to get nervous, back away, etc.


    .
    This is a very dangerous and slippery slope. It implies that those who defend their rights must be guilty. Cop wants to search your trunk during a traffic stop, if you say no (which is your right) you must have some contraband in there. Cop wants to enter your home? only guilty people would say no.

    I make it a point not to surrender right willy nilly, and urge all those interested in preserving those rights to defend them a every opportunity -- guilty of anything or not. I'm not saying don't cooperate with the police when it's appropriate, just don't waive rights without considering the implications.

    Some years ago, I was stopped for speeding in "cocaine alley" on the New Jersey Turnpike. The officer took my info, then came back with a story about cocaine alley, and that many of the men they stopped were running drugs, and would I mind if he checked my trunk. I politely explained that I was sympathetic to stopping the flow of drugs, but wasn't willing to waive rights that folks fought and died for, but had a counter proposal --- double or nothing. I let him search the trunk, if he finds anything he gets a drug bust, if not, he lets me walk on the speeding.

    He thought about this for about 1 minute, decided I was a wise guy, and didn't have anything to search for, and would just write the original speeding ticket. When he came back, he asked me if that line ever worked, and I told him he was the first time I tried so No. But one thing I've learned is that if you engage cops as humans they respond in kind, and he ended up writing me up for a much lower speed.

    Side story aside, I understand that police must use some gray area tactics, but I don't have to like it, and prefer that they make cases without resorting to these methods. But most of all I hate the notion that only guilty people stand on their constitutional rights.
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  18. #68
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    I love the double or nothing proposal! If I ever get that offer, I hope I remember it. I have no idea how likely it is to happen to me. I've nearly given up on speeding in recent years. I just can't afford the ensuing fees.
    You don't read my signature anyway, do you?

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    Cycle Year Round CB HI's Avatar
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    Quote Originally Posted by FBinNY View Post
    This is a very dangerous and slippery slope. It implies that those who defend their rights must be guilty. Cop wants to search your trunk during a traffic stop, if you say no (which is your right) you must have some contraband in there. Cop wants to enter your home? only guilty people would say no.
    SLIPPERY SLOPE? We have been at the bottom of the slope for decades. As B. Carfree stated, we get jailed if we lie to the cops, but the cops are allowed to lie to us all day long.

    My suggestion does not even involve the cops lying, just asking a question. When copy machines first came out, a couple of cops told a suspect it was a lie detector. Cops had the guy put his hand on top of the copier. First cop would ask the guy some questions, some simple ones the guy would answer with the truth like, what is your name? Nothing would happen. Then the first cop would ask some questions on the case they assumed the guy would lie. Second cop with his hand hidden on the start button would push it and out came a paper saying FALSE. After a few rounds, the guy confessed to the crime.

    Boston bombing, cops were going into homes without search warrants fully armed and armored, forcing people out of their homes and then conducting searches one house after one through entire blocks. Our troops are not even allowed to treat Afghans in a war zone that way.


    Quote Originally Posted by FBinNY View Post
    Side story aside, I understand that police must use some gray area tactics, but I don't have to like it, and prefer that they make cases without resorting to these methods. But most of all I hate the notion that only guilty people stand on their constitutional rights.
    I hate the notion as well, but we live in a real world where it is now commonplace.
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    So is that how it is actually written-Proven Guilty?
    Not Found Guilty-proven guilty?
    Odd sort of wording-
    On TV- where I learn all my law- they usually seem to say "found guilty"
    But real law it is "Proven Guilty" Hmmm all my Perry Mason-wasted.

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    Quote Originally Posted by CB HI View Post
    SLIPPERY SLOPE? We have been at the bottom of the slope for decades. As B. Carfree stated, we get jailed if we lie to the cops, but the cops are allowed to lie to us all day long.....

    .
    There's some of that, but we do have the right to remain silent. And here again run into the notion that our silence itself will be challenged, ie. if you don't have anything to hide, you have nothing to fear. Or we can insist on speaking to attorneys, and have cops say innocent people don't hide behind lawyers.

    However, the reality is that people (in NY, don't know about elsewhere) are rarely prosecuted in any way for lying to the police, especially when they are targets of investigation. The kind of lie that will possibly lead to prosecution is one where you intentionally and falsely allege a crime happened, or falsely accuse another person, or in other ways intentionally derail, or delay an investigation, or lie in an effort to protect a friend or associate.

    Simply saying, Not me man, you got the wrong guy, I don't know anything about it will rarely lead to prosecution. However Federal rules are different (ask Martha Stewart).

    In any case, I agree that we've already slid quite a ways down the slope, I just don't want to contribute to more slippage.
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    Cycle Year Round CB HI's Avatar
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    Quote Originally Posted by FBinNY View Post
    There's some of that, but we do have the right to remain silent. And here again run into the notion that our silence itself will be challenged, ie. if you don't have anything to hide, you have nothing to fear. Or we can insist on speaking to attorneys, and have cops say innocent people don't hide behind lawyers.
    I have not had time to look up the case law yet:
    You must tell the police 'you choose not to answer any question' or 'choose to remain silent'.

    It has never been required to invoke your right to a lawyer for asserting your right to remain silent.

    Cops can SAY anything they want but they understand that the smart people both invoke their right to remain silent and right to a lawyer.
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    Quote Originally Posted by CB HI View Post
    I have not had time to look up the case law yet:
    You must tell the police 'you choose not to answer any question' or 'choose to remain silent'.

    It has never been required to invoke your right to a lawyer for asserting your right to remain silent.

    Cops can SAY anything they want but they understand that the smart people both invoke their right to remain silent and right to a lawyer.
    You're looking for Berghuis v. Thompkins, No. 08-1470. From Sotomayor's first dissenting opinion:
    A suspect who wishes to guard his right to remain silent, must, counterintuitively, speak.
    That odd decision, yet another 5-4 abomination, was decided in 2010. Prior to that, it was assumed that one could invoke one's right to remain silent by, surprise, remaining silent and that the cops would have to stop interrogating a non-responsive suspect rather than merely wearing him/her down.

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    Quote Originally Posted by B. Carfree View Post


    That odd decision, yet another 5-4 abomination, was decided in 2010. Prior to that, it was assumed that one could invoke one's right to remain silent by, surprise, remaining silent and that the cops would have to stop interrogating a non-responsive suspect rather than merely wearing him/her down.
    It isn't all that odd. You still have the right to remain silent, and need not assert your intention to do so if you just do it. However until/unless you clearly express your intent to assert the right, the cops have the right to keep after you.

    This is a test of will power. If you feel you have the mental strength to keep quiet in the face of questioning, you can do so and let the cops wear themselves out. I don't recommend the concept, but you don't have to talk, even to assert your intent not to do so. It's far easier and smarter to say you intend to remain silent, no matter what they say, and thereby end the questioning.
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    Quote Originally Posted by FBinNY View Post
    It isn't all that odd. You still have the right to remain silent, and need not assert your intention to do so if you just do it. However until/unless you clearly express your intent to assert the right, the cops have the right to keep after you.

    This is a test of will power. If you feel you have the mental strength to keep quiet in the face of questioning, you can do so and let the cops wear themselves out. I don't recommend the concept, but you don't have to talk, even to assert your intent not to do so. It's far easier and smarter to say you intend to remain silent, no matter what they say, and thereby end the questioning.
    I could handle the silent part, as long as no one starts eating my juniper berries.

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