"If someone had kidnapped your child, wouldn't you want police doing everything they possibly could to get information from someone who had it?" he asked hypothetically.

I don't need a cop to tell me that I don't have to talk to anybody.

No person ... shall be compelled in any criminal case to be a witness against himself

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Typical progression of a police state.

Chavez v. Martinez: The Supreme Court just decided Chavez v. Martinez, a case I blogged about a bit last year. The main issue is this: Say the government interrogates someone in violation of Miranda, or the Sixth Amendment rule against interrogating someone who has been arraigned and asked for a lawyer at the arraignment, or the Fifth Amendment right not to be subject to coercive interrogation. (Let's set aside for now the case of plain physical torture, which might be somewhat different.)

    It's clear that a confession gotten this way is inadmissible at the subject's trial; the same is true even of evidence that is gathered indirectly as a result of the suspect's confession. But does the actual getting of the confession itself violate the Constitution? Are these rights only rights not to be convicted based on evidence gathered in certain ways, or rights to be free of these evidence-gathering methods in the first place? Are they rights that focus only on the fairness (beyond merely the truth-finding aspect) of the trial process, or are they rights that focus on the propriety of police questioning as such?

    This, it turns out, is very important. It's one thing to say "If you question the guy this way, you might not be able to use the results to convict him" -- it's another to say "You can't question the guy this way at all, and if you do you're acting unconstitutionally." (Perhaps either legal rule is just wrong where terrorism is concerned, but they are different.) So the main Chavez question was: May the government lawfully use certainly potentially coercive methods (but again ones that stop short of physical torture, which is a separate, though important, question) in the civilian justice process, so long as it's willing not to use the results in the questioned person's trial? Or is even the questioning itself unconstitutional?

    If the answer is the latter, then it looks like Miranda and the other rules could be very substantial barriers to using the civil justice system to deal with terrorism -- and military detention thus becomes a comparatively more powerful tool. If the answer is the former, then the marginal drawbacks of the civil justice system, and the marginal advantage of the military system, decrease.

    In any event, the Court just resolved the question: (1) A Miranda violation is not per se a constitutional violation, so long as the evidence is not itself used against them in a criminal proceeding. On this, the vote was pretty much 8 to either 0 or 1 (Justice GInsburg didn't join any of the opinions that so held, though her opinion didn't squarely hold the opposite).

    (2) More importantly, there is generally no Self-Incrimination Clause violation if the compelled incriminatory statement isn't used against them in a criminal proceeding, even if there was actual evidence of compulsion (short of torture and other extreme physical abuse, see item 3 below), and not just a Miranda violation. (People can still assert the privilege against self-incrimination before trial, in order to prevent the possibility that they'll say something that can be used against them; but if they're still compelled to testify, the Clause isn't violated unless the evidence is actually used against them.) On this, the vote was 6-3 (Rehnquist, O'Connor, Scalia, Souter, Thomas, and Breyer in the majority, Stevens, Kennedy, and Ginsburg dissenting). Justices Souter and Breyer suggested that in some situations, the rule might possibly be different, but as a general matter he agreed with the position with which I started this paragraph.

    (3) The Court did not decide what I called the "separate, though important, question" whether this interrogation wasn't just a Miranda violation or otherwise coercive, but went further and violated the Due Process Clause. The Due Process Clause, the Court had earlier held, is violated when the police use tactics that aren't merely coercive but "shock the conscience," such as physical torture or other sorts of abuse. This is obviously a pretty vague standard, and the Court split 3-3-3: Rehnquist, Scalia, and Thomas concluded that there was no Due Process Clause violation here, Stevens, Kennedy, and Ginsburg concluded that there was one, and O'Connor, Souter, and Breyer expressed no opinion and would leave the matter for the Ninth Circuit to resolve on remand. (Souter and Breyer said this explicitly, and O'Connor, I think, implicitly took this view by not joining any opinion that took a position on the substantive due process question.)

    Martinez, the plaintiff here, had been questioned while he was in pain and thought he was dying. Those who saw no substantive due process violation argued that the questioner (Chavez) didn't interfere with Martinez's medical treatment, and that the police hadn't inflicted the pain in order to get any information from Martinez. Those who did see a substantive due process violation argued that, despite this, Chavez "made no effort to dispel the perception" -- though it was an inaccurate perception -- "that medical treatment was being withheld until Martinez answered the questions put to him." It'll now be up to the Ninth Circuit to decide on one or the other position.

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My understanding is that the subject was shot by a LEO that he had attacked.  He later admitted under constant questioning that he had attacked the officer.

an Oxnard, Calif., police officer shot him five times in the face, legs and back.

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Why was he not charged then?

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Typical progression of a police state.