4um: SCOTUS: No right to remain silent unless you speak up

Title: SCOTUS: No right to remain silent unless you speak up
Source: Salon/IBT
URL Source: http://www.salon.com/2013/06/30/sco ... e_unless_you_speak_up_partner/
Published: Jun 30, 2013
Author: Christopher Zara
Post Date: 2014-12-11 03:39:52 by Deasy
Keywords: salinas, scotus, miranda, advice
Views: 286
Comments: 18

If you want to invoke your constitutional right to remain silent, you’d better not be silent.

That’s the circular logic of a recent ruling by the U.S. Supreme Court, which held that simply remaining silent is not enough to protect American citizens from self-incrimination. Though it’s received scant media attention, the decision has serious implications for criminal prosecutions, legal experts say. It came on June 17 in Salinas v. Texas, which concerned the nature of police questioning in a 20-year-old murder investigation that led to the conviction of a Houston man.

In January 1993, Genovevo Salinas was brought in for police questioning about the murder of two brothers. Police found shotgun shell casings at the scene, and Salinas — who was not arrested and not read his Miranda rights — agreed to let police inspect his shotgun. When police asked if the shells would match his shotgun, Salinas did not answer the question. He stayed silent, looked down at the floor, shuffled his feet and bit his bottom lip.

Salinas was later arrested on an unrelated traffic warrant, at which time police decided there was enough evidence to charge him with the murders. Salinas did not testify at the trial, but his reaction to police questioning — the fidgeting, lip-biting, etc. — was used as evidence. In other words, Salinas’ silence was used against him, a violation of his Fifth Amendment rights, or so he thought.

Salinas was convicted and received a 20-year sentence. On direct appeal, he argued to the Court of Appeals of Texas that the prosecutors’ use of his silence as part of their case was unconstitutional, but the court rejected that argument. The case eventually made its way to the Supreme Court, where in a 5-4 decision last week, the court found that Salinas’ self-incrimination privilege had not been violated, mainly because he never flat-out said, “I’m invoking my right to remain silent.” This despite the fact that Salinas was not under arrest at the time of questioning, and was therefore not read his Miranda rights.

From the plurality opinion, written by Justice Samuel Alito:

“Petitioner [Salinas] cannot benefit from that principle because it is undisputed that his interview with police was voluntary. As petitioner himself acknowledges, he agreed to accompany the officers to the station and ‘was free to leave at any time during the interview.’ Brief for Petitioner 2 – 3 (internal quotation marks omitted). That places petitioner’s situation outside the scope of Miranda and other cases in which we have held that various forms of governmental coercion prevented defendants from voluntarily invoking the privilege.”

The Supreme Court had previously held that mere silence is not sufficient for a suspect to invoke his or her Fifth Amendment rights. The difference here is that Salinas was not a suspect at the time he went silent; he was merely a witness brought in for questioning.

Alito was joined in his opinion by Justice Anthony Kennedy and Chief Justice Roberts. While the ruling has been overshadowed by this week’s Supreme Court’s decisions on affirmative action, the Voting Rights Act, the Defense of Marriage Act and Prop 8, it’s received its share of criticism in both journalistic and legal circles.

Erwin Chemerinsky, dean of First Amendment law at the University of California, Irvine School of Law,wrote on the ABA Journal Tuesday that criminal defense lawyers will now have to take extra care, advising their clients to explicitly speak up if they wish to remain silent. He added that the new ruling is also likely to cause unnecessary confusion.

“Constitutional protections should not be just for those who have legal training and know what they need to say to the police to invoke their rights,” Chemerinsky wrote. “From a common sense perspective, Salinas was penalized for exercising his constitutional right to remain silent in the face of police questioning. This should not be tolerated under the Fifth Amendment.”

Read the full syllabus for Salinas v Texas here.

When government gains the power to control the use of private property, it becomes possible for the politically dominant to profit by high commodity prices using government regulation to constrain supply. One merely drives competitors out of business by manipulating the perception of risk to a land use preferred by a democratic majority. - Mark Edward Vande Pol

What effin' privilege is he yammering about? It's a RIGHT, not a "privilege." And it is stupid to think you have to say something/anything to assert a right that requires no speech whatsoever.

Americans who have no experience with, or knowledge of, tyranny believe that only terrorists will experience the unchecked power of the state. They will believe this until it happens to them, or their children, or their friends. Paul Craig Roberts

"When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it." Frederic Bastiat

No it is not stupid. It is a fact. You must invoke your right to remain silent or else you waive your right to remain silent. Those cops could care less about reading you your Miranda Rights. If you do not know that you have the right to remain silent when being questioned, then you have no rights at all. This also applies in the courtroom when you are questioned as a witness in a case not related to you and the prosecutor attempts to steer the issue away from the case to make you the subject (defendant) on trial. You invoke the speech "I choose to remain silent under the Fifth Amendment."

Good information, PR. Even if we'd like our rights to be handed to us by a benevolent government they won't be. We have to know and assert them.

"I do not ask that you place hands upon the tyrant to topple him over, but simply that you support him no longer; then you will behold him, like a great Colossus whose pedestal has been pulled away, fall of his own weight and break in pieces.". Étienne de La Boétie

It should be mentioned that you waive the 5th if or when you try to take a blanket 5th.

That is EXACTLY CORRECT! Do EXACTLY what Louis Lerner from the IRS did when she was compelled to testify against herself. She invoked the Fifth Amendment Right per every question.

Of course it is! If you "have the right to remain silent" then you cannot be forced to talk. That is contradictory and illogical. But I guess another way to assert your right not to answer questions is just to tell them "I don't answer questions. Am I being detained?" And no more than that.

“The most dangerous man to any government is the man who is able to think things out... without regard to the prevailing superstitions and taboos. Almost inevitably he comes to the conclusion that the government he lives under is dishonest, insane, intolerable.” ~ H. L. Mencken

Maybe and I know there is no harm in that. Most people talk themselves into prison. Having said that, suppose that you are mute and can't talk? Then what? Do you carry a card around saying "I am mute and cannot talk to you and answer your questions. Further, I have a right not to answer your questions"?

On the other end of the spectrum we saw Lois Lerner assert her 5th Amendmendment right after she had already commenced to testify, only to clam up when the questions became too tough for her to answer truthfully.

Or just sign them, and pray you're not shot-dead because doofus felt threatened.

Yes it is sufficient per the Constitution and SCOTUS ruling wrongly doesn't change that.

"They're on our left, they're on our right, they're in front of us, they're behind us...they can't get away this time." -- Col. Puller, USMC

I agree, but the US government has been shaping its own reality since the early 19th century.

I support Lois Lerner's right to assert her 5th amendment rights whenever she chooses. I also hear she's Jewish.

Subverting the Constitution just means it's not really the US government doing so but outlaws. People should not suppose that their "customs" and authority posturings are valid here because they say so.

"They're on our left, they're on our right, they're in front of us, they're behind us...they can't get away this time." -- Col. Puller, USMC

Well, according to them they are privileges given us by the same. At least that's the de facto application.