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Yet another right is being stripped away. Right to remain silent.

 
 
Reply Fri 20 Dec, 2013 10:13 am
You Don’t Have the Right to Remain Silent
http://www.slate.com/articles/news_and_politics/jurisprudence/2013/06/salinas_v_texas_right_to_remain_silent_supreme_court_right_to_remain_silent.html
The Supreme Court’s terrible—and dangerous—ruling this week on the Fifth Amendment.

By Brandon L. Garrett

On Monday, in a case called Salinas v. Texas that hasn’t gotten the attention it deserves, the Supreme Court held that you remain silent at your peril. The court said that this is true even before you’re arrested, when the police are just informally asking questions. The court’s move to cut off the right to remain silent is wrong and also dangerous—because it encourages the kind of high-pressure questioning that can elicit false confessions.

Here are the facts from Salinas: Two brothers were shot at home in Houston. There were no witnesses—only shotgun shell casings left at the scene. Genovevo Salinas had been at a party at that house the night before the shooting, and police invited him down to the station, where they talked for an hour. They did not arrest him or read him his Miranda warnings. Salinas agreed to give the police his shotgun for testing. Then the cops asked whether the gun would match the shells from the scene of the murder. According to the police, Salinas stopped talking, shuffled his feet, bit his lip, and started to tighten up.

At trial, Salinas did not testify, but prosecutors described his reportedly uncomfortable reaction to the question about his shotgun. Salinas argued this violated his Fifth Amendment rights: He had remained silent, and the Supreme Court had previously made clear that prosecutors can’t bring up a defendant’s refusal to answer the state’s questions. This time around, however, Justice Samuel Alito blithely responded that Salinas was “free to leave” and did not assert his right to remain silent. He was silent. But somehow, without a lawyer, and without being told his rights, he should have affirmatively “invoked” his right to not answer questions. Two other justices signed on to Alito’s opinion. Justice Clarence Thomas and Justice Antonin Scalia joined the judgment, but for a different reason; they think Salinas had no rights at all to invoke before his arrest (they also object to Miranda itself). The upshot is another terrible Roberts Court ruling on confessions. In 2010 the court held that a suspect did not sufficiently invoke the right to remain silent when he stubbornly refused to talk, after receiving his Miranda warnings, during two hours of questioning. Now people have to somehow invoke the right to remain silent even when they’re not formal suspects and they haven’t been heard the Miranda warnings. As Orin Kerr points out on the Volokh Conspiracy, this just isn’t realistic.

The court’s ruling in Salinas is all the more troubling because during such informal, undocumented, and unregulated questioning, there are special dangers that police may, intentionally or not, coax false confessions from innocent suspects. I have spent years studying cases of people exonerated by DNA testing. A large group of those innocent people falsely confessed—and many supposedly admitted their guilt even before any formal interrogation. Take the case of Nicholas Yarris, who was exonerated by DNA testing in 2003, after 20 years in prison. He had been convicted and sentenced to death in Pennsylvania for the murder of a woman found raped, beaten, and stabbed near her abandoned Chrysler Cordoba.

When informally questioned, police said, Yarris volunteered that he knew the victim had been raped, and that the victim’s Chrysler had a brown “landau” roof (a vinyl fake convertible look). That was a striking detail, especially since the police had kept it out of the press. No tape was made of the interrogation. The police didn’t even produce notes. And now that DNA has cleared Yarris, we know his confession was false, and that he must not have volunteered the fact about the car roof at all.

The Supreme Court’s decision in Salinas encourages the kind of loosey-goosey, and easily contaminated, police questioning that led to Yarris’ wrongful conviction. Salinas may very well have been guilty of the two murders. But in many cases, as in this one, there are no eyewitnesses and not much other evidence of guilt: That is why the police may desperately need a confession. And that makes it crucial for them to handle interrogations and confessions with the utmost care. The court appreciated none of the pressures police face, and how they can squeeze an innocent suspect. Alito and the other conservatives were not troubled that there was no video to confirm that Salinas was in fact uncomfortable as well as silent. If Salinas had answered the question by exclaiming that he was innocent, could police have reported that he sounded desperate and like a liar? The court’s new ruling puts the “defendant in an impossible predicament. He must either answer the question or remain silent,” Justice Stephen Breyer said in dissent (joined by the other three liberal-moderates). “If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances—even if he is innocent.” But if he doesn’t answer, at trial, police and prosecutors can now take advantage of his silence, or perhaps even of just pausing or fidgeting.

Questions first, rights later is the approach the court’s majority now endorses. And by giving the police more incentive to ask questions informally, the new ruling will also undermine the key reform that police have adopted to prevent false confessions: videotaping entire interrogations. Why not try to trap a suspect before the camera starts rolling? In only a few cases like Yarris’ will there be DNA to test. The likely result of the court’s embrace of shoddy interrogation tactics: more wrongful convictions.

Brandon L. Garrett is a professor of law at the University of Virginia School of Law who studies criminal procedure, civil rights, and wrongful convictions. His new book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, was published by Harvard University Press.

 
izzythepush
 
  1  
Reply Fri 20 Dec, 2013 10:36 am
@edgarblythe,
It's been the case for some time over here.

Quote:
You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.


Essentially if you rely on something when in court but didn't mention it at the time of arrest the jury are permitted to make inferences about why you didn't. They probably did before, but now it's in statute. Still not sure how I feel about it.
0 Replies
 
Sturgis
 
  3  
Reply Fri 20 Dec, 2013 11:05 am
@edgarblythe,
Alito, Thomas and Scalia are doing their darndest to d destroy human rights and humanity. Now just how is someone to invoke their right to remain silent if they are not familiarized with the words which must be uttered? Rest assured that'll likely next be on the list of "requirements" these goons will insist upon.

Not so much a sad development as a tragic one.
ossobuco
 
  1  
Reply Fri 20 Dec, 2013 11:16 am
@Sturgis,
I agree, Sturge.
0 Replies
 
Frank Apisa
 
  1  
Reply Fri 20 Dec, 2013 11:44 am
@Sturgis,
Sturgis wrote:

Alito, Thomas and Scalia are doing their darndest to d destroy human rights and humanity. Now just how is someone to invoke their right to remain silent if they are not familiarized with the words which must be uttered? Rest assured that'll likely next be on the list of "requirements" these goons will insist upon.

Not so much a sad development as a tragic one.


If the so-called liberals of this country who keep insisting that both parties are the same get their way...there will be more, no fewer, Alito's, Thomas's, and Scalia's on the court.

Very few loyalists on the conservative side ever buy into that nonsense. They realize that if Republicans are elected...they are more likely than Democrats to put judges and justices on the bench like those three.

One can hope that liberals finally come to grips with that truth...but somehow, I doubt they will.
0 Replies
 
mysteryman
 
  1  
Reply Fri 20 Dec, 2013 06:20 pm
@Sturgis,
Thats 3 judges.
There are 9 on the Supreme Court, so it takes 5 to be a majority.
Who are the other judges that sided with Alito, Thomas and Scalia?
boomerang
 
  2  
Reply Fri 20 Dec, 2013 07:40 pm
@edgarblythe,
Am I reading this right -- that unless you explicitly say "I wish to remain silent" that what you don't say can be used against you in court?

Even that your body language can be used against you?

It seems to me that no one in their right mind would ever willingly be questioned by the police again.
ossobuco
 
  1  
Reply Fri 20 Dec, 2013 07:44 pm
@boomerang,
My view too, Boom.

I must add this is complete crap.
boomerang
 
  2  
Reply Fri 20 Dec, 2013 08:02 pm
@ossobuco,
It is crap. It seems so counter productive to the police's ability to do their job that I thought I had to be reading it wrong.

I guess the trick is that people don't know about it -- so I sincerely thank edgar for bringing it to our attention.

I have always been of the opinion (and I've taught Mo) that you are polite and cooperative with the police if they want to ask you questions. Now I'm thinking that I need to revise that to:

Be calm.
Ask "Am I under arrest?"
If they say "no" -- leave without another word.
BillRM
 
  3  
Reply Fri 20 Dec, 2013 08:07 pm
@boomerang,
Quote:
It seems to me that no one in their right mind would ever willingly be questioned by the police again.


If you think that the police even might be considering charging you with a crime the best thing to do is refused to talk to the police without your lawyer innocent or not innocent.

More people have talk themselves into prison then not.

The idiot at Harvard that just issue the bomb threat to get out of a final test was tracked down as he had used the Harvard network to access a tor node at the same time someone was writing the threatening email using the tor network.

That is hardly proof that he was the one writing the threat using the tor network and all he needed to do was refused to talk to them and that would had been a likely dead end for them.

He however confessed at once to them...........

Footnote when it come to the FBI they can lie to you all day long but any lie or claimed lie to them is a felony in and of itself.


Brandon9000
 
  1  
Reply Fri 20 Dec, 2013 08:12 pm
The government, the people who have sworn an oath to defend the Constitution, are eroding it bit by bit.

They say that the 4th Amendment doesn't apply to calls if one endpoint is outside the US. Obama defends his government's right to indiscriminately gather data on every phone call made by anyone and will only say that they have safeguards in place, instead of more properly firing everyone responsible. The various municipalities put cameras on street corners across the country. They've invented the FISA secret courts. Now they are trying to whittle down the 5th Amendment.

We don't want the narrowest possible interpretation of the Bill of Rights, we want the broadest possible interpretation. The very people who swore to defend the Constitution from all enemies, foreign and domestic, have become the Constitution's domestic enemies.
0 Replies
 
Thomas
 
  1  
Reply Fri 20 Dec, 2013 08:28 pm
@BillRM,
I second Bill's suggestion that you all watch Professor Duane's lecture --- and then never talk to the police again unless they guarantee you immunity first.
0 Replies
 
Sturgis
 
  1  
Reply Fri 20 Dec, 2013 09:18 pm
@mysteryman,
Quote:
Thats 3 judges.
There are 9 on the Supreme Court, so it takes 5 to be a majority.
Who are the other judges that sided with Alito, Thomas and Scalia?

Alito said: “A witness’s constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,”
This (above) view was sided with by Justices Kennedy and Roberts. In a separate ruling Justice Thomas agreed with statements put forth by Justice Scalia.
It was due to the Alito ruling that the case was decided as it was.

More information can be found here: www.scotusblog.com/2013/06/opinion-recap-if-you-want-to-claim-the-fifth/
0 Replies
 
ossobuco
 
  1  
Reply Fri 20 Dec, 2013 09:20 pm
@boomerang,
Yeah.

I'm the type that would explain and be shown a fool, but I remember why regarding the why nots in various situations.
ossobuco
 
  1  
Reply Fri 20 Dec, 2013 09:23 pm
@ossobuco,
Well, anyway, very wary.
0 Replies
 
boomerang
 
  1  
Reply Fri 20 Dec, 2013 11:56 pm
@BillRM,
Thanks for that video. That was really good information.

0 Replies
 
 

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