You Don’t Have the Right to Remain Silent

[babylonsister]

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


You Don’t Have the Right to Remain Silent
The Supreme Court’s terrible—and dangerous—ruling this week on the Fifth Amendment.

By Brandon L. Garrett|Posted Wednesday, June 19, 2013, at 6:05 PM


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.

snip//

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.

[Jackpine Radical]

1. I do think they have to read you your rights

before they waterboard you, though.

[RobertEarl]

2. You silly librul

They don't have to do nuttin. If you find yourself on the waterboard, it is because you asked for it.

[Jackpine Radical]

5. No, no. I'm sure they do everything by the book.

[RobertEarl]

8. Of course they do

Everything they do is for the good of the state.

Subverting the constitution is only for the good of the state.

See, if they ask you: "If you remain silent, we will waterboard you, you want us to waterboard you?" and you remain silent, it means "Please, yes, waterboard me."

[HardTimes99]

7. If you haven't done anything wrong, hippie . . . - nt

[RobertEarl]

9. No. I am perfect.

I have never done anything wrong. Never. I am completely innocent, just like everyone else.

There is something happening here
What it is ain't exactly clear

But there is a man with a gun over there
Telling me, I got to beware

[H2O Man]

3. Recommended.

Rubin & friends have been working for years on the issue of false confessions. It happens more often than people might think.

[HardTimes99]

4. A hugely important OP - yet another step on the slippery slope - nt

[byeya]

13. The slippery slope is looking like a mine shaft and we've been pushed

[treestar]

6. ...

Holding: When petitioner had not yet been placed in custody or received Miranda warnings, and voluntarily responded to some questions by police about a murder, the prosecution’s use of his silence in response to another question as evidence of his guilty at trial did not violate the Fifth Amendment because petitioner failed to expressly invoke his privilege not to incriminate himself in response to the officer’s question.

We have previously recognized two exceptions to the requirement that witnesses invoke the privilege, but neither applies here. First, we held in Griffin v. California, 380 U. S. 609, 613-615 (1965), that a criminal defendant need not take the stand and assert the privilege at his own trial. That exception reflects the fact that a criminal defendant has an "absolute right not to testify." Turner v. United States, 396 U. S. 398, 433 (1970) (Black, J., dissenting); see United States v. Patane, 542 U. S. 630, 637 (2004) (plurality opinion). Since a defendant's reasons for remaining silent at trial are irrelevant to his constitutional right to do so, requiring that he expressly invoke the privilege would serve no purpose; neither a showing that his testimony would not be self-incriminating nor a grant of immunity could force him to speak. Because petitioner had no comparable unqualified right during his interview with police, his silence falls outside the Griffin exception.

Second, we have held that a witness' failure to invoke the privilege must be excused where governmental coercion makes [*5] his forfeiture of the privilege involuntary. Thus, in Miranda, we said that a suspect who is subjected to the "inherently compelling pressures" of an unwarned custodial interrogation need not invoke the privilege. 384 U. S., at 467-468, and n. 37. Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege "unless [he] fails to claim [it] after being suitably warned." Murphy, supra, at 429-430.

Petitioner 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.

http://www2.bloomberglaw.com/public/desktop/document/SALINAS_v_TEXAS_No_12246_US_June_17_2013_Court_Opinion/1

You have the right to remain silent. This was about the prosecutor commenting on it and using silence as an argument. That causes a mistrial where Miranda applies.

[suffragette]

10. Excellent OP

K&R

[msongs]

11. we need a constitutional scholar in government to save us from our own "police" nt

[byeya]

14. The "constitutional scholar" tag is getting to be as funny as "community organizer"

[msanthrope]

15. How is this possibly President Obama's fault? nt

[premium]

17. In no way possible can this be Pres. Obama's fault,

this is on the SCOTUS all the way.

[msanthrope]

18. Which us why I wonder at the two posters above....Jeebus. nt

[premium]

19. I was kinda wondering about those myself,

there are legitimate differences with Pres. Obama, however, this isn't one of them.

[avaistheone1]

12. VERY disturbing.

k&r

[premium]

16. The very first thing you should say to the police is,

"Am I being detained and if not, I'm leaving".
If you are detained, demand your Miranda warning and then invoke your 5th Amendment right, demand a lawyer and don't say another word.
Also, if the police ask you to come down to the station for a chat/clear things up, again ask them if you're being detained, if not, politely decline and walk away, unlike what's portrayed in shows like Law & Order, you don't have to go anywhere with them unless you're being detained.