You don't have the right to remain silent - says Supreme Court

[Mazmaz]

http://www.slate.com/articles/news_a...b_share_chunky

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.

[Abandon]

well, this certainly sounds like bullshit

[BaneTheBrawler]

i agree.

[archibaldcrane]

prosecutors described his reportedly uncomfortable reaction to the question about his shotgun.

So you can't say "I asked him a question and he remained silent" in court, but you can say "he shuffled his feet and had an uncomfortable expression on his face" or something?

That's what we're talking about here right? Or does this ruling straight out say "you can now bring up that a person chose to remain silent with regards to a line of questioning" in a case?

[archibaldcrane]

Also, misleading thread title, this definitely does not mean that you have to answer questions in an interrogation.

[Kryssan]

http://www.supremecourt.gov/opinions...2-246_7l48.pdf

^ Link to the ruling decision.

As far as I understand it, it says that you have to explicitly state that you intend to remain silent, that it is not an implied right. I've heard people discussing this in terms of the 9th and 14th Amendments ( with regards to future debates, the idea that rights aren't implicitly guaranteed but must be explicitly demanded ), but IIRC this ruling doesn't say that you can't be silent, just that if you intend to be silent you have to explicitly state that is what you're doing.

I find the ruling silly but if my understanding is correct then people are throwing around a loaded set of terminology. Please correct me if I'm wrong, law is not one of my strong suits.

[archibaldcrane]

But the case in question isn't about a guy who wasn't allowed to be silent when he ...was silent - it's about whether such silence can be presented in court, right?

[archibaldcrane]

I just don't think this is a particularly sweeping ruling - if anything, given how the majority was worded, they didn't feel that his "right to silence" was an issue given that he wasn't being detained or arrested and chose (not that he knew he had this choice) to remain in the presence of the officers who were informally questioning him.

Although declaring open season on casting aspersions in a courtroom because "I asked him if he murdered her, and he wouldn't answer!" is kinda fucked up.

[Kryssan]

But the case in question isn't about a guy who wasn't allowed to be silent when he ...was silent - it's about whether such silence can be presented in court, right?

From what I understand; this is going back to implicit vs explicit. The prosecution used his silence over pointed questions about a homicide when he had previously been cooperating during an informal interview without Miranda read, in the court during his trial to implicate guilt. The defendent appealed this saying that his 5th amendment rights were violated. The lower courts, and now the SC, said nope - you didn't explicitly say that your silence was to prevent self-implication ( ie 5th amendment ) and this doesn't fall in the other exemptions that allow implicit use of the 5th.

This is from that link I posted above:

Petitioner claims that reliance on the Fifth Amendment privilege is
the most likely explanation for silence in a case like his, but such silence is “insolubly ambiguous.” See Doyle v. Ohio, 426 U. S. 610, 617.
To be sure, petitioner might have declined to answer the officer’s
question in reliance on his constitutional privilege. But he also might
have done so because he was trying to think of a good lie, because he
was embarrassed, or because he was protecting someone else. Not
every such possible explanation for silence is probative of guilt, but
neither is every possible explanation protected by the Fifth Amendment. Petitioner also suggests that it would be unfair to require a
suspect unschooled in the particulars of legal doctrine to do anything
more than remain silent in order to invoke his “right to remain silent.” But the Fifth Amendment guarantees that no one may be
“compelled in any criminal case to be a witness against himself,” not
an unqualified “right to remain silent.” In any event, it is settled
that forfeiture of the privilege against self-incrimination need not be
knowing. Murphy, 465 U. S., at 427–428. Pp. 6−10.

[Nephlite]

It's a strange ruling altogether. When you learn basic interrogation/interviewing techniques, it's always been practice that if you're investigating a crime and a person you're interviewing dummies up or invokes, it builds your suspicion but doesn't necessarily mean that person is guilty. You have to look at the bigger picture in those instances. Maybe the person is afraid? Most people who know the rules and ways of street life know that you run the risk of getting retaliation for speaking to the police or "snitching".

Though the guy you're talking to might indeed be a very well known career criminal, most of them have families or ties that they won't sacrifice for something that doesn't seem like a big deal in their world. Nothing worse than the fear that you could possibly get killed because you spoke to the police, it's a whole different story when you have small vulnerable children or have a vested interest in a particular community (house, car, established family or a legitimate job) that could be put in jeopardy if you're seen speaking to the police.

I've seen and spoke with people who have taken the heat for crimes they didn't commit just to get away from the life or to bypass that chance you could be labeled a snitch. As we all know, prison systems don't necessarily make you immune to a hit (as most well established gangs or organizations will have people on the inside) and if you go to jail and give up someone, you run that risk as well. You also aren't around your family to protect them as they'll go to them since they're more accessible than you and make you suffer. A fate worse than death so to speak when you're mailed a photo of your children or something from someone who's retaliating against you for snitching.

Even some who take the hit for a crime they didn't commit, sometimes that gives them an ace or a favor from that person who actually did the crime. Young kids who want to join a gang or organization who have to do things to get in; one way is to take prison for someone and now that organization owes you one. Membership is a big one but more importantly, protection from those you just got mixed up in.

In the end, a ruling like this bypasses some of the basic fundamentals of good investigation work. Anyone with a silver tongue or an intimidating demeanor can coerce a confession from someone. It's that assumed silence and refusal to cooperate which should set off some red flags in your head that maybe you should dig a little more and look at the whole picture. Too many people are quick to assume refusal to cooperate or silence means that persons a dirt bag or hates the police. Well, the hate the police thing might be accurate. Especially if there's a lookout always watching the intake block of a station to see who gets picked up with a ready cell phone to alert the local boys that SuchandSuch just got picked up and your ass could very well be dead before you step foot out the front door. It's a very crazy world we live in and that's why good police work should take stride over anything to make sure you get the right people.

[Restrat]

I think this, like the Citizens United case, just goes to show you how clueless many of the justices are to how things work in the real world.

[archibaldcrane]

In this case i assume the shotgun was the murder weapon (if I'm wrong let me know), so to say "oh he could've had many reasons to remain silent other than avoiding self-incrimination" is pretty spurious.

[archibaldcrane]

http://www.scotusblog.com/case-files...linas-v-texas/

So yeah, a person's silence can be presented in court as evidence of guilt if they are not in custody / Mirandized and if they haven't expressed that they are exercising their right to be silent.

[Restrat]

I would assume this will just make people feel like any cooperation with the police outside of being arrested would be foolish.

[Seraph]

I would assume this will just make people feel like any cooperation with the police outside of being arrested would be foolish.

It emphasizes the "Us vs. Them" paradigm more than ever. If guilt is currently assumed at silence, the correct tactic would be to increase the signal:noise ratio by deafening them with silence. All people should say now in serious situations is "Am I under arrest?" and "Am I free to go?". If things go south we add "I am taking the 5th." and "I would like to speak to my attorney."

Seriously though, this is so close to Innocent Until Proven Silent I cannot believe it.

[Rhyis.]

Don't be a criminal mute. You're fucked.

[Lordender]

You only have "rights" because the Government/state says you do. "Rights" are an artificial construct imposed by "civilization" which is another artificial construct that attempts to separates us from the barbarism of nature.

[Rhyis.]

You only have "rights" because the Government/state says you do. "Rights" are an artificial construct imposed by "civilization" which is another artificial construct that attempts to separates us from the barbarism of nature.

RIP George Carlin.

[notorious bum]

Damn, really? All you gotta do is watch The First 48 to get an idea on how bullshit this ruling is going to be for future crime-solving. Crooked/lazy cops are going to have a field day with this nonsense.

[archibaldcrane]

Isn't this more of a "lawyer field day" than a "cop field day"?