Still, the United States Supreme Court has yet to decide what protections, if any, the Fifth Amendment affords to pre-arrest silence when the defendant does not testify and his silence is introduced by the State not for impeachment but in its case-in-chief.
Salinas was convicted on both forensics evidence and testimony from his erstwhile co-conspirator; a shotgun he freely admitted to owning matched shells found at the scene of the crime, and his fellow criminal felt guilty after having a dream about the victims and testified against him.
'Not for impeachment' above means that his silence was not offered as dispositive of his guilt. There was plenty of other evidence to prove him guilty in the jury's eyes. That evidence is not appealed from, nor is the lawfulness of his arrest. Salinas' argument is that his conviction should be overturned because the prosecution should not have even mentioned the fact of his silence. You can't tell a jury that they must convict someone because the person was silent when asked an incriminating question. But Salinas is effectively arguing that the jury can not be informed of a question going unanswered, which I don't think is supported by precedent.
In the event that the Supreme court agrees with Salinas (unlikely IMHO), what will happen is that his case will be sent back to the lower court for a retrial, all the same evidence will be introduced, except that the prosecutor will studiously avoid mentioning this exchange. Then he'll be convicted again because there's loads and loads of other evidence.
Refusal to answer a question when in custody cannot be adduced as evidence of guilt. But even if you sit there and say nothing, the prosecution and police are perfectly at liberty to describe how you began sweating profusely and shaking when asked an apparently incriminating question. The prosecution may not submit as evidence expert testimony about what this means ('only a guilty person would react that way,') but the jury is perfectly entitled to draw its own inferences.
Nor is there a binary choice between silence and lying. When the officer asked Salinas if the shells from the murder scene would match his gun, Salinas could have made a noncommittal answer like 'how should I know?' or suchlike. Indications are that he had already voluntarily dug himself into a hole (admitting to owning the gun, how long it had been in his possession, that it had not been in anyone else's possession, and so on).
One other thing to bear in mind when reading the case is that appellate cases are restricted to questions of law. With certain rare exceptions, they do not examine questions of fact, which is the job of the trial court (and which is why if the conviction were overturned, another trial would take place because an overturning is not the same as an acquittal). When you read an appellate case, resist the temptation to imagine alternative interpretations of the facts that might lead to a conclusion of innocence; that is a determination for the jury, not the court. The appeals court is examining whether or not the trial was conducted properly, not the credibility of participants.
>'Not for impeachment' above means that his silence was not offered as dispositive of his guilt.
Are you sure? The way I read it, "not for impeachment but in its case-in-chief" means "as part of making its case, rather than to show that a witness' testimony was false" - different evidentiary rules apply to evidence introduced for impeachment (i.e. to show that a witness' testimony was false). I see nothing to imply that his silence wasn't used as evidence for his guilt, or that the jury knew to ignore it (how possible would that even be?)
>Salinas is effectively arguing that the jury can not be informed of a question going unanswered, which I don't think is supported by precedent.
Surely that's the only way to ensure a suspect's silence will not be held against him?
>In the event that the Supreme court agrees with Salinas (unlikely IMHO), what will happen is that his case will be sent back to the lower court for a retrial, all the same evidence will be introduced, except that the prosecutor will studiously avoid mentioning this exchange. Then he'll be convicted again because there's loads and loads of other evidence.
Sounds like we should have nothing to fear from a victory on his part then; sure there will be the cost of a retrial, but it's not worth sacrificing vital constitutional protections just to save the court a bit of work.
Wow. You'd think it'd be obvious. The 5th amendment isn't a digital pin pulled down to zero and magically switched on when the Miranda rights are read.
I'm going to hold out on my outrage until the Supreme Court comments, but should they even hint at silence being a form of confession, I think that will surely be regarded as the day the judicial system in the United States finally jumped the shark for once and for all.
I agree with you, but the case isn't that simple. If he simply refused to speak, that would be one thing. The problem is that he was talking and then decided to stop right when an incriminating question was asked. The question isn't whether his silence can be used as evidence as guilt ... but whether his decision to stop talking at that specific moment can be.
It's always a good idea to keep your mouth shut when dealing with the cops, from beginning to end, not just when you find out they're gunning for you.
I would have thought that http://en.wikipedia.org/wiki/Miranda_v._Arizona settled this question decades ago. The standard set there is that nothing a suspect says is admissible UNLESS the suspect has been informed of his rights to talk to an attorney, and to remain silent, had understood them AND voluntarily waived them.
Hopefully this decision will not complete the erosion of meaningful protection from self-incrimination under the 5th. (Though, given the court we have, I'm not very optimistic.)
From the article: "Texas opposed the appeal, saying that the protection against compulsory self-incrimination is irrelevant when a suspect is under no compulsion to speak, as Salinas was because he was not under arrest and was speaking voluntarily."
So, because he was under no compulsion to speak, his refusal to speak can be taken as a sign of guilt?
I'm reminded of the "Never, ever talk to the police" video from a few years ago, a talk by a defense attorney and a veteran police officer. If you are guilty, innocent, or even just someone who witnessed or reported a crime, talking to the police cannot help you.
For example, Martha Stewart did time of conspiracy, obstruction of justice, and making false statements; if she had not spoken to federal investigators, her case might have ended differently.
In many states, police can ask you to identify yourself. Some states require you to answer this question.
Most states don't require you to provide identification, but some do. It's also a good way to disarm the situation, so many lawyers recommend providing your ID when an officer asks for it.
Beyond this, however, you should only have two things you say:
When the officer stops you:
"Officer, did I do something wrong?"
When the officer asks you any other question besides basic information (name, ID, etc):
"Officer, my lawyer has recommended that I do not answer questions like this. May I go?"
Misleading, especially the headline. The case doesn't directly concern the admissibility or implications of 5th amendment refusal to testify; that's settled law, as of Griffin v. California (http://en.wikipedia.org/wiki/Griffin_v._California).
This case asks if 5th amendment rights only attach once a suspect has been arrested. If the Court finds that the 5th amendment (and, by extension, the Miranda rule) applies to pre-arrest interviews, then the Griffin rule applies, and such silences are inadmissable.
We used to have a right to silence in England. Our current Miranda equivalent police caution says:
> 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.
We also tend not to have "loopholes" - someone not getting the correct caution will have to go through years of expensive law . Their case isn't won just because of a missing warning. (I think; I am not a lawyer.)
"Being attacked" seems a bit strong and current for a change that passed into law 18 years ago. If anything, protection for the defendant has been strengthened since then with the introduction of a clause making that section inapplicable to anyone questioned before they've had chance to speak with a lawyer.
You have the right to remain silent. You don't have the right for the jury to draw no "reasonable inferences" from your insistence on remaining silent.
Well, it sounds like the instance in question hinges on the state transition from an hour of freely speaking to sudden silence in the face of a specific question. I can certainly understand why a person would want to ascribe significance to that transition, but...
If there's no compulsion to speak, is there any compulsion to tell the truth? (I guess lying in that scenario would fall under "obstruction of justice"?)
> I guess lying in that scenario would fall under "obstruction of justice"
Yes. The police are allowed to lie to suspects, but suspects are not allowed to lie to police.
Lying is one of the main tools police use to manipulate suspects into giving up information or confessions.
Unfortunately, this means you can't trust the police under any circumstances. You don't know what they know or believe about you. You may not have been aware that something you were doing is a crime, and accidentally confess.
Since the police are allowed to lie, and they're trained, skilled and experienced manipulators, if you think you're helping them do good things and what you're telling them won't get you in trouble -- perhaps you are completely innocent! -- you have no way of knowing whether these thoughts are a correct analysis, or something they've carefully manipulated you into believing so you'll help them send you to jail.
The thin paper shield of the Fifth Amendment is really all that stands between just about everybody and prison, once the police and prosecutors have decided to go after you.
That being said, it's not that police as a whole are bad -- for every politician pushing harsh penalties to be "tough on crime," every prosecutor who's trying to advance her career by maxing her "lives ruined" score, every judge who's receiving kickbacks to fill prison beds -- I'd say there are at least a dozen, and quite probably many more, dedicated law enforcement professionals out there who genuinely believe in truth and justice and putting their lives on the line to protect innocent people, and try their utmost to live up to those ideals.
It's just that, when you interact with them, you have no idea what type you're dealing with, what they believe or have learned about you, or whether there's some obscure regulation you've unknowingly been violating. So it's safest not to take the risk. Same principle as not talking to strangers when you're a young child -- for every sick pedophile or would-be kidnapper, there are at least a dozen, and quite probably many more, strange adults who are simply friendly ordinary people, but you just can't take the risk because the bad ones are so good at manipulating you, you'll have no clue until it's far too late.
Lying to federal investigators is usually a crime of some sort. Whether lying can really be Constitutionally prohibited (and if so, when, and what the rationale is) is an interestingly thorny area of first-amendment law. Some laws against lying are very old; for example, libel is a special case of lying. And in the commercial sphere, laws against false advertising have been upheld. But the dividing line is not that clear. Eugene Volokh had a series of posts on the subject, spurred by a U.S. law (later overturned) that made it illegal to lie about having received a military decoration: http://www.volokh.com/category/freespeech/knowingly-false-st...
"Light someone on fire and if they die, they are innocent."
Silence is neither an acknowledgment guilt or innocence, But the absence of speech.
I have never been so fearful of a verdict to such a question involving the admission of guilt since the Salem witch trials. It's the sense of the justices I question not so much the grounds of the case.
[+] [-] anigbrowl|13 years ago|reply
specifically this part:
Still, the United States Supreme Court has yet to decide what protections, if any, the Fifth Amendment affords to pre-arrest silence when the defendant does not testify and his silence is introduced by the State not for impeachment but in its case-in-chief.
Salinas was convicted on both forensics evidence and testimony from his erstwhile co-conspirator; a shotgun he freely admitted to owning matched shells found at the scene of the crime, and his fellow criminal felt guilty after having a dream about the victims and testified against him.
'Not for impeachment' above means that his silence was not offered as dispositive of his guilt. There was plenty of other evidence to prove him guilty in the jury's eyes. That evidence is not appealed from, nor is the lawfulness of his arrest. Salinas' argument is that his conviction should be overturned because the prosecution should not have even mentioned the fact of his silence. You can't tell a jury that they must convict someone because the person was silent when asked an incriminating question. But Salinas is effectively arguing that the jury can not be informed of a question going unanswered, which I don't think is supported by precedent.
In the event that the Supreme court agrees with Salinas (unlikely IMHO), what will happen is that his case will be sent back to the lower court for a retrial, all the same evidence will be introduced, except that the prosecutor will studiously avoid mentioning this exchange. Then he'll be convicted again because there's loads and loads of other evidence.
Refusal to answer a question when in custody cannot be adduced as evidence of guilt. But even if you sit there and say nothing, the prosecution and police are perfectly at liberty to describe how you began sweating profusely and shaking when asked an apparently incriminating question. The prosecution may not submit as evidence expert testimony about what this means ('only a guilty person would react that way,') but the jury is perfectly entitled to draw its own inferences.
Nor is there a binary choice between silence and lying. When the officer asked Salinas if the shells from the murder scene would match his gun, Salinas could have made a noncommittal answer like 'how should I know?' or suchlike. Indications are that he had already voluntarily dug himself into a hole (admitting to owning the gun, how long it had been in his possession, that it had not been in anyone else's possession, and so on).
One other thing to bear in mind when reading the case is that appellate cases are restricted to questions of law. With certain rare exceptions, they do not examine questions of fact, which is the job of the trial court (and which is why if the conviction were overturned, another trial would take place because an overturning is not the same as an acquittal). When you read an appellate case, resist the temptation to imagine alternative interpretations of the facts that might lead to a conclusion of innocence; that is a determination for the jury, not the court. The appeals court is examining whether or not the trial was conducted properly, not the credibility of participants.
[+] [-] lmm|13 years ago|reply
Are you sure? The way I read it, "not for impeachment but in its case-in-chief" means "as part of making its case, rather than to show that a witness' testimony was false" - different evidentiary rules apply to evidence introduced for impeachment (i.e. to show that a witness' testimony was false). I see nothing to imply that his silence wasn't used as evidence for his guilt, or that the jury knew to ignore it (how possible would that even be?)
>Salinas is effectively arguing that the jury can not be informed of a question going unanswered, which I don't think is supported by precedent.
Surely that's the only way to ensure a suspect's silence will not be held against him?
>In the event that the Supreme court agrees with Salinas (unlikely IMHO), what will happen is that his case will be sent back to the lower court for a retrial, all the same evidence will be introduced, except that the prosecutor will studiously avoid mentioning this exchange. Then he'll be convicted again because there's loads and loads of other evidence.
Sounds like we should have nothing to fear from a victory on his part then; sure there will be the cost of a retrial, but it's not worth sacrificing vital constitutional protections just to save the court a bit of work.
[+] [-] ComputerGuru|13 years ago|reply
I'm going to hold out on my outrage until the Supreme Court comments, but should they even hint at silence being a form of confession, I think that will surely be regarded as the day the judicial system in the United States finally jumped the shark for once and for all.
[+] [-] maratd|13 years ago|reply
It's always a good idea to keep your mouth shut when dealing with the cops, from beginning to end, not just when you find out they're gunning for you.
[+] [-] btilly|13 years ago|reply
However Wikipedia points me at http://en.wikipedia.org/wiki/Berghuis_v._Thompkins which indicates that this protection has been considerably eroded from what I was aware it had been.
Hopefully this decision will not complete the erosion of meaningful protection from self-incrimination under the 5th. (Though, given the court we have, I'm not very optimistic.)
[+] [-] goodcanadian|13 years ago|reply
So, because he was under no compulsion to speak, his refusal to speak can be taken as a sign of guilt?
[+] [-] cpeterso|13 years ago|reply
For example, Martha Stewart did time of conspiracy, obstruction of justice, and making false statements; if she had not spoken to federal investigators, her case might have ended differently.
https://richardbrenneman.wordpress.com/2011/04/20/criminal-l...
[+] [-] jerrya|13 years ago|reply
http://boingboing.net/2008/07/28/law-prof-and-cop-agr.html
As well as the ACLU
http://www.aclu.org/drug-law-reform-immigrants-rights-racial...
And flex your rights http://www.flexyourrights.org/
[+] [-] dechols|13 years ago|reply
In many states, police can ask you to identify yourself. Some states require you to answer this question.
Most states don't require you to provide identification, but some do. It's also a good way to disarm the situation, so many lawyers recommend providing your ID when an officer asks for it.
Beyond this, however, you should only have two things you say:
When the officer stops you:
"Officer, did I do something wrong?"
When the officer asks you any other question besides basic information (name, ID, etc):
"Officer, my lawyer has recommended that I do not answer questions like this. May I go?"
When your Miranda Rights are read:
Say nothing. Obey instructions.
[+] [-] charonn0|13 years ago|reply
[+] [-] rosser|13 years ago|reply
This. A thousand times, this. Thank you for putting it so succinctly.
[+] [-] BurritoAlPastor|13 years ago|reply
This case asks if 5th amendment rights only attach once a suspect has been arrested. If the Court finds that the 5th amendment (and, by extension, the Miranda rule) applies to pre-arrest interviews, then the Griffin rule applies, and such silences are inadmissable.
[+] [-] DanBC2|13 years ago|reply
> 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.
We also tend not to have "loopholes" - someone not getting the correct caution will have to go through years of expensive law . Their case isn't won just because of a missing warning. (I think; I am not a lawyer.)
It's a shame. Right to silence may have started here: (https://en.wikipedia.org/wiki/Miranda_warning#England_and_Wa...)
But is being attacked here: (https://en.wikipedia.org/wiki/Right_to_silence_in_England_an...)
[+] [-] notahacker|13 years ago|reply
You have the right to remain silent. You don't have the right for the jury to draw no "reasonable inferences" from your insistence on remaining silent.
[+] [-] chetan51|13 years ago|reply
[+] [-] callahad|13 years ago|reply
[+] [-] majormajor|13 years ago|reply
[+] [-] csense|13 years ago|reply
Yes. The police are allowed to lie to suspects, but suspects are not allowed to lie to police.
Lying is one of the main tools police use to manipulate suspects into giving up information or confessions.
Unfortunately, this means you can't trust the police under any circumstances. You don't know what they know or believe about you. You may not have been aware that something you were doing is a crime, and accidentally confess.
Since the police are allowed to lie, and they're trained, skilled and experienced manipulators, if you think you're helping them do good things and what you're telling them won't get you in trouble -- perhaps you are completely innocent! -- you have no way of knowing whether these thoughts are a correct analysis, or something they've carefully manipulated you into believing so you'll help them send you to jail.
The thin paper shield of the Fifth Amendment is really all that stands between just about everybody and prison, once the police and prosecutors have decided to go after you.
That being said, it's not that police as a whole are bad -- for every politician pushing harsh penalties to be "tough on crime," every prosecutor who's trying to advance her career by maxing her "lives ruined" score, every judge who's receiving kickbacks to fill prison beds -- I'd say there are at least a dozen, and quite probably many more, dedicated law enforcement professionals out there who genuinely believe in truth and justice and putting their lives on the line to protect innocent people, and try their utmost to live up to those ideals.
It's just that, when you interact with them, you have no idea what type you're dealing with, what they believe or have learned about you, or whether there's some obscure regulation you've unknowingly been violating. So it's safest not to take the risk. Same principle as not talking to strangers when you're a young child -- for every sick pedophile or would-be kidnapper, there are at least a dozen, and quite probably many more, strange adults who are simply friendly ordinary people, but you just can't take the risk because the bad ones are so good at manipulating you, you'll have no clue until it's far too late.
[+] [-] mjn|13 years ago|reply
[+] [-] headShrinker|13 years ago|reply
Silence is neither an acknowledgment guilt or innocence, But the absence of speech. I have never been so fearful of a verdict to such a question involving the admission of guilt since the Salem witch trials. It's the sense of the justices I question not so much the grounds of the case.
[+] [-] SparrowOS|13 years ago|reply
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