Tuesday, January 15, 2013

What You DON'T Say Might be Held Against You

Joe Wright
Activist Post

It's hard to believe, but yet another entrenched constitutional right is up for debate to be trampled upon: the right to remain silent. This right, in fact, even goes beyond the U.S. Constitution and has become a chestnut of virtue for all: silence is golden. Well, apparently not anymore if the Supreme Court sides for the police in the case of Salinas vs. Texas.

The case stems from a 1992 double-murder where police questioned Genevevo Salinas who was reported to have attended a party of the deceased. After Salinas voluntarily agreed to answer questions of the attending police officers, he refused one question: whether shotgun shells that were found at the scene would match a gun taken from the apartment. Instead, officers would later testify that his body language answered for him:
he 'looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, began to tighten up.'  (Source)
Salinas was later charged and sentenced to 20 years based on this evidence, and the testimony of a friend who said he confessed.  The question then becomes if the constitutional right to remain silent extends to the pre-arrest phase of investigation.

The New York Times highlights the crux of the case:
The Supreme Court has said the amendment’s protection against self-incrimination applies after arrest and at trial. But it has never decided, in the words of a 1980 decision, 'whether or under what circumstances pre-arrest silence' in the face of questioning by law enforcement personnel is entitled to protection.

This has caused division in the way these cases are interpreted in lower courts. That division extends to law professors such as Stanford's Jeffrey L. Fisher who is now representing Genevevo Salinas.

It is Fisher's interpretation that:
'When law enforcement agents question someone about his or her potential involvement in criminal activity, the individual has two choices: speak or remain silent,' Fisher wrote. 'If the latter necessarily creates evidence of guilt, then the right the Constitution grants him to remain silent is little more than a trap for the unwary.' (Source)
However, a couple of commenters debate this at the source for this article, law news site ABA Journal:
Seems like a no-brainer.  One is never obligated to speak to a police officer.
Uncle Jed: 
How can this NOT be a violation of the Fifth Amendment?  Try reading that amendment first.  It says, 'no person ...shall be compelled in any criminal case to be a witness against himself.'  Non custodial, pre-Miranda statements are admissible, everyone agrees.  That is, of course, because a person is not compelled to talk to authorities prior to Miranda-warnings and formal arrest.  If this is so, then the failure to speak, pre-Miranda and pre-arrest, is also not protected by the Fifth Amendment, because it is not compelled. 
The final decision made by the Supreme Court could very well have wide ramifications in an age where pre-crime technology and screening seeks to ferret out mal-intent. Soon, it will not be merely the word of police officers about your strange behavior during questioning (even if they verbally or physically abuse you I'd imagine), but whether or not you appear nervous in line at the airport, or exhibit subtle emotional markers that might indicate lying or the willingness to harm others. However, neither technology nor low-tech humans are 100% accurate; it seems that for this reason alone we are entitled to have a choice when asked a question by 'authorities.'

We would be wise not to shrug off what seems to be an obvious ruling on the side of common sense, as most of us could not have imagined that torture and indefinite detention without trial would be legitimized on foreign battlefields, but also fully upheld by the Supreme Court for its own citizens.

You can read the full 26-page petition HERE (PDF) addressing the central question presented to the Supreme Court:
Whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.
We would love to hear comments from lawyers about what they expect in this ruling and the ramifications they see from a conclusion that sides with law enforcement. Please leave your comments below. 

Read other articles by Joe Wright Here


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Anonymous said...

NEVER talk to a cop...NEVER!

Mark said...

In the context of civil cases, silence is admissible as an “adopted admission” of the question.

For example, after a vehicle collision involving vehicle A & B, a police officer responds to the scene. After speaking with the driver of vehicle B, the officer turns to the driver of vehicle A and inquires: “Did you go through a red light?”

The driver of vehicle A refuses to answer or invokes the Fifth Amendment against self-incrimination. In the civil case, the driver of vehicle A’s silence is admitted to prove that vehicle A went through a red light.

Anonymous said...

The texas guy in this case could very well be inocent ...just think if the victime's assasin was the son or daughter of this man...

Anonymous said...

If you're not a competent liar, then you need a competent lawyer.

Anonymous said...

I'd like to know if they had this guy on camera during the interview, or was it just the police saying that he behaved that way? I think if he was on camera and a judge or jury could look at that for themselves it might not be so bad.

Anonymous said...

The police lie extensively, if failure to answer a question or refusal to answer is proof of criminality what about the police who also do all the same evasive efforts?

Anonymous said...

Well, I can see where this might lead: The police will no longer be able - as per law - to talk anyone into 'coming out and giving up'. Listen, Harry, we got the goods on you, so why don't you just come on out from behind those bushes and give yourself up? We have three witnesses standing right here who say they saw you take that hammer to your wife's head. Now you can come on out peacefully, or we can come in blasting. Hmmmm.... two choices now down to one.... Hmmmmm......

Anonymous said...

My question is: Whatayagonnadoboutit?
Absolutely nothing.
When 'who is watching the watchers?' are they themselves, plus they ARE the law, ain't nothin' you gonna do 'bout it.

Anonymous said...

This whole argument is born of ignorance and lack, purposeful lack, of education. Let's see what happens when we alter our education:

6th grade civics class:

Teacher: When an officer stops to talk to you about ANYTHING at all, you say nothing. If the officer does not let you go, you then ask him/her if you are being detained. A "no answer" means you ask again. You continue to question him until he states either: You are being detained or arrested.

If you are being detained arrested, you ask on what charges, then DEMAND for a lawyer and SAY NOTHING until one arrives. Period.

Why should you do this? The Constitution says so. Any questions?

With every child educated in this way, there is no issue, none, nada. The fact that every child is told, "hey talk with the cops their are you friend..." we have this problem. Ignorance is the problem. not the cops, not the Constitution, ignorance, which, is done on purpose.

Anonymous said...

Its always hard to say how they will rule, but I would wager that the Court will rule in the defendant's favor. Of course, if someone freely admits to anything in a non-custodial (non-c/pre-m), pre-miranda warning situation is is admissible, because the person is not being compelled to answer. If the Court were to rule otherwise, it would open up any person that happens to be near a police officer to a pseudo forced interrogation in the non-c/pre-m situation. You, physically, only have two options, talk or be silent. Thus, you no longer have an option, you no longer have a free choice. You are, therefore, forced to make an admission, whether by speaking or by remaining silent, by virtue of a police officer asking you a question.
The scenario above will become the result of a ruling in the State's favor: people will be forced, one way or another, to make an admission, or what the police can consider an admission, whether you are in custody or not. The police will then argue that a person was not yet in custodial control and will begin their interrogation at that point, picking and choosing if you just made an incriminating statement, or if you were just scratching your nose.

Anonymous said...

What about answers not given to questions not asked?
Does this assume guilt?

Anonymous said...

In response to the 6th grade civics class, I don't think the best idea is to continue asking "Am I being detained?" Once the officer says "No", then ask, "Am I free to go?"

I agree if they say "Yes" (you're being detained), then you say nothing until you have a lawyer.

Anonymous said...

Seeing as legislation (EO) already exists for the justification of torture by authorities, wouldn't any "legal" ruling on the Right to remain silent, be a prelude to torture, (or aggressive interogation techniques)?
Best to remember the difference between "legal", "lawful", "illegal", and "unlawful". It's your God-given right to keep your trap shut. Police officers are not your friends, they are policy enforcement agents. And you decide the length of rope they will "hang" you with by talking.

Anonymous said...

We lost the right to silence in the UK a few years back. I think it's completely wrong. People could be in shock, high on drugs or not 'of sound mind' when questioned.

Now Police tell people that, while they are not obliged to say anything, it may harm their defence if they fail to mention, when questioned, something they later rely on in court.

Anonymous said...

Get a copy of the Citizens rulebook. It explains the constitution and jury nullification.
I was told by an idiot cop in Indiana "I am going to ask you one question." I answered his question with a “no”. I was immediately arrested and then ask if I would like to make a statement. I refused to talk to him and I was charged with all kinds of crimes that never happened. Because my attorney was afraid that I would get a trial with a jury of 12 morons, he advised me to plead to a bullshit misdemeanor. So the only crime committed was I, under oath, had to tell the judge that I had committed a crime that never happened. And by the way the description of the misdemeanor was something that is not even a crime. It was more like a thought crime. Cops lie. That’s their job. They have to keep the local jails filled to get Federal Dollars. If they can get convictions, they can fill the privatized prisons full and make profits for Wall Street
The only way to solve these kinds of problems is for jurors to ask themselves "Can I convict someone if there is a shadow of doubt?" "No, I can't." So, were there cops involved in any way with what a defendant supposedly did? Were there cops involved in the investigation? Were they involved in the arrest? Did they testify? Did they gather the evidence? Do I, as a juror personally know this person? If not, then by definition of Black’s law dictionary, I am not this person’s peer, and cannot by law judge him. I can’t trust the testimony of a cop in this day and age. Was I actually there and saw this supposed crime happen? Video evidence can be doctored.
Then you have to say "there is a shadow of doubt and I will not convict this person, I will nullify this jury."

Anonymous said...

" Shadow of a doubt ' is not a legal term. It is a " reasonable doubt " which is far different.Reason is something that can be explained and quantified, while a shadow is too vague a term to express as a direction of the court. Not just a tiny doubt will suffice, but one that would give a reasonable person cause to doubt the evidence enough to cast a not guilty vote.

Of course cops are notorious liars, and for them to interpret body language is a travesty. ONLY if someone answers a question directly can an assumption be made...cops will lie and connive all day to get a conviction and every citizen is urged to NEVER ever answer any question by a cop...only an attorney is able to deal with the corrupt and devious nature of cops and only a fool would expose themselves to police misconduct by cooperating.

" I have nothing to say without advice of counsel " is the ONLy answer one should ever give a cop..no matter what. No exceptions, ever. Cops and prosecutors care nothing about the rule of law or common decency, only in getting an arrest or conviction, and they can never be trusted. They are the enemy, remember that well.

Lawyer Chuck said...

Never, ever, speak to an agent of law enforcement without the presence of a lawyer. One can argue the effect of silence in response to a question, but one cannot effectively argue an answer which forms a part of questioning which leads to a confession. Almost no one know one has no obligation to speak with a cop, except those who have done so and done time as a result.

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