right to remain silent works only if you're arrested

Dungheap said:
But when does the 5th Amendment right to a lawyer attach?
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the right to counsel is a right not listed in the bill of rights.

Dungheap said:
And if you invoke right against self-incrimination and then answer questions, couldn't you be deemed to have waived it notwithstanding the invocation?
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no, I don't believe so. I've seen a few cases where a defendant/suspect has answered some questions while invoking their 5th for others.
 
Dungheap said:
But when does the 5th Amendment right to a lawyer attach? And if you invoke right against self-incrimination and then answer questions, couldn't you be deemed to have waived it notwithstanding the invocation?
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According to todays opinion, I think you might have a point, you have to specifically invoke it everytime you refuse to answer a question.

Your right to an attorney comes after you are detained, but your right against self incrimination is always with you. At least it was until today...
 
SmarterthanYou said:
what this does now is that if you are NOT in custody and have NOT had your miranda read, yet choose to remain silent without explicitly saying you're exercising your 5th Amendment rights.....then your silence can be brought in to any courtroom later and used to show your possible guilt.
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Actually, that's wrong, as per your article:

Prosecutors argued that since Salinas was answering some questions — therefore not invoking his right to silence — and since he wasn't under arrest and wasn't compelled to speak, his silence on the incriminating question doesn't get constitutional protection.

Salinas' "Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question," Justice Samuel Alito said. "It has long been settled that the privilege 'generally is not self-executing' and that a witness who desires its protection 'must claim it.'"

SmarterthanYou said:
yet if he had said clearly that he is invoking his 5th Amendment rights, his silence would not have been demonstrated to the jury. So what I said was correct.
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Well then, the flaw in your first comment is your mistaken belief that a jury would assume you are guilty, solely because you chose to remain silent. Further, you can invoke, answer no questions, and it won't be entered into evidence...as your article explains. His mistake, was answering SOME questions.

In your second scenario, they cannot be told you remained silent. In the other scenario, which I don't believe is accurate, they can be told that you invoked. This proves nothing in a court of law.

If you're splitting hairs...are you saying that a refusal to say anything, and claiming so, isn't the same as invoking?
 
Althea said:
Well then, the flaw in your first comment is your mistaken belief that a jury would assume you are guilty, solely because you chose to remain silent. Further, you can invoke, answer no questions, and it won't be entered into evidence...as your article explains. His mistake, was answering SOME questions.
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I mentioned that your silence would be demonstrated to the jury. I never said that a jury would consider you guilty. the flaw seems to be your assumption
 
SmarterthanYou said:
I mentioned that your silence would be demonstrated to the jury. I never said that a jury would consider you guilty. the flaw seems to be your assumption
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Are you saying that simply refusing to speak, and saying so, isn't the same as invoking? If that's your position, I believe you are wrong. In THIS case, his choice to answer some questions, sealed his fate.
 
SmarterthanYou said:
maybe you should start the thread over.
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No..maybe you should

A: Read your own article

B: Read your own posts.


You claimed that not saying anything to cops is not the same as invoking your right to remain silent. You're wrong.
This case revolved around the suspect NOT keeping his mouth shut.

That didn't earn him a conviction. It negated his right to an appeal of his conviction based on Miranda
 
Althea said:
Not exactly. He answered some questions, but refused to answer THAT question. So, in court, it's legal to demonstrate that said question was unanswered, and the jury can assume what they want.

I'm guessing that he was guilty, and that tidbit wasn't what got him convicted. It only served as improper grounds for appeal.

That said, I'd say that if you're guilty, and taken into custody w/out an arrest, the only word you should utter is 'lawyer'.


To your personal situation w/cops pulling you over...I'm sure you know that they converse with you in order to discern sobriety, or the lack thereof. On those extremely rare occasions that I get pulled over on my way home from pool league, I LOVE telling them I'm coming from the bar....because I haven't had a drink.


Edit...oops...that wasn't you with the anecdote about being pulled over
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Bingo. Silence isn't selective. Once you start yapping and volunteering information, you give up your miranda rights.

Just keep the trap shut.
 
Althea said:
No..maybe you should

A: Read your own article

B: Read your own posts.


You claimed that not saying anything to cops is not the same as invoking your right to remain silent. You're wrong.
This case revolved around the suspect NOT keeping his mouth shut.

That didn't earn him a conviction. It negated his right to an appeal of his conviction based on Miranda
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wrong.
 
Jarod said:
Basically, I would start any conversation with a police officer with, "I am invoking my 5th Amendment rights with regards to self incrimination, I would like a lawyer present." Then cooperate with them at your own risk, but should you then refuse to answer any questions you should be covered. You should also hope you have a credible witness available.

You might need to carry an index card with you clearly stating your wish to keep all of your constitutional rights with a place for the officer to sign at the bottom.
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LOL
Ask a cop to sign it and get charged with obstruction. Good thinking, mr. lawyer.
 
SmarterthanYou said:
wrong.
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It's become clear that you haven't even read your own link. Let me help you out with that:


Prosecutors argued that since Salinas was answering some questions — therefore not invoking his right to silence — and since he wasn't under arrest and wasn't compelled to speak, his silence on the incriminating question doesn't get constitutional protection.
Salinas' "Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question," Justice Samuel Alito said. "It has long been settled that the privilege 'generally is not self-executing' and that a witness who desires its protection 'must claim it.'"
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Get it? By selectively answering...as your link suggests...SOME questions, he didn't invoke (claim) his right to silence.

Had he chosen to not answer ANY questions, he'd have invoked..

He'd still be found guilty, as that one question would not be enough for a jury to convict.

If you take the time to read your own article...more than just the title this time...you'll see that the story is about the lack of grounds for appeal. Not about his conviction.


Let me know if there's something else you don't understand about your own OP







smarterthanyou said:
what this does now is that if you are NOT in custody and have NOT had your miranda read, yet choose to remain silent without explicitly saying you're exercising your 5th Amendment rights.....then your silence can be brought in to any courtroom later and used to show your possible guilt.
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To use your terminology....Wrong. Just shut up, and you've invoked.
 
Althea said:
It's become clear that you haven't even read your own link. Let me help you out with that:




Get it? By selectively answering...as your link suggests...SOME questions, he didn't invoke (claim) his right to silence.

Had he chosen to not answer ANY questions, he'd have invoked..

He'd still be found guilty, as that one question would not be enough for a jury to convict.

If you take the time to read your own article...more than just the title this time...you'll see that the story is about the lack of grounds for appeal. Not about his conviction.


Let me know if there's something else you don't understand about your own OP










To use your terminology....Wrong. Just shut up, and you've invoked.
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One should be able to invoke a right at any time. Had he signed away his right that would be different.
Any questioning before Congress, in which the one being questioned selectively invokes the 5th ammendment disproves this theory.
 
Rune said:
One should be able to invoke a right at any time. Had he signed away his right that would be different.
Any questioning before Congress, in which the one being questioned selectively invokes the 5th ammendment disproves this theory.
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He wasn't convicted because he didn't invoke. He wasn't able to appeal because there was no denial of his right to invoke the 5th. He was convicted because he was guilty. They used his refusal to answer one question as evidence that he probably used that gun.

What we're splitting hairs over, (evidently) is whether or not you must use the words 'I'm invoking my right to silence' in order to be afforded same.
 
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