right to remain silent works only if you're arrested

S

SmarterthanYou

rebel
http://news.yahoo.com/court-says-pre-miranda-silence-used-142855241.html

typical BS conservative ruling.

The Supreme Court says prosecutors can use a person's silence against them if it comes before he's told of his right to remain silent.

The 5-4 ruling comes in the case of Genovevo Salinas, who was convicted of a 1992 murder. During police questioning, and before he was arrested or read his Miranda rights, Salinas answered some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon.

Prosecutors in Texas used his silence on that question in convicting him of murder, saying it helped demonstrate his guilt. Salinas appealed, saying his Fifth Amendment rights to stay silent should have kept lawyers from using his silence against him in court. Texas courts disagreed, saying pre-Miranda silence is not protected by the Constitution.

The high court upheld that decision.

The Fifth Amendment protects Americans against forced self-incrimination, with the Supreme Court saying that prosecutors cannot comment on a defendant's refusal to testify at trial. The courts have expanded that right to answering questions in police custody, with police required to tell people under arrest they have a right to remain silent without it being used in court.

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.'"
Click to expand...
 
Basically, it says you have to opt-in rather than the cops have to assume you are invoking your fifth Amendment right. If you are anywhere near a cop, invoke it. It will probably annoy them.
 
Damocles said:
Basically, it says you have to opt-in rather than the cops have to assume you are invoking your fifth Amendment right. If you are anywhere near a cop, invoke it. It will probably annoy them.
Click to expand...

If they start asking questions that have nothing to do with why I was stopped, I always ask them what the question has to do with the reason I was stopped.

They get kind of upset when they ask where I was coming from and I answer "East" and where am I headed "West".
 
Crutmauler said:
What is your problem with the ruling? Are you simply too uneducated to explain?
Click to expand...
au contraire, as was pointed out above, it seems that the courts are making it so that you have to state unequivocally that you're exercising a right (namely silence) and that if you do not, then your silence is taken as a sign of guilt. hopefully that explanation wasn't above your grade school level.
 
I thought Miranda applied only in custodial arrest situations already. So, like, if you weren't in "custody," as in you could leave at any time, the cops didn't have to Mirandize you. How is this a new thing?
 
Dungheap said:
I thought Miranda applied only in custodial arrest situations already. So, like, if you weren't in "custody," as in you could leave at any time, the cops didn't have to Mirandize you. How is this a new thing?
Click to expand...
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.
 
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.
Click to expand...

Oh, I see. That's pretty fucked.
 
SmarterthanYou said:
au contraire, as was pointed out above, it seems that the courts are making it so that you have to state unequivocally that you're exercising a right (namely silence) and that if you do not, then your silence is taken as a sign of guilt. hopefully that explanation wasn't above your grade school level.
Click to expand...
Could you explain the reasoning that you used to come to that conclusion?

Or are you simply parroting some idiot?

Or what?
 
Damocles said:
Basically, it says you have to opt-in rather than the cops have to assume you are invoking your fifth Amendment right. If you are anywhere near a cop, invoke it. It will probably annoy them.
Click to expand...

So, now it appears we have to invoke our rights before we have them?

7 out of 10 officers will leave the part where you invoke your rights out of any report.
 
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.
Click to expand...
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
 
Dungheap said:
I thought Miranda applied only in custodial arrest situations already. So, like, if you weren't in "custody," as in you could leave at any time, the cops didn't have to Mirandize you. How is this a new thing?
Click to expand...

If they arrest you, you are in custody and in a situation where you could feel that you are not free to remain silent if you are ignorant of your rights... thus the Court has said that the police must inform you and warn you (Miranda warnings). If they don't do that, anything you say, or don't say cannot later be used against you.

The Court here is saying that if you are not in a custodial situation and choose to exercise your right to remain silent, that choice can be used against you. Meaning that the prosecutor can tell the jury, "heck, if he was innocent he would have said so."

To me that is terrible precedent, you should not be considered guilty simply because you exercised a constitutional right. Maybe one of you small government Conservatives can explain this to me?

Do you believe that the government should be allowed to argue that you are guilty because you exercised a constitutional right...?
 
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.
Click to expand...
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.
 
Althea said:
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'.
Click to expand...

I would add a slight amendment ... even if you AREN'T guilty, only utter the word "lawyer".

And with this ruling, guess you got to mention "5th amendment" as well...
 
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.
 
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.
Click to expand...


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?
 
You must log in or register to reply here.
Back
Top