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The Supreme Court’s terrible—and dangerous—ruling this week on the Fifth Amendment.
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Beyond Borders Away
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The Supreme Court’s terrible—and dangerous—ruling this week on the Fifth Amendment.
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You Don’t Have the Right to Remain Silent


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.

http://www.slate.com/articles/news_and_p...ilent.html

"The individual has always had to struggle to keep from being overwhelmed by the tribe.
To be your own man is a hard business. If you try it, you'll be lonely often, and sometimes
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12-23-2013 02:15 PM
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Merenguero Offline
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RE: The Supreme Court’s terrible—and dangerous—ruling this week on the Fifth Amendment.
(12-23-2013 02:15 PM)Beyond Borders Wrote:  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.

I agree with the Supreme Court's ruling. In order for the police to be required to read the Miranda rights to a suspect, there must be a custodial interrogation. The two elements are that the suspect must be in custody, meaning that a reasonable person would not believe that he was free to go, and the police must be asking questions. Because the police invited him to the station, rather than arrest him, the custodial requirement is not met. Salinas had every right to politely tell the police to go fuck themselves upon receiving this "invitation" from them. By voluntarily going to the police station, a person is pretty much out of the box if he later wants to claim that his Miranda rights were violated. I had a client a while back who was charged with a form of statutory rape and was eventually given an extremely light sentence. The only reason why the state would have been able to prove that case was that the police invited the guy to come talk to him and he voluntarily went. I would have definitely lost a Motion to Suppress if I had argued that there was a custodial interrogation, my client was not advised of his Miranda rights, and that any confession should therefore be suppressed.

The problem I have with all of this is that the law as it presently exists does not require the police to inform a suspect that he has every right to refuse to go talk to the police prior to being arrested and that he has every right to refuse to consent to a search. It's surprising how few people actually understand that these rights exist and how many people cooperate with the police, which later leads to their arrest and conviction.
(This post was last modified: 12-23-2013 02:39 PM by Merenguero.)
12-23-2013 02:36 PM
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Christian McQueen Offline
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The Supreme Court’s terrible—and dangerous—ruling this week on the Fifth Amendment.
Never say anything or agree to be questioned without your lawyer present.

Police want to talk to you?

"I'm calling my lawyer"

They will even say something to the effect sometimes such as, "Only guilty people need a lawyer", or "It's just a couple of questions, no need for a lawyer".

Right.
12-23-2013 02:42 PM
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Beyond Borders Away
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RE: The Supreme Court’s terrible—and dangerous—ruling this week on the Fifth Amendment.
(12-23-2013 02:36 PM)Merenguero Wrote:  The problem I have with all of this is that the law as it presently exists does not require the police to inform a suspect that he has every right to refuse to go talk to the police prior to being arrested and that he has every right to refuse to consent to a search. It's surprising how few people actually understand that these rights exist and how many people cooperate with the police, which later leads to their arrest and conviction.

Definitely aggravating. And not only are they not required to inform you but in practice they regularly insinuate, imply, or sometimes even state (and later deny saying it) that you don't have those rights if you ask instead of insist that you do. They take a lot of pride in keeping citizens in the dark and wield it as leverage as much as possible.

Not that I need to tell you that. lol

I've even tried explaining to friends that they have these rights and they act like you're talking crazy.

Learning your basic rights should be a mandatory part of high school education, before you're released into the world - in a just society that would be the case. But of course the gov is not about to sign on with that. Self-education is the only answer, obviously; unfortunately that's not on the list of priorities for a dumbed-down population. Especially for the class of people most likely to be hassled by or otherwise come in contact with the police.

"The individual has always had to struggle to keep from being overwhelmed by the tribe.
To be your own man is a hard business. If you try it, you'll be lonely often, and sometimes
frightened. But no price is too high to pay for the privilege of owning yourself." - Kipling
(This post was last modified: 12-23-2013 02:48 PM by Beyond Borders.)
12-23-2013 02:44 PM
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Merenguero Offline
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RE: The Supreme Court’s terrible—and dangerous—ruling this week on the Fifth Amendment.
(12-23-2013 02:44 PM)Beyond Borders Wrote:  
(12-23-2013 02:36 PM)Merenguero Wrote:  The problem I have with all of this is that the law as it presently exists does not require the police to inform a suspect that he has every right to refuse to go talk to the police prior to being arrested and that he has every right to refuse to consent to a search. It's surprising how few people actually understand that these rights exist and how many people cooperate with the police, which later leads to their arrest and conviction.

Definitely aggravating. And not only are they not required to inform you but in practice they regularly insinuate, imply, or sometimes even state (and later deny saying it) that you don't have those rights if you ask instead of insist that you do. They take a lot of pride in keeping citizens in the dark and wield it as leverage as much as possible.

Not that I need to tell you that. lol

I've even tried explaining to friends that they have these rights and they act like you're talking crazy.

Learning your basic rights should be a mandatory part of high school education, before you're released into the world - in a just society that would be the case. But of course the gov is not about to sign on with that. Self-education is the only answer, obviously; unfortunately that's not on the list of priorities for a dumbed-down population. Especially for the class of people most likely to be hassled by or otherwise come in contact with the police.

Many, or even most, not guilty verdicts and acquittals can be directly attributed to serious mistakes made by the police in the performance of their duties. Sometimes, the police are not eyewitnesses and their testimony, if they even give testimony, is immaterial. In those cases, if the Defendants get off it is usually because of "reasonable doubt" arguments. I have one of those cases coming up in a jury trial. Most convictions are due to the fact that the Defendants either don't know their rights and/or do incredibly stupid things when confronted by police.
(This post was last modified: 12-23-2013 02:53 PM by Merenguero.)
12-23-2013 02:51 PM
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Beyond Borders
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RE: The Supreme Court’s terrible—and dangerous—ruling this week on the Fifth Amendment.
This case is unusual in the sense that the Fifth Amendment's rules are overruled by a mere murder investigation. Usually in our deeply sick society, the presumption of innocence is trampled only by feminist-sensitive crimes, such as rape or pedophilia. Either way, it's a troubling precedent that will no doubt open the floodgates to an entire assortment of false convictions and assumptions.

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12-23-2013 02:52 PM
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RE: The Supreme Court’s terrible—and dangerous—ruling this week on the Fifth Amendment.
(12-23-2013 02:44 PM)Beyond Borders Wrote:  Learning your basic rights should be a mandatory part of high school education, before you're released into the world - in a just society that would be the case. But of course the gov is not about to sign on with that. Self-education is the only answer, obviously; unfortunately that's not on the list of priorities for a dumbed-down population. Especially for the class of people most likely to be hassled by or otherwise come in contact with the police.

To expand on what I said here (and quote myself lol), I guess even if our rights were properly explained to us in school, there's a big difference between the law on paper and the law as it exists in the real world, with all the maneuvering and other bullshit that goes with it. It would take a progressive school system indeed to spend time explaining that dichotomy...

For regular joes, I would recommend this controversial book as a start: http://www.amazon.com/The-Outlaws-Bible-...%27s+bible

It's a very good read even for those of us that don't ever plan to make a habit of breaking laws. Though I imagine most attorneys wouldn't advise leaving this lying around the house in case the finger ever gets pointed in your direction for something.

"The individual has always had to struggle to keep from being overwhelmed by the tribe.
To be your own man is a hard business. If you try it, you'll be lonely often, and sometimes
frightened. But no price is too high to pay for the privilege of owning yourself." - Kipling
(This post was last modified: 12-23-2013 03:00 PM by Beyond Borders.)
12-23-2013 02:57 PM
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RE: The Supreme Court’s terrible—and dangerous—ruling this week




Posted before but topical.
12-23-2013 03:25 PM
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RE: The Supreme Court’s terrible—and dangerous—ruling this week on the Fifth Amendment.
The justices were uncomfortable with the lack of video showing that Salinas was "uncomfortable."

The truth is that police can say all kinds of shit about how you react and even put words in your mouth if they are corrupt enough.

It's also a truth that juries are going to be less tolerant of the lack of a record of interrogation, given the compactness and storage capacity of video recorders now. Any defense lawyer can hammer that home on every case with admissions or "reactions" of the defendant. Really no reason why police can't record everything they do. But then what will happen to 3 am naps in the parking lot and afternoon delight with Conchita?
12-23-2013 03:39 PM
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