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.
Where do you draw the line? A police officer randomly walks up to you and asks your name (which I believe is the one question you are required to answer, and truthfully):
"How are you doing? Nice weather today, huh? What about that Bears game last night?"
Oh, look. It's a rare friendly neighborhood police officer!
"Mind telling me where you're headed?"
I'm not going to lawyer up yet. Remember, I'm actually innocent and have no idea where this is going.
"Very nice.. Say, do you live around here?" (knowing fully well you're standing in your own drive way)
Yes, officer. As a matter of fact, I do. (Wondering where this is going, but absolutely no reason to go hire a lawyer!)
"See anything suspicious last night?"
So far, so good. I'm not being accused of anything, will gladly answer. Clearly I'm being asked to help and am not a suspect!
"So you weren't home last night? Mind telling me where you were?"
Bells start ringing. Lawyer up or not at this point.
"Ah, so you don't have an alibi for last night and you are in possession of a 9mm weapon... How interesting"
Lawyer! (or silence)
DA to jury: "Ladies and gentlemen, we have here the sworn affidavit of Officer Riley and you can see how the accused clammed up once asked about the weapon, while being perfectly cooperative until that point, and answering all the questions we asked him. As you can see, he's clearly got something to hide. It's your duty as law-abiding patriotic citizens to see to it that he spends the rest of his life in prison."
(This is especially believable for me as someone not immediately recognizable as a minority living in a fairly affluent suburb. I have no reason to distrust the police, and in fact, come across friendly officers all the time!)
And to drive the point home; let's suppose that you were out committing a victimless crime such as smoking marijuana. Your choice may be whether you admit to committing that crime or have your silence implicate you on this crime.
TWAD came about firstly to crush the chinese, then black people, then mexicans, and now finally the poor.
Your entire criminal justice system is a mockery of the concept of "justice". "Just"? Please.
Again, downvoted due to speaking the truth. I'm disappointed, HN.
The war on drugs started in California, to lock up Chinese immigrants who were taking "American jobs". They smoked opium. 1909.
Next came Cocaine. Used to be rich white folks, but then black folks started using it because it was getting mightily affordable, so you made that illegal too, so you could lock them up. Because they were taking "American jobs".
Next, the mexicans. Hemp. Useful crop. Nope, it's Marijuana, the devil's own drug. Lock them up too, keep them away from "American jobs".
Now, finally, there are no "American jobs", because you wanted everything cheap, and yesterday, so pure economics pushed your productive labour force overseas (nobody moved, but the centres of labour did). Cue mass unemployment and drug use, as the underground economy is pretty welcoming. Whoops, don't like them either, lock them up.
Sorry, I think it is that simple. You can chose if and when you would like to speak. Period. Cops can ask anything they want and you can pick and chose what you want to say. You have the right to remain silent so as not to self incriminate. If simply remaining silent is admission of guilt. Where does that leave the 5th?
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.
No, the point is that choosing to speak to the police, and then going silent, can hurt your case. If he had refused to speak to the police from the get go, then none of the evidence of him being deceptive would have been admissible in court. In fact, the officer wouldn't have any evidence of deception, because he wouldn't have talkedto Salinas in the first place.
It could hurt your case in a prisoners dilemma (they've got someone in the other room who's confessing and whoever does it faster gets a light sentence). But what do you gain by helping the police build a case against you? If anything, talk to your lawyer and have the lawyer do all the talking.
In a sense talking to the police is always a prisoners dilemma - the "don't talk to the police" strategy is equivalent to defecting, and being a helpful citizen is analogous to cooperating.
Statistically it's not in your interest to talk to the police. Talking to them might help them catch a crook, but the payoff there is nothing compared to the shit it might get you into. On the other hand, an effective police force is a good thing in society, and the effectiveness of the police is markedly increased with a cooperative citizenry. So if you could have your way you'd like everyone to talk to the police except for you, but the Nash equilibrium is nobody talking to the police at all.
I think that being able to put immediate self-interest aside and "cooperate" in PD-like situations is a large part of why our societies aren't god awful. Pocketing your trash instead of throwing it on the street, helping someone pick up the papers they've dropped, holding the elevator... they're not universal cultural norms, none of them "pay off", but we do them and life is better because we do.
As far as societies go, citizen self-interest is a loser's game. I haven't figured out my position on this yet, but I wonder whether we might have a moral duty to talk to the police, provided the aggregate good to society (of 1. cooperating in this instance, and 2. maintaining the "culture of cooperation") outweighs the personal risk.
I think that being able to put immediate self-interest aside and "cooperate" in PD-like situations is a large part of why our societies aren't god awful.
There are so many factors that have gone into my conclusion to never cooperate with the police willingly. Primarily, being a minority means I'm statistically more likely to be harrassed, and god forbid, shot by one. In fact, the last time I "asked" the police for help they ran my name for warrants first. My cooperation in that instance could have ended up with me spending the weekend in jail.
My self-interest is the preservation of my life and includes me not going to jail on bullshit charges, the rest of society can cooperate if they want. I'm not the only minority that thinks like this, following the media spectacle of one black, Harvard professor.
> Statistically it's not in your interest to talk to the police
Maybe so. It seems slightly dubious on the face of it, though. Such a statistic would be highly influenced by the set of people who actually do talk to the police, and they may not have much in common with me.
Regardless of the validity of the statistic, it seems completely absurd to therefore conclude "If you are guilty, innocent, or even just someone who witnessed or reported a crime, talking to the police cannot help you" as the GP comment did. If I'm in a position to talk to the police, I have information about my specific situation that isn't reflected in averages.
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.
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.
Your first sentence is correct, that's what I get for writing too late at night :-/ As far as the jury knowing to ignore it, that's what jury instructions are for. But note that the court sustained the objection to the police officer's inference that his silence was evidence of guilt, and required the prosecuting attorney to elicit a description of his actions (looking at feet, tightening up) in lieu of conclusory testimony about the significance of same.
On the other hand, the prosecutors reference in the summing up is not evidence. It's like pointing at a defendant and saying 'look! he sits there showing no remorse. Ladies and gentlemen of the jury, is there any doubt that this man is a cold-blooded criminal?' It's a an empty rhetorical argument, but no more so than 'My client has the face of a baby, look how sweet and innocent he is - you must acquit!'. Those statements aren't offered as facts for consideration, but as the opinion of counsel, which the jury is free to ignore. Witness testimony is supposed to be dry and factual; attorneys can work themselves into Shakesperean fits of indignation if they feel like it (I exaggerate, but not that much...I'd personally like to see stricter standards about this).
Surely that's the only way to ensure a suspect's silence will not be held against him?
But the jury is quite entitled to hold it against him. That's their call to make. What's not allowed is for the prosecution to say that the failure to answer is legal proof of guilt. Failure to answer does not unask the question, as it were.
I don't think we are sacrificing vital constitutional protections here. The guy wasn't under compulsion, and the record shows that his silence wasn't used as the basis of an improper arrest. The constitution is very explicit about scope of the 5th amendment, and there's a good deal of precedent backing up the court's decision.
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.
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.