Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

http://www.volokh.com/2013/06/17/do-you-have-a-right-to-remain-silent-thoughts-on-the-sleeper-criminal-procedure-case-of-the-term-salinas-v-texas/

by mjn • 13 years ago

61 62 13 years ago

volokh.com

mjn• 13 years ago

This is fairly legal-nerdish, but submitted because it relates pretty directly to some issues in the tech community over when you can (under U.S. law) refuse to give up passwords, and similar issues.

It's also worth a read if you're simply an American interested in these issues, because it recaps the current 5th-amendment law quite clearly.

saraid216• 13 years ago

The tech community honestly needs more legal literacy, so I for one encourage this kind of posting. The general level of literacy I've seen is about average for the American public, but we often believe it's much, much higher than that because Internet Principles.

relaunched• 13 years ago

This court has taken a very interesting stance. This ruling, plus some earlier rulings regarding the 4th amendment has made it clear, that one has to understand, intimately, the nuances of ones' rights and act accordingly, in order for those rights to apply. Otherwise, they have agreed to waive those rights.

dietrichepp2• 13 years ago

The same thing already applies in the courtroom (ignoring the hyperbolic word choice of "intimately" and "nuances"). When you take the stand in court, you have to explicitly invoke your fifth amendment right. Nobody is required to tell you your rights.

The article explains how Miranda rights were already special. The requirement for the police to explain your rights was to mitigate the fact that custodial interrogation is inherently coercive (am I free to go? no.) and there is no judge present to interpret the law.

aqme282• 13 years ago

In the courtroom you have legal counsel, and if your lawyer doesn't help you to the best of their abilities they can be disbarred.

sukuriant• 13 years ago

The debate mental-chess that the lay-person needs to understand is, quite honestly, terrifying. So now, if a police officer asks you an incriminating question off the cuff, and you say "I would like a lawyer" or "I invoke the 5th" or even say nothing, without a legal background you may find yourself in a situation where what was said / wasn't said can be used against you?

This can't be what was originally intended by those amendments.

fleitz• 13 years ago

Am I under arrest?

  No? Walk away.
  Yes? Please read me my rights.

Problem solved. Don't answer half the questions, immediately ask why you are being detained, and if you are under arrest.

bobwaycott5• 13 years ago

The critical problem here is the police response to an attempt to walk away. This may lead to an arrest that is aggravated by a charge of resistance. One might be able to fight that away in the courts, but the state of policing over the last few years leaves me feeling quite uncomfortable with the prospect of walking away unscathed.

joshavant• 13 years ago

To be sure, there's such a thing called 'custodial interrogation' which is, essentially, a situation where a person's freedoms are restrained, but not fully under arrest. http://en.wikipedia.org/wiki/Custodial_interrogation

I've previously heard the suggested language of 'Am I being detained or am I free to go?', which seems good enough to make the situation a lot less ambiguous.

cynix2• 13 years ago

What if the police officer does not answer your "am I under arrest" or "am I free to go" questions?

miles• 13 years ago

Here it is in practice:

http://www.youtube.com/watch?v=QNzgkruFw5g

pondababa• 13 years ago

You can be detained without being under arrest. When you get pulled over for a traffic stop, you aren't under arrest, but you are being detained.

aqme282• 13 years ago

That assumes people are smart and informed. What happens if someone less informed than you gets in a bad situation with the police? Should they be punished for it?

passwdispasswd4• 13 years ago

"you may find yourself in a situation where what was said / wasn't said can be used against you?"

How is any interaction with law enforcement anything but this? Or with any party opponent?

AnIrishDuck2• 13 years ago

You can still win the game be refusing to play. Assert your right to depart as soon as possible. State (politely) that you refuse to answer off-the-cuff questions. Upon any indication of detention, ask if you are free to leave.

If you no longer have this right, you're in hot water. Shut up. Lawyer up. The law is a dangerous animal that you do NOT want to face alone and unguided.

Most people trip up by either:

(1) Assuming that the law officer is their friend and they are not a suspect. That's what happened here.

(2) Foolishly thinking they can talk their way out of their predicament with what they gleaned from the last episode of law and order. The cops probably know more than you about the law.

I personally would refuse to answer any questions beyond the level of "how fast were you going" from a LEO without a lawyer present. I would advise others to do the same.

r00fus• 13 years ago

This is a horrible result - how can law enforcement be effective if no one trusts them enough to willingly assist them?

Their job just got tougher today.

chii• 13 years ago

apropos: http://www.youtube.com/watch?v=6wXkI4t7nuc

Edit: ahh didn't realize link was posted below as well.

DannoHung• 13 years ago

When will motherfucking Scalia and Thomas just god damned die already?

devb• 13 years ago

Not the most sophisticated approach to constitutional law, but they are 77 and 64 respectively. Please consult your local actuarial table.

WildUtah• 13 years ago

Thomas and Scalia are on the right side of civil liberties and constitutional issues about a third of the time, anyway. What we really want is to replace someone who's almost always wrong, someone who sides with power and hierarchy and insider influence over the individual whenever he gets the chance. Alito is 63.

SamReidHughes• 13 years ago

You should try actually looking at Scalia's rulings about defendant's rights.

darkarmani• 13 years ago

After the recent rulings, I'm sure you could be arrested and DNA swabbed under the assumption that you are threatening them. You'd be let go, but they'd keep your DNA.

sageikosa2• 13 years ago

So we are now in a situation where if I am not under arrest, the things I don't say may be used against me, unless I explicitly assert that I am not waiving my rights as soon as possible.

bobwaycott5• 13 years ago

... unless I explicitly assert that I am not waiving my rights as soon as possible.

... and it is determined that I am in a situation in which I am deemed lawfully allowed to have asserted said rights.

DannyBee2• 13 years ago

To be clear: This was always true (legally), and this decision doesn't change this.

As long as it was not a custodial interrogation, and you had not been formally charged, your words could be used against you (ignoring other procedural evidence rules for a second) without Miranda or other warnings.

The only thing his decision changes is a long-standing open issue of when silence can be offered as proof of guilt.

rflrob• 13 years ago

> The things I don't say may be used against me
This was always true

(emphasis mine)

On the other hand, the fact that there was a SCOTUS case about it means that while it may always have been true, it wasn't clear to everyone that it was true.

passwdispasswd4• 13 years ago

They are simply describing your reaction to the question, and when you are formally in custody you have an immunity to that reaction being described, is the best I can dumb it down.

It's sad that the legal context of your presence would be the basis for whether or not you have a constitutional safe harbor that you can rely upon. But that seems to be Scalia's reasoning.

throwaway10001• 13 years ago

So you have the right to remain silent...as long as you're abreast of the latest SCOTUS ruling and understand them. In rather words you may need to be a lawyer and no niceties with the cops: am I under arrest? No, adios then.

If they want to arrest you, they'll arrest you anyway.

hippich• 13 years ago

How in the world "Would the shells from his shotgun match the shells found at the murder scene?" is "the government is not actually forcing him to be a witness against himself"?

And why police even allowed to ask questions like this when person is not even a suspect?

gizmo6862• 13 years ago

I think there's a secondary issue that should be at play in this case (I haven't read the opinion, so they might have addressed this). Independent of the 5th amendment, prosecutors are generally not allowed to introduce prejudicial evidence, or evidence that would exploit the irrationality of humans more that provide actual evidence. It feels like this type of body language analysis would qualify. Perhaps if there was someone with training in body language, and he could cite research generally accepted by the scientific community, that his method of analysis produces reliable results, then this may be admissible.

Of course, they should also maintain a recording of the interview so the defense can use it, and to mitigate the potential for human failures. The cost of this seems negligible, so the only reason I can see them not doing this is if they don't want the full account of what happened precisely to be shown.

hga11• 13 years ago

I have to disagree, the body language as described in the Nth hand reports I've read sounds like a useful "tell", especially in the context of the questioning.

But as you imply, let the jury decide by watching the video.

gizmo6862• 13 years ago

But as you imply, let the jury decide by watching the video.

That is not at all what I intended to imply. If the defendant choices to do so, let him present to video to the jury. If the prosecution wants to show the video (or use the gesture at all), they should be prepared to demonstrate that it is not prejudicial evidence, and probably get an expert to testify and explain what the gestures do and do not suggest.

cstavish• 13 years ago

"At trial, the government argued that Salinas had committed the murder based in part on his response to the question about the shotgun shells. The prosecutor argued to the jury that an innocent person would have said, “What are you talking about? I didn’t do that. I wasn’t there.” But Salinas didn’t do that; he remained silent. And that suggested guilt. Notably, Miranda‘s footnote 37 didn’t apply because Salinas was not in “custody” for Miranda purposes. He was at the stationhouse voluntarily, not by force, so Miranda didn’t apply. The question before the Court was whether the government was allowed to argue about the significance of the defendant’s pre-arrest silence to the jury."

The gist of the case, for those not keen on reading the lengthy introduction.

gwgarry• 13 years ago

Which is stupid. I would think to myself I am being accused of a crime, I better remain silent lest they try to pin this on me.

I have tried being polite, but it's quickly getting to the point where the righteous indignation is such that you want to resort to cursing the judge for his moronic legal fiction to justify this.

Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

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