Supreme Court Decides Your Silence May Be Used Against You

crackspackle writes "The Supreme Court ruled in favor of the State of Texas earlier today in a murder trial where the defendant, prior to be taken into custody, had been questioned by the police and chose to remain silent on key questions. This fact was bought up at trial and used to convict him. Most of us have seen at least enough cop shows to know police must read a suspect their Miranda rights when placing them in custody. The issue was a bit murkier here in that the defendant had not yet been detained and while we all probably thought the freedom from self-incrimination was an implicit right as stated in the Constitution, apparently SCOTUS now thinks you have to claim that right or at least be properly mirandized first." It appears that if you are "free to leave at any time" you lose a few rights. Fancy trick, up there with getting kids to write apology letters.

Comments

wtf

[cosm]

so if the police dont read you your rights, you lose them? land of the...fuck it

Re:wtf

[DaHat]

You always have your rights... it's just a question of if and how you exercise them.

The difference here is the guy who went to talk to the police on his own (ie voluntarily) vs being arrested (ie unwillingly).

The court ruled that in the prior, you have to make an affirmative statement as to you exercising your 5a rights.

Re:wtf

[cfsops]

so if the police dont read you your rights, you lose them?

No. The article explains that the person in question had NOT been arrested, had been freely answering other questions, but refused to answer one that concerned shotgun shells found at the murder scene.

The ACLU has a "bust card" that helps clarify the matter. The person in the article should have kept his fucking mouth shut, period.

Re:wtf

[cosm]

so if the police dont read you your rights, you lose them?

No. The article explains that the person in question had NOT been arrested, had been freely answering other questions, but refused to answer one that concerned shotgun shells found at the murder scene.

The ACLU has a "bust card" that helps clarify the matter. The person in the article should have kept his fucking mouth shut, period.

Still befuddles me. So you're telling me if you provide any information whatsoever, you're legally obliged to answer every single question, even if it leads to self incrimination? IANAL so does answering some questions automagically count as forgoing your right to silence blanche carte?

Re:wtf

[cosm]

You always have your rights... it's just a question of if and how you exercise them.

The difference here is the guy who went to talk to the police on his own (ie voluntarily) vs being arrested (ie unwillingly).

The court ruled that in the prior, you have to make an affirmative statement as to you exercising your 5a rights.

Still bullshit to me. The fact that not explicitly stating that one is exercising one's rights implicitly means forgoing them? Does this mean that if I don't affirm my right to free speech or a fair trial that I cannot speak freely or will not get a fair trial? From the article:

Prosecutors argued such silence does not have constitutional protection because of the other questions Salinas had answered and since he was not under arrest and was not compelled to speak. A plurality of the Supreme Court affirmed for Texas Monday, noting that Salinas never expressly invoked the privilege when the officer asked about the shells. It has long been settled that the privilege 'generally is not self-executing' and that a witness who desires its protection 'must claim it...

So rights are a privilege now to be dictated by loose wording and interpretation...fuck. that. shit....oh wait...should be old news in light of all the other bullshittery USDOJ spews.

Re:wtf

[Jane Q. Public]

"... the person in question had NOT been arrested, had been freely answering other questions, but refused to answer one that concerned shotgun shells found at the murder scene."

Correct. It was what he did say, combined with what he did not say, that led to his conviction.

That is why, even if you are "innocent" you should NEVER speak to the police about anything that involves you at all.

HIGHLY recommended for everybody to watch, which explains why very clearly and in a no-nonsense way, are THIS VIDEO (part 1) and THIS VIDEO (part 2). About 49 minutes total. Very worth it.

These are not some kind of government-conspiracy nuts but a defense attorney and a police detective.

Re:wtf

[Rob the Bold]

Still bullshit to me. The fact that not explicitly stating that one is exercising one's rights implicitly means forgoing them? Does this mean that if I don't affirm my right to free speech or a fair trial that I cannot speak freely or will not get a fair trial?

Dammit, man. What if they hadn't thought of those already? Stop giving them ideas!

Re:wtf

[Burz]

So rights are a privilege now to be dictated by loose wording and interpretation...fuck. that. shit....oh wait...should be old news in light of all the other bullshittery USDOJ spews.

Not only that... Rights are a privilege to be handed out by the police.

Texas justice comes to the rest of the USA.

Re:wtf

[dwillden]

It would be BS had he chosen to simply stop answering questions period, but by selectively answering then not and then answering other questions he made a statement as clear as if he'd blurted out his guilt. If you claim the right to remain silent, do so, shut up and stop talking period. If you speak again, your selective silence is a clear statement. If anything it looks to me like this guy was trying to taint the entire interview. I think there is really no other way to rule on this. He was willingly answering questions, he could have claimed the right without speaking by simply shutting up, but as seen again those who break the law often lack the ability to remain silent, even though they have the right.

Had he shut up at the uncomfortable question and remained silent his silence would not be admissible, but by then continuing to answer questions has has by his actions if not statement waived his rights.

Re:wtf

[pla]

The 4th amendment doesn't apply (as the 5th in this case doesn't)... because said right was waved through the actions of the person involved

Inalienable (Adj): - Unable to be taken away from or given away by the possessor: "inalienable human rights".

If you convince someone to sell themselves into slavery to you, you can't enforce the contract because they can't "waive" their 13th amendment rights.

Re:wtf

[mark-t]

Clearly then the NDA I signed on my first day of work is unconstitutional as it violates my first amendment rights as I clearly have the right to go to the local media and spill my guts as to what my employer is building in secret (all legal projects, just not yet publically known).

Of course you have that right.... but your employer also has the legal right to sue you, and the NDA that you signed would ensure that he would win.

But you wouldn't go to jail for it... nor would you necessarily be breaking any laws by divulging such information unless it involved state secrets of national security.

Re:wtf

[Anonymous Coward]

Tex-ASSholes fucking our rights up again.

Guess it means you have to be an asshole about your rights.

What this really means?

If the cops come up, tell them GO AWAY. Refuse to talk to them. Say "5th Amendment, go away" until they leave.

If they refuse to leave, tell them to leave your property as they have no right to be there.

If they refuse to leave still, and you're not in your own home, walk away. If they decide to detain you, it's on them.

Your answer to them at ALL TIMES, even if they ask your name, is "5th Amendment."

Sucks, but that's what the Supreme Court has given us. Either be an asshole about protecting your rights, or you'll lose your rights.

Re:wtf

[Anonymous Coward]

Cop: How's the weather?
Person: Bit cold.
Cop: Did you kill that guy?
Person blinks in stupefied silence.
SCOTA: GUILTY!

Re:wtf

[hairyfeet]

Too late, we already have free speech zones and nearly two thirds of America lives in constitution free zones so we passed that part of the slope a while back.

Anybody who doubted we were going back to "the age of the robber barons" and one set of laws for the rich and one for the poor? Here ya go, if your ass don't have a lawyer on speed dial you be fucked.

Re:wtf

[sockman]

No, the Bill of Rights is a codification of the "god" given or natural rights every human possesses, regardless their tyrannical state interpretation. These are not rights GRANTED, but are rights enumerated among an infinite list of natural rights, these being the most important to put in to law (supposedly). Governments do not grant rights, they only take them away.

Re:wtf

[im_thatoneguy]

I don't believe that's true. To quote Findlaw.com

Witnesses who are called to the witness stand can refuse to answer certain questions if answering would implicate them in any type of criminal activity.

But unlike defendants, witnesses who assert this right may do so selectively and do not waive their rights the moment they begin answering questions.

You have the right to shut up at any point but I don't believe you can shut up and then start talking and then shut up again. This was the point of debate in the IRS congressional hearing where the manager made a statement and then plead the 5th.

Re:wtf

[hairyfeet]

As someone who still has a 4 inch scar on the back of his head because of a cop that said, and I quote "Fucking niggers and God damned long hairs" allow me to say fuck you right back.

The days of cops being there to "protect and serve" are long gone and you are fucking high if you still believe that, what we have now is gang bangers with badges and you can stick your "citizen" bullshit straight up your ass, the country my family fought and suffered for? No longer exists.

Re:wtf

[BlueStrat]

Exactly my thought. Whatever happened to my right to murder someone and get away with it because of technicalities!

Really? You're going there?

"It is better that ten guilty persons escape than that one innocent suffer". ...as expressed by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England. It is commonly known as "Blackstone's Formulation".

Benjamin Franklin stated it as, "it is better 100 guilty Persons should escape than that one innocent Person should suffer".

John Adams also expanded upon the rationale behind Blackstone's Formulation when he stated:

"It is more important that innocence should be protected, than it is, that guilt be punished; for guilt and crimes are so frequent in this world, that all of them cannot be punished.... when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, 'it is immaterial to me whether I behave well or ill, for virtue itself is no security.' And if such a sentiment as this were to take hold in the mind of the subject that would be the end of all security whatsoever."

Tyrannies have excellent conviction rates.

Strat

Re:wtf

[rtb61]

"I am not a lawyer" and yet under law you are deemed to have full and total knowledge of the law and ignorance is no excuse.

Re:wtf

[Anonymous Coward]

... They don't have an easy job ...

Let me see: Carrying lethal weapons amongst an unarmed populace, lying to individuals of said populace and possibly to a judge, turning 'privileged' confessions into evidence, depriving individuals of their liberty without arrest, hiding evidence or 'forgetting' testimony, using hearsay as evidence. Now polite conversation becomes evidence of criminal behaviour. Yeah, I wonder why cops are so misunderstood. Shows like 'CSI' and 'Law and order' really teach us the law doesn't apply to cops and criminals have no rights.

Being a dick is unproductive, but that doesn't change the facts:

A cop is looking for a criminal; you will help him or you won't: In case of refusal, blackmail or false arrest can change that. An 'interview' is a weasel word for interrogation, which is a cop blackmailing you (via deprivation of liberty) to provide evidence. Anything you say or write to your family, priest, or alleged victim is evidence against you. Cops have illegally taped a conversation with the lawyer to blackmail the criminal into a legal confession!

Do not talk about yourself to any cop!

Re:wtf

[mikelieman]

When speaking to a police officer, there are only two things to say:

(1) "Am I Under Arrest"

Which will generate either a yes or no. Any answer other than "Yes" prompts the following question:

(2) "Can I Go Now?"

Which will generate either a yes or no. Any answer other than "Yes" prompts the following question:

(1) "Am I Under Arrest"

repeat....

Black is white. War is peace.

[Areyoukiddingme]

The Supreme Court has managed to hold that in order to remain silent, you must speak.

Oh my people....

How many times does it need to be repeated ?

[Anonymous Coward]

Never, under any circumstances, talk to the police. If you are free to go, then leave. If you aren't then ask for a lawyer and shut up.

Re:How many times does it need to be repeated ?

[v1]

I recall debating about that in the past. The question arose:

Office: "stay here."
Citizen: "Am I under arrest?"
Office: "you want to be? no you're not under arrest, not yet. but just stay here for right now."
Citizen: "Am I free to go?"
Officer: "What did I just say to you? No, you are not free to go. STAY HERE while we xxxxx"

this actually happens frequently. And I don't recall the issue being settled. If you can't leave, and aren't free to go, what is your legal status? What happens if you try to leave? (almost certainly bad things, resisting arrest, interfere with official acts, obstruction of justice, failure to obey an officer of the law, disturbing the peace, etc etc justifying arrest)

So you're kinda in a pickle when they tell you you're not under arrest AND you're not free to leave. Is there a lawyer in the house that can explore this situation, and maybe even suggest some advice? (I know, fat chance, "yes I am a lawyer, NO I am not YOUR lawyer, and this is not legal advice", but do what you can)

Re:How many times does it need to be repeated ?

[Anonymous Coward]

Not a lawyer, but a former police officer. Still not legal advice.

The deal is that there is an intermediate state, typically referred to as "investigative detention." In short, you're not under arrest (in the handcuffs-go-to-jail sense), but neither are you free to go. An individual can be detained pursuant to an investigation. Once involvement (or lack thereof) is determined, then the person is dealt with in the appropriate manner (arrested or released). There are limits for how long a person can be detained this way, and as I recall, it is a "seizure" in the fourth amendment sense, so there needs to be reasonable suspicion in order for the police to detain an individual.

Reasonable suspicion means "facts and circumstances that would lead a reasonable officer to believe that a crime has been, is being, or will be committed." It lacks anything about a particular person, which is what distinguishes reasonable suspicion from probable cause (the standard for an arrest, which is similar, except that it's "... believe that a particular person has committed, is committing, or will commit a crime.")

You are wrong

[Anonymous Coward]

This is not a new right. I just passed CA Bar exam, so I can tell you -- police cannot use post-Miranda silence against you, but they can use pre-Miranda silence against you, and it has been this way for a long time.

But this is a matter of the prosecution can bring it up and ask you -- "Hey you were talking and talking to the police about the murder, but when they asked you if ballistics tests would link your shotgun to the murder you suddenly got quiet, why is that?" -- which is what happened here.

Bad Summary

[Aranykai]

The client did not answer one of several questions, and the prosecutor simply stated he had no response when asked a particular question. He was not charged with a crime for not responding, and he was not convicted of a crime for not responding. The ruling here was that the prosecution could admit as evidence that he did not answer a particular question during a conversation with a detective. Completely different things.

This is why you DO NOT SAY ANYTHING to ANY QUESTION if you are being detained by the police. Be polite, request a lawyer and state frankly you are not answering any questions until you have counsel.

Re:Black is white. War is peace.

[Sarten-X]

I'm going to drop this here.

It's a wonderful introduction to the issues at play, simplified enough to be easily understood, but not so simple as to be irrelevant.

Re:Typical Slashdot

[LandGator]

> One hundred responses and not a single one interested as to whether the suspect is actually guilty of the crime or not.

His guilt, sir or madam, is irrelevant. This is a change in case law, which concerned citizens need to share with others: If you say anything but the legal minimum, you're giving away an advantage to the prosecution which can be used against you even if innocent.