You have to say the words
Supreme Court Rules Fifth Amendment Has to Actually Be Invoked. That’s kind of frightening.
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June 17th, 2013 at 8:30 pm
So I have to speak……to remain silent.
June 17th, 2013 at 8:35 pm
Yeah, they’ve been scaling Miranda back. A lot. Don’t think for a minute that any Supreme Court justice, Republican or Democrat, is not fundamentally a statist.
June 17th, 2013 at 10:03 pm
I have a pre-paid legal membership. I wonder if I can get them to print up business cards that say:
“Shaddap and Sewem, PLC
PPL membership #123456789
police_inquiries@shaddap-sewem.ppl.com
555-867-5309
My client does not consent to any searches, seizures, being detained or speaking with you. Any and all questions you may have for my client may be submitted to me, in writing, for review and formal response. My client will not provide you with their name or identification at this time unless specifically required by law related to the specific activity they are engaging in. If charged, I will provide my client’s identity. You may refer to my client as John or Jane Doe 12345679 until such time.”
June 17th, 2013 at 11:04 pm
Makes perfect sense. I have to ask nicely to keep an bear my arms too. Next up, asking nicely for the men in body armor with the big guns to not sleep on the couch.
Bastards.
June 18th, 2013 at 5:53 am
According to the comments at slashdot, this guy allowed himself to be “interviewed” without being under arrest, and without council. He answered questions voluntarily until they got to one that would implicate him. Then he clammed up, but continued answering different questions after that.
Seems pretty clear that he waived any “right to remain silent” he had.
Lesson: Don’t answer questions, and don’t talk to cops voluntarily. If you are arrested, demand council.
June 18th, 2013 at 10:10 am
What Skeptical_Realist said. Dude went for an “interview” and failed it. You can read “Spy the Lie” to get an idea what he got subjected to. TL;DR version – don’t talk to cops.
June 18th, 2013 at 10:26 am
As long as you are answering questions, you have NOT invoked your Fifth Amendment rights unless you specifically state you are invoking it for a particular question. You can end answering questions by invoking (or even just shutting the Hell up, although an explicit invokation is better.) What you cannot do is flip in and out of invoking your right without actually telling anyone.
Which is why you should just invoke it up front, other than identifying yourself and asking for a lawyer. Self-incriminating statements have been allowed under similar circumstances pretty much from the beginning of jurisprudence on the right to remain silent.
This is not revolutionary new law here.
June 18th, 2013 at 11:08 am
I _will_ say that, when they switched the subject from interviewing Salinas as someone who they assured was not a suspect, to asking very specific questions about his guilt, it was clear the cops used a bait and switch.
So, he should walk on failure to be Mirandized when the interview turned to him being a specific suspect. IOW, Breyer got it HALF right, in that Salinas should walk. But he should walk based on NOT being Mirandized when the cops changed the interview from a “to help you clear your name” to “you did it, didn;t you?” type of interview (and the police had Salinas as a suspect BEFORE they called him in — they just lied as to their purpose for bringing him in — “His interrogation took place at the police station. Salinas was not represented by counsel. The relevant question—about whether the shotgun fromSalinas’ home would incriminate him—amounted to a switch in subject matter. And it was obvious that the new question sought to ferret out whether Salinas was guilty ofmurder.” The very fact that Salinas stuck around to answer more questions indicates (to me) that he DID NOT feel he was free to leave at any time — IOW, that this was now a custodial interview.
Alito got it half right, in that long standing precedent states that in absense of explicit invokation, while you may not be compelled to give actual testimony against yourself, your silence may be introduced against you — especially since you may be silent for reasons OTHER than self-incirmination. (“But he also might do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither isevery possible explanation protected by the Fifth Amendment. Petitioner alone knew why he did not answer the officer’s question, and it was therefore his “burden . . . to make a timely assertion of the privilege.” Garner, 424
U. S., at 655.”) (“A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need toknow those reasons to evaluate the merits of a Fifth Amendment claim. See Hoffman, 341 U. S., at 486–487.”)
(“To prevent the privilege fromshielding information not properly within its scope, we have long held that a witness who “‘desires the protectionof the privilege . . . must claim it’” at the time he relies on it. Murphy, 465 U. S., at 427 (quoting Monia, 317 U. S., at 427). See also United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 113 (1927).
“That requirement ensures that the Government is put on notice when a witness intends to rely on the privilegeso that it may either argue that the testimony sought could not be self-incriminating, see Hoffman v. United States, 341 U. S. 479, 486 (1951), or cure any potential self-incrimination through a grant of immunity, see Kastigar v. United States, 406 U. S. 441, 448 (1972).”)
The exceptions to an explicit invokation are: During trial (the absolute right of a defendant not to testify is independant of 5th Amendment protection), when government coerison makes invokation irrelevant (that’s the basis of Miranda an Murphy – “a suspect in custody cannot be said to have voluntarily forgone the privilege“unless [he] fails to claim [it] after being suitably warned.” Murphy, supra, at 429–430.”), government coersion through withdrawl of benefits “sometimes make exercise of the privilege so costly that it need not be affirmatively asserted”, and “where assertion of the privilege would itself tend to incriminate”. (“The principle that unites all of those cases is that a witness need not expressly invoke the privilege where some form of official compulsion denies him “a ‘free choice to admit, to deny,or to refuse to answer.’ ” Garner, 424 U. S., at 656–657 (quoting Lisenba v. California, 314 U. S. 219, 241 (1941)).”)
June 18th, 2013 at 11:25 am
Except for boxing and car racing, true crime shows (e.g. Dateline, 48 Hours) are pretty much all I watch on tv.
The shows on Investigation Discovery have little original footage and a lot of exceptionally bad acting.
Watching people (who are actual or potential suspects) answer questions for 10 hours, posit their own theories of who dunnit, paint themselves into corners, voluntarily submit to abuse and accusations, etc., baffles me.
At least the 2 shows named above show interview footage of people who were initially suspects being harangued by detectives, but who have been exonerated by subsequently elicited evidence.
But they never show the cops apologizing for falsely accusing people who have been entirely vindicated.
All of this could have been entirely avoided by not talking to law enforcement.
When you couple this standard investigation procedure with the fact that many people are particularly stupid, you wind up with confessions which are given to stop the yelling and screaming and lying by the detectives who are conducting the interviews.
When I am watching these shows, as in real life, I pull for law enforcement and against the perp.
But I am incredulous that anyone would submit to a police interview.
June 18th, 2013 at 11:54 am
WTF is Miranda for again?
This is bullshit!
June 18th, 2013 at 1:01 pm
“But I am incredulous that anyone would submit to a police interview.”
More incredible is submitting to a police interview without your lawyer present.
June 18th, 2013 at 2:30 pm
The problem with the Miranda and other right to remain silent cases is that they rely on the 5th amendment. They should properly rely on the 9th amendment.
June 18th, 2013 at 9:57 pm
So now there is ANOTHER ‘right” that is given to us by the gubmint. I always believed our rights unalienable.
June 19th, 2013 at 1:19 pm
When you see the details of this case, its pretty clear that the prosecutor should have been able to comment upon the fact that the defendant answered questions but this one.