

Supreme Court: Pre-Miranda silence can be used as evidence of guilt - koenigdavidmj
http://seattletimes.com/html/politics/2021208775_apussupremecourtsilence.html

======
arunabha
_Prosecutors argued that since Salinas was answering some questions -
therefore not invoking his right to silence - and since he wasn 't under
arrest and wasn't compelled to speak, his silence on the incriminating
question doesn't get constitutional protection._

This judgement sends a very strong message to _never_ talk to the police.
[http://www.youtube.com/watch?v=i8z7NC5sgik](http://www.youtube.com/watch?v=i8z7NC5sgik)
explains why its a monumentally stupid idea to talk to the cops.

~~~
tzs
Hypothetical: you are visiting a zoo. You see a bear get out of its enclosure,
grab a baby human, and run away. You are the only witness who saw which
direction the bear ran.

A police officer comes running up and asks where the bear went.

Question: Do you tell him, or do you say that you will not talk without a
lawyer present?

I've asked people on Reddit similar questions when this video has come up
there, and a lot of them say they would not talk without a lawyer, based on
the video.

I'm curious how many here feel that way.

~~~
lawnchair_larry
If you re-word that to say "dingo" instead of "bear", I think you'll realize
that reddit was probably right.

[http://en.wikipedia.org/wiki/Death_of_Azaria_Chamberlain](http://en.wikipedia.org/wiki/Death_of_Azaria_Chamberlain)

~~~
sukuriant
I have no words. That's just ... altogether incredible.

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jlgreco
Isn't the idea that the Miranda _warning_ does not grant rights, but merely
serves to inform the recipient of rights that they already have? Well, I
thought that _was_ the idea, it clearly is not the case anymore...

~~~
eloisius
Another tragedy of positively defined law. As soon as you give someone a "bill
of rights" you can then do everything up to the prohibited limit.

~~~
hga
Indeed, and that was an argument the Federalists made against the Bill of
Rights.

But then again, does negatively defined law ever work in practice? Sure
doesn't seem to in a whole bunch of areas that don't touch on the 1st through
8th Amendments.

~~~
mpyne
Why would the Federalists make that argument against a Bill of Rights that
contained the Ninth Amendment?

~~~
hga
" _The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people._ "

Well, for one thing the 9th Amendment doesn't address the problems with the
positive rights that most of the other ones establish or acknowledge.

~~~
mpyne
What's problems are those? (No snark, just honest confusion)

~~~
hga
Well, to take the area of Constitutional jurisprudence I'm most familiar with,
look at all the effort that was put into claiming the 2nd Amendment created a
"collective" right instead of acknowledging an individual right. This
interpretation caused more than a little mischief, especially in state courts
against their own versions of the 2nd Amendment, but also in at least one
lower level Federal court decision, but a bottom line was that it was rejected
9-0 in _Heller_ (this is a good article on all that:
[http://davekopel.org/2A/Mags/Collective-
Right.html](http://davekopel.org/2A/Mags/Collective-Right.html)).

The Federalists' argument was that a government of limited powers could never
even do such things. Unfortunately, the subsequent history of "a long Train of
Abuses and Usurpations, pursuing invariably the same Object, evinces a Design
to reduce [us to] absolute Despotism...."

~~~
mpyne
Well, the Federalists didn't think far enough ahead. We have CPUs that are
Turing complete with only a single instruction, so in retrospect simply
limiting the number of abilities the government had wouldn't have been
sufficient in the long term. It's easier to say that in retrospect but I'm
glad that the debate process for the Constitutional ratification led to the
Bill of Rights being drafted in a compromise.

I'm not sure how to take the last sentence though. I know who the Continental
Congress felt the despot was; who is the despot now?

~~~
hga
A "Despotism" can be run by an oligarchy, which is what our ruling class has
become. And "absolute Despotism" is a reasonably accurate description of where
we seem to be headed, given a minimal allowance for rhetorical flourishes.

Quite seriously, re-read the Declaration if you haven't lately, history does
tend to repeat itself, for people remain people.

~~~
mpyne
I've actually read the Declaration recently enough to have linked a good part
of it into one of the innumerable HN discussion threads around here.

And if this is an absolute despotism then I'll need to know what word to use
for what despotism meant when Jefferson wrote those words, so that I can keep
my thoughts straight.

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sethbannon
From the article: Salinas' "Fifth Amendment claim fails because he did not
expressly invoke the privilege against self-incrimination in response to the
officer's question," Justice Samuel Alito said. "It has long been settled that
the privilege `generally is not self-executing' and that a witness who desires
its protection `must claim it.'"

Does this mean one must actually say "I plead the fifth" to 'claim' one's
rights under the fifth amendment?

~~~
rocky1138
That's not what the constitution says, but let's be honest: does it really
matter what it says?

~~~
rayiner
The 5th amendment says, in relevant portion: "No person... shall be compelled
in any criminal case to be a witness against himself..."

I don't think it's a great decision, but it's misleading to say "that's not
what the constitution says." The constitution doesn't say anything, one way or
the other, about the proper way to invoke the right against self-
incrimination. It just says that people shall not be "compelled."

------
iandanforth
Think about this, the people most affected by this decision will, by
definition, never know about it.

If you're ignorant of the basic right, you are definitely ignorant of the case
law.

The supreme court just said two things 1. The state has no responsibility to
inform people of their rights and thus 2. The ignorant have no rights.

This both sickens and terrifies me.

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gradys
IANAL, but wouldn't this incentivize the police to just question suspects
before they are under arrest?

~~~
rosser
My reading here (and IANAL, too) is that Salinas' trouble came from the fact
that he was answering _some_ questions, and then stopped when they got
relevant. That is to say, his _selective_ silence was the damning thing, not
his silence, period. If you say nothing all along, or only say, "Lawyer.",
your silence isn't so inculpatory.

~~~
jack-r-abbit
IANAL either but that is also how I read it. I don't really find this all that
disturbing. He chose to talk and then chose to not answer that specific
question. Plus, as was pointed out in the article and by another poster here,
the ballistics confirmed a match to the gun. So there was more at play in the
court room than just his silence.

~~~
gradys
He probably would have been convicted anyway, but Supreme Court rulings set
precedent for future cases.

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powertower
The shotgun ballistic evidence is what got him the guilty verdict (and I'm
sure quite a bit of other things). Not being able to answer a reasonable
question was just the icing on the cake.

~~~
Zimahl
Unless you are reading a different story:

 _Ballistic reports showed the shells matched the shotgun, but police declined
to prosecute Salinas._

Maybe I don't understand shotgun forensics very well, but as I understand the
only ballistics that they could match it the gauge of the shotgun and possibly
match gunpowder residue. Other than that, shotguns don't have riflings, which
make them very difficult to pinpoint as a weapon.

As an example, if I were to fire 5 different shotguns of the same gauge but
use the same shells and you either had the expended shell or the result of the
shot (buckshot or slug), you most likely wouldn't be able to tell which rifle
shot which shell.

While the jury may still have had plenty to convict on with other
circumstantial evidence (motive, means, opportunity), I will say that this is
a bad decision.

~~~
hga
If the report is accurate, shells are what's left behind, the assembly of
brass and plastic that you reload and all that. And for those on the brass
base there will be extractor and ejector markings, and as jlgreco reminds me,
maybe the firing pin, although how good they will be as evidence I don't know.
I.e. sufficiently unique, then again a lot of this science isn't really
anything resembling science as it's used outside the judicial world, excepting
DNA matching.

BTW, some shotgun barrels do have rifling for shooting unrifled slugs for deer
hunting (e.g. [http://www.brownells.com/items/rifled-shotgun-
barrels.aspx](http://www.brownells.com/items/rifled-shotgun-barrels.aspx)),
but I'll bet that's not the case here.

------
quux
The ACLU's "Bust card" has a good set of guidelines for what to do if you are
stopped by the police to best protect yourself.

[http://www.aclu.org/files/assets/bustcard_eng_20100630.pdf](http://www.aclu.org/files/assets/bustcard_eng_20100630.pdf)

#1 on the list of your rights:

"You have the right to remain silent. If you wish to exercise that right, say
so out loud."

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yread
Wow this case is just so weird:

\- convicted based on weapon only? Isn't that just an indirect proof?

\- 2nd trial after the first one was a mistrial - I thought you can only be
tried once?!

\- convicted 15 years after it happened - isn't there a time bar?

\- the whole miranda business - when they arrested Tsarnaev, they didn't read
him his rights and people just assumed he had them anyway. This guy apparently
didn't have them until they read it. So, if they don't read them you either
have them if they won't read them to you ever or don't have them if they will
read them in some unspecified point in the future?

I think I'll just stay out of Texas for a while.

EDIT: also "did not answer when asked if a shotgun he had access to would
match up with the murder weapon" what kind of idiotic question is that?!
"Excuse me sir, does your weapon match with the murder weapon?" "Yes, it does,
officer!"

~~~
hga
Sufficiently strong circumstantial evidence has long been enough to convict.

You can only be tried once, by both a state or subdivision, _and_ the feds,
"on the same set of facts", _if_ a verdict of innocence is rendered. In a
mistrial, the trial is ended for whatever reason without a verdict of any sort
being rendered, generally the judge prematurely ends it because of a
procedural issue or the jury deadlocks.

The prohibition against double jeopardy (which the courts have determined does
not extend to both a state and a federal prosecution each, e.g. see the Rodney
King debacle) is to prevent the authorities from trying you again and again
until they get a jury to come to the "right" decision, and this decreases the
problem of "the process is the punishment". Also protects you from a better
prosecution after you reveal your (successful) defense the first time.

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quux
Are there any questions that a suspect is required to answer? Like their name,
where they live etc?

I think if you are driving a car you are required to produce your driver
license on request, but other than that you don't have to answer any
questions.

~~~
hga
In some states you have to provide your name.

------
alanh
A lot of developments lately make me think of this wonderful letter Emily
Haines sent fans of Metric last fall.

> _The thing we have to get our heads around on a daily basis is that even a
> small step in the wrong direction is too far when attempting to prevent a
> slide backwards._

Full letter here: [http://peg.gd/3eN](http://peg.gd/3eN) (short URL is not a
redirect, but in fact a mirror of the email content itself).

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speakez
More and more I'm giving up on this government.

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RobotCaleb
Wait... So is it a right or a privilege?

~~~
rayiner
You have a right to a lawyer in a criminal trial, but that doesn't mean one
magically appears if you don't ask for one.

~~~
RobotCaleb
Seeing as a lawyer is a tangible thing that doesn't really strike me as a fair
analogy. Also, isn't Salito quoted as stating it as a privilege in the
article?

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lifeisstillgood
This is one more of a creeping unbalancing of the checks and balances of
modern government and it causes me great unease

In the UK we lost the "right to silence" twenty years ago - I remember
campaigning to stop the bill. (Don't hire me as a lobbyist)

I think only the PACE reforms which focused police back on real evidence and
away from confession and go policing has kept us from an explosion in the
courts system.

Bein arrested and interviewed is a massively intimidating thing and just
shutting up is almost always the best advice. But if that advice can add years
to your sentence you are asking people to make a fine risk assessment at the
point most people are just in a head spin.

Not good. Aaron Schwartz had time to think about his fine balancing act. Look
how that played out.

Keep the courts a long way away from inferences about _why_ you shut up -
write your congressman now. Seriously

.

