

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

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mjn
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.

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saraid216
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.

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relaunched
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.

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dietrichepp
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.

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aqme28
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.

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dietrichepp
You won't necessarily have legal counsel if you're a witness.

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sageikosa
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.

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DannyBee
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.

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rflrob
>> 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.

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sageikosa
That was my emphasis as well. There are all sorts of internal internal-
psychological/perceived-sociological reasons someone may go silent when in the
presence of seemingly friendly authority (if one comes from an authoritarian
household or religious background) that suddenly appears to turn on you.

The layman who hasn't had a brush with adversarial police investigation
techniques and doesn't have an explanation for a (seemingly) factual assertion
by the police may simply not know how to respond, knows he needs to tread
carefully lest something get pinned on him, but is unaware that silence is not
considered careful _at this moment_ (since, if he remembers, he is talking to
the police without being cautioned or under custody).

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cstavish
"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.

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gwgarry
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.

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DannoHung
When will motherfucking Scalia and Thomas just god damned _die_ already?

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

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WildUtah
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.

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siphor
It's pretty ridiculous that they would both overturn Griffin if given the
chance. I kind of "understand" their viewpoint but its just wrong and
completely erodes the spirit of the fifth amendment. I can't think of a better
way to say it though.

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gizmo686
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.

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hga
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.

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gizmo686
>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.

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sukuriant
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.

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fleitz
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.

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bobwaycott
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.

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hga
This could be nitpicking an abbreviated binary choice. The usual advice is to
ask if you are free to leave. If the answer is no, then you know you're being
detained and can act accordingly.

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bobwaycott
Indeed, asking if you are free to leave is the better question. Not so much an
abbreviated binary choice, but more a response to the suggestion as given.

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hippich
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?

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throwaway10001
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.

