From SCOTUSblog: http://www.scotusblog.com/2013/06/detai ... s-v-texas/" onclick="window.open(this.href);return false;To be sure, someone might decline to answer a police officer’s question in reliance on his constitutional privilege. 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 is every 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.” *** [T]he Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself ”; it does not establish an unqualified “right to remain silent.” A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim." Salinas v. Texas, No. 12-246, slip op., (U.S. June 17, 2013), http://www.supremecourt.gov/opinions/12 ... 6_1p24.pdf" onclick="window.open(this.href);return false;.
From Volokh:In a major loss for individual rights vis-a-vis the police, the Supreme Court ruled 5-4 that prosecutors could use a person’s silence against them in court if it comes before he’s told of his right to remain silent. The prosecutors used the silence of Genovevo Salinas to convict him of a 1992 murder. Because this was a non-custodial interview, the Court ruled that the prosecutors could use his silence even though citizens are allowed to refuse to speak with police. It is of little surprise that the pro-police powers decision was written by Samuel Alito who consistently rules in favor of expanding police powers.
http://www.volokh.com/2013/06/17/do-you ... s-v-texas/" onclick="window.open(this.href);return false;
That is a key point. Bottom line, a simple "My attorney has told me to never speak to the police. Am I free to go?" is the best approach. Even more so now, because answering a single question opens the door to inferring guilt on questions where you may hesitate or pause.First, it is relatively easy for the government to claim that a suspect’s reaction to an incriminating question suggests guilt — and very hard for a defendant to challenge that characterization. Over the course of a long interview, the investigator might ask dozens or hundreds of incriminating questions. If the case goes to trial, a smart prosecutor will ask the investigator if he thought that any of the ways the defendant reacted to the questions was a non-answer or pause that seemed to reflect an awareness of guilt. If the prosecutor can comment on a non-answer, presumably the prosecutor can also comment on a pause before an answer. The prosecutor will then ask about that during the direct examination, and the investigator will give his view that the defendant paused or looked nervous or declined to answer particular questions. The prosecutor can then focus on that before the jury, and there’s not much a defendant can do in response. Taking the stand would require the defendant to testify and let in adverse facts like prior crimes, which most defendants won’t want to do. So the government’s characterization will be tough to challenge, even if the investigator is being unfair in his characterization of the defendant’s acts.
I am hoping one of the attorneys can address the distinction between detention and custody. The article uses the phrase "defendant’s statement during a custodial interrogation". If I am being detained and questioned but am not arrested, does that also qualify as being a "custodial interrogation"?
The question is related to the phrase, "Am I free to go?". If the police respond that I am being detained and am not free to go, is that when I cross the line into Miranda protection?
