5th Amendment for Innocent People

[rtschl]

Just saw this article that was posted last week at the site below. We've discussed this issue here before, but a good read about exercising our 5th Amendment right after being involved in a shooting: http://bearingarms.com/fifth-amendment-innocent-people/

ANYTHING you say can be used against you (and probably will). I've seen this quote before but good to remember: Former Supreme Court Justice Robert Jackson could not have been more clear when he said, “Any lawyer worth his salt will tell [his client] in no uncertain terms to make no statement to police under any circumstances”

Ron

[mr1337]

I think it's a great reminder. Remember that you always have the option to consult with a lawyer before answering questions. Use that to your advantage.

If you are involved in a shooting, do not make any statements, other than stating that you are the victim and pointing out any evidence that the police may miss.

You will probably be placed in cuffs while the police sort it out, and you might even be booked into jail. But a couple nights there is still better than doing 10-20 years for opening your mouth.

[anygunanywhere]

Didn't SCOTUS recently decide that you now have to verbally invoke your protection and if you do not and just stay silent it can be used against you as a sign of guilt?

Or something like this?

[mr1337]

Didn't SCOTUS recently decide that you now have to verbally invoke your protection and if you do not and just stay silent it can be used against you as a sign of guilt?

Or something like this?

I don't think it was necessarily determined to be a sign of guilt, but they can keep questioning and pressuring you until you expressly invoke your 5th Amendment right. If they get a confession out of you before you vocalize your intent to remain silent pursuant to your 5th Amendment right, it can be used as evidence in court. (Which I think is the case with what you're thinking of.)

To invoke your right, you can say "I'm going to remain silent until I've spoken to my lawyer" or "I invoke and refuse to waive my 5th Amendment rights."

[WildBill]

Didn't SCOTUS recently decide that you now have to verbally invoke your protection and if you do not and just stay silent it can be used against you as a sign of guilt?

Or something like this?

I hope not.

[anygunanywhere]

Found the link. Explains it all.

http://www.scotusblog.com/2013/06/opini ... the-fifth/

[JSThane]

Didn't SCOTUS recently decide that you now have to verbally invoke your protection and if you do not and just stay silent it can be used against you as a sign of guilt?

Or something like this?

I hope not.

Not to my understanding, but they CAN and WILL continue to badger you with questions until you invoke 5th Amendment protections, hoping to get something out of you. AFAIK, though, they still have to Mirandize you first, before anything's admissable in court (excepting voluntary or "excited" statements, ie, "heat of the moment" statements).

[Jumping Frog]

Not to my understanding, but they CAN and WILL continue to badger you with questions until you invoke 5th Amendment protections, hoping to get something out of you. AFAIK, though, they still have to Mirandize you first, before anything's admissable in court (excepting voluntary or "excited" statements, ie, "heat of the moment" statements).

The Supreme Court ruled in Salinas v. Texas on the issue of whether it violates the Fifth Amendment for prosecutors to use pre-arrest silence as evidence of guilt.

It ruled that one must say something that invokes the Amendment’s protection, or else it does not apply.

The Court ruled if you simply keep your mouth shut, then the prosecutors can use the silence as evidence of guilt.

The Court rejected the argument that, because suspects do not know the law, their silence should be understood as a Fifth Amendment plea.

[b322da]

The Supreme Court we have now, which has decided to really throw its weight around, has gotten this whole area of the law, where the 5th Amendment and Miranda are involved, muddied up to the point where even brilliant legal scholars hesitate to try to explain it. Not being a brilliant legal scholar, with great fear of error I will stick my neck out.

A Miranda warning is not required unless you are you are detained by law enforcement. The word "detained" is not easy to define, if it can be defined at all. If one is not detained, it appears to mean, at least, that he is free to leave and terminate the interrogation at any time, but that is an almost impossible variable to pin down. It is just another thing for lawyers to argue about. If a Miranda warning is not required nor given your silence may be used against you as an admission of guilt, unless you have positively invoked the 5th Amendment in no uncertain terms. "No uncertain terms" -- what does that mean? Another thing for lawyers to argue about.

Another lawyer full employment decision.

"He said," "she said." Who does the judge and/or jury believe?

This over-brief summary of the way the law appears to be now may well be misleading, however. The Court is not through dealing with this area of the law, and many of those legal scholars will not be surprised at all if the Court overrules Miranda, the logical extension of what it says today. It at least appears clear that the present majority of the Court is intent on lessening the restraints on law enforcement. That has been seen in decisions other than the one here under discussion. It also appears clear that when the Court lays out "rules" which are subject to conflicting interpretations the ground is laid for more subjective judgment.

In sum, many lawyers would say cut it off at the pass, and regardless of innocence or guilt, you should (1) invoke the 5th, "in no uncertain terms," (2) ask to consult with (your) (a) lawyer, and (3) thereafter keep your mouth shut. Do not expect all LEOs to be happy whenever one does this. One must be prepared for an aggressive reaction by some, but not all, LEOs -- always expect the worst. The Court has not yet ruled that invoking the 5th is an admission of guilt, but ....

If, instead, knowing beyond any doubt that you are innocent of any wrongdoing you choose to answer questions, you will of course be considering yourself better qualified to understand the law here than those legal scholars I mention above.

Jim

[JSThane]

In sum, many lawyers would say cut it off at the pass, and regardless of innocence or guilt, you should (1) invoke the 5th, "in no uncertain terms," (2) ask to consult with (your) (a) lawyer, and (3) thereafter keep your mouth shut. Do not expect all LEOs to be happy whenever one does this. One must be prepared for an aggressive reaction by some, but not all, LEOs -- always expect the worst. The Court has not yet ruled that invoking the 5th is an admission of guilt, but ....

If, instead, knowing beyond any doubt that you are innocent of any wrongdoing you choose to answer questions, you will of course be considering yourself better qualified to understand the law here than those legal scholars I mention above.

Many LEOs would agree as well, including myself. For me, if I should ever be forced to use my firearm in defense of self or another, a simple statement of "I was in fear for my/his/her life from that individual. I want to talk to legal representation before I say anything more" would be, I hope, sufficient.

[b322da]

....For me, if I should ever be forced to use my firearm in defense of self or another, a simple statement of "I was in fear for my/his/her life from that individual. I want to talk to legal representation before I say anything more" would be, I hope, sufficient.

I, too, JS, would hope that would be sufficient. With the greatest of respect, however, I suspect that for you, a law enforcement officer, it would be more likely to be sufficient than it would be for a boy of the 'hood in Harlem with a record. I reckon it will be his case, not yours, where a court will decide whether by pleading innocence he opened the door to further legal interrogation, by using the 5th as a sword rather than as a shield, as, for example, the law generally applies to witnesses before congressional committees, and, similarly, whether or not he invoked his rights under the 5th Amendment "in no uncertain terms."

The Court's decision in the latter case, not yours, will become the law of the land applicable to the rest of us. I, for one, have always been well-served by recognizing Murphy's 17th Law, and by being as prepared as I can for the worst of all results to happen. I am embarrassed that I must be this uncertain about one of our most fundamental rights expressed in our Constitution.

I say this not to necessarily disagree with what you say, but only to reinforce how vague the law is here now, and to suggest that "innocent people," as in the subject line here, may be at some risk in speculating, particularly under the stress of the moment, as to what might be sufficient.

Jim

[EEllis]

While it sounds great to say always take the 5th there is another side to it also. Sure your attorney always will tell you to say nothing and demand counsel but then again they are going to get paid while it will cost you money. I can even see where if it is a clean cut case your refusing to talk could make investigators wonder why. Heck as bad as it got for Zimmerman the fact that he spoke without an attorney and his story was so consistent to my mind helped his public case and I don't think a lawyer earlier would of prevented any of his problems at all. That being said there are people who just talk themselves into trouble also.

[Jaguar]

Many LEOs would agree as well, including myself. For me, if I should ever be forced to use my firearm in defense of self or another, a simple statement of "I was in fear for my/his/her life from that individual. I want to talk to legal representation before I say anything more" would be, I hope, sufficient.

I believe it is standard procedure in law enforcement to ensure the officer shuts his trap until he has talked to council. As an example I submit this thread, http://texaschlforum.com/viewtopic.php?f=108&t=69633" onclick="window.open(this.href);return false; that shows a body cam video where the last words to the officer after a shooting were, "not a word".

I believe the same advice should be taken by non-leo citizens, if you shot someone, tell them you were the victim, point out any evidence and witnesses they may miss, and shut up until you talk to a lawyer. No good can come from allowing the adrenalin dump to flow out of your mouth, cops know it, non-leos should learn it as well.

[hillfighter]

Evil men try to violate our rights. Good men do not. If you remember that, the rest is easy.

[b322da]

...if you shot someone, tell them you were the victim, point out any evidence and witnesses they may miss, and shut up until you talk to a lawyer. No good can come from allowing the adrenalin dump to flow out of your mouth, cops know it, non-leos should learn it as well.

Jaguar, you have called my elderly attention to sometimes valid exceptions to the hard and fast rules I laid out above, and which I overlooked. My fingers on the keyboard got ahead of my thinking.

Depending on the circumstances at hand, it may be quite appropriate to advise the LEO(s) that you were the victim and, if you were the first to call 911, advise them of that, and point out any evidence and witnesses they may have missed. Simple statements; not long-winded speeches.

Thanks much for calling my omission to my attention, Jaguar. I can only plead "senior moment."

Jim