SCOTUS: Silence before arrest will be used against you

Topics that do not fit anywhere else. Absolutely NO discussions of religion, race, or immigration!

Moderators: carlson1, Charles L. Cotton

User avatar
Jumping Frog
Senior Member
Posts: 5488
Joined: Wed Aug 25, 2010 9:13 am
Location: Klein, TX (Houston NW suburb)

SCOTUS: Silence before arrest will be used against you

Post by Jumping Frog »

From the Supreme Court opinion:
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 SCOTUSblog: http://www.scotusblog.com/2013/06/detai ... s-v-texas/" onclick="window.open(this.href);return false;
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.
From Volokh:

http://www.volokh.com/2013/06/17/do-you ... s-v-texas/" onclick="window.open(this.href);return false;
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.
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.

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?
-Just call me Bob . . . Texas Firearms Coalition, NRA Life member, TSRA Life member, and OFCC Patron member

This froggie ain't boiling! Shall not be infringed! Μολών Λαβέ
talltex
Senior Member
Posts: 782
Joined: Fri Oct 21, 2011 9:40 pm
Location: Waco area

Re: SCOTUS: Silence before arrest will be used against you

Post by talltex »

Wow...that is a huge decision, with far reaching implications...and haven't heard a word about it on the news. You'd think that would definitely merit a mention. Thanks for posting it!
"I looked out under the sun and saw that the race is not always to the swift, nor the battle to the strong" Ecclesiastes 9:11

"The race may not always go to the swift or the battle to the strong, but that's the way the smart money bets" Damon Runyon
texanjoker

Re: SCOTUS: Silence before arrest will be used against you

Post by texanjoker »

Miranda essentially applies to a custodial arrest. If you are arrested, then the Miranda admonishment is required to question you about the investigation. It is not required to ask your name, address, ect for the booking paperwork. If you are detained (as in a stop) Miranda is not required.
User avatar
Jaguar
Senior Member
Posts: 1332
Joined: Sat Jun 23, 2012 5:24 pm
Location: Just west of Cool, Texas

Re: SCOTUS: Silence before arrest will be used against you

Post by Jaguar »

Wow, just wow. Anything you say can be used against you. Anything you don't say can be used against you as well. Never thought I'd live to see this.
"I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents." -- James Madison
User avatar
cbunt1
Senior Member
Posts: 812
Joined: Mon Feb 09, 2009 12:48 pm
Location: NW Houston, TX
Contact:

Re: SCOTUS: Silence before arrest will be used against you

Post by cbunt1 »

texanjoker wrote:Miranda essentially applies to a custodial arrest. If you are arrested, then the Miranda admonishment is required to question you about the investigation. It is not required to ask your name, address, ect for the booking paperwork. If you are detained (as in a stop) Miranda is not required.
Clearly this will take some time to sort out the full implications. I would *think* that if you're not free to go, then you're in custody, but that clear distinction has been at issue in various cases and incidents for a while.

One thing to keep in mind, at least in Texas, though...any traffic stop, with the exceptions of speeding and open container, are by previous definitions FULL ARREST from the get-go. That means that if you're pulled over for a tail-light or the ubiquitous "license plate light," you are under arrest, not "detained," not "in custody" ... a fact that changes the rules of engagement for both parties.

As for Miranda applying to a custodial arrest, I'm inclined to agree in principle--at least as the Miranda decision was originally handed down--that it applies to questioning during custodial arrest, but don't forget that Miranda speaks specifically of admissibility in trial of the information gathered during interrogation (or as it's now know, "interview") and NOT of the actual right a citizen possesses. That is to say that you ALWAYS have the right to remain silent, always have, always will--it doesn't get handed down with the reading of the "Miranda warning." The so-called warning is simply a reminder of the rights you already have.

On the surface, the ruling makes me more than a bit uncomfortable, but I'll have to read through the entire thing this evening...It's one thing to affirm that what you say can be used against you, but another thing entirely to affirm that what you don't say can be used as an admission (or suspicion) of guilt....this is not good.
American by birth, Texan by the grace of God!
User avatar
VMI77
Senior Member
Posts: 6096
Joined: Tue Jun 29, 2010 5:49 pm
Location: Victoria, Texas

Re: SCOTUS: Silence before arrest will be used against you

Post by VMI77 »

Welcome to the USSA.
"Journalism, n. A job for people who flunked out of STEM courses, enjoy making up stories, and have no detectable integrity or morals."

From the WeaponsMan blog, weaponsman.com
User avatar
Charles L. Cotton
Site Admin
Posts: 17788
Joined: Wed Dec 22, 2004 9:31 pm
Location: Friendswood, TX
Contact:

Re: SCOTUS: Silence before arrest will be used against you

Post by Charles L. Cotton »

texanjoker wrote:Miranda essentially applies to a custodial arrest. If you are arrested, then the Miranda admonishment is required to question you about the investigation. It is not required to ask your name, address, ect for the booking paperwork. If you are detained (as in a stop) Miranda is not required.
Correct, but the 5th Amendment always applies. Until now, it was not necessary to expressly invoke the 5th Amendment until/unless you were in court or in a deposition.

This is a horrible decision. Every constitutional scholar/professor I've seen interviewed is understandably outraged. It will also harm LEO investigations as any thinking person will always invoke the 5th Amendment and never answer any questions or merely remain silent. My advice in my CHL classes and seminars will not change dramatically.

Unfortunately, this is a sign of the times in which we live.
Chas.
User avatar
RoyGBiv
Senior Member
Posts: 9604
Joined: Wed Jan 05, 2011 11:41 am
Location: Fort Worth

Re: SCOTUS: Silence before arrest will be used against you

Post by RoyGBiv »

So in response to each specific question that we don't want to answer, rather than remain silent we need to "take the 5th?"
That does not preclude us from answering questions we DO want to answer (such as pointing out evidence and witnesses)?
I am not a lawyer. This is NOT legal advice.!
Nothing tempers idealism quite like the cold bath of reality.... SQLGeek
User avatar
RoyGBiv
Senior Member
Posts: 9604
Joined: Wed Jan 05, 2011 11:41 am
Location: Fort Worth

Re: SCOTUS: Silence before arrest will be used against you

Post by RoyGBiv »

I'm having trouble with the first link in the OP... Seems the page number embedded in the link is causing my browser a problem.

Here's the link to the document (PDF will open).
See page 24 for the quoted language from the OP.

http://www.supremecourt.gov/opinions/12 ... 6_7l48.pdf" onclick="window.open(this.href);return false;
I am not a lawyer. This is NOT legal advice.!
Nothing tempers idealism quite like the cold bath of reality.... SQLGeek
Redneck_Buddha
Senior Member
Posts: 1566
Joined: Thu Dec 20, 2012 4:35 pm
Location: Little Elm, TX

Re: SCOTUS: Silence before arrest will be used against you

Post by Redneck_Buddha »

I'm starting to think that some of these SCOTUS judges have been compromised.
User avatar
Jaguar
Senior Member
Posts: 1332
Joined: Sat Jun 23, 2012 5:24 pm
Location: Just west of Cool, Texas

Re: SCOTUS: Silence before arrest will be used against you

Post by Jaguar »

Redneck_Buddha wrote:I'm starting to think that some of these SCOTUS judges have been compromised.
You mean like someone has collected their metadata, and are using information about who they called, and when, and for what duration to "request" they vote in a particular manner?

Humm, who would have that kind of power... :headscratch
"I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents." -- James Madison
User avatar
VMI77
Senior Member
Posts: 6096
Joined: Tue Jun 29, 2010 5:49 pm
Location: Victoria, Texas

Re: SCOTUS: Silence before arrest will be used against you

Post by VMI77 »

Jaguar wrote:
Redneck_Buddha wrote:I'm starting to think that some of these SCOTUS judges have been compromised.
You mean like someone has collected their metadata, and are using information about who they called, and when, and for what duration to "request" they vote in a particular manner?

Humm, who would have that kind of power... :headscratch

No, like someone has recorded their phone calls, their emails, their website visits, their purchases, and perhaps even bugged their offices, cars, and homes. And maybe even more than that....say, lured them into a honey pot, in order to request they vote in a particular manner. The "more than that" coming only after other surveillance has revealed certain predilections.
"Journalism, n. A job for people who flunked out of STEM courses, enjoy making up stories, and have no detectable integrity or morals."

From the WeaponsMan blog, weaponsman.com
User avatar
JALLEN
Senior Member
Posts: 3081
Joined: Mon May 30, 2011 4:11 pm
Location: Comal County

Re: SCOTUS: Silence before arrest will be used against you

Post by JALLEN »

From reading only the portions quoted above, it occurs to me that the problem isn't with remaining silent, but with allowing investigators to give unqualified opinions of anything they want, without rebuttal. This opens the door for unscrupulous investigators to give free rein to imagination and recite the facts as they wish they had happened.
Luckily, I have enough willpower to control the driving ambition that rages within me.
User avatar
Jaguar
Senior Member
Posts: 1332
Joined: Sat Jun 23, 2012 5:24 pm
Location: Just west of Cool, Texas

Re: SCOTUS: Silence before arrest will be used against you

Post by Jaguar »

VMI77 wrote:
Jaguar wrote:
Redneck_Buddha wrote:I'm starting to think that some of these SCOTUS judges have been compromised.
You mean like someone has collected their metadata, and are using information about who they called, and when, and for what duration to "request" they vote in a particular manner?

Humm, who would have that kind of power... :headscratch

No, like someone has recorded their phone calls, their emails, their website visits, their purchases, and perhaps even bugged their offices, cars, and homes. And maybe even more than that....say, lured them into a honey pot, in order to request they vote in a particular manner. The "more than that" coming only after other surveillance has revealed certain predilections.
I see where you're going, but I was just using what they admit to. Of course any or all of that could be true, I have my suspicions, but they admit to collecting the metadata on all "citizens".
"I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents." -- James Madison
User avatar
VMI77
Senior Member
Posts: 6096
Joined: Tue Jun 29, 2010 5:49 pm
Location: Victoria, Texas

Re: SCOTUS: Silence before arrest will be used against you

Post by VMI77 »

Jaguar wrote:
VMI77 wrote:
Jaguar wrote:
Redneck_Buddha wrote:I'm starting to think that some of these SCOTUS judges have been compromised.
You mean like someone has collected their metadata, and are using information about who they called, and when, and for what duration to "request" they vote in a particular manner?

Humm, who would have that kind of power... :headscratch

No, like someone has recorded their phone calls, their emails, their website visits, their purchases, and perhaps even bugged their offices, cars, and homes. And maybe even more than that....say, lured them into a honey pot, in order to request they vote in a particular manner. The "more than that" coming only after other surveillance has revealed certain predilections.
I see where you're going, but I was just using what they admit to. Of course any or all of that could be true, I have my suspicions, but they admit to collecting the metadata on all "citizens".

We'll eventually find out about the recording. Bugging and the other stuff I'm pretty sure is not at all routine like the internet and phone surveillance, however, power corrupts, and I can envision this unchecked surveillance power being used on high profile and influential people in government.
"Journalism, n. A job for people who flunked out of STEM courses, enjoy making up stories, and have no detectable integrity or morals."

From the WeaponsMan blog, weaponsman.com
Post Reply

Return to “Off-Topic”