Important Fifth Amendment SCOTUS Opinion

[KyJim]

From time to time on this forum, there is discussion about the best way to handle yourself with police if you have to defend yourself using deadly force. Today, the Supreme Court issued an important opinion in Salinas v. Texas that should be factored into the equation. Here's a one paragraph summary from ScotusBlog:

Because merely keeping quiet when police ask damaging questions is not claiming a right to silence, the Supreme Court ruled Monday, prosecutors may use that silence against the suspect at the trial. If an individual is voluntarily talking to the police, he or she must claim the Fifth Amendment right of silence, or lose it; simply saying nothing won’t do, according to the ruling.

http://www.scotusblog.com/2013/06/opinion-recap-if-you-want-to-claim-the-fifth/. A copy of the full opinion is available at http://www.scotusblog.com/2013/06/opinion-recap-if-you-want-to-claim-the-fifth/.

Note that this was a plurality opinion with three justices concurring. Two other justices would have more broadly ruled that prosecutors could use pre-custody silence against the suspect even if they asserted their Fifth Amendment right (there is a circuit split on this issue). That means that Alito's plurality opinion is the law of the land:

Justice Clarence Thomas, in a separate opinion joined by Justice Antonin Scalia, would have answered the constitutional question that the Court had agreed to hear in this case, and declare that prosecutors could have used the suspect’s silence against him at the trial even if he had specifically claimed a Fifth Amendment right.

-- from ScotusBlog.

One noteworthy statement form the plurality:

But popular misconceptions notwithstanding, the 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.”

Salinas, slip op. at 10.

 

[SamNavy]

Does this mean that our long-standing national standard on miranda needs to be revised:

"You're under arrest. You don't have the right to remain silent. You may verbally indicate under the 5th Amendment that you choose to say nothing and not answer my questions, but I will keep asking them anyways, and you will then be committing an additional crime by not talking to me. Anything you say can and will be used against you in a court of... blah blah..."

 

[Fishing_Cabin]

thanks for the post KyJim. I had been waiting for this decision and will read it in length later.

Without going in to more depth, it seems to once again say that a person must state that they want to use his/her fifth amendment rights. A dumb look and silence doesn't do it, it must be clearly communicated. There was a previous SCOTUS case that touched on stating ones fifth amendment right recently also. Seems to be pretty even so far with reading just the short version on scotusblog.

 

[Aguila Blanca]

But popular misconceptions notwithstanding, the 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.”

As SamNavy points out, doesn't the standard Miranda warning say, "You have a right to remain silent?

This decision seems to be saying that right commences only when an officer reads it to a suspect, but IMHO that's not how "rights" work. I either have the right or I don't. The fact that an officer is -- at some point in the proceedings -- required to remind me that I have the right doesn't make it not a right until he has reminded me.

 

[KyJim]

The key difference in Miranda is that it involved an in-custody interrogation which the Supreme Court thought was inherently intimidating and coercive. Thus, they decided to require police to prophylactaclly warn in-custody suspects of their rights. It specifically excluded persons not in custody from this protection. "In-custody" can be custody short of a formal arrest. On the other hand, police are not automatically required to give the Miranda warning even when arresting someone; only if they plan to interrogate them. There are many examples of suspects blurting out incriminating statements after arrest and without being warned.

The court also forbade commenting upon a defendant's silence after being given the Miranda warning, reasoning it was unfair to tell them they could remain silent but then turn around and use it against them. The judge usually admonishes the jury not to draw any adverse inferences from a defendant's silence during trial. That's partially because the Fifth Amendment is primarily a "trial right."

The text of the Fifth Amendment only speaks about compelled testimony, not about making voluntary incriminating statements pre-trial. In colonial days, it was common for a person to appear in person and answer charges. It was expected he or she would speak. They could then be held for trial where they were not actually compelled to testify. There is some support for the view that it was proper to draw adverse inferences on their silence if they did not speak in their own defense before trial.

So, in Salinas the guy was not in custody and did not affirmatively invoke his Fifth Amendment right. The court requires a clear invocation of his right to remain silent so that police are not misled and to draw a "bright line."

There was a fairly recent thread about silence in a self-defense scenario at http://thefiringline.com/forums/showthread.php?t=523884&highlight=silent. At that time I said:

I have seen more than one instance where a claim of self-defense never surfaced until at or just before trial and I've never seen it succeed. It''s extremely difficult to mount a claim of self-defense without the defendant taking the stand. You can bet the prosecutor is going to make it known through questioning that the self-defense claim is something new and that the defendant has concocted it and tailored his/her story to fit what the prosecution has turned over in discovery.

While I am not giving advice, I can tell you what I would do if I had to justify a shooting. I would give the basic version and then affirmatively assert my right to remain silent and talk with my attorney. Assuming my attorney agreed, I would then give a thorough statement later. That's pretty much what Frank said.

Everyone should go back and read Frank Ettin's posts in that thread.

Added: Lots of rights have to be affirmatively invoked. For example, a criminal defendant has an absolute right to testify at trial even over his/her attorney's advice. But the defendant has to affirmatively invoke that right and is presumed to waive if he doesn't.

 

[Come and take it.]

could this include all of the bill of rights?

such as the fourth amendment?

 

[csmsss]

Here's a very interesting (at least in my opinion) writeup of the SCOTUS ruling/opinions in Salinas v. Texas:

http://www.nationalreview.com/bench...m-vs-judicial-policymaking-gregory-j-sullivan

 

[Aguila Blanca]

So here we have a guy who got hammered because he shut up, and in the case of the kid in WV with the NRA tee shirt we have a case of a kid who is getting hammered because hw wouldn't shut up.

Catch-22, anyone?

 

[SIGSHR]

I think saying the words "I have nothing to say" is enough to invoke one's rights, no?

 

[csmsss]

I think saying the words "I have nothing to say" is enough to invoke one's rights, no?

Note: I have completely changed my opinion and recommended answer.

Until you are in custody, that is insufficient. What I would do is ask if I am free to go. If the answer is yes, then bolt. If the answer is No, then Miranda applies (it's a custodial interview/interrogation at that point).

 

[KyJim]

I think saying the words "I have nothing to say" is enough to invoke one's rights, no?

Nope.

I thought this case was important, not because it was a huge change in the law, but because it very clearly makes a point that most people just don't understand. If you want to assert your Fifth Amendment right, you need to specifically assert the Fifth Amendment right and not just remain silent or "I have nothing to say."

 

[KyJim]

Note: I have completely changed my opinion and recommended answer.

Until you are in custody, that is insufficient. What I would do is ask if I am free to go. If the answer is yes, then bolt. If the answer is No, then Miranda applies (it's a custodial interview/interrogation at that point).

I'm not sure that "bolting" is a good thing if you're trying to justify a defensive shooting. Read Frank Ettin's posts I referred to above and my own post I quoted above.

 

[csmsss]

I'm not sure that "bolting" is a good thing if you're trying to justify a defensive shooting. Read Frank Ettin's posts I referred to above and my own post I quoted above.

That wasn't the context of Salinas, nor has it been mentioned in any other posts till yours. A defensive shooting scenario has many atypical characteristics compared to other interactions with LEO's - and we've spoken here at length on other of these potential interactions.

Bottom line as far as I'm concerned is that based on the Salinas decision, it is imperative to learn whether you are in custody as soon as possible. And if you are not in custody, what you don't say can be used against you just as much as what you do say - so there is a strong case to be made for leaving the interaction with the LEO forthwith.

 

[KyJim]

Csmsss - you said:

That wasn't the context of Salinas, nor has it been mentioned in any other posts till yours.

Well, you're the one who actually mentioned bolting in Post #10 when your recommended leaving if not in custody.

No, Salinas did not involve justification of a defensive shooting. I raised that scenario since this is a gun board and we have an awful lot of discussions about defensive use of force.Salinas might nevertheless come into play if the shooter is not in custody and simply "bolts" without giving a statement. Even before Salinas, that type of "silence" could be used for impeachment purposes if the shooter testified (by far the most common scenario). Now, Salinas clarifies that silence can be used in the state's case-in-chief if the shooter does not affirmatively invoke the Fifth Amendment. The concurring opinion raises the specter of silence being used even if the shooter affirmatively asserts the Fifth. We'll have to wait on that to see what happens.

In addition, failing to explain why the shooter used deadly force on someone is going to naturally cast additional suspicion on the shooter and perhaps cause police to pay some additional attention to the shooter. Acting guilty implies guilt.

 

[csmsss]

Well, you're the one who actually mentioned bolting in Post #10 when your recommended leaving if not in custody.

No, Salinas did not involve justification of a defensive shooting. I raised that scenario since this is a gun board and we have an awful lot of discussions about defensive use of force.Salinas might nevertheless come into play if the shooter is not in custody and simply "bolts" without giving a statement. Even before Salinas, that type of "silence" could be used for impeachment purposes if the shooter testified (by far the most common scenario). Now, Salinas clarifies that silence can be used in the state's case-in-chief if the shooter does not affirmatively invoke the Fifth Amendment. The concurring opinion raises the specter of silence being used even if the shooter affirmatively asserts the Fifth. We'll have to wait on that to see what happens.

In addition, failing to explain why the shooter used deadly force on someone is going to naturally cast additional suspicion on the shooter and perhaps cause police to pay some additional attention to the shooter. Acting guilty implies guilt.

If you're going to be pedantic, let's rephrase. The first mention of Salinas v. Texas in the context of a defensive shooting was YOURS. My reference to "bolting" wasn't in that context, it was in the sense of many other contexts where it is unclear whether the person interacting with the LEO is in custody or not. If you are involved a defensive shooting, you will be in custody. You won't have the option of leaving the scene. That isn't the subject I was addressing - you came along and put words into my statement that simply weren't there and make the implication that I'm advocating for a shooter in a defensive shooting to leave the scene. No reasonable interpretation of what I wrote would support that.

 

[KyJim]

csmsss -- I tied Salinas into a defensive shooting scenario in the very first sentence of the very first post in this thread. That was, indeed, the point of the thread. So please forgive me when I read your comment about bolting to refer to that scenario, rather than a non-specific encounter with police. I now understand your point.

 

[csmsss]

csmsss -- I tied Salinas into a defensive shooting scenario in the very first sentence of the very first post in this thread. That was, indeed, the point of the thread. So please forgive me when I read your comment about bolting to refer to that scenario, rather than a non-specific encounter with police. I now understand your point.

I apologize for missing that. No need for you to apologize - I would say we're in complete agreement on the implications of this decision with respect to a defensive shooting scenario as well as other, non-specific encounters with LEO's.

 

[Fishing_Cabin]

The more that I have read on this decision, the more that I tend to like this ruling. The fifth amendment is not an end all amendment (at least to me, and also SCOTUS). As stated in this decision, and how its also been taught to me is that the fifth amendment says that:

http://www.supremecourt.gov/opinions/12pdf/12-246_7l48.pdf

The privilege against self-incrimination “is an exception to the general principle that the Government has the right to everyone’s testimony.” To prevent the privilege from shielding information not properly within its scope, we have long held that a witness who “‘desires the protection of the privilege . . . must claim it’” at the time he relies on it. Murphy, 465 U. S., at 427 (quoting Monia, 317 U. S., at 427). See also United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 113 (1927).

I think its important to note also:

The critical question is whether, under the “circumstances” of this case, petitioner was deprived of the ability to voluntarily invoke the Fifth Amendment. He was not. We have before us no allegation that petitioner’s failure to assert the privilege was involuntary, and it would have been a simple matter for him to say that he was not answering the officer’s question on Fifth Amendment grounds. Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment.

Also important I feel:

Petitioner’s proposed exception would also be very difficult to reconcile with Berghuis v. Thompkins, 560 U. S. 370 (2010). There, we held in the closely related context of post-Miranda silence that a defendant failed to invoke the privilege when he refused to respond to police questioning for 2 hours and 45 minutes. 560 U. S., at ___ (slip op., at 3, 8–10). If the extended custodial silence in that case did not invoke the privilege, then surely the momentary silence in this case did not do so either.

Petitioner and the dissent attempt to distinguish Berghuis by observing that it did not concern the admissibility of the defendant’s silence but instead involved the admissibility of his subsequent statements. Post, at 8–9 (opinion of BREYER, J.). But regardless of whether prosecutors seek to use silence or a confession that follows, the logic of Berghuis applies with equal force: A suspect who stands mute has not done enough to put police on notice that he is relying on his Fifth Amendment privilege.

In support of their proposed exception to the invocation requirement, petitioner and the dissent argue that reliance on the Fifth Amendment privilege is the most likely explanation for silence in a case such as this one. Reply Brief 17; see post, at 9–10 (BREYER, J., dissenting). But whatever the most probable explanation, such silence is “insolubly ambiguous.” See Doyle, v. Ohio, 426 U. S. 610, 617 (1976). 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.” Garner, 424
U. S., at 655.

Now, with all that said...And to get back to self defense. When your claiming self defense, you have moved beyond the prosecution proving your guilt, to having to show that your actions (self defense) are within the accepted legal standards which justify using force in self defense.

By proving that the force was used is within the legal standards, you may be waiving your fifth amendment rights initially (depending on specific circumstances), so that you can proceed forth placing the ground work for your self defense claim. Also, immediately after the use of force, it would be best to point out such things which can support your case, such as evidence, witnesses, and possible surveillance footage that may be available immediately after, but would be difficult to find or connect later on. Why do I say that you need to lay the ground work after a self defense incident? Its better to claim self defense immediately, instead of clamming up and only to later claim at trial that is was self defense.

In a self defense situation, if the law enforcement asked for a voluntary encounter (come by the office and speak with us), it would be best to either consult with your lawyer, and have them present, or go out and hire a lawyer to represent you. Beyond the right to the fifth amendment protections, you also have a right to a lawyer to assist/direct you as well.

My feelings right now are that this case will not have much effect on a self defense case, because I feel its best to waive the fifth amendment right in order to protect evidence that supports the claim of self defense.

 

[speedrrracer]

I think saying the words "I have nothing to say" is enough to invoke one's rights, no?

Nope.

I thought this case was important, not because it was a huge change in the law, but because it very clearly makes a point that most people just don't understand. If you want to assert your Fifth Amendment right, you need to specifically assert the Fifth Amendment right and not just remain silent or "I have nothing to say."

emphasis mine

Does anyone see the logical flaw here? Anyone getting why lawyers are screwing up our society?

I'm not saying there's a solution to the evil of lawyers. Everyone sees the world through the lens of their own experience, so if this nation were run by (e.g.) surgeons we'd all have big zipper scars.

However this quote makes my point perfectly, which is to say that lawyers are making the legal system impossible to deal with, and that's a big problem, and imo, wildly in conflict with what the Founders intended.

 

[Spats McGee]

Well, given that more than a handful of the Founding Fathers were lawyers, I'll have to go with "I disagree with that assessment." If you think you can do a better job than the lawyers, feel free to go get licensed. Law schools and the courts are open for business.

Despite common misconceptions, the A5 does not actually say that you "have a right to remain silent." It says

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

No more, no less.