Important Fifth Amendment SCOTUS Opinion

[speedrrracer]

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.

Feel free to become a lawyer in order to overcome to flaws inherent in the profession of lawyering?

That doesn't make any sense at all.

 

[Frank Ettin]

Feel free to become a lawyer in order to overcome to flaws inherent in the profession of lawyering?

That doesn't make any sense at all.

Well, whether you understand it or not, our legal system evolved over several hundred years and is as it is. It's not going to just change. On the other hand our system of government allows for change, so if you want to change things you can see if you can muster to political power to do so.

But unless/until our legal system changes, it will continue to decide disputes, affecting the lives and property of real people in the real world. You have the option to learn about it, understand it and deal with it. Or you can gnash your teeth and rend your garments complaining about it. The later isn't well calculated to help you deal with things if the law and legal system could become a factor in your life.

 

[speedrrracer]

Well that's very condescending of you.

I hope this simple, logical statement is not incomprehensible...I'm an an engineer, and complex logical statements come easily, probably like complex legal wording is easier for lawyers than many other professions.

learning / understanding / dealing with / effecting change in the system
is not equal to
becoming a lawyer

Getting back to the decision, maybe I'm misunderstanding something...does it not change the rules from Miranda:

...The person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent...

vs

user kyjim posting (I'll assume kyjim is completely accurate in all things)

If you want to assert your Fifth Amendment right, you need to specifically assert the Fifth Amendment right and not just remain silent...

?

Am I understanding this correctly -- I must now know that it's my 5A rights I want to invoke (and, under great stress, not mistake them and ask for my 14A rights or temporarily forget it's an enumerated right altogether and ask for "that thing that protects me from this kinda thing") and then invoke them?

 

[Fishing_Cabin]

Getting back to the decision, maybe I'm misunderstanding something...does it not change the rules from Miranda:

...The person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent...

vs

user kyjim posting (I'll assume kyjim is completely accurate in all things)

Quote:

If you want to assert your Fifth Amendment right, you need to specifically assert the Fifth Amendment right and not just remain silent...

?

speedrracer,

You are confusing a voluntary encounter with a custodial interrogation. A voluntary encounter you make the choice to participate in, and you go in to it knowing (or you should know) your rights. A custodial interrogation is one in which you do not have a choice, but are brought in by LE and questioned, but at first you are read your rights due to Miranda.

Side note. I was always taught to NEVER do Miranda rights in a voluntary encounter, because that the mere presentation of giving Miranda rights can/will convert it from voluntary to a custodial investigation, since Miranda is a key in if someone is free to leave or not.

To over simplify things, if its voluntary, know your rights, and feel free to invoke them. If it is custodial, your rights will be read to you if you are questioned. Keep in mind (depending on your state) some questions are not covered completely by Miranda, such as name, and address, since that is considered basic identification.

This case dealt with a voluntary encounter, not a custodial encounter. Its a big difference.

 

[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.

Feel free to become a lawyer in order to overcome to flaws inherent in the profession of lawyering?

That doesn't make any sense at all.

Perhaps I should have phrased that better, but as Frank pointed out, there are other ways to attempt to fix these alleged "flaws inherent in the profession of lawyering" without actually becoming a licensed attorney. Go vote or run for office. Neither requires a law degree. For that matter, it's my understanding that getting a law license in CA doesn't even require going to law school, if you're so inclined.

You don't have to like us, but there's nobody better suited to dealing with the realities of legal matters than lawyers.

 

[speedrrracer]

You are confusing a voluntary encounter with a custodial interrogation.

No, but I did choose my quotes poorly; sorry about that. Answer me this: Before this opinion, did I have a blanket, universal right to remain silent (except for identification, perhaps, as you mentioned) at all times and under all circumstances, without having that silence used against me?

This case dealt with a voluntary encounter, not a custodial encounter. Its a big difference.

Agreed, and to be clear, I don't really care about the person involved in this case, or if the ruling was fair to that person. It's the "extra" stuff that I'm trying to focus on. I only care about (what I perceive to be) the sweeping change in the so-called "right to remain silent", and how that will affect all of society going forward.

Perhaps I should have phrased that better, but as Frank pointed out, there are other ways to attempt to fix these alleged "flaws inherent in the profession of lawyering" without actually becoming a licensed attorney. Go vote or run for office. Neither requires a law degree. For that matter, it's my understanding that getting a law license in CA doesn't even require going to law school, if you're so inclined.

You don't have to like us, but there's nobody better suited to dealing with the realities of legal matters than lawyers.

Perhaps you are right, but again, not picking on lawyers alone. If engineers ran this country, then the flaws inherent in the profession of engineering would be causing problems for this country (just different problems). I read this ruling and my take is that the particular flaws of being a lawyer are all over this ruling -- only a lawyer would think this ruling is a good idea.

But maybe I'm misunderstanding the situation, since laws can be complex, and, not being a lawyer, maybe the nuances here are not clear to me. So I'm trying to make sure I understand what this ruling actually means.

So let me ask you the 2nd part of my question to Fishing Cabin: Now that this opinion has been handed down, is it correct to say I do not have a right to remain silent without first speaking (then hopefully returning to silence) and more, my speech must include some very specific legal verbiage referencing the correct amendment?

 

[zukiphile]

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.

AB, I would guess that your view of rights would be the majority view in most groups; it is reasonable to assert that one doesn't waive a right to silence by failing to speak to assert it.

The problem with seeing this decision as am imposition on the 5th Am. is that, as Spats notes, the 5th doesn't describe a right to remain silent. Of course, we have a sense that it does from thousands of cop shows, but that isn't in the COTUS itself.

In Salinas, the prosecutor appears to have used a hearsay exception, a party admission. The defendant wasn't compelled to testify at all, but the testimony of others about the conduct indicating guilt was admitted. This doesn't strike me as novel ground, even of the plurality reasoning is at odds with some of our ideas about how and why we hold rights.

 

[speedrrracer]

The problem with seeing this decision as am imposition on the 5th Am. is that, as Spats notes, the 5th doesn't describe a right to remain silent. Of course, we have a sense that it does from thousands of cop shows, but that isn't in the COTUS itself.

COTUS doesn't convey a right to an abortion, either. That "right" came from a SCOTUS decision, just as the right to remain silent came from a SCOTUS decision, in Miranda.

Now we're fleshing out the boundaries of the "right", as is done with all rights over time, and that's part of the process.

 

[zukiphile]

COTUS doesn't convey a right to an abortion, either. That "right" came from a SCOTUS decision, just as the right to remain silent came from a SCOTUS decision, in Miranda.

Now we're fleshing out the boundaries of the "right", as is done with all rights over time, and that's part of the process.

I do not disagree, though some here will dislike the substance of your analogy, so I will avoid it.

The peril arises when the link between constitutional text and case law is so attenuated that case law develops primarily in reference to itself rather than to the underlying document.

The counter analogy might be Miller and Heller. One could conceivably have resolved the question presented by Heller with some of the ideas presented in Miller, namely that the Second Amendment protects primarily or exclusively arms suitable for militia service. Heller did not do that, and is no mere extension of Miller.

 

[Fishing_Cabin]

Answer me this: Before this opinion, did I have a blanket, universal right to remain silent (except for identification, perhaps, as you mentioned) at all times and under all circumstances, without having that silence used against me?

No. Previous case called Berghuis v Thompkins held that the right had to be unambiguously invoked in a custodial interview, to keep it in line with the right to counsel in the Davis decision. The Salinas case just confirmed that the right to remain silent must be invoked unambiguously as well in a voluntary encounter. Also, if in a custodial interrogation, after being read your rights, you will be asked if you understand them, or sign that you understand them. If you do not answer by remaining mute, it may be implied as a waiver of your rights

http://www.supremecourt.gov/opinions/09pdf/08-1470.pdf

Held:
1. The state court’s decision rejecting Thompkins’ Miranda claim was correct under de novo review and therefore necessarily reason-able under AEDPA’s more deferential standard of review. Pp. 7–17.
(a) Thompkins’ silence during the interrogation did not invoke his right to remain silent. A suspect’s Miranda right to counsel must be invoked “unambiguously.” Davis v. United States, 512 U. S. 452, 459. If the accused makes an “ambiguous or equivocal” statement or no statement, the police are not required to end the interrogation, ibid., or ask questions to clarify the accused’s intent, id., at 461–462. There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis. Both protect the privilege against compulsory self-incrimination by requiring an interrogation to cease when either right is invoked. The unambiguous invocation requirement results in an objective inquiry that “avoid difficulties of proof and . . . provide guidance to officers” on how to proceed in the face of ambiguity. Davis, supra, at 458–459. Had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the questioning. He did neither. Pp. 8–10.

....

(c) Thompkins argues that, even if his answer to Helgert could constitute a waiver of his right to remain silent, the police were not allowed to question him until they first obtained a waiver. However, a rule requiring a waiver at the outset would be inconsistent with Butler’s holding that courts can infer a waiver “from the actions and words of the person interrogated.” 441 U. S., at 373. Any waiver, express or implied, may be contradicted by an invocation at any time,terminating further interrogation. When the suspect knows that Miranda rights can be invoked at any time, he or she can reassess his or her immediate and long-term interests as the interrogation progresses. After giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived Miranda rights. Thus, the police were not required to obtain a waiver of Thompkins’ Miranda rights before interrogating him. Pp. 15–17.

Now that this opinion has been handed down, is it correct to say I do not have a right to remain silent without first speaking (then hopefully returning to silence) and more, my speech must include some very specific legal verbiage referencing the correct amendment?

Again, see my previous quote from SCOTUS Berghuis v Thompkins above.

 

[Frank Ettin]

Another way perhaps to look at Salinas is that brings the "silence" issue more in line with the general proposition that evidence of conduct is admissible. Silence can be a subset of conduct or part of a course of conduct. It's long been accepted that conduct can be probative of, among other things, state of mind, and that a trier of fact may draw inferences from conduct.

 

[Dan F]

This decision, and the discussion in this thread concerning its implications, just reinforces in me the sense of dread at I have ever being the subject of a police investigation.

I consider myself to be a fairly intelligent individual, but the more I hear about what I need to know to avoid potential legal pitfalls when talking to police, the less confident I feel in saying anything. And now, it seems, even avoiding saying anything can be a mistake.

And all of this would in all likelihood be taking place under highly stressful circumstances.

I'd like to believe that "the system" is basically benign and forgiving of those that are "just trying to do the right thing" and haven't "done anything wrong", but I just can't muster any trust that that is anything but naive.

I have no confidence that I would be able to differentiate in a meaningful way whether I was "in custody", NOT "in custody", or somewhere in between, and to be able to use the proper incantations at the appropriate times to avoid seriously screwing myself over by accident, even if I am "innocent".

I think, if this dire situation ever arises, i.e. I shoot an intruder in my home, all I should say is "Officer, I want to cooperate, and I will, but even though I believe I acted appropriately and legally here, I'm really afraid of saying anything at all until I have an attorney to advise me."

I can't help but feel there is a problem when the law-abiding realistically need to fear talking to a cop when they've defended themselves. Oh well.

 

[KyJim]

Answer me this: Before this opinion, did I have a blanket, universal right to remain silent (except for identification, perhaps, as you mentioned) at all times and under all circumstances, without having that silence used against me?

The short answer is no. Look at how the Supreme Court framed the issue:

We granted certiorari, 568 U. S. ___ (2013), to resolve a division of authority in the lower courts over whether the prosecution may use a defendant's assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief. Compare, e.g., United States v. Rivera, 944 F. 2d 1563, 1568 (CA11 1991), with United States v. Moore, 104 F. 3d 377, 386 (CADC 1997). But because petitioner did not invoke the privilege during his interview, we find it unnecessary to reach that question.

So, when the court took it up, it thought the issue was whether the prosecutor could comment on a suspect's silence in a non-custodial setting and affirmatively invokes his or her right to remain silent. The lower courts were split on the issue. It turned out, however, that the suspect had not invoked his Fifth Amendment rights but simply declined to answer one or two questions. Since he did not affirmatively assert his right, he could not rely upon it to keep the prosecutor from commenting on his silence. The bigger question is whether the a prosecutor can comment on silence where the suspect specifically invokes the Fifth Amendment in a non-custodial setting. We don't know the answer to that.

I'll repeat what I said earlier. Historically, a defendant was expected to explain himself to a judicial official before trial and the judicial official could infer guilt from the defendant's failure to do so. He simply could not be compelled to testify at trial. And, to my knowledge, truly involuntary confessions have always been inadmissible; e.g., confessions obtained by torture.

Speedrrracer, you quoted me:

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."

Then asked,

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

You see a logical flaw because you don't understand the history. As noted above, the right was not always read as broadly as it is today. In addition, comment on the right is not allowed when a person has specifically relied upon the right. How do we know if someone has relied upon the right or not? We don't unless the suspect claims it.

It is indeed frustrating that our laws can seem so complicated. Yet, life is complicated. Since you're an engineer, think in terms of the Chaos Theory. While the overall effect of something may be quantified and predicted, the behavior of individual molecules cannot be predicted with absolute certainty. Individuals are the molecules and there are a multitude of factors which can influence those molecules and how they react. It is up to the law and the lawyers to use general rules and apply them to very specific and, perhaps, unique circumstances.


DanF said:

I have no confidence that I would be able to differentiate in a meaningful way whether I was "in custody", NOT "in custody", or somewhere in between . . .

The test is whether a reasonable person would believe he or she was free to leave. The easiest way of determining this is to ask if you are free to go. Life is seldom that simple, however.

 

[Fishing_Cabin]

So, when the court took it up, it thought the issue was whether the prosecutor could comment on a suspect's silence in a non-custodial setting and affirmatively invokes his or her right to remain silent. The lower courts were split on the issue. It turned out, however, that the suspect had not invoked his Fifth Amendment rights but simply declined to answer one or two questions. Since he did not affirmatively assert his right, he could not rely upon it to keep the prosecutor from commenting on his silence. The bigger question is whether the a prosecutor can comment on silence where the suspect specifically invokes the Fifth Amendment in a non-custodial setting. We don't know the answer to that.

I'll repeat what I said earlier. Historically, a defendant was expected to explain himself to a judicial official before trial and the judicial official could infer guilt from the defendant's failure to do so. He simply could not be compelled to testify at trial. And, to my knowledge, truly involuntary confessions have always been inadmissible; e.g., confessions obtained by torture.

KyJim, not to pick on you specifically since you started the thread...You hit on something I have tried to get across to folks for the last many years. I will quote you as:

...Since he did not affirmatively assert his right, he could not rely upon it to keep the prosecutor from commenting on his silence...

That begs to ask a serious question. Honestly. How does remaining mute affirmatively assert your right granted by the fifth amendment? I ask that because of two issues.

1. I am a LEO and while we (LE) are complained about being the "thought police", by remaining silent, the person being question/interrogated/etc, is relying on LE to read their thoughts instead of actually unambiguously claiming their fifth amendment right. If a person actually wanted their right, why would they not want to actually claim it as theirs by invoking it, instead of leaving it to a chance interpretation?

2. By remaining "silent" as in mute, how does LE know that you not only understand the question, language, etc, but also have a level of cognitive intelligence to answer the questions at hand?

In all honesty, the folks who claim "don't talk to police" or "remain silent" always puzzle me... After all, if they did not want to be questioned, according to SCOTUS, its simple to end any questioning by just simply invoking your right. I guess I just don't get why folks do not want to invoke their right, but instead want to play the silence "game"...

ETA: I know, and agree with this SCOTUS decision. I just would like to hear from the other side who may feel that silence alone is enough, instead of actually invoking their right.

 

[KyJim]

Fishing_Cabin -- I think you pretty well answered the question you posed to me. The Supreme Court stated some of the same concerns you did.

I'll also mention that a state court might read read a state constitutional right more broadly than the federal constitutional right.

 

[speedrrracer]

I just would like to hear from the other side who may feel that silence alone is enough, instead of actually invoking their right.

Well thanks to the concerted efforts of Frank, Spats, you, kyjim, and probably other lawyers in this thread, I think I'm starting to get the gist of this ruling... I really appreciate all your time!

However, that is part of my point, and part of the problem. No one should have to know, say, or do anything in order to enjoy their rights, and piling on extra rulings about when you can and when you can't and what you have to say to whom under what circumstances seems ridiculous, because it creates a system where only some inner circle knows how to effect this right (and even then only if they get it right in a stressful moment).

Why should anyone be forced to ever take action to claim their rights? Because it makes LE's life easier? Does anyone seriously believe that the Founding Fathers created this nation to make LE's life easier?

If a person actually wanted their right, why would they not want to actually claim it as theirs by invoking it, instead of leaving it to a chance interpretation?

Well, maybe because they aren't up on the latest SCOTUS opinion, and aren't sure how. There shouldn't be any interpretation -- I should have my rights by default.

By remaining "silent" as in mute, how does LE know that you not only understand the question, language, etc, but also have a level of cognitive intelligence to answer the questions at hand?

Bluntly, who cares what LE knows? When it comes to choosing between something which potentially benefits LE but imposes on citizens' liberties, LE (or anything else, including the liberty-consuming nuisance called "public safety") needs to be put down in it's proper place, and that right quick.

I guess I just don't get why folks do not want to invoke their right, but instead want to play the silence "game"...

Maybe because it's been drilled into their heads via episodes of Law and Order that "...anything you say can and will be used against you in a court of law..."
so they figure that if they say nothing, then there's nothing to be used against them. Certainly no educational system is informing them of the rules on how to play the ever-changing "effect your rights" game, and in this society, even if such education existed, it would force you to sign a waiver disclaiming any liability for giving you incorrect instructions in that regard!

I agree life is complicated, and I can generally stomach therefore that many laws tend towards the complicated, but I'm having trouble believing that this country was founded so that the enjoyment of rights should be so burdened.

 

[Frank Ettin]

...No one should have to know, say, or do anything in order to enjoy their rights, ....

Why should anyone be forced to ever take action to claim their rights?...

But, as Spats pointed out, the right protected by the Fifth Amendment is not a right to remain silent -- even if we tend to use that imprecise short hand to describe it. The actual right described is to not be, "...compelled in any criminal case to be a witness against himself..."

On the other hand, silence is a form of conduct, and it's long been the fact that conduct can be evidence and that a jury may draw inferences from conduct.

• U.S. v. Perkins, 937 F.2d 1397 (C.A.9 (Cal.), 1990), at 1402:

  ...the instruction explicitly stated, "the jury may consider [the false statements] as circumstantial evidence of the defendant's guilt." Id. at 1104. Second, we have approved the use of this instruction on false exculpatory statements. See United States v. Boekelman, 594 F.2d 1238, 1240 (9th Cir.1979) (court noted approval of standard Devitt & Blackmar instruction and distinguished Di Stefano in upholding a variation from the standard instruction); United States v. Wood, 550 F.2d 435, 443 (9th Cir.1976)....

  
  
• State v. Wimbush, 260 Iowa 1262, 150 N.W.2d 653 (Iowa, 1967), at 656:

  ...In Wigmore on Evidence, Third Ed., section 276, Volume II, page 111, under the title 'Conduct as Evidence of Guilt' the editor states: 'It is today universally conceded that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.'
  
  McCormick on Evidence, section 248, pages 532, 533, puts it thus: "The wicked flee when no man pursueth.' Many acts of a defendant after the crime seeking to escape the toils of the law are received as admissions by conduct, constituting circumstantial evidence of consciousness of guilt and hence of the fact of guilt itself. In this class are flight from the locality after the crime, assuming a false name, resisting arrest, * * *.' See also Jones on Evidence, Fifth Ed., section 386, page 717.
  
  We have held many times that evidence of escape from custody and flight of an accused is admissible as a criminating circumstance. State v. O'Meara, 190 Iowa 613, 625, 177 N.W. 563, 569; State v. Heath, 202 Iowa 153, 156, 209 N.W. 279, 281; State v. Ford, Iowa, 145 N.W.2d 638, 641. See also 29 Am.Jur.2d, Evidence, section 280, and 22A C.J.S. Criminal Law § 625 a....

  
  
• State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (Neb., 1991), at 743:

  ... Although Clancy involved evidence of the defendant's attempted intimidation or actual intimidation of a State's informant or witness, evidence which was admissible under Neb.Evid.R. 404(2) ("other acts"), the rationale for "conscious guilt" evidence is equally applicable in Lonnecker's case.
  
  Lonnecker's hiding in the crawl space was evidence of his "conscious guilt" concerning the marijuana located on the premises which were under his control, that is, a conscious guilt concerning possession and cultivation of marijuana as a controlled substance. ...

  
  
• Martin v. State, 707 S.W.2d 243 (Tex.App.-Beaumont, 1986), at 245:

  ...In 2 RAY, TEXAS LAW OF EVIDENCE CIVIL AND CRIMINAL sec. 1538 (Texas Practice 3rd ed. 1980), we find:
  
  "Sec. 1538 Conduct as Evidence of Guilt
  
  "A 'consciousness of guilt' is perhaps one of the strongest kinds of evidence of guilt. It is consequently a well accepted principle that any conduct on the part of a person accused of crime, subsequent to its commission, which indicates a 'consciousness of guilt' may be received as a circumstance tending to prove that he committed the act with which he is charged." ...
  
  See also Cuellar v. State, 613 S.W.2d 494 (Tex.Crim.App.1981)....

 

[speedrrracer]

I agree all the cases you cite show examples of behavior, and I agree behavior should generally be admissible, but calling silence behavior to me is plainly wrong.

Behavior implies action, and silence is quite obviously the absence of the speech action. The default condition of the human body is silence, and so to call that behavior is ridiculous. Therefore, corpses can now be said to exhibit legal behavior. Madness.

 

[Frank Ettin]

...all the cases you cite show examples of behavior...

But the word used in the cases is not "behavior" but "conduct."

"Conduct" means:

the act, manner, or process of carrying on

That can clearly include keeping silent when asked a question. Not answering is in a particular instance is the manner of response.

And even behavior could include keeping silent. "Behavior" means:

1. a : the manner of conducting oneself
b :...
c : the response of an individual, group, or species to its environment
2. : the way in which someone behaves; also : an instance of such behavior
...

 

[KyJim]

Behavior implies action, and silence is quite obviously the absence of the speech action. The default condition of the human body is silence, and so to call that behavior is ridiculous.

Let's lay aside the Constitution for a moment. Suppose I walk up to you while you're with a group of co-workers and loudly accuse you of peeping through my daughter's bedroom window. But you don't say anything in response. Wouldn't an innocent person deny it? By remaining silent when circumstances would ordinarily call for a response, you are displaying consciousness of guilt. This is called an adoptive admission. Now, you can try to explain it later but that's for the jury to consider.

This sort of evidence has long been admissible in both civil and criminal cases. It's not ridiculous. It's a logical inference based upon common human behavior.