Important Fifth Amendment SCOTUS Opinion

[KyJim]

I see Frank was a bit quicker in responding.

Let me respond to another point:

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.

It is important for an officer to know in order to protect civil liberties. If they know the person is invoking his Fifth Amendment right, they know to stop the questioning.

 

[Fishing_Cabin]

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!

Thanks for the compliment, but I need to admit that while I do have a firm understanding of this, I am not a JD, I am a LEO. Also, since you previously mentioned engineering, I must confess my B.S. is "Engineering Technology" as in part engineering part public admin. Anyway...

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).

So, no one should have to do anything in order to enjoy their right? What about the right to a lawyer? If you do not do anything does a lawyer just pop out of thin air because you may have a desire? No, a lawyer doesn't. You must ask for a lawyer, and go through the process of hiring your own, or obtaining a court appointed one. Why should the right to remain silent (as in, not testify against yourself) be any different? Also, just being humorous for a moment. If someone doesn't have to do anything for their right, who gets stuck with the bill for the lawyer? IMHO, SCOTUS connected the rights/actions to invoke the rights so it would be easier to understand, instead of a patchwork for each.

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.

So if you should have your rights by default, there should be no Miranda warnings to advise you of your rights, and also hence, never any questioning unless you seek it out on your own? Sounds strange....

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.

If SCOTUS and others felt the same way, there would probably be more in custody death reports. There is a reason when processing a DWI that LE tries to establish a level of communication. Yes part of it deals with custodial interrogation, but well beyond that, and even if they claim their fifth, there is a safety/health aspect as well. There is good reason why LE should have an indication of well being and cognitive response to better protect the suspect. But there again, you said "who cares what LE knows?"

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.

Then if they are obtaining their knowledge by watching "for profit" television, instead of gaining knowledge on their own, in an unbiased fashion, I say its their fault. By "for profit" I mean, with all the commercials, which in turn pay for the programming that we watch on TV, there is a profit aspect which outweighs accuracy.

Frank and KyJim already pointed out other issues as well. I am just trying to answer your questions point to point, and I hope that helps. No offense intended.

speedrracer,

I do thank you for your thoughts. Im not trying to pick on you either, just trying to better understand the other point of view. Please do not take offense.

FC

 

[speedrrracer]

So, no one should have to do anything in order to enjoy their right? What about the right to a lawyer?

Glad you asked. Easy answer if we follow the default of having our rights, as opposed to the current system. If I don't make any efforts to obtain or demand a lawyer or reject one, one should be provided to me by default, just like it says in the Miranda warning. So if the police show up to question me, and I'm not making any overt / obvious action to obtain / reject a lawyer, they should be required to plop one down right next to me in order to protect my rights, should I wish to avail myself of his services.

This is especially true since we're going to continue down this inane path of ever-more complicated legislation, and still maintain the obscene notion that ignorance of the law is no excuse. We need to own up to the fact that due to the ridiculously complicated legal system, ignorance of the law is now the default position, and legal aid is therefore to be provided unless rejected. That requires no input from anyone.

Also, just being humorous for a moment. If someone doesn't have to do anything for their right, who gets stuck with the bill for the lawyer?

Who gets stuck with the bill for LE? Should come out of the same budget.
My taxes shouldn't only pay the bill for people whose sole job is to find evidence to convict me, in fact they should preferentially pay for public servants whose sole job it is to protect me and my rights, since as we all know, the police do not need to protect citizens (at least, according to my understanding of Gonzalez, Warren v D.C., et al)

So if you should have your rights by default, there should be no Miranda warnings to advise you of your rights, and also hence, never any questioning unless you seek it out on your own?

I didn't say this, so I don't know where you pulled this from. I completely disagree. Why not also have Miranda warnings, just to add another layer of protection for citizens? I don't understand the bit about "...never any questioning..." -- can you explain that?

There is good reason why LE should have an indication of well being and cognitive response to better protect the suspect.

Disagree. LE is not qualified to make medical judgments based on interviews of any length. If LE suspects for any reason a citizen requires medical care, they can call for medical care and offer it to the citizen, who is then free to ignore the medics if he chooses. Legally requiring the citizen to speak adds nothing to this whatsoever -- it's unlikely the citizen is qualified to make medical judgments. If the citizen wishes to convey a desire for medical care, they can always do so. This whole, "It's for your own good" thing is both infantilizing and it's misuse / abuse is perhaps the single largest threat to personal liberty.

However, I suspect with your experience you can come up with a better / more specific scenario that will perhaps change my opinion. I'd like to hear it, if you don't mind.

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

Different word, same failings. Conduct still implies action, and silence is still the absence of action. Corpses cannot engage in conduct. To get as fine-grained as possible, what I think we should accept is the transition from speech to silence. A transition is clearly conduct, behavior, and an action.

If they know the person is invoking his Fifth Amendment right, they know to stop the questioning.

This is seriously unpersuasive. Who cares if LE knows to stop questioning? I'm going to have to remember some legal magic passwords just for the convenience of LE? Does this honestly strike no one else as wrong?

 

[zukiphile]

Different word, same failings. Conduct still implies action, and silence is still the absence of action. Corpses cannot engage in conduct.

That is the point. The object of a question is not a corpse. An individual to whom the question "Did you shoot John Smith?" is posed, and who decides to respond by folding his arms and going strangely silent has made a conscious decision that his interests are better served by his silence than by any words whatsoever.

Behaviors, conduct and responses may all indicate a guilty state of mind.

If I am wearing the shiny badge and the magic blue shirt and I ask you "did you shoot John Smith?" and you respond with "well, yes. Yes I did.", I will come to a conclusion based on that response.

If I pose the question and you turn around and run away as fast as you can, I will imagine that you have chosen a course of action that reflects your interests and your state of mind.

The same may be said of the affirmative act of deciding to go silent.

 

[Frank Ettin]

...Conduct still implies action,...

No it does not. Read the definitions again. It may imply an ability to do or choose; but when that choice is to sit still silently, that is conduct.

 

[Spats McGee]

Glad you asked. Easy answer if we follow the default of having our rights, as opposed to the current system. If I don't make any efforts to obtain or demand a lawyer or reject one, one should be provided to me by default, just like it says in the Miranda warning. So if the police show up to question me, and I'm not making any overt / obvious action to obtain / reject a lawyer, they should be required to plop one down right next to me in order to protect my rights, should I wish to avail myself of his services.

I have to disagree with this one, for a couple of reasons. First, it seems to presume that all people are entitled to an attorney at the State's expense, regardless of the offense charged. That's not the law as it stands today, and I see no reason to plop a lawyer down next to someone who's charged with driving without wearing a seatbelt (not a jailable offense in AR). If you'll think back to the old Miranda warnings . . . "You have a right to an attorney. If you cannot afford one, one will be provided . . . " There are a couple of wrinkles here: (1) if there's no risk of jail time, the Sixth Amendment right to counsel does not automatically attach; and (2) just because you have a right to an attorney does not automatically mean that you get one at the State's expense, hence the "if you cannot afford one" language. The solution that you have proposed, taken to its logical extreme, would mean that we would have to put a public defender in every squad car in the nation, just in case the police have an encounter with a citizen and choose to ask questions.

Second, as more of a policy matter than anything else, why should we not expect people to speak up and say that they'd like to exercise their rights? Should we not expect and encourage them to take some minimal steps to exercise those rights. Saying "I want a lawyer," or "I'm going to exercise my Fifth Amendment right now" hardly seems burdensome.

There is good reason why LE should have an indication of well being and cognitive response to better protect the suspect.

Disagree. LE is not qualified to make medical judgments based on interviews of any length. If LE suspects for any reason a citizen requires medical care, they can call for medical care and offer it to the citizen, who is then free to ignore the medics if he chooses. Legally requiring the citizen to speak adds nothing to this whatsoever -- it's unlikely the citizen is qualified to make medical judgments. If the citizen wishes to convey a desire for medical care, they can always do so. This whole, "It's for your own good" thing is both infantilizing and it's misuse / abuse is perhaps the single largest threat to personal liberty.

It's not necessarily about making "medical judgments." In part, it's about being able to determine if a "medical judgment" is necessary. If a LEO makes no effort to communicate with a person, then the LEO has no way of determining if the person is deaf, mute, intoxicated, high, psychotic, or even whether they're cooperative. Many people who have absolutely no medical training, and perhaps only a minimal education are perfectly capable of determining another person's condition, at least to a minimal degree of accuracy. Legally requiring the citizen to speak certainly does add something to that. For example, it aids the LEO in determining if the person is intoxicated (slurred speech), or perhaps psychotic (speaking about how the officers body mike is a mind control device). Once the citizen has spoken, the officer is much better able to make a determination as to whether medical assistance is necessary, or even desired by the citizen. If the officer asks "why are you staggering down the street?," a call for medical help may be a waste of taxpayer money if the citizen's answer is "oh, I just had a little too much tequila, and I just live two doors down." OTOH, if the answer is "because my boyfriend hit me over the head with a tequila bottle," then the officer can reasonably: (a) call for medical assistance; and (b) go arrest the boyfriend, thus helping protect the injured party, at least for the moment.

Different word, same failings. Conduct still implies action, and silence is still the absence of action. Corpses cannot engage in conduct. To get as fine-grained as possible, what I think we should accept is the transition from speech to silence. A transition is clearly conduct, behavior, and an action.

The transition idea is not tenable. Imagine the following scenario:
Officer Friendly: What's your name?
Spats: Spats McGee
Officer Friendly: Where are you headed today?
Spats: To work.
Officer Friendly: (pauses briefly to listen to his radio) Do you know why I stopped you?
Spats: No.

Now, in that conversation, could it not be said that I made a "transition to silence" at the end of every one of my sentences? What about the pause that the officer took to listen to his radio? Is that a transition to silence, such as to trigger the Sixth Amendment right to counsel, just because I was polite enough to not talk while he was trying to listen?

If the ends of the sentences were such transitions, did I then waive my Fifth Amendment right not to be compelled to testify, just by answering the next question?

 

[speedrrracer]

(I continue to enjoy, learn from, and appreciate all answers in this thread)

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.

I'm sad to hear this is the case, since it sounds like a train wreck of soft-science garbage. No, an innocent person would not necessarily even dignify such a ridiculous accusation with a response. I might just ignore the person, assuming they are on drugs or are speaking to someone else. But by ignoring them I remain silent -- does that make me guilty? I just "displayed consciousness of guilt"...

who decides to respond by folding his arms and going strangely silent

Strangely silent? You must be a prosecutor. Who gets to determine what is strange and what is not? What is strange about shutting one's mouth (since anything I say can and will be used against me) when accusations of murder are flying around? Isn't it a wiser course than risking, in a moment of great stress, saying something that might turn a jury against me?
Oh, you say, but couldn't your silence be used by a prosecutor to turn that jury against you? Probably, and that's at the feet of the lawyers I was complaining about earlier. (Presumably) Innocent man, instantly damned if he does and damned if he doesn't, all because of this wonderful system we have.

The same may be said of the affirmative act of deciding to go silent.

Now this I could almost go with, except it's impossible to prove to anyone that I have decided to be silent. It requires the ability to read my mind to know that I have considered options and made a decision, which is not necessarily true, since, as I said, the default condition of the human body is not speech but silence. Therefore silence requires no decision, it is speech which requires it.

The solution that you have proposed, taken to its logical extreme, would mean that we would have to put a public defender in every squad car in the nation, just in case the police have an encounter with a citizen and choose to ask questions.

And it would be tragic if all those citizens were to have someone looking out for their rights. Think of the children! So my extreme costs a lot of money, reduces passenger capacity in cop cars, and protects the rights of citizens.

SCOTUS's solution, taken to it's extreme, does what? The destruction of personal liberty via an endless array of increasingly-complicated legal hoops through which we must all jump, only to satisfy an omnipotent LE / govt.

I guess I'll take my extreme for $200, Alex. More importantly, which extreme is more likely Constitutional?

Second, as more of a policy matter than anything else, why should we not expect people to speak up and say that they'd like to exercise their rights? Should we not expect and encourage them to take some minimal steps to exercise those rights. Saying "I want a lawyer," or "I'm going to exercise my Fifth Amendment right now" hardly seems burdensome.

Hardly seems burdensome, says the trained lawyer! Again, what if I made you solve differential equations to effect your rights? Wouldn't slow me down, so what's your malfunction? This is the problem I mentioned long ago, rearing it's head yet again.
As for asking specifically for 5A rights, again, how many Americans do you really think have any idea what the 5A encompasses? 5%?

There's no consideration given for what an average citizen will be going through in such a scenario. Average citizen is likely uneducated, terrified of the cops, terrified of going to jail, terrified of saying the wrong thing. Maybe he doesn't even speak English -- here in CA, that's closing in on a likelihood.

These are the people that rights are supposed to protect, but instead we continue to complicate the decision tree such people are supposed to magically know and process, without error, under great duress. For what reason? To make life easier on LE?

 

[Spats McGee]

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.

I'm sad to hear this is the case, since it sounds like a train wreck of soft-science garbage.

Right, wrong or indifferent, people don't necessarily behave in the same ways that the subjects of the hard sciences do. The failure to refute an accusation when an ordinary, reasonable person would do so has long been taken as evidence that the accused has no good response -- hence, evidence of guilt.

Hardly seems burdensome, says the trained lawyer! Again, what if I made you solve differential equations to effect your rights? Wouldn't slow me down, so what's your malfunction? This is the problem I mentioned long ago, rearing it's head yet again.
As for asking specifically for 5A rights, again, how many Americans do you really think have any idea what the 5A encompasses? 5%?

You really think someone needs special training to say that they want to exercise their Fifth Amendment right?!? Is that really comparable to calculating differential equations? It's not like I've suggested that a person be able to recite the contours of substantive and procedural due process.

There's no consideration given for what an average citizen will be going through in such a scenario. Average citizen is likely uneducated, terrified of the cops, terrified of going to jail, terrified of saying the wrong thing. Maybe he doesn't even speak English -- here in CA, that's closing in on a likelihood.

That doesn't seem like a good reason for a police officer to ask questions (thus, asking the citizen to speak)? To see if the citizen speaks English?

These are the people that rights are supposed to protect, but instead we continue to complicate the decision tree such people are supposed to magically know and process, without error, under great duress. For what reason? To make life easier on LE?

Actually, I'm still working my way through the decision, but from what I've read, the petitioner was the one asking SCOTUS to carve out another exception to long-standing rules. Read in that light (& without having finished the decision), it looks like SCOTUS stood by long-standing principles rather than complicating things further.

 

[MLeake]

The flip-side of this, as Mas has been known to point out in print and in MAG-40, is that for LEO-involved shootings, it is normal for the officers to not be questioned for 24+ hours, and then only with a representative present.

This begs the question, why does it not imply some sort of guilt for the officers to wait to give statements until they have had time to get their nerves under control, and confer with reps?

Or the converse, why does it imply some sort of guilt for the rest of us?

 

[csmsss]

The flip-side of this, as Mas has been known to point out in print and in MAG-40, is that for LEO-involved shootings, it is normal for the officers to not be questioned for 24+ hours, and then only with a representative present.

This begs the question, why does it not imply some sort of guilt for the officers to wait to give statements until they have had time to get their nerves under control, and confer with reps?

Or the converse, why does it imply some sort of guilt for the rest of us?

The rest of us do not have a collective bargaining agreement with the state...

 

[speedrrracer]

Right, wrong or indifferent, people don't necessarily behave in the same ways that the subjects of the hard sciences do.

In fact, the truth is that not only do people not behave in the same way as the subjects of the hard sciences, they don't behave in the same way, period.

To decide that one reaction is normal and all others are evidence of guilt is ridiculous. Human experience is far too diverse to be confined to one acceptable reaction. Adhering to such nonsense grows further ridiculous as the population grows -- more humans == more diversity in the population == wider array of possible reactions to a given stimulus.

You really think someone needs special training to say that they want to exercise their Fifth Amendment right?!?

Of 1,000 citizens who were asked in a Newsweek poll: ” ‘What is the supreme law of the land?’ 70 percent of the 1,000 citizens polled by Newsweek couldn’t answer correctly.” (ABC News, May 13). http://www.cato.org/publications/commentary/our-constitution-how-many-us-know-it

83 Percent of U.S. Adults Fail Test on Nation's Founding

“Knowledge of our system of government is not handed down through the gene pool. … But we have neglected civic education for the past several decades, and the results are predictably dismal.” She also lamented (Jewish World Review.com, April 28: “Barely one-third of Americans can even name the three branches of government.” (Education week, May 4) my column, “The sickly state of the First Amendment.” (Jewish World Review.com).

The national survey, conducted by Harris Interactive* on behalf of the Bill of Rights Institute, also reveals that 60 percent of Americans can’t identify the principle that our government’s powers are derived from the people as an attribute that makes America unique.
The First Amendment fares particularly poorly; 55 percent of Americans don’t recognize that education is not a First Amendment right, while nearly 1 in 5 mistakenly excludes from the First Amendment one of the five rights it actually does guarantee.
The lonely Tenth Amendment, meanwhile, is recognized by only 20 percent of Americans as the amendment that reserves powers to the states and the people. (http://billofrightsinstitute.org/bl...know-the-difference-between-madison-and-marx/)

That you would even ask such a question supports my previously-stated theory that lawyers have created a complicated system which seems acceptable only to them and in which only they have any hope of functioning adequately.

What a shock -- more Americans are in jail now that ever before...hmmmm (NYTimes link)

By the weak standards required to strip liberties from citizens these days, the evidence posted above should put most of the legal profession on death row.

That doesn't seem like a good reason for a police officer to ask questions (thus, asking the citizen to speak)? To see if the citizen speaks English?

Again the insistence that our rights be curtailed to convenience LE. The Constitution was not written to protect LE's right to see if I speak English, or to convenience LE in any way. Officer is free to ask whatever he wants; it's the requirement to respond or else my silence will lead to some soft-science presumption of guilt that needs to go away.

The flip-side of this, as Mas has been known to point out in print and in MAG-40, is that for LEO-involved shootings, it is normal for the officers to not be questioned for 24+ hours, and then only with a representative present.

This begs the question, why does it not imply some sort of guilt for the officers to wait to give statements until they have had time to get their nerves under control, and confer with reps?

Or the converse, why does it imply some sort of guilt for the rest of us?

If true, it's just another example of how the legal system's complications creates a privileged class and an unprivileged class. Here in CA, LE can carry pistols that have not passed various safety tests (the so-called "Roster"), but lower-classes of citizens may not buy those same pistols, unless, of course, they know the magic legal incantation (the so-called "Single Shot Exemption", although, unsurprisingly, there's a bill to do away with the SSE and just screw the lower class entirely). Those same LE are not subject to the same magazine capacity restrictions as the lower classes. The list goes on...

 

[Frank Ettin]

...To decide that one reaction is normal and all others are evidence of guilt is ridiculous. Human experience is far too diverse to be confined to one acceptable reaction....

We're getting very far afield here.

The reality is, whether or not you think it's right, that in litigation inferences may be drawn from a party's conduct, that evidence of a party's conduct can be admitted at trial, that the side offering the evidence can argue what inferences should be drawn from that evidence of conduct, that the other side can argue a contrary result, and that the trier of fact will be allowed to draw its inferences from the evidence of conduct. That has been the rule in both civil and criminal litigation for a very time, and it is well settled.

In the Salinas decision, which is the subject of this thread, SCOTUS has expanded and clarified the circumstances under which the Constitution permits silence to be treated in criminal litigation essentially the same as other forms of conduct. And note that this has always been the case in civil litigation where the Fifth Amendment privilege against being compelled to testify against one's interests has never applied.

That is what the law now is. If someone thinks that the law is wrong, our system provides ways of changing the law. One can become politically active and urge a legislature to "fix" what he thinks is wrong about current evidence law.

Note also that it's not the role of the Court to decide if the result is good or bad. It's the job of the Court to apply the Constitution and applicable precedent to decide the case. If the result of applying the Constitution and precedent is unsatisfactory to you, you might consider how the law might need to be changed and take the opportunities provided by our system to bring about such change. However, changing the law is the province of legislatures, not the courts.

In fact, sometimes when precedent and the law as applied by a court don't achieve a satisfactory result, a legislature can change the law -- checks and balances at work. Recently there was the case of Kelo v. City of New London, 545 U.S. 469 (2005). It was a ruling on a technical point of eminent domain law (specifically involving the "takings" clause of the Fifth Amendment applied to the States through the 14th Amendment and the meaning of "public use"). The result was found to be unsatisfactory by many. As a consequence, the legislatures of 42 States revised those States' eminent domain laws to avoid a Kelo result.

It would be within the powers of legislatures to by statute provide for a broader "right to remain silent." If there is enough political pressure for changing the rules of evidence to provide more protection for the individual than required by the Constitution, legislatures can do that.

You really think someone needs special training to say that they want to exercise their Fifth Amendment right?!?

...That you would even ask such a question supports my previously-stated theory that lawyers have created a complicated system which seems acceptable only to them and in which only they have any hope of functioning adequately...

So what? It is still the system that we have. Feel free to avail yourself of the opportunities our systems offers to change that. But in the meantime, we still need to understand and be able to work with and in the existing process.

 

[Spats McGee]

Right, wrong or indifferent, people don't necessarily behave in the same ways that the subjects of the hard sciences do.

In fact, the truth is that not only do people not behave in the same way as the subjects of the hard sciences, they don't behave in the same way, period.

To decide that one reaction is normal and all others are evidence of guilt is ridiculous. Human experience is far too diverse to be confined to one acceptable reaction. Adhering to such nonsense grows further ridiculous as the population grows -- more humans == more diversity in the population == wider array of possible reactions to a given stimulus.

No, people do not behave in the same way. However, it's not like the idea that guilt can be inferred from silence is new. Besides, so what if people react in all kinds of different ways? Even if courts were to not infer guilt from silence, what's next? Should juries and courts not infer guilt from any of an accused's behavior? In some cases, an inference of guilt is entirely reasonable and fair. Pop culture notwithstanding, many cases are decided on what is known as "circumstantial evidence." If every criminal case had to have direct evidence (such as an eyewitness to a crime), it would become extremely difficult to convict much of anybody.

You really think someone needs special training to say that they want to exercise their Fifth Amendment right?!?

That you would even ask such a question supports my previously-stated theory that lawyers have created a complicated system which seems acceptable only to them and in which only they have any hope of functioning adequately.

You think saying "I want my lawyer" is a complicated system? And lawyers are somehow responsible for the fact that most American haven't bothered to educate themselves on the most basic of civil rights and liberties? Libraries are open to the public and paid for with taxpayer dollars. City council meetings are open to the public and can be attended free of charge. Courts are open to the public and can be attended free of charge. You know who wrote all the statutes making sure that all that stuff was available to the public without additional fee? Oh, yeah, lawyers.

By the weak standards required to strip liberties from citizens these days, the evidence posted above should put most of the legal profession on death row.

Because, why? We're responsible for educating a public that chooses not to be educated? We're lawyers, not teachers. Take that up with your local school board. Better yet, run for school board and fix the problem.

I'm not convinced that you really understand what it takes to "strip liberties" from anyone. In order to strip rights or liberties from anyone, Due Process requires Notice and an Opportunity to be heard. That means a trial. The defendant in Salinas got that. In fact, he got a trial, two reviews at the appellate level in TX, and then another level at SCOTUS. How is that a "weak standard" to strip him of his liberties? That's a pretty good dose of Due Process. And in fact, he was not stripped of anything. He chose to go to a consensual police encounter, would have been free to leave, and made the (perhaps unfortunate) decision to remain silent. That's not stripping him of rights. That's a bad calculation on his part.

If a person doesn't ask for something, and it's not provided, that's not "stripping" them of anything. That's not giving them something they didn't request. If a person fails to take any steps whatsoever to exercise a right, there's no reason to have legal counsel on standby to assist them, just in case they decide they might want it. Libraries, including law libraries, are open to the public and paid for at taxpayer expense. And when someone is actually stripped of rights and liberties, they often do have a lawyer to defend them. And if those rights are taken without due process, a citizen can have a lawyer appointed to represent them in the 42 USC 1983 action.

Again the insistence that our rights be curtailed to convenience LE. The Constitution was not written to protect LE's right to see if I speak English, or to convenience LE in any way. Officer is free to ask whatever he wants; it's the requirement to respond or else my silence will lead to some soft-science presumption of guilt that needs to go away.

First of all, I said nothing about the "convenience of LE." In order to function properly, a LEO does need to figure out if the citizen can communicate.

There's no "presumption of guilt" from remaining silent. It's an inference. Legally speaking, there's a pretty significant difference. Look at it this way. If there's an inference of guilt, that inference might be enough to tip the scales towards a finding of guilt. If there's a presumption of guilt, the burden shifts to the defendant to disprove it. The inference that silence may be evidence of a guilty conscience seems pretty reasonable to me.

I understand your desire to protect civil rights. The calculus that you do not appear to have done is to weigh civil rights against society's interest in catching evildoers. Society does have a valid interest in catching and punishing bad buys. The 4th, 5th, 8th, and 14th Amendments, and a whole host of statutory laws frustrate that interest, and they do so by shielding defendants, information, and things from the government. Basic civil rights really are not that complicated to learn, if one will spend some minimal amount of time doing so.

 

[btmj]

I just don't understand the controversy here. We all still have the right to remain silent, whether before being arrested, or after. I did not realize that in most circumstances prior to this ruling, a defendant's silence could not be mentioned by the prosecution as evidence of guilt. I find that somewhat ludicrous. Why not present it to the jury? Let the defendant's lawyer refute it, explain it, whatever, and let the jury decide. Think about it, if the prosecution's only evidence of guilt is the fact that the dude didn't talk to the cops, they won't even get an indictment. There will have to be a much stronger body of evidence than mere silence. So what we are talking about here is a fairly nuanced change in the rules of trial.

As a potential juror, I would want to be exposed to as much evidence as possible. I personally feel that there is all together too much closed door discussions between the prosecution, the defense, and the judge about what evidence can or cannot be presented. As a juror, show me all the evidence, and include me in the debate on why it might be tainted or improperly obtained.

If anyone thinks that I, as a juror, am not going to speculate on why a defendant does not take the stand in their own defense, they are naïve. Of course I am going to wonder why, and I am going to weigh that as evidence.

Again, I don't see this as some earth-shattering change in our constitutional rights.

Jim

 

[2ndsojourn]

From btmj:
"If anyone thinks that I, as a juror, am not going to speculate on why a defendant does not take the stand in their own defense, they are naïve. Of course I am going to wonder why, and I am going to weigh that as evidence."


As I read through this thread, I wondered the same thing. What we seem to be inching toward is an inference of guilt by a defendant's refusal to take the stand. To me, that's the same as silence.

 

[zukiphile]

I'm sad to hear this is the case, since it sounds like a train wreck of soft-science garbage. No, an innocent person would not necessarily even dignify such a ridiculous accusation with a response. I might just ignore the person, assuming they are on drugs or are speaking to someone else. But by ignoring them I remain silent -- does that make me guilty? I just "displayed consciousness of guilt"...

Yes. My response to you is not rooted in any social science, but from ordinary observation of people. Ordinarily, the reaction of an individual who has been wrongly accused is vociferous denial, or at least denial.

who decides to respond by folding his arms and going strangely silent

Strangely silent? You must be a prosecutor. Who gets to determine what is strange and what is not? What is strange about shutting one's mouth (since anything I say can and will be used against me) when accusations of murder are flying around?

In fact, I am not a prosecutor. I ordinarily litigate the issues that arise from peoples' business dealings. By temperament, I am generally more sympathetic to the defendant in a criminal case.

The participants in a conversation would ordinarily be the ones who determine whether a silence is strange or out of context. In a courtroom setting, where the exchange is being related by a witness, the trier of fact is effectively made a participant in or observer of that conversation.

The same may be said of the affirmative act of deciding to go silent.

Now this I could almost go with, except it's impossible to prove to anyone that I have decided to be silent. It requires the ability to read my mind to know that I have considered options and made a decision, which is not necessarily true, since, as I said, the default condition of the human body is not speech but silence. Therefore silence requires no decision, it is speech which requires it.

If the default condition of the human body is silence, why is it that some people cannot shut up? That question is only half tongue-in-cheek. Most people in the face of a question feel a compulsion to speak.

A short, but illustrative story: a few years ago, I was in another state deposing a plaintiff who had filed suit against the title company.

Me: Were you aware of the mortgage your son put on the property the day you bought it?

Plaintiff: No.

(I sat and stared at her)

Plaintiff: Well, we were not sure that the title was clear and I am not sure where my son was that day.

(I sat looking at her as an uncomfortable silence followed)

Plaintiff: Okay, yes, we knew. We told them to put it on...


That was a person who had something to hide. She and her son and a person at the escrow office had conspired to defraud the title company. This all came out because this woman felt greater discomfort at a socially awkward silence than disclosing the subject of fraud.

Simply not speaking at all may be wise in some contexts, but it is not the natural or ordinary response.

You are correct that I cannot prove your subjective motivation for your silence, but I do not need to. As an ordinary observer, I can draw conclusions (not infallible ones) about your motivations from your conduct.

_______________________________

A slight tangent:

... my previously-stated theory that lawyers have created a complicated system which seems acceptable only to them and in which only they have any hope of functioning adequately...

I do not agree with your ideas about our epistemological limits in observing silence, but I believe there is some merit in this accusation immediately above.

At some point, volumes of long and contradictory rules become so complex that they lose their character has law, rules by which we generally agree to be governed and which enjoy a wide and general support.

Where the authority of the state is exercised through a thicket of statute, ordinance, regulation and case law that no lawyer by himself really understands (often the wisdom of a lawyer involves knowing who to call in the applicable area of law), then a system begins to look less like a system of laws and more like a system that treats insiders and outsiders differently based on their ability to navigate the thicket.

More succinctly, clarity and predictability are virtues in law, and complexity can work against both.

I do not have a politically plausible solution for that problem.

 

[KyJim]

I just don't understand the controversy here. We all still have the right to remain silent, whether before being arrested, or after. I did not realize that in most circumstances prior to this ruling, a defendant's silence could not be mentioned by the prosecution as evidence of guilt. I find that somewhat ludicrous. Why not present it to the jury? Let the defendant's lawyer refute it, explain it, whatever, and let the jury decide.

I think that captures my understanding of what the Fifth Amendment right not to testify originally meant. It got expanded by the courts. Miranda is the best example. The Supreme Court decided custodial searches were inherently coercive (this was the early 60s). So, they decided police should warn in-custody suspects before questioning them. Then they decided that it would be unfair to advise a suspect in custody of his or her right to remain silent and but then allow adverse comment on it. All of this was added by the courts.

 

[speedrrracer]

In the Salinas decision, which is the subject of this thread, SCOTUS has expanded and clarified the circumstances under which the Constitution permits silence to be treated in criminal litigation essentially the same as other forms of conduct.

This is nothing short of awesome. One line, sums it all up so even someone like me can understand it. This should seriously be the first line on the Wikipedia page for this case.

Even if courts were to not infer guilt from silence, what's next?

Maybe an increase in personal liberty? What's the downside? We err on the side of civil rights? Doesn't that sound more like something in line with our Constitution? The only justification I read from the more knowledgeable posters in this thread is "..it's been done this way for a long time", which reads like no justification at all...

Should juries and courts not infer guilt from any of an accused's behavior?

Now we're back to the "I don't believe silence is behavior / conduct and you do."

You think saying "I want my lawyer" is a complicated system?

And we've been through this, too -- I think rights should automatically attach inasmuch as they can be contorted to do so. I have a right to a lawyer, and I get one if I can't afford one, so if I say nothing then we should assume I want one and can't afford it and plop that legal eagle down right next to me. Why? Because it might possibly protect my civil rights in the presence of those who might seek to take them from me.
We should bend over backwards to protect civil rights. And again, I think requiring legal knowledge only seems like a good idea to lawyers.

And lawyers are somehow responsible for the fact that most American haven't bothered to educate themselves on the most basic of civil rights and liberties?

Again, "most basic" is coming from a lawyer with tons of training, years of experience, and probably a natural predilection for the field. I get you're trapped by your perspective, as we all are, and this topic is right in a lawyer's blind spot.

But yes, lawyers are responsible. Why? Because they created this system, so they need to own it's deficiencies. If they are ethical, they should also work to correct them (with, as Frank has noted, popular support and efforts from the rest of us). Instead, it appears to me that the problems are being exacerbated.

In order to strip rights or liberties from anyone, Due Process requires Notice and an Opportunity to be heard. That means a trial.

Huh?
US Drone Assassinates US Citizen
US Citizen Held Without Trial
Obama Signs 2013 NDAA: May Still Arrest, Detain Citizens Without Charge

I guess there are really simple legal principles at work here, which any single mother who is working two jobs to feed her kids can easily research at the local ghetto library during her spare time...

Society does have a valid interest in catching and punishing bad buys.

You are right and I agree. It seems we differ only on where to find the balance. I think it's clear that society's infinitely greater interest lies in protecting civil rights, but the rulings from the Court don't seem to agree.

I do not have a politically plausible solution for that problem.

If this changes, please let us know ASAP

 

[Spats McGee]

Maybe an increase in personal liberty? What's the downside? We err on the side of civil rights? Doesn't that sound more like something in line with our Constitution?

Listen, I'm all for personal liberty. I'm not sure I share your optimism that assuming a bright-line "everybody gets a lawyer for any and all offenses unless they affirmatively state that they do not want one" accomplishes that. From a policy perspective, and on a large scale, I'm not even sure it accomplishes anything other than to discourage people from actually learning what their rights are. ("Why should I bother to learn about my rights? If I get in trouble, the police will plop a lawyer down by me, and he'll know it all.")

The concept of having public defenders on standby for every possible police encounter would incur enormous costs, financially speaking, for the legal system. The other question being how the benefits to society "balance against" the costs (financial and otherwise) associated with such a proposal. Clearly, this is one area on which you and I disagree. That's OK.

Now we're back to the "I don't believe silence is behavior / conduct and you do."

Well, I do think silence is a behavior. That aside, my question was actually intended to find out from exactly what behaviors you think an inference of guilt might fairly be drawn. It would appear that you take the position that the police should infer a couple of things from silence (desire for an attorney and an inability to pay for one), but that a jury should draw none. Am I close?

And we've been through this, too -- I think rights should automatically attach inasmuch as they can be contorted to do so. I have a right to a lawyer, and I get one if I can't afford one, so if I say nothing then we should assume I want one and can't afford it and plop that legal eagle down right next to me. Why? Because it might possibly protect my civil rights in the presence of those who might seek to take them from me.
We should bend over backwards to protect civil rights. And again, I think requiring legal knowledge only seems like a good idea to lawyers.

Actually, society has long expected at least a basic, functional legal knowledge of every member of society for years. Do you know when you are required to file your federal income taxes every year? April 15, right? If you knew the answer to that question, you had basic, functional legal knowledge. I sincerely doubt that it's just the lawyers who think that kind of knowledge is good for a citizen to have. I have a strong hunch that my accountant (back when I had one) thought that information was pretty useful. If you found out close to your 18th birthday that you had to register for Selective Service, that's basic, functional legal knowledge.

I'm not claiming that every member of society needs to be able to write a treatise on the nuances of eminent domain. I am saying that each member of society really should spend a little time learning things like "If I'm in custody, I have a right to remain silent, and I can ask for lawyer." I don't care whether they know the terms "probable cause," or "reasonable suspicion, based on articulable facts." I do think they need to learn that the police need to have a reason to pull them over.

You are welcome to think that I'm trapped by my perspective. I don't think it's that so much as I just disagree with you. I'm not really all that excited by the prospect of having my taxes raised by society having to pay for all of the extra public defenders that your plan would require, when the Sixth Amendment does not guarantee an attorney in all the situations you've outlined.

As far as the "tons of training" aspect, also consider that the Miranda warnings are nothing more than basic legal instruction to be given at the beginning of a custodial interrogation. I have no problem with the police being required to instruct someone in custody of their basic rights. Salinas, though, revolves around a noncustodial event. The defendant was free to leave, and admitted that. For Sixth Amendment purposes, that's a different kettle of fish.

Huh?
US Drone Assassinates US Citizen
US Citizen Held Without Trial
Obama Signs 2013 NDAA: May Still Arrest, Detain Citizens Without Charge

I guess there are really simple legal principles at work here, which any single mother who is working two jobs to feed her kids can easily research at the local ghetto library during her spare time...

No, the three cases that you pulled up are not simple, but they're very different from the issues we've been discussing. We've been discussing right to counsel, and the issues arising in the Salinas case, such as the right to remain silent (which, again, isn't actually mentioned in the Fifth Amendment).

The system is by no means perfect, but Due Process actually does a pretty good job of keeping government officials in line. If one chooses to remain silent during a police encounter, counsel for the defense is aways welcome to file a motion to prohibit the prosecutor from making reference to the defendant's silence, and request a hearing.

But yes, lawyers are responsible. Why? Because they created this system, so they need to own it's deficiencies. If they are ethical, they should also work to correct them (with, as Frank has noted, popular support and efforts from the rest of us). Instead, it appears to me that the problems are being exacerbated.

Our system is by no means perfect, but it's a pretty good one. I understand that it takes some time and effort to educate oneself. I understand that we all have lives, jobs and many of us have kids. However, there are a whole lot of folks who just can't be bothered to put in the time and energy. That part is not "the lawyers'" fault. I believe that part of the problem lies in the fact that they've seen noo many reruns of Law & Order where everyone has an unqualified right to remain silent, and everyone gets a public defender.

Lawyers do work to fix the system. Some of our efforts may not be in the ways you'd expect, though. For example, under the Model Rules of Professional Conduct, lawyers (with a few exceptions) are required to donate time or money to assist clients who cannot afford counsel. This is not usually in the criminal context, because the public defender system is in place. So attorneys donate time and money to help the poor fight credit disputes, get divorced, resolve custody battles . . .

They also file civil rights lawsuits when violations of civil rights do occur. That's what all those cases in the "Current 2A Cases" thread are. What you may not realize aboutthose is that most civil rights cases are brought on a contingency fee basis. So it's the lawyer sticking his neck out (in terms of time and money) taking a case that may or may not pay off. My point is that, where there are violations, there's usually more than one remedy. If the police conduct an investigation in an unlawful manner: (1) evidence can be suppressed at trial; and (2) the entity which employs those police may well have to pay out substantial $$$.

 

[speedrrracer]

It would appear that you take the position that the police should infer a couple of things from silence (desire for an attorney and an inability to pay for one), but that a jury should draw none. Am I close?

I would say I'm comfortable with anyone inferring anything which results in the increase or protection of my civil rights. When the opposite is the case, I want the most limited possibilities, strictly scrutinized.

In

Salinas

, we have a ruling which further limits civil rights by expanding the circumstances in which your silence can be used against you. So we have given up civil rights, and gained what? Was cancer cured? Is the public safe from Islamic bombers at marathons? No, we gave up some civil rights and got what? Long term, that extrapolates out to all civil rights gone for what?

Shouldn't we guard what few, weak rights remain more jealously?

Actually, society has long expected at least a basic, functional legal knowledge of every member of society for years.

This is my fault for saying, " I think requiring legal knowledge only seems like a good idea" when I meant to say, " I think requiring legal knowledge to exercise rights only seems like a good idea...". I agree on legal knowledge for lesser matters.

I'm not really all that excited by the prospect of having my taxes raised by society having to pay for all of the extra public defenders that your plan would require, when the Sixth Amendment does not guarantee an attorney in all the situations you've outlined.

Doesn't guarantee it, but this is a great example of the dim view of civil rights in America -- unless it's absolutely guaranteed (and not always even then, we all know how the 2A is raped), you have no rights. Why do we never look at rights in the opposite way, "Well, the Constitution doesn't prevent it, so why not?"

Salinas should have been decided as such: "There is no amendment guaranteeing the state the right to use silence against the accused, and since this is a civil rights issue, the state must show a monumentally important reason why it needs this power which directly relates to the preservation of life / liberty and can be shown to be of certain efficacy." (I'm trying for strict scrutiny-sounding verbiage here , I'm sure you can improve on it, but hopefully it conveys my point)