Important Fifth Amendment SCOTUS Opinion

[Frank Ettin]

...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...

Why? Because it suits your notion of the way you'd like things to be? In other words, you think (1) that disputes should be decided by whim based upon a particular judge's personal belief about what is good or bad; and (2) that judge's ideas about what is good or bad will be the same as yours.

Fortunately, that is not how cases are decided. And although there can be disagreements about how certain legal principles might apply to a particular matter, at least judicial decisions are founded upon those principles.

So let's go back and look again at something I wrote not too long ago in post 52:

...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 apparently have certain ideas about how certain things should work. But in general you need to be looking to the legislatures to constitute matters the way you seem to want them to be. Most of the time people object to the way the system is working it seems to be primarily because they aren't getting what they want. But we live in a pluralistic Republic, and not everyone agrees that things ought to be the way you want them to be.

• Whenever a court makes a major decision that one disagrees with, the judicial system is broken and the judges corrupt. Whenever a court makes a major decision that one agrees with, the judges are great scholars (except any dissenters, who are corrupt), and our courts are the last bulwark against the machination of the political toadies bought and paid for by special interests.
  
  
• There has been, and probably always will be, a huge negative reaction by a large number of people to every important to the pubic Supreme Court decision. There are plenty of folks who loved Roe v. Wade and hated Heller, and perhaps as many who hated Roe v. Wade and loved Heller.
  
  
• Most of the time when folks call a decision of a court a bad decision, it isn't really because it didn't comport with the law and precedent. Most people tend to think a court decision is a bad decision because it did not achieve the result they wanted.

SCOTUS in Salinas decided a dispute on the bases of established legal principles, the Constitution and precedent. That's how courts are supposed to decide things.

Legislatures on the other hand set public policy and decide things through a political process based on what enough of the body politic wants or will support, subject to certain constraints on the outer limits of their powers. The key to trying to achieve your vision is the political process, not the judicial process. So have at it and good luck.

 

[gc70]

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.

The language in the Fifth Amendment that prohibits compelling self-incrimination seems to be a simple reflection of the lesson learned from the historic experiences of our English ancestors that torturing a person to obtain a confession is intolerable.

There is a vast difference between not allowing a defendant's fingernails to be pulled out one by one until a satisfactory confession is obtained and mandating absolute judicial blindness to whether or not a defendant has offered testimony or made statements. Over the years, the courts have expanded the interpretation of the Fifth Amendment so substantially that many people may have come to believe that those expansions are really derived from some sort of underlying unqualified right to remain silent.

 

[rc]

Lawyers are paid liars. There is no expectation of truth in court. He who hath the most resources often wins as facts are twisted around and around to fit what a particular lawyer wants people to believe. It's all a big game to 99% of the lawyers who have no personal stake in what happens to a person they represent as long as they are getting their $300/hour and spend more time documenting billing than working on your case.

 

[Spats McGee]

Lawyers are paid liars. There is no expectation of truth in court. He who hath the most resources often wins as facts are twisted around and around to fit what a particular lawyer wants people to believe. It's all a big game to 99% of the lawyers who have no personal stake in what happens to a person they represent as long as they are getting their $300/hour and spend more time documenting billing than working on your case.

Hogwash, and insulting hogwash, at that.

speedrrracer, I don't have time to address all of your comments right now, so I'll limit myself to this: Thus far, my reading of Salinas is not that the Court took away any rights from the defendant, but merely that it declined to expand A5 protections to a new area where the A5 has never reached before.

 

[csmsss]

Lawyers are paid liars. There is no expectation of truth in court. He who hath the most resources often wins as facts are twisted around and around to fit what a particular lawyer wants people to believe. It's all a big game to 99% of the lawyers who have no personal stake in what happens to a person they represent as long as they are getting their $300/hour and spend more time documenting billing than working on your case.

Everyone says/thinks this right up to the moment the red and blue lights start flashing in their rear view mirror.

 

[speedrrracer]

Why? Because it suits your notion of the way you'd like things to be?

Yes, it's an opinion. I infer from several of your posts that you may have lost your understanding of the purpose of this forum (discussions, per the description). This is probably my fault, since I've been soaking up so much education on even the most basic legal issues that one could be forgiven for thinking this was anything but an online lecture hall (and again, thanks to you and everyone else for that ongoing schooling, I'm sure educating the ignorant is not the most appealing way for you guys to spend your time).

SCOTUS in Salinas decided a dispute on the bases of established legal principles, the Constitution and precedent. That's how courts are supposed to decide things.

Even if true, can't we revisit some or all of those legal principles, the Constitution, and precedent, discuss them, and see if they don't need changes in light of what happened in Salinas? I think we can all agree SCOTUS doesn't always get it right, therefore there is room for improvement in a general sense, even if only in theory.

Over the years, the courts have expanded the interpretation of the Fifth Amendment so substantially that many people may have come to believe that those expansions are really derived from some sort of underlying unqualified right to remain silent.

I doubt the courts are the cause, I would go with TV as the likely explanation. But I'm very interested to learn about these substantial expansions of the 5A -- if you have any favorite links on this topic that I'm unlikely to encounter via a Google search, please toss them my way.

Thus far, my reading of Salinas is not that the Court took away any rights from the defendant, but merely that it declined to expand A5 protections to a new area where the A5 has never reached before.

OK, thanks. I'll be interested to hear if your opinion changes after you've had time to complete your reading.
Seems like you and Frank and in agreement, so I'll assume you're both right. So is this correct: Salinas expanded (if I understand Frank's use of the word) the powers of the State -- they can now use silence in criminal litigation in a way / ways that were not previously available to them.

The 5A didn't cover this ground previously, you say. This previously unallocated ground has now been found not to belong in the domain of the people, but instead to the State. Is that correct?

 

[Frank Ettin]

...I infer from several of your posts that you may have lost your understanding of the purpose of this forum (discussions, per the description)...

There's a difference between potentially productive discussion aimed at understanding the world, how it functions and how to get along in it and "blue-sky" discussion. The latter may be assuming to some, but has less to do with understanding what is than with, at best, possible future political action. As such it is off topic for this Forum.

...I'm sure educating the ignorant is not the most appealing way for you guys to spend your time...

Actually, I enjoy helping folks understand what the law is and how it works in the real world. Understanding such things helps folks stay out of trouble. A solid understanding of both legal reality and how the law works is also a necessary foundation of any worthwhile efforts to effect positive changes.

The important RKBA decisions in Heller and McDonald were not the product of "blue-sky" thinking. They were the product of solid, disciplined legal work.

Apropos of which, you might want to note that the result here in Salinas comes from the conservative/centrist side of the Court -- who gave us Heller and McDonald. And the two arguable most "strict constitutionalist" justices published a concurring opinion further reflecting an even narrower understanding of a right to remain silent.

...Even if true, can't we revisit some or all of those legal principles, the Constitution, and precedent, discuss them, and see if they don't need changes in light of what happened in Salinas?...

See above. At best that becomes a political discussion which would then be out of bounds for this Forum.

Thus far, my reading of Salinas is not that the Court took away any rights from the defendant, but merely that it declined to expand A5 protections to a new area where the A5 has never reached before.

OK, thanks. I'll be interested to hear if your opinion changes after you've had time to complete your reading.
Seems like you and Frank and in agreement, so I'll assume you're both right. So is this correct: Salinas expanded (if I understand Frank's use of the word) the powers of the State -- they can now use silence in criminal litigation in a way / ways that were not previously available to them. ...

That becomes an exercise in splitting hairs and is probably not really useful. It depends on perspective.

The Court was asked by the Petitioner (and defendant below) to support and expansive reading of the Fifth Amendment protection of the right not to be compelled in a criminal case to testify against himself and prevent the use by the prosecution of his remaining silent when asked certain questions during a voluntary, non-custodial interrogation. The Court declined to do so.

So from that perspective, Spats may properly characterizes the Court as refusing to expand Fifth Amendment protections.

On the other hand, as noted in the decent, a number of lower courts had previously supported a more expansive reading of Fifth Amendment protections and thus a narrower permissible use by the prosecution of silence. From that perspective, the plurality in Salinas clarified and expanded the permissible scope of the use of silence by the prosecution.

If you haven't read the decision, you might want to.

 

[gc70]

I doubt the courts are the cause, I would go with TV as the likely explanation. But I'm very interested to learn about these substantial expansions of the 5A -- if you have any favorite links on this topic that I'm unlikely to encounter via a Google search, please toss them my way.

Google will provide plenty of reading, particularly after the Fifth Amendment was incorporated against the states by Malloy v Hogan in 1964.

A good source of information not frequently returned by Google searches -because they are components of a broader work- are the Congressional Research Service's series of analyses of the Constitution. Like the other components of the series, the analysis of the Fifth Amendment is in near-layman's terms.

Akhil Amar provides a thought-provoking view of the Fifth Amendment. Amar would "advocate a solution remarkably like the early scope of the privilege." He would allow the government to compel testimony, but would bar using the testimony at trial - but only the testimony (the "words") would be barred, the "fruits" that the testimony might lead to would be admissible. Interestingly, to speedrrracer's point about counsel, Amar's system would move most formal investigatory questioning into a magistrate-supervised environment with counsel present.

 

[btmj]

posted by RC
Lawyers are paid liars. There is no expectation of truth in court. He who hath the most resources often wins as facts are twisted around and around to fit what a particular lawyer wants people to believe. It's all a big game to 99% of the lawyers who have no personal stake in what happens to a person they represent as long as they are getting their $300/hour and spend more time documenting billing than working on your case.

I have jumped on peoples butt in the past because they hurled insulting accusations at engineers who work in the defense industry... (that would be me).... So I feel compelled to support my professional colleagues in the legal profession.

RC, your posting is nothing more than a vile and malicious venting of your spleen. It adds nothing to this thread, and strangely, it has nothing to do with this thread... Speedracer and Spats and Frank are having a passionate but mostly civil discussion. Lawyers are an easy target, and throwing stones at them proves nothing and solves nothing. If you want to talk about a specific lawyer like Dickie Scruggs, fine. But painting the entire profession with a broad brush of condemnation is childish.

 

[rc]

Last time I checked I was entitled to freedom of speech. A lawyer makes an argument in court. Facts are ommitted and assertions made by each side to try and convince or mislead the judge and jurry to a particular conclusion. The first casulty in court is the truth and the lawyers are the ones doning most of the talking. I made some of the lawyers here upset with my comments but we have seen time and again people get away with murder and other people wrongfully convicted and later cleared with DNA evidence. Lawyers are out to win cases at all costs. That's not a recipe for honesty and ingegrity. Conferring guilt from silence is wrong in my opinion.

 

[MLeake]

rc, you might check again. "Freedom of Speech" has to do with government regulation of speech, not with constraints imposed by a privately owned site - IE Rich Lucibella is not required to let you spew insults at other members.

Seeing things as absolutes can blind one to what things actually are.

I suspect that if you wish to continue verbal attacks on entire professions, your tenure on TFL might be shorter than you might have wished.

I suppose I should give you points for insulting multiple mods to their online faces... But then again, I won't. I'll just recommend more civility on your part.

 

[Frank Ettin]

First, I'm going to respond, but that will be the end of it in this thread.

Do not further drag this thread off topic.

rc, if you have anything further to say to Spats or to me about your notions about lawyers or the legal system, say it to us privately by PM. Further public posts in this thread similar to your last ones will be dealt with harshly.

Last time I checked I was entitled to freedom of speech....

This is private property, and the First Amendment doesn't apply here.

In any case, freedom of speech does not mean that others can't call you out for making preposterous and unsubstantiated claims.

...Facts are ommitted and assertions made by each side to try and convince or mislead the judge and jurry to a particular conclusion...

Clearly you don't understand how things work in a trial.

A trial is an adversarial proceeding. Each side has an ethical and professional obligation to, within the framework of the applicable rules, zealously and vigorously represent the interests of his client. And therefore:

1. The lawyer on each side of a dispute has an incentive and professional obligation to put forth, consistent with the applicable rules of evidence and procedure, every fact that will be helpful to his side's interests.
   
   
2. The lawyer on each side of a dispute has an incentive and professional obligation to argue the law as most favorable to his side's interests.
   
   
3. The lawyer on each side of a dispute has an incentive and professional obligation to challenge the other side if he thinks that the other side has overstepped the rules or if he thinks the evidence put forth by the other side is not credible.
   
   
4. The judge is there to rule on disputed matters of law and generally see that the rules of evidence and procedure are followed.
   
   
5. Thus the adversarial system encourages that all facts material to the deciding of the dispute get out on the table.

...we have seen time and again people get away with murder and other people wrongfully convicted and later cleared with DNA evidence...

No system devised and operated by humans is perfect. Mistake can be made, but considering the enormous amount of matters processed through the legal system, they are few.

So if you have a foolproof way of deciding legal matters perfectly, let Spats and I know (by PM), and we'll pass it along.

...Lawyers are out to win cases at all costs. That's not a recipe for honesty and ingegrity...

1. Yes lawyers want to win cases. More importantly, our clients want us to win cases.
   
   
2. When a lawyer loses a case, his client goes to jail (or gets otherwise punished, if it's a criminal matter), or loses money or something else of value (in a civil matter).
   
   
3. If you were in legal trouble, I suspect that you'd want your lawyer to win your case too.
   
   
4. As far as honesty and integrity goes, in every State, in order to practice law, a lawyer must adhere to rules of professional responsibility and ethics enforced by the courts and/or the State Bar Association.
   
   
   • Lawyers who don't operate in accordance with the rules can be lose the right to practice law (either temporarily or permanently). They can thus lose their livelihood.
     
     
   • Lawyers work long and hard to earn the right to practice law and to build their practices and professional reputation.
     
     
   • The practice of law is highly competitive (and lawyer by their nature are competitive). It is not in our interests to have other lawyers getting away with ethical or professional violations.
     
     
   • Just for an example, the June, 2013, edition of The Journal of the California State Bar lists 16 now former lawyers who have been disbarred and 17 lawyers placed on suspension or probation.

...Conferring guilt from silence is wrong in my opinion.

Then write your legislators. They can change that in your State.

 

[teeroux]

...Conferring guilt from silence is wrong in my opinion.

I don't believe that silence alone cannot confer guilt. It would have to be used with the totallity of the circumstances which is what the decision allows. If your silence to a particular question for instance indicates hesitation admitting guilt or used in the process of lying and the prosecution can catch you in it and you did not invoke your right. I think it should be used against you.

Miranda already applied only if you specifically state you invoke your right to silence and this case reafirms Berghuis v. Thompkins and goes a step further by making silence is usable against you if you do not specificaly invoke your right to not answer questions.

You can read Berghuis v. Thompkins here.
http://en.wikipedia.org/wiki/Berghuis_v._Thompkins

 

[iraiam]

I guess if they are going to use my silence against me, I'll take my chances. Far better to have my silence used against me than to supply them with actual evidence to use against me by actually opening my big mouth.

I'll stick with my lawyers long standing advice; be cooperative with showing ID, and other documents that are required but beyond that, never answer any questions no matter how insignificant you think they might be.

By my read of the SCOTUS opinion, it will be a very simple matter just to say "I'm invoking my 5th amendment right against self incrimination" and not say another word.

 

[jimpeel]

I have several questions.

If one is stopped, and the officer starts asking questions which one does not wish to answer, does one have to invoke the right time after time after time; or can one simply invoke the right in general terms such as "I am invoking my fifth amendment right to remain silent; and I will, from this point, refuse to answer any further questions."?

Also, if one may invoke on the basis above, does that invocation become null and void if one does answer any question, or have any further communication after that invocation? Does one have to re-invoke the right in general terms -- assuming that is permissible -- once again?

When one invokes their Fifth Amendment right the listener will usually take that as an avoidance due to guilt not due to innocence. So this ruling places one in the realm of damned if you do and damned if you don't. If one does invoke, they are deemed to be guilty and have something to hide; and if one does not invoke they are deemed to have waived their right to silence and assumption of innocence.

 

[jimpeel]

This case is eerie due to the fact that most people believe that they are within their rights to refuse to answer with abject silence. They believe, as this case now shows to be incorrect, that their silence is the invocation of that right.

If I were not a member of this board, my knowledge of this case would have been confined to the deafening silence of the media.

Also, is the answering of a question with a question going to be seen as guilt based upon this ruling?

ie: "Have you been drinking?" "Am I being detained? Am I free to go, Officer?"

"Do you mind if I search your car?" "I do not consent to any searches. Am I being detained? Am I free to go, Officer?"

This is, after all, the stated response recommended by the ACLU.

If that person makes those statements, rather than a direct and unambiguous recitation of their fifth amendment right, are they still held to be suspect and their rights not invoked?

 

[Frank Ettin]

...When one invokes their Fifth Amendment right the listener will usually take that as an avoidance due to guilt not due to innocence. So this ruling places one in the realm of damned if you do and damned if you don't. If one does invoke, they are deemed to be guilty and have something to hide;...

The reality is that the protection afforded by the Fifth Amendment right not to be compelled to testify against oneself only affects whether, and under what circumstances, your silence may be commented upon in legal proceedings or otherwise used as evidence. It does not, and can not, affect a listener's perception or what a listener thinks.

It you refuse to answer a question, the listener is going to think whatever he pleases.

...if one does not invoke they are deemed to have waived their right to silence and assumption of innocence.

What is this "assumption of innocence" and where do you get it?

There is such a thing as the "presumption of innocence", which is essentially a technical rule of evidence and the burden of proof which has procedural significance.

The presumption of innocence can affect the protocols for dealing with suspects or prisoners before trial, and relates directly to the prosecutor's burden of proof at trial. I see nothing in Salinas that affects that.

But there is no "assumption of innocence". Folks will assume that you're innocent or guilty as they choose.

 

[iraiam]

If one is stopped, and the officer starts asking questions which one does not wish to answer, does one have to invoke the right time after time after time; or can one simply invoke the right in general terms such as "I am invoking my fifth amendment right to remain silent; and I will, from this point, refuse to answer any further questions."?

That is sort of how I do it, it usually starts with a question such as "where are you going? (or similar), I will specifically state that I am not discussing my whereabouts or answering any further questions.

It seems a simple matter to me to just slightly modify my statement to include "My 5th amendment right"

Either way the officer/government agent is going to infer guilt, after all, the sole purpose of even speaking to me is to gather evidence to use against me or someone else.

 

[jimpeel]

Frank Ettin,

While you did posit a wonderful semantical dissertation on the differences between assumption and presumption, and my failure to use the terms in a grammatically and legally correct manner, you failed to answer the questions I posited in my post HERE

If one is stopped, and the officer starts asking questions which one does not wish to answer, does one have to invoke the right time after time after time; or can one simply invoke the right in general terms such as "I am invoking my fifth amendment right to remain silent; and I will, from this point, refuse to answer any further questions."?

Also, if one may invoke on the basis above, does that invocation become null and void if one does answer any question, or have any further communication after that invocation? Does one have to re-invoke the right in general terms -- assuming that is permissible -- once again?

 

[jimpeel]

As SamNavy posted on post #2 the Miranda warning is kinda moot based upon this ruling.

The Miranda warning states "You have the right to remain silent." What it does not say is "You have the right to invoke your fifth amendment right to remain silent; but only if you do so verbally. You do not have the right to simply remain silent in the absence of that declaration. Mere silence will be held against you in a court of law as well as anything you do choose to say."