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You no longer have the right to remain silent

Rather, you must speak up to claim your Fifth Amendment rights, and only then can you be silent. Scotusblog:

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

The Court had taken on the case of Salinas v. Texas to decide whether it violates the Fifth Amendment for prosecutors to use pre-arrest silence as evidence of guilt. But the Court did not reach that issue, since it said that one must say something that invokes the Amendment’s protection, or else it does not apply. Prosecutors’ use of the silence is then permitted, it ruled.

“A witness’s constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,” Justices Samuel A. Alito, Jr., wrote. The Court rejected the argument that, because suspects do not know the law, their silence should be understood as a Fifth Amendment plea.

Slate comments:

The upshot is another terrible Roberts Court ruling on confessions. In 2010 the court held that a suspect did not sufficiently invoke the right to remain silent when he stubbornly refused to talk, after receiving his Miranda warnings, during two hours of questioning. Now people have to somehow invoke the right to remain silent even when they’re not formal suspects and they haven’t been heard the Miranda warnings. As Orin Kerr points out on the Volokh Conspiracy, this just isn’t realistic.

The Supreme Court’s decision in Salinas encourages the kind of loosey-goosey, and easily contaminated, police questioning that led to Yarris’ wrongful conviction. Salinas may very well have been guilty of the two murders. But in many cases, as in this one, there are no eyewitnesses and not much other evidence of guilt: That is why the police may desperately need a confession. And that makes it crucial for them to handle interrogations and confessions with the utmost care. The court appreciated none of the pressures police face, and how they can squeeze an innocent suspect. Alito and the other conservatives were not troubled that there was no video to confirm that Salinas was in fact uncomfortable as well as silent. If Salinas had answered the question by exclaiming that he was innocent, could police have reported that he sounded desperate and like a liar? The court’s new ruling puts the “defendant in an impossible predicament. He must either answer the question or remain silent,” Justice Stephen Breyer said in dissent (joined by the other three liberal-moderates). “If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances—even if he is innocent.” But if he doesn’t answer, at trial, police and prosecutors can now take advantage of his silence, or perhaps even of just pausing or fidgeting.

So how to you avoid talking to the police? Because that's never a good idea.

NOTE I know this is from much earlier this year, but it's so horrible I thought I'd take notice of it.

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Submitted by Hugh on

Conservative Supreme Courts have been waging a war on Miranda for years. And it is important to understood that Miranda (1966) applied only to custodial interrogations. That is a person had to be in police custody. So non-custodial interrogation, police questioning you on the street or at your home, was never covered by Miranda. The theory of Miranda is that custodial interrogations are inherently coercive. The flaw in Miranda is the failure to realize that non-custodial questioning, indeed almost any interaction with the police, is coercive.

The first significant counter-reaction to Miranda was New York v. Quarles (1984) which established the "public safety exception" to Miranda. A cop chased an armed suspect into a store, briefly lost sight of him, and then apprehended him. When he did so, the suspect did not have the gun and the officer asked, without mirandizing him, where it was. The Rehnquist Court held this to be kosher and thought it unlikely that this infringement on Miranda would be abused. Enter the War on Terror and the indefinite suspension of Miranda has become the norm.

The Roberts Court first took its hatchet to Miranda in Berghuis vs. Thompkins (2010) . This is the case where the Court ruled that suspects in custodial interrogations had to actively invoke Miranda.

Salinas v. Texas decided in June 2013. In this case, following an unwintessed double homicide involving a shotgun, police went to the home of the suspect Salinas, took his shotgun, and asked if he thought that ballistics would match shell casings found at the scene to his gun. Salinas did not answer

Instead, petitioner “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched hishands in his lap, [and] began to tighten up.” Id., at 18. After a few moments of silence, the officer asked additional questions, which petitioner answered.

Salinas was initially arrested for outstanding traffic violations but there was insufficient evidence for a murder charge and he was released. Shortly thereafter, a person came forward who said he heard Salinas confess to the killings. Based on this, the police went to arrest Salinas but he was gone. 15 years later he was found living in Houston under an assumed name. At his trial, his reactions to his initial questioning 15 years previously were used in court against him.

The thing about the Salinas case is that the reactions at issue were not necessary and are evidence of sloppy work by the prosecutor. The effect of the ruling though simply expands the power of the police and the police state we live in. The lesson to any citizen, law abiding or not, is to never talk to the police, never give information to the police other than basic identifying information required by law, see nothing, say nothing, act stupid, and get away from them as quickly as possible. In short, cases like this one reinforce the public's distrust of the police. In the long run, this isolates the police even more from the public and makes their legitimate work of actual law enforcement that much harder.