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Apr 22 2013

Obama Gets Another Bill of Rights Issue Wrong

The Supreme Court heard oral argument on Wednesday in Salinas v Texas, a case that involves the question of whether a suspect’s silence during police questioning can be used as evidence of his guilt during trial. And once again, the Obama administration has taken a position identical to the standard right wing position. Lyle Denniston has a recap of the argument:

“Where is the line?” Justice Stephen G. Breyer kept asking, and when he was offered one by Genovevo Salinas’s attorney, it was not clear that there would be a majority to embrace it. The attorney, Stanford law professor Jeffrey L. Fisher, argued that a constitutional “right to remain silent” should be established for every suspect caught up in a criminal investigation as soon as it becomes evident — to the suspect — that the police “are turning against you,” or regarding you as a suspect.

At that moment, Fisher argued, there should be a “right to remain silent” and the prosecutor, at the trial later, should not be allowed to comment that the failure to answer a given question was essentially a confession of guilt. That is what happened to Salinas, a Houston man, when he accompanied police to a station for an hour-long interview, and answered every question except one — the one that would have linked him directly to a double murder.

Justice Anthony M. Kennedy suggested that the Court’s prior precedents had provided clarity on when Fifth Amendment rights applied, but Fisher was asking the Court to put those rights into “a gray area.” The professor replied that he was, in fact, arguing for a “bright line” so that the right to remain silent would be safeguarded for any individual “in a police investigation setting.”

In technical legal terms, Fisher was arguing that, in the pre-arrest context, when an individual is being questioned, the suspect should not have to explicitly claim the Fifth Amendment privilege in order to keep his silence in response to a damaging question from being used against him.

The state of Texas, with the support of the federal Department of Justice, told the Court that in no situation before trial should the Fifth Amendment privilege apply unless the individual explicitly, or by strong implication, says something to claim that right…

Ginger D. Anders, an Assistant to the U.S. Solicitor General, bolstered that argument in her turn at the lectern, but almost immediately drew a sharp retort from Justice Sonia Sotomayor. It is, the Justice said, ”such a radical position” to argue that “silence is an admission of guilt, that acts of commission and omission are the same” in indicating guilt.

Anders, who was treated somewhat more gently by the Justices than Texas’s lawyer had been, replied that the Supreme Court has always understood that when an individual meets voluntarily with police and is not in formal custody, that individual “is fully capable of asserting his rights,” and should do so if the officers press a question that the individual believes will be incriminating.

Think about the position being taken by the state of Texas and the DOJ in this case. They’re arguing that if the police are questioning someone and that person says “I refuse to answer that question because of my Fifth Amendment right against self-incrimination,” the prosecutor cannot use that refusal to answer in court as evidence of his guilt (the court settled that issue long ago and it is not being challenged here). But if the suspect merely refuses to answer the question without specifically saying it’s because of his Fifth Amendment rights, then the prosecutor can use that as evidence of guilt. What is this, a game of Simon Says? In no other situation do you have to explicitly invoke your constitutional rights before you have them.

Here’s a good rule of thumb: If you’re involved in a case involving criminal justice and the Bill of Rights and you agree with Texas, you’re almost certainly wrong.

13 comments

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  1. 1
    slc1

    I don’t want to play lawyer here and perhaps Ben P can comment on this but it is my information that if an individual agrees to answer questions from the authorities, and in fact answers some of them, he has explicitly waived his rights under the 5th Amendment and thus cannot claim it to avoid answering some of the questions. Now this may involve issues like testimony before a Grand Jury and not the police but a clarification would be appreciated.

  2. 2
    kantalope

    And you have to say the magic words “5th amendment” while hopping on your left foot and doing a 360 just so we know you are sincere.

    Next case – how refusing a voluntary search is probable cause.

  3. 3
    Trebuchet

    I was expecting this to be about the lack of Miranda warning for the Boston suspect, which is yet another area where the administration’s doing it wrong. What possible difference would it make? I’m pretty sure he’s seen enough Miranda warnings on TV to know what it’s all about. Do they really think the warning to influence whether he tells them whether there are other bombs/bombers or not?

    Since I’m already off-topic, I’m getting really tired of the popups. I get every time I click on the first actual blog after starting an FTB session. Many have been for what appear to be scams.

    And still further off topic: Can’t wait to see what bombshell Glen Beck comes up with!

  4. 4
    Kevin, 友好火猫 (Friendly Fire Cat)

    Never talk to police. Unless it’s a friendly “hey, how goes”, never talk to them. If they want to question you on a crime, even as a witness, ask for a lawyer to be present.

    This video lays it out nice and clear.

  5. 5
    abb3w

    From the 1966 SCOTUS ruling in Miranda v Arizona, emphasis added:

    Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

    While I Am Not A Lawyer, it seems to me that remaining silent in response to a particular question would appear to fall under the broad banner of “in any manner”.

    @1, slc1:

    I don’t want to play lawyer here and perhaps Ben P can comment on this but it is my information that if an individual agrees to answer questions from the authorities, and in fact answers some of them, he has explicitly waived his rights under the 5th Amendment and thus cannot claim it to avoid answering some of the questions.

    That was how Congress worked in the McCarthy hearings, but that was before the Miranda ruling.

    In the case of Congress, there’s also an additional option of transactional immunity. If you assert (even by silence) your rights under the 5th, a Congressional committee can choose at their option to grant immunity from prosecution — at which point, you can never be prosecuted for any crime discussed as a result of their questions, but can be jailed for contempt if you continue to refuse to answer.

  6. 6
    Ben P

    I don’t want to play lawyer here and perhaps Ben P can comment on this but it is my information that if an individual agrees to answer questions from the authorities, and in fact answers some of them, he has explicitly waived his rights under the 5th Amendment and thus cannot claim it to avoid answering some of the questions. Now this may involve issues like testimony before a Grand Jury and not the police but a clarification would be appreciated.

    I don’t deal with that really, but from what I understand, you can be deemed to have waived both the right to remain silent and the right to an attorney by voluntarily talking with the police, but you always have the right to re-assert the rights.

    This case isn’t really the typical situation. Much more commonly, the cops bring someone in, he says “I want a lawyer,” the police are legally required to stop questioning him until a lawyer is present. However, the suspect then flags an officer from the holding cell and says he wants to talk, before his lawyer gets there. The police bring him back in question him, and he incriminates himself. Did the police violate his right to counsel? The answer in that case is no, because he more than likely waived it.

    There are some similar doctrines under the 5th amendment. A defendant can waive his rights either expressly (signing a waiver) or impliedly (talking to police), but the Court specifically held in Miranda that the defendant may re-assert his rights, and that answering some questions, then remaining silent for others is not a waiver.

    I’m with Scalia on this one. That this case is being heard before the supreme court is almost mind-boggling. While it is true that 6th amendment rights (i.e. only attach upon “custodial interrogation”) and its not a custodial interrogation if someone is free to leave) but the idea that someone can refuse to answer a question, then the police officer testify from the stand “I asked him this, and he REFUSED to tell me” is almost mind-boggling. If I asked a question like that i’d fully expect to be slapped down hard, notwithstanding some bullshit argument that 5th amendment rights hadn’t been invoked.

  7. 7
    Ben P

    That was how Congress worked in the McCarthy hearings, but that was before the Miranda ruling.

    In the case of Congress, there’s also an additional option of transactional immunity. I

    Immunity grants work in all court proceedings. I can call you as a witness in a criminal case, and you can plead the 5th amendment, but if I grant immunity you can no longer refuse to testify.

    It may also be relevant that mere disapproval or something other than criminal sanctions doesn’t trigger the 5th amendment. In some of my cases, child welfare proceedings, for example, the 5th amendment doesn’t apply. Once a burden’s been met to remove a child from the home and place them in foster care, the parent has to demonstrate to the court that the home is a safe environment for the child. They can refuse to cooperate, but it can be held against them. The reason is that these aren’t criminal proceedings.

  8. 8
    jameshanley

    This is clearly a case of the government begging for an exception to the actual purpose of the 5th Amendment. It’s appalling that this is done by people who have sworn to uphold the Constitution, but if they can get the Court to agree with their specious theory, they can tell themselves with perfect complacence that they have upheld their oath. And probably believe the lie they told themselves.

  9. 9
    auditorydamage

    On a logical basis alone, silence shouldn’t be used to establish guilt, for the same reason that gaps in knowledge do not establish the existence of a deity. There could very well be other reasons why an individual chooses to remain silent other than avoiding an admission of culpability for a specific crime being investigated. It’s up to the prosecutor to demonstrate the accuracy and logic of the state’s claims, including allegations regarding a suspect’s choice to remain silent about particular questions. Frankly, any set of testimony and evidence that could demonstrate beyond a reasonable doubt that $suspect remained silent purely to avoid self-incrimination should be sufficient to establish guilt without any mention of the suspect’s guilt. Conversely, if the state cannot establish guilt using available evidence and testimony, a null response can’t simply be handwaved into an admission of guilt. Null responses aren’t blank Scrabble tiles that can be turned into whatever the state wants them to be.

  10. 10
    slc1

    Again, it is my information that, at least in the case of a grand jury, if one is called to testify and answers the first question, which may be as innocuous as, “is your name Ed Brayton,” then you are deemed to have waived your 5th amendment rights.

  11. 11
    meursalt

    Let me get this straight:

    “You have the right to remain silent… but you need to loudly proclaim that you are doing so.”

    Yep, sounds like original intent.

  12. 12
    Modusoperandi

    (donk donk)
    “He won’t talk. Guilty, probably. Let’s go to the DA.”
    “Detective, that’s a dummy.”
    “No. That’s a guilty dummy.”
    (Law & Order theme plays)
     
    Katherine Lorraine, Tortue du Désert avec un Coupe-Boulon “Never talk to police. Unless it’s a friendly ‘hey, how goes’, never talk to them. If they want to question you on a crime, even as a witness, ask for a lawyer to be present.”
    Apparently you never saw my CBS series (1984-91), Lawyer-Cop.

  13. 13
    auditorydamage

    should be sufficient to establish guilt without any mention of the suspect’s guilt

    … of course, I meant suspect’s silence.

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