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Jun 19 2013

SCOTUS Weakens 5th Amendment. Again.

In an entirely unsurprising move, the five conservatives on the Supreme Court have once again weakened the minimal safeguards in the Bill of Rights for those accused of a crime. Specifically, they said that you don’t really have a right to remain silent until you’re informed of or have explicitly invoked that right. Tejinder Singh, who (if it’s the same person) was one of the best college debaters in the country a decade ago, gives the background on the case:

As almost all Americans who have ever watched television or gone to a movie know, the Supreme Court held in a case called Miranda v. Arizona that a criminal suspect who is in police custody must be advised of his right to remain silent; if the suspect chooses to remain silent, that silence cannot be used against him in a trial. The question before the Court in this case was whether this protection of silence applies before a suspect is actually arrested. The defendant in this case, Genevevo Salinas, voluntarily went to the police station, where officers interviewed him about a pair of 1992 murders. When asked whether a shotgun given to police by his father would match shell casings found at the crime scene, Salinas did not answer. At his trial for the murders, prosecutors used Salinas’s silence as evidence of his guilt; Salinas was convicted and sentenced to twenty years in prison.

Over the years, the lower courts had been divided on whether prosecutors can point to the “precustodial” silence of suspects. Today the Court resolved that conflict, holding that because Salinas failed to invoke his right to remain silent in response to the officers’ questions, his silence was fair game at his trial. The Court reasoned that the privilege against self-incrimination applies only when it is asserted, and that merely remaining silent in response to questions is not enough.

And Jonathon Turley points out one of the big problems with this ruling:

Of course, now the police need only to ask questions before putting some into custody to use their silence against them. What is particularly troublesome is how subjective this evidence is. To use the silence and demeanor of a suspect on this question is highly prejudicial and equally unreliable. Yet, now the refusal to answer questions (which is your right) can now be used against you…

This ruling will likely open up an entire area of new prosecutorial arguments using silence as evidence of guilt. It is a major blow to the rights of citizens — and a telling addition to the troubling judicial legacy of Alito.

This kind of judicial hair-splitting only serves to undermine due process. What’s next, a requirement that the accused has to say “Simon says” before they actually have the rights guaranteed in the constitution?

28 comments

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  1. 1
    Chiroptera

    Well, this is the Supreme Court that has ruled that a lawyer who shows up drunk at your trial and passes out during it is not a violation of your right to an attorney.

  2. 2
    Abby Normal

    How does this impact probable cause? When a cop goes on a fishing expedition, will refusing to answer his or her questions serve as grounds for warrant unless the target specifically says they’re invoking their 5th Amendment right?

  3. 3
    Gregory in Seattle

    Next up on the Supreme Court docket: a ruling that asserting a right to silence is inherently suspicious and can thus be used against you. In the end, the Fifth Amendment will be reduced to a catch 22.

  4. 4
    slc1

    Back in the 1970s, there was an episode of the Rockford files where ole Jimbo was called before a Grand Jury and made the mistake of answering the first question, which was, “Is your name Jim Rockford?” Subsequently, when he invoked the 5th amendment later on, he was told that, by answering the first question, he had waived his 5th Amendment rights and was imprisoned for contempt. This, apparently was based on a case uncovered by the series’ screen writers.

  5. 5
    frog

    Along with “look both ways before you cross the street,” we now have to teach schoolchildren that if a policeman or other authority figure starts asking them questions, they should reply, “I invoke my 5th Amendment right, and will not talk to you without a lawyer present.”

    What? That’s how we did it in my family! ;-)

  6. 6
    doublereed

    What???? How can they justify that??? That makes no sense. What is their reasoning?

    I have to specifically invoke the right to remain silent? That’s just ridiculous. It’s SILENCE. It’s the LACK of invoking.

  7. 7
    timberwoof

    This fucked up because in another ruling a few years ago the Supremes said that the police don’t have to tell you your Miranda rights because you always have them and because every TV cop repeats them all the time, so it’s reasonable to assume that you know you have that right.

    “I do not wish to speak with you. I withhold permission for this search.”

  8. 8
    Glenn E Ross

    Maybe what is needed now is a lawyer or group of lawyers to fashion a few sentences referring to this decision and have it printed on laminated business size cards. If a police officer wants to question you, hand them the card. They are informed you are invoking your right and you are silent while doing so.

  9. 9
    Don Williams

    I would think Mr Salinas had an incompetent lawyer.

    There are a huge number of cases out there in which innocent people have been entrapped by talking to the police. Basically the scam is that you answer some questions , police show there is something incomplete in your answers somewhere, and you are charged with obstructing justice , deceit,etc as a way to coerce you into cooperating (i.e, becoming an unpaid snitch so the cops don’t have to put down their donuts to close the case.)

    There are also men on death row who have been proven innocent by DNA –having been framed decades earlier. Anyone who doesn’t shut up once he senses police deception (which is legally allowed) is a moron , no matter how innocent they are. The jury should have been shown that.

    I don’t dislike the police — I dislike some lawyers, police chiefs and judges. But there are some bad apples in every group and the cops themselves are the first to lawyer up and call for their union rep if their behavior comes under question.

  10. 10
    jesse

    I should quote here from a case that expresses quite well the situation with the 5th Amendment, and though it was applied to a contempt of Congress case before HUAC, it still applies:

    “As pointed out in Quinn v. United States, ante, p. 349 U. S. 155, no ritualistic formula or talismanic phrase is essential in order to invoke the privilege against self-incrimination. All that is necessary is an objection stated in language that a committee may reasonably be expected to understand as an attempt to invoke the privilege. In the Quinn case, we hold that Quinn’s references to “the First and Fifth Amendments” and “the First Amendment to the Constitution, supplemented by the Fifth Amendment” were sufficient to meet this standard. It would be unwarranted, we think, to reach a different conclusion here as to petitioner’s plea based on “primarily the First Amendment, supplemented by the Fifth.”

    The Government does not even attempt to distinguish between the two cases in this respect. Apparently conceding that petitioner as well as Quinn intended to invoke the privilege, the Government points out “the probability” that his references to the Fifth Amendment were likewise deliberately phrased in muffled terms “to obtain the benefit of the privilege without incurring the popular opprobrium which often attaches to its exercise.” [Footnote 8] On this basis, the Government contends that petitioner’s plea was not adequate. The answer to this contention is threefold. First, an objection that is sufficiently clear to reveal a probable intention to invoke the privilege cannot be ignored merely because it is not phrased in an orthodox manner. Second, if it is true that, in these times, a stigma may somehow result from a witness’ reliance on the Self-Incrimination Clause, a committee should be all the more ready to recognize a veiled claim of the privilege. Otherwise, the great right which the Clause was intended to secure might be effectively frustrated by private pressures. Third, it should be noted that a committee is not obliged to either accept or reject an ambiguous constitutional claim the very moment it is first presented.

    –Justice Earl Warren

    Emspak v. United States – 349 U.S. 190 (1955)

    http://supreme.justia.com/cases/federal/us/349/190/case.html

  11. 11
    Gregory in Seattle

    @timberwoof #7 – And by speaking to invoke your right to silence, you have given up that right, as slc1 illustrated in #4.

    Screwed if you do, screwed if you don’t.

  12. 12
    slc1

    Re jesse @ #10

    The trouble with the HUAC cases is that the question have you ever been a member of the Communist Party was not an incriminating question because it was not illegal to belong to the Communist party in the 1930s. If the committee couldn’t get you on that, they could get you with the next question, namely do you know anyone who is now or was in the past a member of the Communist Party to your knowledge. Those in the Hollywood who refused to answer that question went to jail and/or were blacklisted by the industry as there was nothing illegal about knowing Communist Party members in the 1930s. Those who named names avoided the slammer and the blacklist (most notoriously, Elia Kazan).

    As it happens, I went to junior high school with a boy whose father, Paul Jarrico, was a Hollywood screen writer who refused to name names and was blacklisted.

  13. 13
    mikeyb

    You have the right to remain silent if you are a corporate human being but not if you are a real human being.

  14. 14
    slc1

    Re Don Williams @ #9

    Come on Don, not all of them were framed. In fact, many if not most of them were convicted on the basis of eyewitness evidence that was later shown to be wrong. It only goes to show that eyewitness evidence is unreliable, especially when the alleged perp is unknown to the eyewitnesses.

  15. 15
    D. C. Sessions

    Next up: deciding that we don’t have the right to counsel by an attorney before deciding whether we are required to answer questions before being taken into custody. Get that one wrong by holding your peace and you’re in jail for obstruction; get it wrong by answering questions and you’re potentially self-incriminating.

    The average Jo Citizen’s high-school civics class isn’t going to teach enough of the law on that to decide for herself.

  16. 16
    jesse

    @slc1 – it wasn’t just case of whether he was in the Communist Party. There were other organizations as well.

    Anyhow the case involved answering questions about other people that could get them–and Julius Emspak– charged under various espionage and labor-related laws. And the courts said you couldn’t do an end run around that. That was the result in many cases of people naming names. So again, the same reasoning applies and Warren’s opinion lays that out pretty clearly. You have to understand that at that point it didn’t matter to HUAC that people were engaged in lawful political activity. People went to jail and it wasn’t just for contempt, either, though that was the usual way they criminalized such.

    The upshot is that even now, we operate in the US under laws that make a labor party de facto illegal. (Most of them are restrictions on labor union political organizing and fundraising). (And no, that doesn’t mean you can’t call it Labor, note the small “l”,)

  17. 17
    Biff Blendon

    I was thinking the same thing Gregory wrote — it’s now the Catch 22 Amendment.

    Let’s look at the current trend of eroding rights happening at breakneck speed:

    1st Amendment — taking a beating and on life support. (NSA)
    2nd Amendment — the poster child of the Bill of Rights appeal movement.
    4th Amendment — ALL law enforcement is pushing for an end to this one, with SCOTUS helping.
    5th Amendment — silence is no longer golden — it’s red (with guilt).
    9th Amendment — you got no stinkin’ rights.
    14th Amendment — equal protection? Not so, law enforcement literally “gets away with murder” every day.

    We’re on a sinking ship. USE your rights while you still can.

  18. 18
    Don Williams

    1) Given how some of our ruling elites have wiped their behinds on the Bill of Rights over the past 12 years , I don’t see the point to whining about these decisions. It is akin to snarking about how the ruling party is too incompetent to make the trains to Auschwitz run on schedule.

    2) Yes — 310 Million Americans are ruled by what is a two-faced, predatory, deceitful fraud. And yes, the Roberts Supreme Court is a part of the fraud.. Refusing to face that is what Harold Stearns called
    “the technique of liberal failure”.

    Way Back in 1919 in case anyone wants to raise that “reform moves slowly” claptrap excuse.

  19. 19
    Michael Heath

    The relevant passage of the 5th Amendment:

    No person [...] shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;

    A couple of key points:

    First is the use of “person” rather than citizen. This convincingly argues the framers saw the right to be silent as a right and not a privilege granted by government. And yet we continue to see repeated reference to the exercise of this right on this very thread as a privilege.

    Second, our [negative] rights belong to us, they are not granted to us by any government. Therefore the question isn’t whether a right exists – of course it does, but instead how the government must act when faced with a person exercising or attempting to exercise a particular right. In this case the right is a numerated right, with the conservatives on the court delegating non-existent and therefore unconstitutional power to effectively deprive us of the exercise of a right. Gregory in Seattle’s slippery slope Catch-22 argument has it exactly right. A right that the Constitution explicitly demands government must instead protect.

    I think a large reason the court gets away with this is our ignorance or sloppiness when we discuss rights. For example, Ed writes:

    Specifically, [the SCOTUS majority] said that you don’t really have a right to remain silent until you’re informed of or have explicitly invoked that right.

    I highly doubt that the court stated we had no right to silence, but instead debated whether that right must be protected within the framework of this case. This sloppiness is problematic because it aggravates our collective ignorance on the source of our rights. I think there’d be far more outrage if we all understood that our uncountable rights are inalienable where the key question is not whether a right exists or not – it does, but instead how is the government to behave when a person attempts to, or actually exercises a particular right.

    From the framework I present, our rights are inalienable and in this case, we’re discussing a numerated right the government is explicitly required to protect, we should see hundreds of millions of outraged Americans; and yet hardly a peep. Where we liberals are also part of the problem because we contribute to a misconstrued understanding of the source of our rights and the approach needed to effectively address such questions.

    We now have a country of people who wrongly think government grants us our rights and therefore courts parse out whether a right exists or not. And yet even the cons on the court know this isn’t true and instead couch their language in the protection or rights, or not. If we abandoned their rhetoric and used the rhetoric of the framers, I think we’d see a significant improvement in our public discourse which would lead to marginally better outcomes and far less tolerance for these sorts of absurd rulings.

  20. 20
    slc1

    Re jesse @ #16

    In the case of Paul Jarrico, as I understand it, he refused to answer anything from the committee. Apparently, he was too far down the totem pole to prosecute but he was blacklisted and his career in Tinseltown was essentially over Based on his production in the 1940s, he was, at best, a B list writer.

  21. 21
    slc1

    Re jesse @ #6

    Some handled the committee differently. Actor Judy Holliday put on her dumb blond act before the committee, which convinced them that she was a bubble head, just as her persona was in many of her movies. Of course, with an IQ of 170, she was anything but a dumb blond but the committee didn’t bother to gather any significant information about her mental ability (maybe they made their judgments based on her movies).

    Another approach which certainly showed contempt but was not prosecutable was San Francisco area writer William Mandel. Mandel when asked whether he had ever been a member of the Communist Party responded no and I wouldn’t tell you if I was. The was then asked if he know anybody who he had reason to believe was a member and his response was no and I wouldn’t tell you if I did.

  22. 22
    slc1

    Re Don Williams @ #18

    Come on Don, don’t you know that Roberts is like a baseball umpire calling balls and strikes. He calls ‘em like he sees ‘em. Har de har har, har har.

  23. 23
    Modusoperandi

    On the plus side, mime convictions.

  24. 24
    eric

    What is particularly troublesome is how subjective this evidence is.

    If that’s what you find most troublesome, you’re not cynical enough. This basically hangs the entire amendment on the honesty of the police. Before this, saying nothing was by default not admissible. Now, its not admissible only if the police stand up in court and say its not admissible.

    Police: “No judge, I did not hear him invoke any right to silence.”

    Judge: “Well, that’s good enough for me. Your silence can be used against you, son, do you want to change your plea?”

  25. 25
    F [i'm not here, i'm gone]

    Regardless as to the court ruling, the only way guilt can be inferred is if a jury buys this assumption. And jurors either will or won’t regardless of this ruling, as they have done.

  26. 26
    Don Williams

    1) One of the things about the US political system that goes unremarked is the severe vulnerability of virtuous men to economic attacks by private interests. Most of us never experience that — either because we are too cowardly to cause trouble or too insignificant to irritate the powerful.
    2) One of the tragic victims of the McCarthy period was Moses Finley. Called before Congress, he took the Fifth Amendment and was subsequently fired from a tenured position at Rutgers, in spite of an outcry by the faculty and with no evidence of any wrongdoing.
    3) As a result , Finley went to Great Britain and slowly worked his way once again up the academic ladder from
    lecturer to professor. He served as Master of Darwin College at Cambridge from 1976-1982, was a Fellow of the British Academy, and was knighted in 1979, having became a British citizen in 1962:

    http://en.wikipedia.org/wiki/Moses_Finley

    4) Finley’s “The Ancient Economy” had enormous impact on historians’ view of the economies of ancient Greece and Rome. In reading it, you realize what a disgrace it was for this country to let a bunch of ignorant yokels in the Senate drive one of our major scholars from this country.

  27. 27
    Childermass

    How piss poor of a case must the DA have had for the fact that the defendant was silent to seem to be significant evidence.

  28. 28
    dcsohl

    I am hereby invoking my First Amendment right to speak: Next up, you will have to start explicitly invoking the First Amendment every time you wish to speak, or write something, even a blog comment.

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