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Court says pre-Miranda silence can be used
Associated Press ^ | Jun 17, 2013 11:27 AM EDT | Jesse J. Holland

Posted on 06/17/2013 12:20:46 PM PDT by Olog-hai

The Supreme Court says prosecutors can use a person’s silence against them if it comes before he's told of his right to remain silent.

The 5-4 ruling comes in the case of Genovevo Salinas, who was convicted of a 1992 murder. During police questioning, and before he was arrested or read his Miranda rights, Salinas answered some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon.

Prosecutors in Texas used his silence on that question in convicting him of murder, saying it helped demonstrate his guilt. Salinas appealed, saying his Fifth Amendment rights to stay silent should have kept lawyers from using his silence against him in court. Texas courts disagreed, saying pre-Miranda silence is not protected by the Constitution.

The high court upheld that decision. …

(Excerpt) Read more at hosted.ap.org ...


TOPICS: Crime/Corruption; Government; News/Current Events; US: District of Columbia
KEYWORDS: miranda; premiranda; scotus; silence; testimony
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1 posted on 06/17/2013 12:20:46 PM PDT by Olog-hai
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To: Olog-hai
Don't talk to police
2 posted on 06/17/2013 12:23:31 PM PDT by E. Pluribus Unum (It is the deviants who are the bullies.)
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To: Olog-hai

What the Hell?! So we have a right to remain silent AFTER we’re told we have the right to remain silent or it WILL be used against us?

This nation is lost.


3 posted on 06/17/2013 12:23:33 PM PDT by rarestia (It's time to water the Tree of Liberty.)
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To: Olog-hai

http://www.bing.com/videos/search?q=silence+is+golden+youtube&view=detail&mid=C423D0407A1189B1AE25C423D0407A1189B1AE25&first=0&FORM=NVPFVR&qpvt=silence+is+golden+youtube&adlt=strict

I guess not...


4 posted on 06/17/2013 12:23:56 PM PDT by gov_bean_ counter (Romans 1:22 Professing themselves to be wise, they became fools,)
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To: Olog-hai

So you have to be told you have a right in order to invoke it? This makes absolutely no sense. If he’s in custody and subjected to interrogation, he has the right to remain silent and Miranda v. Arizona requires the police to inform the accused of the right to remain silent. If they don’t advise him of the right, they can’t use any statements made. Now they say that if you don’t make a statement, they can use that.

I’d have to read the whole opinion, but this does not square logically.


5 posted on 06/17/2013 12:24:42 PM PDT by henkster (The 0bama regime isn't a train wreck, it's a B 17 raid on the rail yard.)
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To: rarestia
What the Hell?! So we have a right to remain silent AFTER we’re told we have the right to remain silent or it WILL be used against us?

It's a misleading title.

You can invoke your fifth amendment rights or not, but if you answer one question you have effectively forfeited your fifth amendment rights.

Solution? Don't talk to police

6 posted on 06/17/2013 12:25:56 PM PDT by E. Pluribus Unum (It is the deviants who are the bullies.)
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To: henkster
He answered all of their questions except one.

If you are going to invoke your right to remain silent, STFU from the very beginning.

7 posted on 06/17/2013 12:26:59 PM PDT by E. Pluribus Unum (It is the deviants who are the bullies.)
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To: rarestia
You have the right to invoke your rights at any time up until you are arrested, then you can again invoke your rights.

The prosecutor's hands would have been tied if he had instead replied ‘I'm invoking my right to silence, and I want a lawyer.’

In the end, I think it's all tweezer law, picking at little tiny things to try to overturn a conviction.

8 posted on 06/17/2013 12:27:15 PM PDT by kingu (Everything starts with slashing the size and scope of the federal government.)
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To: henkster

They’re arguing that because he was talking to police BEFORE he clammed up about a shotgun matching up to ballistics, he waived his right. Apparently one must immediately claim the right before one can use it which freaking ridiculous.

Rights are extant. The 5th amendment is an affirmation of the right, meaning it acknowledges that it exists. No amount of legal or political wrangling can make it such that I can’t choose to shut my mouth at any time: before, during, or after questioning.

This is just retarded. The decline has been especially precipitous as of late. Not sure what the Obama admin is threatening SCOTUS with, but it’s been particularly bad.


9 posted on 06/17/2013 12:27:50 PM PDT by rarestia (It's time to water the Tree of Liberty.)
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To: rarestia

Not true, according to the article you can’t stop answering questions once you started. However, if on the onset of questioning you refuse to answer any question by self invoking, that can’t be used against you.


10 posted on 06/17/2013 12:28:04 PM PDT by eastforker (Cruz for steam in 2016)
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To: Olog-hai
Unless this is a decision limited to a very fine point in this one case, I have to agree with the dissenting side on this one. You either have the right to remain silent or you don't. The police informing you of that right doesn't create it. It exists before the police questioned you. Otherwise the police just talking to you about another topic and then suddenly springing an incriminating question on you which you don't answer could be used to imply a confession.
11 posted on 06/17/2013 12:29:31 PM PDT by KarlInOhio (This message has been recorded but not approved by Obama's StasiNet. Read it at your peril.)
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To: E. Pluribus Unum

But you have the right to cease answering questions at any time. Was this one question in a series of questions, several before and several after?

Once he refused to answer, the police were supposed to stop talking to him.

But yes, NEVER talk to the police. If they’ve decided you did it, you aren’t gonna talk em out of it. You’re going to jail either way.


12 posted on 06/17/2013 12:29:31 PM PDT by henkster (The 0bama regime isn't a train wreck, it's a B 17 raid on the rail yard.)
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To: eastforker

That’s my point! You MAY stop answering questions, but apparently that silence can be used AGAINST you. That’s REALLY messed up.

The 5th amendment is NOT CONDITIONAL. You can assert it as a right whenever you want: you simply shut your mouth.

The fact that being silent after answering simple questions can be construed as guilt is my problem with this verdict.

Remember, by law, the police are PERMITTED TO LIE to get information. Do not talk to police, not even during a traffic stop.

“Am I being detained or am I free to go?” should be your only question.


13 posted on 06/17/2013 12:30:20 PM PDT by rarestia (It's time to water the Tree of Liberty.)
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To: rarestia

You can revoke your right to remain silent any time during questioning. You don’t waive it by talking. You only waive it if you’ve been given the warnings, and then agree to talk. Then anything you say can and will be used against you. But once you start talking, you say “I don’t wanna talk to you no more” the questioning is over.


14 posted on 06/17/2013 12:31:50 PM PDT by henkster (The 0bama regime isn't a train wreck, it's a B 17 raid on the rail yard.)
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To: henkster

Sorry; mean to say “invoke your right to remain silent.” Big difference with “revoke your right to remain silent.”

My mistake.


15 posted on 06/17/2013 12:32:47 PM PDT by henkster (The 0bama regime isn't a train wreck, it's a B 17 raid on the rail yard.)
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To: rarestia

Oh I didn’t say I agreed with it.I think it stinks.


16 posted on 06/17/2013 12:33:21 PM PDT by eastforker (Cruz for steam in 2016)
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To: henkster
He thought he was smart and refused to answer the one question about his guilt, but he answered all other questions before and after.

He should have kept his mouth shut. The police are asking you questions because they intend to use the answers, or non-answers, against you.

17 posted on 06/17/2013 12:33:56 PM PDT by E. Pluribus Unum (It is the deviants who are the bullies.)
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To: Olog-hai

Technially, if you are silent, nothing can be used against you, since you haven’t said anything. The perp in the case had started answering questions and then stopped. It’s not pick and choose. Either stay silent or speak, whether mirandized or not.


18 posted on 06/17/2013 12:34:50 PM PDT by cotton1706
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To: E. Pluribus Unum

Thank you, for a moment, I thought all was lost and madness the only rationale response.


19 posted on 06/17/2013 12:36:16 PM PDT by Valpal1 (If the police can t solve a problem with brute force, they ll find a way to fix it with brute force)
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To: E. Pluribus Unum

I hoping that this is a very narrow holding that will only apply to a peculiar set of facts.


20 posted on 06/17/2013 12:37:40 PM PDT by henkster (The 0bama regime isn't a train wreck, it's a B 17 raid on the rail yard.)
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To: rarestia; All
The "conservative" wing of SCOTUS decided this, FWIW.

The reason?:

Salinas' "Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question," Justice Samuel Alito said. "It has long been settled that the privilege `generally is not self-executing' and that a witness who desires its protection `must claim it.'"

Ok...so one MUST claim his 5th Amendment right...THEN clam up. I don't see the problem here. UNLESS some LEOs lie and claim you'd never invoked the 5th (which IS a potential problem given the expanding Police State and lack of quality coming off the LEO assembly-line.)

The entire liberal wing of SCOTUS voted against it -- I assume to continue providing loopholes for the Guilty. That's just enough for me to consider who was more logical and right in this case.

21 posted on 06/17/2013 12:38:20 PM PDT by USS Johnston (Is life so dear or peace so sweet as to be bought at the price of chains & slavery? - Patrick Henry)
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To: Olog-hai

There is no Constitution any more. You can’t even ask someone if they are a citizen before they vote and now you can’t even keep your mouth shut before being mirandized?


22 posted on 06/17/2013 12:38:25 PM PDT by GeronL (http://asspos.blogspot.com)
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To: rarestia

I don’t have a problem with the ruling. Silence is an answer, we all know what we think when people start claiming the 5th, we think they’re guilty. His lawyer probably should have done a better job of attacking that as evidence (really if silence is the best they’ve got they ain’t got much). But there’s nothing wrong with pointing out his silence in court.


23 posted on 06/17/2013 12:39:02 PM PDT by discostu (Go do the voodoo that you do so well.)
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To: rarestia
"During police questioning, and before he was arrested or read his Miranda rights, Salinas answered some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon."

Once you answer SOME questions, it opens the door to asking why you refused to answer other questions.

This is why, if you suspect you are being questioned, or going to be questioned, with an eye towards charging you with an offense, you should not answer any questions, but just say that all questions should be directed, in writing, to your lawyer.

24 posted on 06/17/2013 12:40:03 PM PDT by PapaBear3625 (You don't notice it's a police state until the police come for you.)
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To: Olog-hai
did not answer when asked if a shotgun he had access to would match up with the murder weapon

I've wondered about ballistic matching on shotguns. I would guess they could chemically match the shot recovered from similar rounds in the perps possession, but that's general enough to allow reasonable doubt. Can they match striations from bullet to barrel on a shotgun if you're firing buck shot?

25 posted on 06/17/2013 12:41:33 PM PDT by Teotwawki (For a person to get a thing without paying for it, another must pay for it without getting it.)
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To: E. Pluribus Unum

Paging Lois Lerner.


26 posted on 06/17/2013 12:41:48 PM PDT by Resolute Conservative
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To: PapaBear3625

So they asked him questions before arresting him or reading him his rights...

I guess the police have just learned that if they wait long enough to read you your rights, they can gain an advantage...

They can just tell you that you aren’t under arrest, and question you...

Then arrest you.


27 posted on 06/17/2013 12:43:30 PM PDT by ltc8k6
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To: Teotwawki

Maybe they had fired shells at the scene?


28 posted on 06/17/2013 12:44:21 PM PDT by ltc8k6
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To: Olog-hai

But also said your silence can’t be used against you if you explicitly invoke your Fifth Amendment right to remai silent.


29 posted on 06/17/2013 12:47:48 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: ltc8k6

Good point. They could match the firing pin strike. Is that accurate enough for a conviction? I’m still curious about striation marks. It seems that shot, even through a rifled barrel, wouldn’t be able to be matched. Slugs yes.


30 posted on 06/17/2013 12:48:12 PM PDT by Teotwawki (For a person to get a thing without paying for it, another must pay for it without getting it.)
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To: Olog-hai

This is ridiculous. Just don’t offer anything to the cops but “I want my attorney.” They are not your friends and they are not there to “help” you.


31 posted on 06/17/2013 12:52:47 PM PDT by Secret Agent Man (Gone Galt; Not averse to Going Bronson.)
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To: henkster

There are lots of cases where people aren’t read their miranda rights. It’s been how cases have been tossed on technicalities.


32 posted on 06/17/2013 12:53:26 PM PDT by Secret Agent Man (Gone Galt; Not averse to Going Bronson.)
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To: E. Pluribus Unum

Funny how that does not apply to IRS officials testifying before Congress....


33 posted on 06/17/2013 12:54:01 PM PDT by Kozak (The Republic is dead. I do not owe what we have any loyalty, wealth or sympathy.)
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To: Olog-hai

“Texas courts disagreed, saying pre-Miranda silence is not protected by the Constitution.

WHAT???? Since when does our right to be silent require to first be read that right???


34 posted on 06/17/2013 12:55:41 PM PDT by CodeToad (Liberals are bloodsucking ticks. We need to light the matchstick to burn them off. -786 +969)
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To: eastforker

No, you can decide after answering questions to decide you want to stop answering and invoke your 5th amendment rights. This has been exactly what the ACLU Don’t Talk to the Police attorneys have said, if you find answering politely and an officer then asks to search your vehicle, then you can decline and then also say I am not answering any more questions, are you detaining me or am i free to go?


35 posted on 06/17/2013 12:56:15 PM PDT by Secret Agent Man (Gone Galt; Not averse to Going Bronson.)
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To: Olog-hai

In other words, you do not have the right to be silent until they read you the right to be silent.


36 posted on 06/17/2013 12:58:23 PM PDT by CodeToad (Liberals are bloodsucking ticks. We need to light the matchstick to burn them off. -786 +969)
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To: Kozak

Our the USAG.


37 posted on 06/17/2013 12:59:20 PM PDT by E. Pluribus Unum (It is the deviants who are the bullies.)
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To: Kozak

Huge difference. Testifying in front of Congress with it being run as a court, these people are essentially sworn in for their testimony. In court once you are sworn in as a witness and are testifying you don’t get to make an opening statement proclaiming innocence, then taking the fifth from that point on.

You are not in court nor are you a sworn in witness at a traffic stop. You can answer a few questions but if you do not like where the questioning is going you can invoke 4th and 5th amendment rights once you believe the cop is on a fishing expedition at your expense.


38 posted on 06/17/2013 12:59:32 PM PDT by Secret Agent Man (Gone Galt; Not averse to Going Bronson.)
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To: rarestia

no... your silence can be used against you AFTER you have already begun talking with the police... simply never start talking... do not bother to cooperate even if you are not guilty... lawyer up immediately...


39 posted on 06/17/2013 12:59:50 PM PDT by latina4dubya (when i have money i buy books... if i have anything left, i buy 6-inch heels and a bottle of wine...)
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To: Olog-hai

This is a bad decision.

The average person is not a defense lawyer and doesn’t know that you can forfeit your 5th amendment rights by answering a question. I just learned that myself in the last month as part of the IRS thing.

If excorcising your fifth amendment rights can be used against you as an implication of guilt then you have no fifth amendment right.

I hope they appeal.


40 posted on 06/17/2013 1:00:05 PM PDT by DannyTN
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To: CodeToad

My 5th amendment rights exist (and all the rest) whether or not a jack booted govt thug tells me I have the right not to talk to them.


41 posted on 06/17/2013 1:00:31 PM PDT by Secret Agent Man (Gone Galt; Not averse to Going Bronson.)
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To: DannyTN
I hope they appeal.

From the Supreme Court, the only appeal is to God.

42 posted on 06/17/2013 1:07:39 PM PDT by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: Secret Agent Man

You know what the next incremental step will be: You have no right to keep quiet until “Mirandized” but the cops can delay that indefinitely.


43 posted on 06/17/2013 1:08:52 PM PDT by CodeToad (Liberals are bloodsucking ticks. We need to light the matchstick to burn them off. -786 +969)
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To: BuckeyeTexan

SCOTUS ping.


44 posted on 06/17/2013 1:09:08 PM PDT by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: ltc8k6

i still would not talk... even if i were not under arrest... i won’t even talk with an officer issuing me a speeding ticket... i hand over the license and registration... i sign it and leave.. no hello officer.. no small talk... no good-bye... nada! (although back in the day, i talked myself out of a couple of tickets)...


45 posted on 06/17/2013 1:10:38 PM PDT by latina4dubya (when i have money i buy books... if i have anything left, i buy 6-inch heels and a bottle of wine...)
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To: CodeToad

Cops can legally lie to you to get info out of you. What rights does any average citizen have to protect themselves against cops?


46 posted on 06/17/2013 1:10:56 PM PDT by Secret Agent Man (Gone Galt; Not averse to Going Bronson.)
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To: Secret Agent Man

Exactly! I am so surprised at how easily citizens, even well-informed conservatives, cave in...


47 posted on 06/17/2013 1:13:22 PM PDT by latina4dubya (when i have money i buy books... if i have anything left, i buy 6-inch heels and a bottle of wine...)
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To: cotton1706

“The perp in the case had started answering questions and then stopped. It’s not pick and choose. Either stay silent or speak, whether mirandized or not.”

Someone should tell Congress and the IRS skirt who took the 5th and then gave a speech about her innocence.


48 posted on 06/17/2013 1:14:22 PM PDT by Bizhvywt
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To: CodeToad

Not true...


49 posted on 06/17/2013 1:14:48 PM PDT by latina4dubya (when i have money i buy books... if i have anything left, i buy 6-inch heels and a bottle of wine...)
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To: henkster

Seems the issue is that your silence IN CONTEXT can be used to infer, a la:

Q: “Did you do A?”
A: “No.”
Q: “Did you do B?”
A: “No.”
Q: “Did you do C?”
A: “No.”
Q: “Did you do D?”
A: “No.”
...
Q: “Did you do X?”
A: “No.”
Q: “Did you do Y?”
A: [silence]
Q: “Did you do Z?”
A: “No.”

Yeah, he did Y.


50 posted on 06/17/2013 1:16:48 PM PDT by ctdonath2 (Making good people helpless doesn't make bad people harmless.)
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