Skip to comments.Court says pre-Miranda silence can be used
Posted on 06/17/2013 12:20:46 PM PDT by Olog-hai
The Supreme Court says prosecutors can use a persons 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 ...
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.
I guess not...
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.
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
If you are going to invoke your right to remain silent, STFU from the very beginning.
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.
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.
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.
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.
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.
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.
Sorry; mean to say “invoke your right to remain silent.” Big difference with “revoke your right to remain silent.”
Oh I didn’t say I agreed with it.I think it stinks.
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.
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.
Thank you, for a moment, I thought all was lost and madness the only rationale response.
I hoping that this is a very narrow holding that will only apply to a peculiar set of facts.
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.
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?
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.
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.
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?
Paging Lois Lerner.
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.
Maybe they had fired shells at the scene?
But also said your silence can’t be used against you if you explicitly invoke your Fifth Amendment right to remai silent.
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.
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.
There are lots of cases where people aren’t read their miranda rights. It’s been how cases have been tossed on technicalities.
Funny how that does not apply to IRS officials testifying before Congress....
“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???
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?
In other words, you do not have the right to be silent until they read you the right to be silent.
Our the USAG.
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.
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...
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.
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.
From the Supreme Court, the only appeal is to God.
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.
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)...
Cops can legally lie to you to get info out of you. What rights does any average citizen have to protect themselves against cops?
Exactly! I am so surprised at how easily citizens, even well-informed conservatives, cave in...
“The perp in the case had started answering questions and then stopped. Its 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.
Seems the issue is that your silence IN CONTEXT can be used to infer, a la:
Q: “Did you do A?”
Q: “Did you do B?”
Q: “Did you do C?”
Q: “Did you do D?”
Q: “Did you do X?”
Q: “Did you do Y?”
Q: “Did you do Z?”
Yeah, he did Y.
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