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 ...
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.
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.
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