You Don’t Have the Right to Remain Silent

[HarveyDarkey]

The Supreme Court’s terrible—and dangerous—ruling this week on the Fifth Amendment.
By Brandon L. Garrett

On Monday, in a case called Salinas v. Texas that hasn’t gotten the attention it deserves, the Supreme Court held that you remain silent at your peril. The court said that this is true even before you’re arrested, when the police are just informally asking questions. The court’s move to cut off the right to remain silent is wrong and also dangerous—because it encourages the kind of high-pressure questioning that can elicit false confessions.

Here are the facts from Salinas: Two brothers were shot at home in Houston. There were no witnesses—only shotgun shell casings left at the scene. Genovevo Salinas had been at a party at that house the night before the shooting, and police invited him down to the station, where they talked for an hour. They did not arrest him or read him his Miranda warnings. Salinas agreed to give the police his shotgun for testing. Then the cops asked whether the gun would match the shells from the scene of the murder. According to the police, Salinas stopped talking, shuffled his feet, bit his lip, and started to tighten up.

At trial, Salinas did not testify, but prosecutors described his reportedly uncomfortable reaction to the question about his shotgun. Salinas argued this violated his Fifth Amendment rights: He had remained silent, and the Supreme Court had previously made clear that prosecutors can’t bring up a defendant’s refusal to answer the state’s questions. This time around, however, Justice Samuel Alito blithely responded that Salinas was “free to leave” and did not assert his right to remain silent. He was silent. But somehow, without a lawyer, and without being told his rights, he should have affirmatively “invoked” his right to not answer questions. Two other justices signed on to Alito’s opinion. Justice Clarence Thomas and Justice Antonin Scalia joined the judgment, but for a different reason; they think Salinas had no rights at all to invoke before his arrest (they also object to Miranda itself). The upshot is another terrible Roberts Court ruling on confessions. In 2010 the court held that a suspect did not sufficiently invoke the right to remain silent when he stubbornly refused to talk, after receiving his Miranda warnings, during two hours of questioning. Now people have to somehow invoke the right to remain silent even when they’re not formal suspects and they haven’t been heard the Miranda warnings. As Orin Kerr points out on the Volokh Conspiracy, this just isn’t realistic.

http://www.slate.com/articles/news_and_politics/jurisprudence/2013/06/salinas_v_texas_right_to_remain_silent_supreme_court_right_to_remain_silent.html

[Blanket Statements]

1. You never, ever talk to the police without a lawyer

If there's a chance they can charge you, you answer no questions and no permission to search or take anything

[X_Digger]

3. And you *tell them* that you refuse to answer their questions, and are invoking your rights..

.. to remain silent, speak to a lawyer, and you give no consent for a search.

Just staying silent isn't enough.

[Blanket Statements]

5. Yep

[Agony]

2. "Questions first, rights later is the approach the court’s majority now endorses"

Roberts, Alito, Thomas and Scalia... destroyers of freedom, justice and democracy.

[kcr]

4. More rights down the drain

Goodbye 5th Amendment.

[Rex]

7. You are guilty now until proven innocent.

nt.

[Rex]

6. A cops #1 job is to get a confession of guilt out of someone, hopefully

it is the person that committed the crime...but not always is that the case.