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From the article: Salinas' "Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer'

From the article: 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.'" Does this mean one must actually say "I plead the fifth" to 'claim' one's rights under the fifth amendment?

jlgreco 13y ago
Good question. I always thought that was only something done for television/movies.
rocky1138 13y ago
That's not what the constitution says, but let's be honest: does it really matter what it says?
- kbenson 13y ago
  Yes. Yes it does.
- rayiner 13y ago
  The 5th amendment says, in relevant portion: "No person... shall be compelled in any criminal case to be a witness against himself..." I don't think it's a great decision, but it's misleading to say "that's not what the constitution says." The constitution doesn't say anything, one way or the other, about the proper way to invoke the right against self-incrimination. It just says that people shall not be "compelled."
rosser 13y ago
IANAL. If you're under oath, testifying in court, you're expected to give an answer of some form — in fact, you've sworn an oath to do exactly that — so in order to invoke your 5th Amendement right against self-incrimination, you must do so explicitly. If you're being questioned by the police, even subsequent to an arrest, however, your silence should be sufficient. Salinas' trouble didn't come from not explicitly invoking his privilege, but from waiving it by starting to talk, and then invoking it by refusing to talk further once the State's line of questioning in the pre-Miranda police interview became relevant to the crime in question. The moral of the story? "Don't talk to the police. Ever." Also, IANAL.
- Steko 13y ago
  "If you're being questioned by the police, even subsequent to an arrest, however, your silence should be sufficient." Post-arrest silence cannot be used against you: https://en.wikipedia.org/wiki/Doyle_v._Ohio https://en.wikipedia.org/wiki/Doyle_v._Ohio Pre-arrest silence can be used against you: https://en.wikipedia.org/wiki/Jenkins_v._Anderson https://en.wikipedia.org/wiki/Jenkins_v._Anderson IANAL
  - colanderman 13y ago
    I don't understand how this ruling differs from Jenkins v. Anderson?
  - rosser 13y ago
    In Jenkins, does the Court construe the Defendant's not immediately coming forward about the incident as "silence", or are they talking about his not answering the State's questions prior to his arrest for the incident? Because, if it's the former, that seems reasonable to me: if I kill someone someone with mens rea, I'm presumably less likely to go to the police about it. Contrariwise, it seems to me that jurisprudence's notional "reasonable person", having killed someone in self-defense, would want to inform the authorities immediately, precisely in order to avoid suspicion. Based on some quick study, it seems that is indeed what the Court is taking "silence" to mean: that he stabbed a dude, and didn't come forward about it immediately. SCOTUS didn't say that remaining silent in the face of police questioning prior to an arrest is somehow different from doing so afterwards. They said that his "silence" (i.e., not coming forward immediately about having killed someone in "self-defense") is something that the State can bring up in cross examination, in order to impeach his affirmative defense of self-defense. Again, IANAL, but Jenkins doesn't seem dispositive on the specific question of law at issue in Salinas. Any actual lawyers playing along at home want to tell me where (or whether) I'm wrong? EDIT: a bunch of clarifications and such.
    - Steko 13y ago
      "Jenkins doesn't seem dispositive on the specific question of law at issue in Salinas." I guess Salinas is an extension of Jenkins to the somewhat broader circumstances of a suspect not answering direct police questions. While the circumstance of Jenkins are weaker, the actual opinion held that: "The Fifth Amendment ... is not violated by the use of prearrest silence to impeach a criminal defendant's credibility."
hvs 13y ago
Or simply, "I do not feel comfortable answering your questions without my attorney present." Edit: IANAL.
ja27 13y ago
Yes, just like you have to say "I intend to utilize my first amendment rights" before you say or write anything or "I am exercising my fourth amendment rights" whenever you lock your front door. If you don't actively claim it, you don't get it.
- jlgreco 13y ago
  Make sure to always mention the 21st before a Friday night out.
mpyne 13y ago
The prosecutors say that because Salinas was not compelled to speak that they could have used his silence against him, but (in their view) the only truthful thing he could have said was that his shotgun would match, which would be self-incriminating. Why bother making "compelled to speak" a factor at all if it would be abused like that? Likewise Alito says that the Fifth Amendment right must be specifically exercised even before the Miranda warning to have any effect, once you've started speaking. What's the point of the Miranda warning then, if not to remind one of their Constitutional rights? Even refusing to talk to the cops is no longer enough now, since if you're not under arrest and they are not "compelling" you to speak there's no end to the questions that they can ask you where silence or self-incrimination are the only choices.
- rosser 13y ago
  Salinas isn't about silence. It's about selective silence. Salinas started talking to the cops, voluntarily. Then they started asking questions about the crime of which he was later convicted, and he clammed up. If he'd not opened his yap in the first place, this wouldn't even be a thing.
  - mpyne 13y ago
    And according to Alito he would have been fine even after clamming up... if only he'd mentioned that he was invoking his Fifth Amendment rights, so it's not even just about silence. If you confirm your name to a cop after this ruling, have you permanently waived your requirement to be Mirandized?

jlgreco 13y ago

Good question. I always thought that was only something done for television/movies.

rocky1138 13y ago

That's not what the constitution says, but let's be honest: does it really matter what it says?

kbenson 13y ago
Yes. Yes it does.
rayiner 13y ago
The 5th amendment says, in relevant portion: "No person... shall be compelled in any criminal case to be a witness against himself..." I don't think it's a great decision, but it's misleading to say "that's not what the constitution says." The constitution doesn't say anything, one way or the other, about the proper way to invoke the right against self-incrimination. It just says that people shall not be "compelled."

rosser 13y ago

IANAL. If you're under oath, testifying in court, you're expected to give an answer of some form — in fact, you've sworn an oath to do exactly that — so in order to invoke your 5th Amendement right against self-incrimination, you must do so explicitly. If you're being questioned by the police, even subsequent to an arrest, however, your silence should be sufficient. Salinas' trouble didn't come from not explicitly invoking his privilege, but from waiving it by starting to talk, and then invoking it by refusing to talk further once the State's line of questioning in the pre-Miranda police interview became relevant to the crime in question. The moral of the story? "Don't talk to the police. Ever." Also, IANAL.

Steko 13y ago
"If you're being questioned by the police, even subsequent to an arrest, however, your silence should be sufficient." Post-arrest silence cannot be used against you: https://en.wikipedia.org/wiki/Doyle_v._Ohio https://en.wikipedia.org/wiki/Doyle_v._Ohio Pre-arrest silence can be used against you: https://en.wikipedia.org/wiki/Jenkins_v._Anderson https://en.wikipedia.org/wiki/Jenkins_v._Anderson IANAL
- colanderman 13y ago
  I don't understand how this ruling differs from Jenkins v. Anderson?
- rosser 13y ago
  In Jenkins, does the Court construe the Defendant's not immediately coming forward about the incident as "silence", or are they talking about his not answering the State's questions prior to his arrest for the incident? Because, if it's the former, that seems reasonable to me: if I kill someone someone with mens rea, I'm presumably less likely to go to the police about it. Contrariwise, it seems to me that jurisprudence's notional "reasonable person", having killed someone in self-defense, would want to inform the authorities immediately, precisely in order to avoid suspicion. Based on some quick study, it seems that is indeed what the Court is taking "silence" to mean: that he stabbed a dude, and didn't come forward about it immediately. SCOTUS didn't say that remaining silent in the face of police questioning prior to an arrest is somehow different from doing so afterwards. They said that his "silence" (i.e., not coming forward immediately about having killed someone in "self-defense") is something that the State can bring up in cross examination, in order to impeach his affirmative defense of self-defense. Again, IANAL, but Jenkins doesn't seem dispositive on the specific question of law at issue in Salinas. Any actual lawyers playing along at home want to tell me where (or whether) I'm wrong? EDIT: a bunch of clarifications and such.
  - Steko 13y ago
    "Jenkins doesn't seem dispositive on the specific question of law at issue in Salinas." I guess Salinas is an extension of Jenkins to the somewhat broader circumstances of a suspect not answering direct police questions. While the circumstance of Jenkins are weaker, the actual opinion held that: "The Fifth Amendment ... is not violated by the use of prearrest silence to impeach a criminal defendant's credibility."

hvs 13y ago

Or simply, "I do not feel comfortable answering your questions without my attorney present." Edit: IANAL.

ja27 13y ago

Yes, just like you have to say "I intend to utilize my first amendment rights" before you say or write anything or "I am exercising my fourth amendment rights" whenever you lock your front door. If you don't actively claim it, you don't get it.

jlgreco 13y ago
Make sure to always mention the 21st before a Friday night out.

mpyne 13y ago

The prosecutors say that because Salinas was not compelled to speak that they could have used his silence against him, but (in their view) the only truthful thing he could have said was that his shotgun would match, which would be self-incriminating. Why bother making "compelled to speak" a factor at all if it would be abused like that? Likewise Alito says that the Fifth Amendment right must be specifically exercised even before the Miranda warning to have any effect, once you've started speaking. What's the point of the Miranda warning then, if not to remind one of their Constitutional rights? Even refusing to talk to the cops is no longer enough now, since if you're not under arrest and they are not "compelling" you to speak there's no end to the questions that they can ask you where silence or self-incrimination are the only choices.

rosser 13y ago
Salinas isn't about silence. It's about selective silence. Salinas started talking to the cops, voluntarily. Then they started asking questions about the crime of which he was later convicted, and he clammed up. If he'd not opened his yap in the first place, this wouldn't even be a thing.
- mpyne 13y ago
  And according to Alito he would have been fine even after clamming up... if only he'd mentioned that he was invoking his Fifth Amendment rights, so it's not even just about silence. If you confirm your name to a cop after this ruling, have you permanently waived your requirement to be Mirandized?