8 ms·

Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

61 points by mjn 13y ago

mjn 13y ago
This is fairly legal-nerdish, but submitted because it relates pretty directly to some issues in the tech community over when you can (under U.S. law) refuse to give up passwords, and similar issues. It's also worth a read if you're simply an American interested in these issues, because it recaps the current 5th-amendment law quite clearly.
- saraid216 13y ago
  The tech community honestly needs more legal literacy, so I for one encourage this kind of posting. The general level of literacy I've seen is about average for the American public, but we often believe it's much, much higher than that because Internet Principles.
relaunched 13y ago
This court has taken a very interesting stance. This ruling, plus some earlier rulings regarding the 4th amendment has made it clear, that one has to understand, intimately, the nuances of ones' rights and act accordingly, in order for those rights to apply. Otherwise, they have agreed to waive those rights.
- dietrichepp 13y ago
  The same thing already applies in the courtroom (ignoring the hyperbolic word choice of "intimately" and "nuances"). When you take the stand in court, you have to explicitly invoke your fifth amendment right. Nobody is required to tell you your rights. The article explains how Miranda rights were already special. The requirement for the police to explain your rights was to mitigate the fact that custodial interrogation is inherently coercive (am I free to go? no.) and there is no judge present to interpret the law.
  - aqme28 13y ago
    In the courtroom you have legal counsel, and if your lawyer doesn't help you to the best of their abilities they can be disbarred.
    - dietrichepp 13y ago
      You won't necessarily have legal counsel if you're a witness.
sukuriant 13y ago
The debate mental-chess that the lay-person needs to understand is, quite honestly, terrifying. So now, if a police officer asks you an incriminating question off the cuff, and you say "I would like a lawyer" or "I invoke the 5th" or even say nothing, without a legal background you may find yourself in a situation where what was said / wasn't said can be used against you? This can't be what was originally intended by those amendments.
- fleitz 13y ago
  Am I under arrest? No? Walk away. Yes? Please read me my rights. Problem solved. Don't answer half the questions, immediately ask why you are being detained, and if you are under arrest.
  - bobwaycott 13y ago
    The critical problem here is the police response to an attempt to walk away. This may lead to an arrest that is aggravated by a charge of resistance. One might be able to fight that away in the courts, but the state of policing over the last few years leaves me feeling quite uncomfortable with the prospect of walking away unscathed.
    - nknighthb 13y ago
      How do you anticipate a charge of resisting arrest occurring when the cop isn't arresting you?
      - bobwaycott 13y ago
        1: Am I under arrest? 2. No. 1. Okay, I'm going to walk away now. 2. You can't do that. I'm asking you questions and you are not free to leave. 1. But you just said I am not under arrest. Are you arresting me? 2. No. 1. Okay, I'm going to walk away now. ... [a few iterations later] ... 1 starts to walk away. 2 informs 1 that s/he is not free to go. 1, on the basis that 2 has said s/he is not under arrest, and tired of the back and forth, begins to walk away. 2 performs a physically or verbally threatening action to prevent 1 from leaving--e.g., blocking exit path, ordering to remain in place, etc. 1, on the basis that 2 has said s/he is not under arrest, and tired of the back and forth, continues to walk away or otherwise informs 2 s/he is going to continue to walk away (or ask 2 to leave). ... [several rapidly escalating iterations later ...] 1 attempts to walk away. 2 physically apprehends 1 in some fashion and orders 1 to stop. 1 continues to try to leave. 2 decides to arrest 1 and charge 1 with obstructing, opposing, and endeavoring to prevent (with or without force) an officer in the lawful discharge of his duty. 1 is at increased risk of physical harm from 2 in the course of being arrested as this is the kind of situation that appears many times in cases where an officer uses excessive force to apprehend a 'difficult' individual (whether s/he actually was being difficult or merely attempting to assert his/her rights and avoid being bothered by the officer).
DannoHung 13y ago
When will motherfucking Scalia and Thomas just god damned die already?
- devb 13y ago
  Not the most sophisticated approach to constitutional law, but they are 77 and 64 respectively. Please consult your local actuarial table.
  - WildUtah 13y ago
    Thomas and Scalia are on the right side of civil liberties and constitutional issues about a third of the time, anyway. What we really want is to replace someone who's almost always wrong, someone who sides with power and hierarchy and insider influence over the individual whenever he gets the chance. Alito is 63.
    - siphor 13y ago
      It's pretty ridiculous that they would both overturn Griffin if given the chance. I kind of "understand" their viewpoint but its just wrong and completely erodes the spirit of the fifth amendment. I can't think of a better way to say it though.
- SamReidHughes 13y ago
  You should try actually looking at Scalia's rulings about defendant's rights.
- darkarmani 13y ago
  After the recent rulings, I'm sure you could be arrested and DNA swabbed under the assumption that you are threatening them. You'd be let go, but they'd keep your DNA.
sageikosa 13y ago
So we are now in a situation where if I am not under arrest, the things I don't say may be used against me, unless I explicitly assert that I am not waiving my rights as soon as possible.
- bobwaycott 13y ago
  > ... unless I explicitly assert that I am not waiving my rights as soon as possible. ... and it is determined that I am in a situation in which I am deemed lawfully allowed to have asserted said rights.
- DannyBee 13y ago
  To be clear: This was always true (legally), and this decision doesn't change this. As long as it was not a custodial interrogation, and you had not been formally charged, your words could be used against you (ignoring other procedural evidence rules for a second) without Miranda or other warnings. The only thing his decision changes is a long-standing open issue of when silence can be offered as proof of guilt.
  - rflrob 13y ago
    >> The things I don't say may be used against me >This was always true (emphasis mine) On the other hand, the fact that there was a SCOTUS case about it means that while it may always have been true, it wasn't clear to everyone that it was true.
    - sageikosa 13y ago
      That was my emphasis as well. There are all sorts of internal internal-psychological/perceived-sociological reasons someone may go silent when in the presence of seemingly friendly authority (if one comes from an authoritarian household or religious background) that suddenly appears to turn on you. The layman who hasn't had a brush with adversarial police investigation techniques and doesn't have an explanation for a (seemingly) factual assertion by the police may simply not know how to respond, knows he needs to tread carefully lest something get pinned on him, but is unaware that silence is not considered careful at this moment (since, if he remembers, he is talking to the police without being cautioned or under custody).
throwaway10001 13y ago
So you have the right to remain silent...as long as you're abreast of the latest SCOTUS ruling and understand them. In rather words you may need to be a lawyer and no niceties with the cops: am I under arrest? No, adios then. If they want to arrest you, they'll arrest you anyway.
hippich 13y ago
How in the world "Would the shells from his shotgun match the shells found at the murder scene?" is "the government is not actually forcing him to be a witness against himself"? And why police even allowed to ask questions like this when person is not even a suspect?
gizmo686 13y ago
I think there's a secondary issue that should be at play in this case (I haven't read the opinion, so they might have addressed this). Independent of the 5th amendment, prosecutors are generally not allowed to introduce prejudicial evidence, or evidence that would exploit the irrationality of humans more that provide actual evidence. It feels like this type of body language analysis would qualify. Perhaps if there was someone with training in body language, and he could cite research generally accepted by the scientific community, that his method of analysis produces reliable results, then this may be admissible. Of course, they should also maintain a recording of the interview so the defense can use it, and to mitigate the potential for human failures. The cost of this seems negligible, so the only reason I can see them not doing this is if they don't want the full account of what happened precisely to be shown.
- hga 13y ago
  I have to disagree, the body language as described in the Nth hand reports I've read sounds like a useful "tell", especially in the context of the questioning. But as you imply, let the jury decide by watching the video.
  - gizmo686 13y ago
    >But as you imply, let the jury decide by watching the video. That is not at all what I intended to imply. If the defendant choices to do so, let him present to video to the jury. If the prosecution wants to show the video (or use the gesture at all), they should be prepared to demonstrate that it is not prejudicial evidence, and probably get an expert to testify and explain what the gestures do and do not suggest.
cstavish 13y ago
"At trial, the government argued that Salinas had committed the murder based in part on his response to the question about the shotgun shells. The prosecutor argued to the jury that an innocent person would have said, “What are you talking about? I didn’t do that. I wasn’t there.” But Salinas didn’t do that; he remained silent. And that suggested guilt. Notably, Miranda‘s footnote 37 didn’t apply because Salinas was not in “custody” for Miranda purposes. He was at the stationhouse voluntarily, not by force, so Miranda didn’t apply. The question before the Court was whether the government was allowed to argue about the significance of the defendant’s pre-arrest silence to the jury." The gist of the case, for those not keen on reading the lengthy introduction.
- gwgarry 13y ago
  Which is stupid. I would think to myself I am being accused of a crime, I better remain silent lest they try to pin this on me. I have tried being polite, but it's quickly getting to the point where the righteous indignation is such that you want to resort to cursing the judge for his moronic legal fiction to justify this.

61 points by mjn 13y ago

mjn 13y ago

This is fairly legal-nerdish, but submitted because it relates pretty directly to some issues in the tech community over when you can (under U.S. law) refuse to give up passwords, and similar issues. It's also worth a read if you're simply an American interested in these issues, because it recaps the current 5th-amendment law quite clearly.

saraid216 13y ago
The tech community honestly needs more legal literacy, so I for one encourage this kind of posting. The general level of literacy I've seen is about average for the American public, but we often believe it's much, much higher than that because Internet Principles.

relaunched 13y ago

This court has taken a very interesting stance. This ruling, plus some earlier rulings regarding the 4th amendment has made it clear, that one has to understand, intimately, the nuances of ones' rights and act accordingly, in order for those rights to apply. Otherwise, they have agreed to waive those rights.

dietrichepp 13y ago
The same thing already applies in the courtroom (ignoring the hyperbolic word choice of "intimately" and "nuances"). When you take the stand in court, you have to explicitly invoke your fifth amendment right. Nobody is required to tell you your rights. The article explains how Miranda rights were already special. The requirement for the police to explain your rights was to mitigate the fact that custodial interrogation is inherently coercive (am I free to go? no.) and there is no judge present to interpret the law.
- aqme28 13y ago
  In the courtroom you have legal counsel, and if your lawyer doesn't help you to the best of their abilities they can be disbarred.
  - dietrichepp 13y ago
    You won't necessarily have legal counsel if you're a witness.

sukuriant 13y ago

The debate mental-chess that the lay-person needs to understand is, quite honestly, terrifying. So now, if a police officer asks you an incriminating question off the cuff, and you say "I would like a lawyer" or "I invoke the 5th" or even say nothing, without a legal background you may find yourself in a situation where what was said / wasn't said can be used against you? This can't be what was originally intended by those amendments.

fleitz 13y ago
Am I under arrest? No? Walk away. Yes? Please read me my rights. Problem solved. Don't answer half the questions, immediately ask why you are being detained, and if you are under arrest.
- bobwaycott 13y ago
  The critical problem here is the police response to an attempt to walk away. This may lead to an arrest that is aggravated by a charge of resistance. One might be able to fight that away in the courts, but the state of policing over the last few years leaves me feeling quite uncomfortable with the prospect of walking away unscathed.
  - nknighthb 13y ago
    How do you anticipate a charge of resisting arrest occurring when the cop isn't arresting you?
    - bobwaycott 13y ago
      1: Am I under arrest? 2. No. 1. Okay, I'm going to walk away now. 2. You can't do that. I'm asking you questions and you are not free to leave. 1. But you just said I am not under arrest. Are you arresting me? 2. No. 1. Okay, I'm going to walk away now. ... [a few iterations later] ... 1 starts to walk away. 2 informs 1 that s/he is not free to go. 1, on the basis that 2 has said s/he is not under arrest, and tired of the back and forth, begins to walk away. 2 performs a physically or verbally threatening action to prevent 1 from leaving--e.g., blocking exit path, ordering to remain in place, etc. 1, on the basis that 2 has said s/he is not under arrest, and tired of the back and forth, continues to walk away or otherwise informs 2 s/he is going to continue to walk away (or ask 2 to leave). ... [several rapidly escalating iterations later ...] 1 attempts to walk away. 2 physically apprehends 1 in some fashion and orders 1 to stop. 1 continues to try to leave. 2 decides to arrest 1 and charge 1 with obstructing, opposing, and endeavoring to prevent (with or without force) an officer in the lawful discharge of his duty. 1 is at increased risk of physical harm from 2 in the course of being arrested as this is the kind of situation that appears many times in cases where an officer uses excessive force to apprehend a 'difficult' individual (whether s/he actually was being difficult or merely attempting to assert his/her rights and avoid being bothered by the officer).

DannoHung 13y ago

When will motherfucking Scalia and Thomas just god damned die already?

devb 13y ago
Not the most sophisticated approach to constitutional law, but they are 77 and 64 respectively. Please consult your local actuarial table.
- WildUtah 13y ago
  Thomas and Scalia are on the right side of civil liberties and constitutional issues about a third of the time, anyway. What we really want is to replace someone who's almost always wrong, someone who sides with power and hierarchy and insider influence over the individual whenever he gets the chance. Alito is 63.
  - siphor 13y ago
    It's pretty ridiculous that they would both overturn Griffin if given the chance. I kind of "understand" their viewpoint but its just wrong and completely erodes the spirit of the fifth amendment. I can't think of a better way to say it though.
SamReidHughes 13y ago
You should try actually looking at Scalia's rulings about defendant's rights.
darkarmani 13y ago
After the recent rulings, I'm sure you could be arrested and DNA swabbed under the assumption that you are threatening them. You'd be let go, but they'd keep your DNA.

sageikosa 13y ago

So we are now in a situation where if I am not under arrest, the things I don't say may be used against me, unless I explicitly assert that I am not waiving my rights as soon as possible.

bobwaycott 13y ago
> ... unless I explicitly assert that I am not waiving my rights as soon as possible. ... and it is determined that I am in a situation in which I am deemed lawfully allowed to have asserted said rights.
DannyBee 13y ago
To be clear: This was always true (legally), and this decision doesn't change this. As long as it was not a custodial interrogation, and you had not been formally charged, your words could be used against you (ignoring other procedural evidence rules for a second) without Miranda or other warnings. The only thing his decision changes is a long-standing open issue of when silence can be offered as proof of guilt.
- rflrob 13y ago
  >> The things I don't say may be used against me >This was always true (emphasis mine) On the other hand, the fact that there was a SCOTUS case about it means that while it may always have been true, it wasn't clear to everyone that it was true.
  - sageikosa 13y ago
    That was my emphasis as well. There are all sorts of internal internal-psychological/perceived-sociological reasons someone may go silent when in the presence of seemingly friendly authority (if one comes from an authoritarian household or religious background) that suddenly appears to turn on you. The layman who hasn't had a brush with adversarial police investigation techniques and doesn't have an explanation for a (seemingly) factual assertion by the police may simply not know how to respond, knows he needs to tread carefully lest something get pinned on him, but is unaware that silence is not considered careful at this moment (since, if he remembers, he is talking to the police without being cautioned or under custody).

throwaway10001 13y ago

So you have the right to remain silent...as long as you're abreast of the latest SCOTUS ruling and understand them. In rather words you may need to be a lawyer and no niceties with the cops: am I under arrest? No, adios then. If they want to arrest you, they'll arrest you anyway.

hippich 13y ago

How in the world "Would the shells from his shotgun match the shells found at the murder scene?" is "the government is not actually forcing him to be a witness against himself"? And why police even allowed to ask questions like this when person is not even a suspect?

gizmo686 13y ago

I think there's a secondary issue that should be at play in this case (I haven't read the opinion, so they might have addressed this). Independent of the 5th amendment, prosecutors are generally not allowed to introduce prejudicial evidence, or evidence that would exploit the irrationality of humans more that provide actual evidence. It feels like this type of body language analysis would qualify. Perhaps if there was someone with training in body language, and he could cite research generally accepted by the scientific community, that his method of analysis produces reliable results, then this may be admissible. Of course, they should also maintain a recording of the interview so the defense can use it, and to mitigate the potential for human failures. The cost of this seems negligible, so the only reason I can see them not doing this is if they don't want the full account of what happened precisely to be shown.

hga 13y ago
I have to disagree, the body language as described in the Nth hand reports I've read sounds like a useful "tell", especially in the context of the questioning. But as you imply, let the jury decide by watching the video.
- gizmo686 13y ago
  >But as you imply, let the jury decide by watching the video. That is not at all what I intended to imply. If the defendant choices to do so, let him present to video to the jury. If the prosecution wants to show the video (or use the gesture at all), they should be prepared to demonstrate that it is not prejudicial evidence, and probably get an expert to testify and explain what the gestures do and do not suggest.

cstavish 13y ago

"At trial, the government argued that Salinas had committed the murder based in part on his response to the question about the shotgun shells. The prosecutor argued to the jury that an innocent person would have said, “What are you talking about? I didn’t do that. I wasn’t there.” But Salinas didn’t do that; he remained silent. And that suggested guilt. Notably, Miranda‘s footnote 37 didn’t apply because Salinas was not in “custody” for Miranda purposes. He was at the stationhouse voluntarily, not by force, so Miranda didn’t apply. The question before the Court was whether the government was allowed to argue about the significance of the defendant’s pre-arrest silence to the jury." The gist of the case, for those not keen on reading the lengthy introduction.

gwgarry 13y ago
Which is stupid. I would think to myself I am being accused of a crime, I better remain silent lest they try to pin this on me. I have tried being polite, but it's quickly getting to the point where the righteous indignation is such that you want to resort to cursing the judge for his moronic legal fiction to justify this.