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It's not just enough anymore to STFU. SCOTUS says your silence may be used against you in a court of law.
Well, chalk one up for the Judge Roy Bean Justice System. Apparently, you now have to "explicitly invoke your fifth amendment rights".
A nation continues to wait for final word on the Supreme Court's Big Four cases this term — voting rights, affirmative action, DOMA, and Proposition 8 — but the justices' closest decision arrived first on Monday, in a 5-4 ruling on Salinas v. Texas in which the conservative members of the Court and Anthony Kennedy determined that if you remain silent before police read your Miranda rights, that silence can and will be held against you. Here's what that means.
Basically, if you're ever in any trouble with police (no, we don't condone breaking laws) and want to keep your mouth shut, you will need to announce that you're invoking your Fifth Amendment right instead of, you know, just keeping your mouth shut. "Petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question," reads the opinion from Justice Samuel Alito, which Justice Kennedy and Chief Justice John Roberts backed. Justices Thomas and Scalia had a concurring opinion while the remaining four Supremes dissented.
The police can and will use anything against you. I am not a law professor, but I believe that once you announce your intention to invoke your rights and ask for an attorney, the police have to stop questioning you directly.
Your behavior, demeanor, appearance, etc. can certainly used as evidence against you. Silence can be introduced as evidence at trial, especially during an interrogation. how you behave, act, etc. is open for a jury to infer what the meaing of your answers or non answers might mean.
One thing I have wondered, since Law and Order is a great show to fall asleep to, is this scenario:
The suspect asks for an attorney and the police quit directly questioning him/her. However, in the show, the detectives will openly talk among themselves in front of the witness baiting him to respond to what they are saying to each other and not directly to the suspect.
The suspect falls for it and blurts out something which of course, is used against him.
I know Law and Order is television and they routinely trample civil rights all the time. But in real life, if some detectives did this, what is the legality of them talking to each other in front of the suspect and are his statements likely admissible?
Everyone should watch this and other related videos on youtube.
Every case is different but.....The police are generally free to engage in activities that they should reasonably know will elicit an incriminating response, even after the suspect has invoked his right to remain silent.
Example: father murders his 3 year old son. He is arrested, invokes his 5th Amendment rights. His wife arrives at the police station. A detective puts the wife in a room with the husband...along with a tape recorder.... and records the ensuing conversation. Not surprisingly, the husband makes a shitload of incriminating statements. During the suppression hearing, the cop admitted that he thought the husband would make incriminating statements and that was why he let the wife talk to the husband with the tape recorder in the room.
SCOTUS ruled the taped "confession" was admissible at trial because it was not the result of a custodial "interrogation" by the cops.
SCOTUS blew this one. Big time. It's another sad day for American jurisprudence. That ruling is ridiculous and destructive, and sets us one step closer to a police state. A person can't possibly assert his Fifth Amendment right to remain silent until he has been informed by the officers of his right. My advice to clients was to go ahead and talk if they wanted to go to jail, otherwise keep your mouth shut, and maybe avoid the whole thing.
It's not the suspect's job to provide incriminating evidence to LE. It is LE's job to prove the suspect is guilty of the crime beyond a reasonable doubt, to a moral certainty. The suspect is under no obligation to provide self incriminating information at any point.
Every case is different but.....The police are generally free to engage in activities that they should reasonably know will elicit an incriminating response, even after the suspect has invoked his right to remain silent.
Example: father murders his 3 year old son. He is arrested, invokes his 5th Amendment rights. His wife arrives at the police station. A detective puts the wife in a room with the husband...along with a tape recorder.... and records the ensuing conversation. Not surprisingly, the husband makes a shitload of incriminating statements. During the suppression hearing, the cop admitted that he thought the husband would make incriminating statements and that was why he let the wife talk to the husband with the tape recorder in the room.
SCOTUS ruled the taped "confession" was admissible at trial because it was not the result of a custodial "interrogation" by the cops.
What case was that, Timmy? I've made similar arguments for two state Supreme Courts and lost. Both times the Miranda Rule was interpreted that the police can do nothing until the person sees an attorney. And that is NOTHING. Well, they can ask if he wants coffee, or if he's comfortable, but nothing relating to the case. Anything that happens between the time he lawyers up and the lawyer gets there is inadmissible.
When the police send the wife in, she is acting under the authority of the police, so it is still state action obtaining the confession. I'd be shocked beyond belief if that case was true. But the stupidity of SCOTUS is becoming a rule, rather than an exception. Please link to it. Thanks.
ARIZONA v. MAURO, 481 U.S. 520 (1987) 481 U.S. 520 ARIZONA v. MAURO
CERTIORARI TO THE SUPREME COURT OF ARIZONA
No. 85-2121.
Argued March 31, 1987
Decided May 4, 1987
After being advised of his Miranda rights while in custody for killing his son, respondent stated that he did not wish to answer any questions until a lawyer was present. All questioning then ceased and respondent was placed in the police captain's office since there was no secure detention area. Following her questioning in another room, respondent's wife insisted that she be allowed to speak with her husband. Although reluctant at first, the police allowed the meeting in the office on the condition that an officer be present. Using a recorder placed in plain sight, the officer taped a brief conversation, during which the wife expressed despair, and respondent told her not to answer questions until a lawyer was present. The prosecution used the tape to rebut respondent's insanity defense, the trial court having refused to suppress it upon finding that the police's actions were not a subterfuge to avoid the dictates of Miranda. Respondent was convicted and sentenced to death, but the Arizona Supreme Court reversed, holding that the police had impermissibly interrogated respondent within the meaning of Miranda. Noting police admissions that they knew it was "possible" that respondent might make incriminating statements if he saw his wife, the court relied on the ruling in Rhode Island v. Innis, 446 U.S. 291 , that "interrogation" includes a practice - whether actual questioning or "its functional equivalent" - that the police know is reasonably likely to elicit an incriminating response from a suspect. According to Innis, the likelihood-of-response question focuses primarily upon the perceptions of the suspect, rather than the intent of the police. Held:
The police's actions following respondent's refusal to be questioned without a lawyer did not constitute interrogation or its functional equivalent. The purpose of Miranda and Innis is to prevent the government from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment. This purpose is not implicated here, since respondent was not subjected to compelling influences, psychological ploys, or direct questioning. There is no evidence that the police allowed the wife to meet with respondent in order to obtain incriminating statements. Moreover, police testimony, which the trial court found credible, indicated a number of legitimate reasons for an officer's presence at the meeting, including the wife's safety and various security considerations. Furthermore, an examination of the situation [481 U.S. 520, 521] from respondent's perspective demonstrates the improbability that he would have felt he was being coerced to incriminate himself simply because he was told his wife would be allowed to speak to him. Although the police were indeed aware that it was "possible" respondent would incriminate himself while talking to his wife, police do not "interrogate" a suspect simply by hoping he will confess. Thus, respondent's statements to his wife were voluntary, and their use at his trial was not prohibited by the Fifth and Fourteenth Amendments. Pp. 525-530.
149 Ariz. 24, 716 P.2d 393, reversed and remanded. POWELL, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, O'CONNOR, and SCALIA, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 530.
I'm not surprised that you were surprised. tp's statement has generally been the law since "Miranda" clarifications have been published.... by the U.S. Supreme Court. ...
.. just because a state court publishes an opinion otherwise doesn't change Miranda and the principles expressed in it. ... a state court can have stricter standards than those imposed by the U.S. Supreme Court for cases within that state court's jurisdiction.
COG ... Apparently, the folks in Topeka didn't get your memo ...
Someone (or more) needs to read the opinion before commenting on it ..
#1 .. Salinas had already been VOLUNTARILY talking to the police and (in the words of the SCOTUS opinion) "balked" at the question asked him during the VOLUNTARY NON-CUSTODIAL INTERVIEW.
#2.. and probably more important to this thread and the "headline" ... Alito wrote:
"It has long been settled that the privilege (5th amendment .. added by LL) "generally is not self-executing" and that a witness who desires its protection "must claim it" "
... citing a 1984 Supreme Court case quoting from a 1943 Supreme Court case.
The lesson ... (too late for Salinas) ... STFU ... from the get go ....
.... and say "I assert my 5th amendment rights" ....
I honestly believe Alito would say "OK" to that one and
.... not allow any evidence of THAT statement or the deafening SILENCE that followed.
COG ... I will call bullshit on your "2 Kansas Supreme Court cases" ... Kansas is consistent with SCOTUS.
It's not just enough anymore to STFU. SCOTUS says your silence may be used against you in a court of law.
