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Author Topic: 5th Amendment Ruling  (Read 4666 times)

booksmart

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5th Amendment Ruling
« on: June 18, 2013, 01:22:31 pm »
http://www.huffingtonpost.com/2013/06/17/supreme-court-silence_n_3453968.html

Excerpt:

Quote
WASHINGTON -- 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.

The Fifth Amendment protects Americans against forced self-incrimination, with the Supreme Court saying that prosecutors cannot comment on a defendant's refusal to testify at trial. The courts have expanded that right to answering questions in police custody, with police required to tell people under arrest they have a right to remain silent without it being used in court.

Prosecutors argued that since Salinas was answering some questions – therefore not invoking his right to silence – and since he wasn't under arrest and wasn't compelled to speak, his silence on the incriminating question doesn't get constitutional protection.

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.'"

Sounds like he should lawyered up from the start, and kept his trap shut.

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    Mississippi556

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    Re: 5th Amendment Ruling
    « Reply #1 on: June 18, 2013, 01:40:58 pm »
    Alito is right.  This is not new law.  If you want to invoke the right, you can't do it selectively.  If you talk before being "Mirandized," and assuming they did that at the right point, then silence after answering some questions can be used to imply guilt at that stage.  Nothing new.

    Although on a slightly different point, this may help to illustrate the principle:  Recently IRS employees appeared before a Congressional committee to answer questions about the targeting of conservative groups seeking non-profit tax status.   They gave previously scripted out "statements" and then invoked the 5th Amendment protection against incrimination and refused to answer questions.   I don't think they can have it both ways.   

    It's like be a little bit pregnant . . . either you are or you aren't. 

    Mississippi"When a strong man, fully armed, guards his own palace, his goods are safe"  Words of Jesus, Luke 11:21 (ESV).

    Coronach

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    Re: 5th Amendment Ruling
    « Reply #2 on: June 18, 2013, 04:05:30 pm »
    Exactly. The 5th only means that you can't compel someone to speak, and, if they refuse, say "Ooooh! You're refusing to talk to us? GUILTY!" It does not mean that if you talk willingly about everything else and then clam up about another topic that the listener (cop, judge, prosecutor, juror) is forbidden from using common sense to make an inference.

    This is why if you're going to invoke, you do so early and be firm about it, and wait for your lawyer before continuing with any statement.

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    Panhead Bill

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    Re: 5th Amendment Ruling
    « Reply #3 on: June 18, 2013, 07:40:47 pm »
    To add to that though, from my summary review of the case, if you happen to start talking (before being Mirandized) and then realize, "oh crap, I shouldn't be talking" you should expressly say "I'M EXERCISING MY 5TH AMENDMENT RIGHTS", or else your subsequent silence could be interpreted as guilt.  However, the Court's opinion (from my reading) did provide an "out" by stating once you do expressly invoke your rights, subsequently refusing to answer questions should not be interpreted as a sign of guilt. 

    (Of course, this should not be construed as legal advice, blah blah blah)

    Bill
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    Re: 5th Amendment Ruling
    « Reply #4 on: June 18, 2013, 09:38:25 pm »
    Yup. No surprise there.
    Indiana'The average response time of a 911 call is over 23 minutes, the average response time of a .44 magnum is 1400 feet per second.'

    scarville

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    Re: 5th Amendment Ruling
    « Reply #5 on: June 19, 2013, 06:25:19 pm »
    This is an example of a hard case making bad law. As I understand it, the guy willingly agreed to talk to the cops. That was his first mistake.  No offense intended to the LEOs on this list but the general rule is never willingly talk to the police.. Yes, there are exceptions to that advice but this guy did fall under any that I know of.

    Now because of this idiot we end up with a decision that weakens the Fifth Amendment. Not too much damage -- the decision seems pretty narrow to me -- but still a hit.

    Never consent to a search. Answer anything beyond name, rank and serial number with a polite, "Am I free to go?" Do not wait to be mirandized. Sometime an interrogator will interpret politeness as weakness but that's his error. Even if you think the questioner is scum say "Sir" or "Ma'am" in the appropriate places.
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    Re: 5th Amendment Ruling
    « Reply #6 on: June 19, 2013, 11:36:16 pm »
    "Why, yes! I would like to cooperate! After I have spoken to an attorney. Am I free to go?"

    ALWAYS LAWYER UP!!!

    Indiana'The average response time of a 911 call is over 23 minutes, the average response time of a .44 magnum is 1400 feet per second.'

    Chief45

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    Re: 5th Amendment Ruling
    « Reply #7 on: June 20, 2013, 12:19:38 am »
    It's always so interesting to read the comments on cases like this.   a couple of other boards I watch, it's just freaking wild.

    (summary of case and analysis.  http://www.llrmi.com/articles/legal_update/2013_us_salinas_texas.shtml)

    and No One gets it.

    He was asked to turn over his shotgun.  he agreed. (That's 1) murders committed in 1992.
    He was asked to come in and talk.  He agreed. (that's 2)
    He was Not under arrest, therefore No Miranda.
    He was asked questions and his responses, lack of response, body language, etc,  were used at trial.  and his buddy said he talked (that's 3) about the murders and admitted to doing them (that's 4)
    His SECOND trial, after the first was declared a mistrial, and after he was found several years after the murders and several years after the questions (2007), hiding under a false name in another city. (That's 5)   (stupid mistakes on his part, that is)

    The prosecutors used all of the information they had available to them to present their dog and pony show to the jury.

    so, one set of attorneys got to say their say.  and then the other set of attorneys got to say theirs, then the first set gets to talk again.     basic courtroom procedure.   and the jury got to actually hear what was said. 

    so, please explain, using small words and simple concepts, cause I'm just a dumb cop,  exactly why this is bad case law ?  Cause what I'm seeing in this case was a guy that was felony stupid and that's about it.



    I'm not gonna touch the "don't talk to cops" lines ya'll are throwing out.  that's your right and your business,  ain't worried about that, human nature being what it is.  and I can pretty much guarantee that 98% of the people in this world, even if they hear that, have been taught that, believe that and intend to follow that,  Won't.    people don't follow it,  mainly cause people is stupid.



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    scarville

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    Re: 5th Amendment Ruling
    « Reply #8 on: June 20, 2013, 08:50:36 am »
    "Why, yes! I would like to cooperate! After I have spoken to an attorney. Am I free to go?"

    That might not work anymore.  I think some more groundwork to destroy that course of action has certainly been laid.

    Perhaps the worst part of this decision is it further shifts a burden of responsibility: The Constitution binds the state, not the individual. However, in this decision, the state is not required to respect the limits placed on it by the Fifth Amendment unless the individual knows what those limits are and explicitly invokes them.  In other words the right against self-incriminatation is not the default. Additionally, that was the opinion of only three of the five. Thomas, in a separate opinion joined by Scalia, argued that prosecutors can use a suspect’s silence against him at trial even if said suspect did specifically invoke the Fifth Amendment:

    Quote
    We granted certiorari to decide whether the Fifth Amendment privilege against compulsory self-incrimination prohibits a prosecutor from using a defendant's pre-custodial silence as evidence of his guilt. The plurality avoids reaching that question and instead concludes that Salinas' Fifth Amendment claim fails because he did not expressly invoke the privilege. I think there is a simpler way to resolve this case. In my view, Salinas' claim would fail even if he had invoked the privilege because the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony.

    Note that, in Thomas opinion, the Fifth Amendment is a "privilege".  I'd call that alone bad law.  As Rush Limbaugh likes to say, "Words have meaning."

    No single decision will demolish the Fifth Amendment any more than one single law emasculated the Second. Destroying the Constitution is an ongoing, long-term  process and, IMO, this decision is another brick in the wall.

    A copy of the actual decision is at: http://www2.bloomberglaw.com/public/desktop/document/SALINAS_v_TEXAS_No_12246_US_June_17_2013_Court_Opinion/1

    A summary at ScotusBlog: http://www.scotusblog.com/?p=165262
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    Arktos

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    Re: 5th Amendment Ruling
    « Reply #9 on: June 22, 2013, 11:31:26 pm »
    I was under the impression that one's Constitutional rights are always with you. But the Supreme Court's word is case law. I think it is clear by now that the Bill of Rights needs to be reinforced, and include some means of enforcing itself.
    "If you are scared you die every day. If you are not scared, you die only once." -Giovanni Falcone

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    Re: 5th Amendment Ruling
    « Reply #10 on: July 05, 2013, 01:28:32 pm »
    I was under the impression that one's Constitutional rights are always with you. But the Supreme Court's word is case law. I think it is clear by now that the Bill of Rights needs to be reinforced, and include some means of enforcing itself.
    Agreed. But therein lies the problem. The courts have sided with the state almost every time in limiting or redefining our rights. Thus bypassing what once was clear Constitutional Law and muddying the waters (law) with irrelivant and suppositonal case law arguements.

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    Indiana'The average response time of a 911 call is over 23 minutes, the average response time of a .44 magnum is 1400 feet per second.'

    Coronach

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    Re: 5th Amendment Ruling
    « Reply #11 on: July 05, 2013, 04:37:09 pm »
    What, precisely, would a 5th Amendment right that is "always with you" look like, in your eyes? And, interestingly enough, the courts have significantly expanded many of the protections of the BOR, but when they scale back some of those expansions (which, IMO, did not happen in this case), we fall back on the old saw of the courts constantly curtailing rights. We forget such things as the silver platter doctrine, and the fact that, when the founding fathers drafted the constitution, none of this was supposed to apply to state and local government.

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    Gunnguy

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    Re: 5th Amendment Ruling
    « Reply #12 on: July 05, 2013, 06:18:23 pm »
    What, precisely, would a 5th Amendment right that is "always with you" look like, in your eyes? And, interestingly enough, the courts have significantly expanded many of the protections of the BOR, but when they scale back some of those expansions (which, IMO, did not happen in this case), we fall back on the old saw of the courts constantly curtailing rights. We forget such things as the silver platter doctrine, and the fact that, when the founding fathers drafted the constitution, none of this was supposed to apply to state and local government.

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    My friend that last part is sketchy at best. Because if it didn't apply to States and Local Gubmints then it is ALL for naught and worthless.

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    Indiana'The average response time of a 911 call is over 23 minutes, the average response time of a .44 magnum is 1400 feet per second.'

    scarville

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    Re: 5th Amendment Ruling
    « Reply #13 on: July 05, 2013, 09:39:42 pm »
    My friend that last part is sketchy at best. Because if it didn't apply to States and Local Gubmints then it is ALL for naught and worthless.

    If the Bill of Rights was not intended to bind the states, then why does the First Amendment specifically mention Congress but the other nine do not?  My working hypothesis is that the men who wrote the Constitution and the Bill of Right were not idiots. I may be wrong about that but if I am correct then there is no reason for me to accept that they would have said "Congress shall make no law" in the First Amendment but leave it out of the rest unless they intended to.
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    Feud

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    Re: 5th Amendment Ruling
    « Reply #14 on: July 06, 2013, 12:09:51 am »
    If it was meant to be binding, then wouldn't the express nature of the first amendment implicitly mean that states were not bound to that particular amendment?

    Coronach

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    Re: 5th Amendment Ruling
    « Reply #15 on: July 06, 2013, 12:43:47 am »
    Why would the Bill of Rights be binding upon the states? Where in the Constitution does it say that it constrains anything but the fed.gov? It was not until the 14th Amendment did any article of the constitution apply to the states (unless it specifcally said so), and even then it took SCOTUS (that body that does nothing but whittle away our rights) to apply it.

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    scarville

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    Re: 5th Amendment Ruling
    « Reply #16 on: July 06, 2013, 03:40:27 am »
    If it was meant to be binding, then wouldn't the express nature of the first amendment implicitly mean that states were not bound to that particular amendment?

    The First Amendment says  "Congress shall make no law..." So, yes, it is reasonable to interpret the First Amendment as only binding Congress originally.
    CaliforniaOf course I carry a gun!  It gives me a chance against the sinners and protection from the righteous.

    If you are going through hell then don't stop. Keep going until you find the exit.

    Coronach

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    Re: 5th Amendment Ruling
    « Reply #17 on: July 06, 2013, 06:37:57 am »
    Whether we think the BoR should have applied to the states or not is completely irrelevant.

    The fact is, the amendments did NOT apply to the states when the BoR was drafted. No one at the time thought that they did. They may have believed that they SHOULD (witness the many state constitutions with enumerated rights mirroring the BoR), but they knew that they did not.

    The fact is, they usually do NOW, with the 14th amendment AND court cases incorporating the various amendments (you know, those court decisions that only limit our rights, except when they don't, but we don't talk about that).

    Anything else falls under the "alternative history" heading. Our side in the sociopolitical debate has a real tendency to harken back to the good old days that never were, and this is one of those times when we do that. It's not like there was some instant, crystal clear understanding of what the text meant that has been muddied by foolish judges and stare decisis. It's more like everyone had a pet interpretation of what something meant, and the courts started clarifying stuff out of necessity (eg, what is "unreasonable" in the 4th Amendment's clause of "unreasonable search and seizure").

    Mike
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    Coronach

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    Re: 5th Amendment Ruling
    « Reply #18 on: July 06, 2013, 06:51:50 am »
    For further reading, try Wikipedia (not the best source, but good enough for this topic):

    Quote
    The incorporation of the Bill of Rights (or incorporation for short) is the process by which American courts have applied portions of the U.S. Bill of Rights to the states. Prior to 1925, the Bill of Rights was held only to apply to the federal government. Under the incorporation doctrine, most provisions of the Bill of Rights now also apply to the state and local governments.

    https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights
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    Gunnguy

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    Re: 5th Amendment Ruling
    « Reply #19 on: July 06, 2013, 05:58:33 pm »
         I have always assumed, on my part, that a right granted to me by God, like breathing, was never a power or authority any governmental body could regulate. Thus my assumption that the BoR applied to all Citizens and the States had to recognize these rights.
         While I learned a while back that indeed States can make up their own laws, like BLUE laws. I again assumed that any one of these that violated the BoR was therefore unconstitutional. Indeed it was the Fourteenth Amendment that made the States play nice.
         Thank you, Coronach, for the re-lesson in historical civics 101!

    Indiana'The average response time of a 911 call is over 23 minutes, the average response time of a .44 magnum is 1400 feet per second.'

    Coronach

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    Re: 5th Amendment Ruling
    « Reply #20 on: July 06, 2013, 06:32:07 pm »
    It is usually a distinction without a difference, unless you were alive in the first half of the 20th century, but occasionally it crops up in modern issues. Case in point? The Heller and McDonald cases. Until Heller, the Second Amendment applied only to the fed.gov, which is why states and cities could do their own thing limiting RKBA. That is why Heller was so huge. We always believed that the Second should apply to the states, but until then it legally did not.

    As an aside, this could have been decided years ago, but the NRA is a very cagey, cautious beast, and this was a 5-4 decision. In a court with a different make-up, it might have been decided the other way. As insufferable as it was to have little tyrants in Chicago and NYC abridging rights, you lose the case on incorporation and you're done. They had one shot at that, and Gura won it ... 5-4.

    Another interesting aside, the next time some anti-gunner points out alllllllllll of the gun laws in allllllllllll of the states in the "good old days", nod and say "yeah, that probably existed. The second amendment had not been applied to the states then. Now, thanks to the 14th amendment, it does. So, you're comparing apples and oranges."

    Mike
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    Mississippi556

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    Re: 5th Amendment Ruling
    « Reply #21 on: July 06, 2013, 08:36:05 pm »
    Most of the original colonies had their own state Bill of Rights that either preceded the federal constitution or came close on its heels.

    Even without the 14th Amendment virtually every state now has a Bill of Rights in its constitution at least as strict in protection against self-incrimination as the federal 5th.  But the federal 5th as interpreted by the US Supreme Court and applied to the states via the 14th provides a floor or minimum.  The states can provide greater, but not less protection.

    The presence and effect of state Bills of Rights frequently gets overlooked in these discussions.
    Mississippi"When a strong man, fully armed, guards his own palace, his goods are safe"  Words of Jesus, Luke 11:21 (ESV).

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