Bye-Bye 5th Amendment : You May Not Have The Right To Remain Silent

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On June 17, 2013, the Supreme Court of the United States decided Salinas v. Texas, a case involving the Fifth Amendment and “Miranda” rights that has sent ripples across the internet, albeit, because many people simply do not understand whatMiranda is – and what is it not. For example, a Slate Magazine article mentions “the Supreme Court held that you remain silent at your peril.” A Cato Institute article calls the decision a “bad day for the Bill of Rights”.  These articles are, in a word, overreactions.

In reality, your Miranda rights are not greatly impacted or deteriorated by the decision – so long as you pay close attention to what the carefully worded decision means. To understand the nuances, you need to know what your Miranda rights are and when they arise.

What are they? Well, if you watch Law & Order, NCIS, (or watched LA Law, NYPD Blue), etc., you have heard them:

  1. You have the right to remain silent.
  2. Anything you say can and will be used against you in a court of law.
  3. You have the right to an attorney.
  4. If you cannot afford an attorney, one will be appointed for you.

However, many people do not understand that they come from a 1966 decision of the Supreme Court, Miranda v. Arizona, and, more importantly, that police have no obligation to advise you of those rights unless you are (1) in custody and (2) being interrogated/questioned about a crime. Meaning, if you are dumb enough to give the police “the goods” (i.e. you confessed to a crime) in response to police questioning and you are not in custody, your statements can and will be used against you. Similarly, if you are in “custody” and decide to spontaneously utter without being questioned “I did it send me to the chair,” those statements can also be used against you (because although you were in custody, you were not being questioned).  In a more practical setting, assume that you are arrested (handcuffed) for DWI. The police put you in the back of the patrol car, do not advise you of your Miranda rights, but do not ask you any questions. However, you decide to tell them: “I just got banged up on 12 shots of Tequila – what a night.” I assure you, the Prosecutor will enjoy admitting those statements into evidence against you.

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On Monday, June 17th, 2013 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 Mirandawarnings.  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.

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The court’s ruling in Salinas is all the more troubling because during such informal, undocumented, and unregulated questioning, there are special dangers that police may, intentionally or not, coax false confessions from innocent suspects. I have spent years studying cases of people exonerated by DNA testing. A large group of those innocent people falsely confessed—and many supposedly admitted their guilt even before any formal interrogation.  Take the case of Nicholas Yarris, who was exonerated by DNA testing in 2003, after 20 years in prison. He had been convicted and sentenced to death in Pennsylvania for the murder of a woman found raped, beaten, and stabbed near her abandoned Chrysler Cordoba.

When informally questioned, police said, Yarris volunteered that he knew the victim had been raped, and that the victim’s Chrysler had a brown “landau” roof (a vinyl fake convertible look). That was a striking detail, especially since the police had kept it out of the press. No tape was made of the interrogation. The police didn’t even produce notes. And now that DNA has cleared Yarris, we know his confession was false, and that he must not have volunteered the fact about the car roof at all.

The Supreme Court’s decision in Salinas encourages the kind of loosey-goosey, and easily contaminated, police questioning that led to Yarris’ wrongful conviction. Salinas may very well have been guilty of the two murders. But in many cases, as in this one, there are no eyewitnesses and not much other evidence of guilt: That is why the police may desperately need a confession. And that makes it crucial for them to handle interrogations and confessions with the utmost care. The court appreciated none of the pressures police face, and how they can squeeze an innocent suspect. Alito and the other conservatives were not troubled that there was no video to confirm that Salinas was in fact uncomfortable as well as silent. If Salinas had answered the question by exclaiming that he was innocent, could police have reported that he sounded desperate and like a liar? The court’s new ruling puts the “defendant in an impossible predicament. He must either answer the question or remain silent,” Justice Stephen Breyer said in dissent (joined by the other three liberal-moderates). “If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances—even if he is innocent.” But if he doesn’t answer, at trial, police and prosecutors can now take advantage of his silence, or perhaps even of just pausing or fidgeting.

Questions first, rights later is the approach the court’s majority now endorses. And by giving the police more incentive to ask questions informally, the new ruling will also undermine the key reform that police have adopted to prevent false confessions: videotaping entire interrogations.  Why not try to trap a suspect before the camera starts rolling? In only a few cases like Yarris’ will there be DNA to test. The likely result of the court’s embrace of shoddy interrogation tactics: more wrongful convictions.

Source:

www.slate.com



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