Is remaining silent prior to arrest an admission of guilt?

Apparently the court has never ruled on this before. Now they have the chance.

Last week the US Supreme Court heard Salinas v Texas, which originated in Harris County and pitted one of Harris County's district attorneys against a Stanford law professor.

The NYT describes the case here:

Salinas v. Texas, No. 12-246, addresses a major open question in the court’s Fifth Amendment jurisprudence: May the failure to answer a police officer’s questions before an arrest be used against a defendant at trial?

The Supreme Court has said the amendment’s protection against self-incrimination applies after arrest and at trial. But it has never decided, in the words of a 1980 decision, “whether or under what circumstances pre-arrest silence” in the face of questioning by law enforcement personnel is entitled to protection.

The case arose from the 1992 murders of two brothers, Juan and Hector Garza, in Houston. Among the evidence the police found were discarded shotgun shells.

They questioned Genovevo Salinas, who was said to have attended a party at the Garzas’ apartment. Mr. Salinas answered questions for almost an hour but would not say if a shotgun the police had taken from his home would match the recovered shells.

The question about the shells was the only one Mr. Salinas refused to answer. Instead, a police officer later testified, he “looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, began to tighten up.”

Mr. Salinas was charged with murder after a friend told the police that Mr. Salinas had confessed. The jury deadlocked at his first trial. At a retrial, prosecutors again relied on testimony about the confession and ballistics evidence. They now also emphasized Mr. Salinas’s silence about the shells.

“An innocent person,” one prosecutor told the jury, “is going to say: ‘What are you talking about? I didn’t do that. I wasn’t there.’ He didn’t respond that way. He didn’t say, ‘No, it’s not going to match up.’ ”

Mr. Salinas was convicted and sentenced to 20 years in prison.

In urging the justices not to hear the case, prosecutors in Texas said Mr. Salinas had effectively answered the question about the shells through his conduct. In any event, they said, the Fifth Amendment does not apply when “there is no official compulsion to speak.”

For more on the subject:

- ScotusBlog - Salinas v Texas.
- Grits for Breakfast.
- You can find the transcript of the oral argument here.

Should you act as your own lawyer?

You can, the Constitution has interpreted the right of representation to allow for it, but it is almost never a good idea. As much as we like to tease lawyers, they tend to be good at what they do - or at least better than we are at it.

Councilwoman Jones draws scrutiny over handout

From the Chron, a story highlighting controversies over citizen's rights:

The city's Office of Inspector General is looking into a card distributed at a recent forum on police brutality in which City Councilwoman Jolanda Jones advises people never to speak with police.

"I would absolutely be concerned about anyone who would do anything to discourage citizens from speaking to police officers," Mayor Annise Parker said after Wednesday's City Council meeting. "That would be certain members of council who have put out written statements saying that citizens should never talk to police officers under any circumstances."

The card's advice for encounters with police at home includes the directive: "NEVER speak with the police. You have a 5th Amendment right to remain silent. Use it! Ask for & contact your lawyer." In another section, the card states: "If it is meant for you to speak with the police, do so ONLY after you speak with your lawyer and he/she gives you permission." . . .

Jones, a criminal defense lawyer, said the card is a quick legal reference to remind people of their Fifth Amendment right against self-incrimination, not a call to refuse to cooperate with police. She said she has passed out a version of the card for years, even before her election to the council in 2007.

"Are they saying that they're disappointed that I'm telling people their constitutional rights?" Jones asked. "It's a public service. Me being on the council does not trump the Constitution."

How Reliable are Confessions?

How can innocent defendants be persuaded to not only confess to crimes they didn't commit, but do so convincingly?

Miranda Warnings Narrowed

The Supreme Court narrowed the impact of Miranda Warnings by ruling that a suspect that remains silent has not implicitly invoked the right against self incrimination. Simply remaining silent is not enough to establish that one claims the right to remain silent. The decision continues the current courts march rightward, in this case in terms of the rights of criminal defendant v the police.

The case is Berghuis v. Thompkins

- ScotusWiki.
- ScotusBlog.
- The Washington Post.
- New York Times.
- The Decision.

The Future of Miranda Warnings

The recent arrest of the Times Square bomber has led some, and possibly even the Obama Administration, to call for limits to Miranda Warnings. Constitutional tests to the warnings are nothing new, and given the conservative slant of the court it is worth wondering how secure the warnings are. History tells us that in times of threat, civil liberties take a hit.

For my 2301s, this fits into our discussion of the constitution, as a document that defines and limits governmental power, the Bill of Rights, civil liberties, and how the Supreme Court defines constitutional language.

Links:
- Miranda Warnings.
- Miranda v. Arizona.
- Right Against Self Incrimination.
- Fifth Amendment.
- Due Process.
- Warren Court.
- Dickerson v. U.S.
- The Origins of the Public Safety Exception to Miranda Warnings.

Taking the Fifth. . . Literally.

Slate wonders about the impact of a recent executive order.