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Yes but as I note, the article states that a prosecutor can't use a person refusal to speak against them. As you note, they indeed can if they take the stand.
But the article makes no assertion to the contrary.
...in Jenkins v. Anderson.
That decision, however, interrupted the pattern of extending Fifth Amendment protection for silence. Dennis Seay Jenkins had been put on trial in a Michigan court for a stabbing murder, and he decided to take the stand to make a claim that the killing had been done in self-defense. During cross-examination by a prosecutor, Jenkins admitted that, while he had turned himself into police, he had not done so until two weeks after the crime. Then, in a closing argument to the jury, in an attempt to contradict Jenkins’s claim of self-defense, the prosecutor commented on the fact that Jenkins had admitted that he remained silent for two weeks. Jenkins was convicted.
The Supreme Court ruled that it did not violate Jenkins’s Fifth Amendment rights because he had chosen to take the stand to testify, and thus opened the an opportunity for the prosecutor to test Jenkins’s credibililty as a witness. Its decision, the Court ruled, turned entirely on the fact that Jenkins had opted to testify. “Our decision today,” the Court said in a footnote, “does not consider whether or under what circumstsances pre-arrest silence may be protected by the Fifth Amendment. We simply do not reach that issue.”
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It's a completely needless distinction. Better? People are questioned all the time outside of the police station. The law was not primarily intended for questioning at a police station.
Yours or SCOTUS Blog's?
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My point is that the first case is really irrelevant to the issue before the courts.
The first case mention IS the case before the Court. The second case referenced is Miranda v Arizona which is about as foundational as it gets. The third case references, Griffin v. California, cites the prohibition, that bars prosecutors from commenting to a jury during trial that the accused individual has refused to take the stand, which is also foundational to understanding rational for the present case. So again is the blog poorly written or is has it just been poorly read?
But the article makes no assertion to the contrary.
Then where did I quote this from?
The Constitution’s Fifth Amendment has long been understood — by courts and by the public in general — to mean that prosecutors are not supposed to try to penalize an individual’s silence by using it against him in a criminal case.
The Constitution’s Fifth Amendment has long been understood — by courts and by the public in general — to mean that prosecutors are not supposed to try to penalize an individual’s silence by using it against him in a criminal case.
The Constitution’s Fifth Amendment has long been understood — by courts and by the public in general — to mean that prosecutors are not supposed to try to penalize an individual’s silence by using it against him in a criminal case. This is made vivid by the constitutional mandate that police must warn a suspect about the right to remain silent, one of the Miranda rights, before they may ask any questiuons. That is as familiar on television police dramas as in police stations across the country. But silence in response to a police question is not always shielded by the Fifth Amendment’s ban on self-incrimination.
The Supreme Court now turns, in a Texas murder case, to an issue about silence that has remained unsettled for a third of a century, and that has, in the meantime, deeply split federal and state courts. It is whether an individual, even before being arrested by police, has a right to remain silent — and suffer no legal consequences — during an interview with officers at an early stage of a crime investigation. A Houston man, Genovevo Salinas, is now serving a twenty-year sentence for murder after a conviction based partly on prosecutors’ use of his pre-arrest silence as evidence of his guilt.
I think that the supreme court has ruled on thsi several times when not a definted suspect. We eve have laws aginst a witness withholdig inforna mation i most states and others that can make a perosn after the crime a defendant. We wil have to wait and se is all. polcie are goigto do what is allowed and in manyy cases the laws have expanded their power because basically they have to have the power to enforce the law.Lots of rule changing and the rules are upto the courts as always. One example is the family violance rules separatig it from the office having to get a wrrant when he swuspects violence on warrantless arrest.One thig about reasonablness on both sides is the definition is always chnagig with the times.All they would have to do is wanr the person as the perosn you describe can littely walkout anyway.I expect its more likely that in future its so well known that police will not ahve to warn people fo their right to reamin silent and its been a on goigdiscussion has its gotten so complex from additonal rulings that have made the oriignal wanring complicated more and more.
The Constitution’s Fifth Amendment has long been understood — by courts and by the public in general — to mean that prosecutors are not supposed to try to penalize an individual’s silence by using it against him in a criminal case.
There is nothing of the sort in the US Constitution.
5th Amendment
...nor shall be compelled in any criminal case to be a witness against himself,...
Plain language meaning.....
"In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue judicial inquiry into the statute's meaning in all but the most extraordinary circumstance is finished." Riva v. Commonwealth of Massachusetts, 61 F.3d 1003, 1007 (1st Cir. 1995) (quoting Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475, 120 L. Ed. 2d 379, 112 S. Ct. 2589 (1992)) (internal quotation marks omitted). In other words, the court need not consult legislative history and other aids to statutory construction when the words of the statute neither create an ambiguity nor lead to an unreasonable interpretation. Riva, 61 F.3d at 1007 (quotations omitted). In searching a statute's text to determine congressional intent, we attribute to words that are not defined in the statute itself their ordinary usage, while keeping in mind that meaning can only be ascribed to statutory language if that language is taken in context. Id. (quotations omitted).
....and here....
In interpreting statutes, the Supreme Court has often recognized the rule "that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers." E.g., United Steelworkers of America v. Weber, 443 U.S. 193, 201, 61 L. Ed. 2d 480, 99 S. Ct. 2721 (1979) (quoting Holy Trinity Church v. United States, 143 U.S. 457, 459, 36 L. Ed. 226, 12 S. Ct. 511 (1892)).
....and here....
We read statutory terms in light of their plain meaning. Baum v. Madigan, 979 F.2d 438, 441 (6th Cir. 1992). "'Statutory words are uniformly presumed, unless the contrary appears, to be used in their ordinary and usual sense, and with the meaning commonly attributed to them.'" Ibid. (quoting Caminetti v. United States, 242 U.S. 470, 486, 37 S. Ct. 192, 194, 61 L. Ed. 442 (1917)).
...but sometimes conflicts arise as they did here....
United States v. American Trucking Associations, 310 U.S. 534, 543-44, 84 L. Ed. 1345, 60 S. Ct. 1059 (1940) (footnotes omitted), quoted in Church of Scientology v. United States Department of Justice, 612 F.2d 417, 422 (9th Cir. 1979); accord Burroughs v. Operating Engineers Local Union No. 3, 686 F.2d 723, 727 (9th Cir. 1982).
...and here....
In interpreting a statute, "we begin, as we must, with the express language of the statute . . . . Where, as here, the language of the statute is plain and unambiguous, resort to legislative history is unnecessary." Rucker v. Davis, 203 F.3d 627, 636 (9th Cir. 2000); see Citizens Action League v. Kizer, 887 F.2d 1003, 1006 (9th Cir. 1989)("In construing a statute, we look first to its plain meaning"). In rare cases where "the literal application of a statute will produce a result demonstrably at odds with the intention of its drafters," an exception should be made to the general plain language rule. United States v. Ron Pair Enters., 489 U.S. 235, 242, 103 L. Ed. 2d 290, 109 S. Ct. 1026 (1989). However, the Supreme Court has cautioned against inserting words into a statute when the same words are present in other sections of the same statute. The Supreme Court has stated:
...and also here....
[Where] Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972); See United States v. Wooten, 688 F.2d 941, 950 (4th Cir. 1982). Had Congress intended to restrict § 1963(a)(1) . . . it presumably would have done so expressly as it did in the immediately following subsection (a)(2). See North Haven Board of Education v. Bell, 456 U.S. 512, 521, 72 L. Ed. 2d 299, 102 S. Ct. 1912 (1982); United States v. Naftalin, 441 U.S. 768, 773-774, 60 L. Ed. 2d 624, 99 S. Ct. 2077 (1979). In the latter case, id., at 773, the Court said: "The short answer is that Congress did not write the statute that way." We refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake in draftsmanship.
That resulted in the creation of these guidelines....
In recognizing the principle that a statute's language and purpose may at time differ, the Court has stated guidelines for reconciling the two:
There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one "plainly at variance with the policy of legislation as a whole" this Court has followed that purpose, rather than the literal words. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no "rule of law" which forbids its use, however clear the words may appear on "superficial examination."
To that end we note the Supreme Court agrees with what is probably one of the best courts to ever exist in the history of Earth -- perhaps even in the Universe -- the federal 6th Circuit Court of Appeals....
In determining the meaning of legislation, we must first look to the plain language of the statute itself. McBarron v. S & T Indus., Inc., 771 F.2d 94, 97 (6th Cir. 1985). "If we find that the statutory language is unambiguous, then that language is regarded as conclusive unless there is a clearly expressed legislative intent to the contrary." Bradley v. Austin, 841 F.2d 1288, 1293 (6th Cir. 1988). Courts need only to examine the legislative history of a statute when its terms are ambiguous, see id., or where enforcement of the plain terms of the statute would "'produce a result demonstrably at odds with the intention of [the statute's] drafters.'" United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242, 103 L. Ed. 2d 290, 109 S. Ct. 1026 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 73 L. Ed. 2d 973, 102 S. Ct. 3245 (1982)).
...and...
"Particular phrases must be construed in light of the overall purpose and structure of the whole statutory scheme." (citing Dole v. United Steelworkers of Am., 494 U.S. 26, 35, 108 L. Ed. 2d 23, 110 S. Ct. 929 (1990)); Oates v. Oates, 866 F.2d 203, 206 (6th Cir.) (a fundamental rule of statutory construction is that statutory language is to be read in pertinent context rather than in isolation), cert. denied, 490 U.S. 1109, 104 L. Ed. 2d 1025, 109 S. Ct. 3163 (1989).
Why don't you be nice and e-mail Idiot Blogger a copy of Roget's Thesaurus, Webster's Unabridged Dictionary, and the Case Law that I know..... but Idiot Blogger is clueless to know or understand.
5th Amendment
...nor shall be compelled in any criminal case to be a witness against himself,...
For those who have problems with English, the 5th Amendment says simply that you cannot be compelled to testify against yourself.That's all it says. Anyone who sees anything else needs to be checked out of Schizo-Affective Disorder or something, because quite clearly they are hallucinating.
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Originally Posted by ovcatto
"This is made vivid by the constitutional mandate that police must warn a suspect about the right to remain silent,"
That is just plain wrong.
The 5th Amendment only bars you from being forced to give sworn testimony against yourself.....it does not bar you from answering questions presented by law enforcement agents.
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Originally Posted by ovcatto
But silence in response to a police question is not always shielded by the Fifth Amendment’s ban on self-incrimination.
The 5th Amendment does not "ban self-incrimination," rather it bars a person from being "compelled in any criminal case to be a witness against himself,...
Compelled: Force or oblige (someone) to do something.
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Originally Posted by pknopp
First off, the article isn't stating the facts. Maybe he was just sloppy with his words, I do not know.
It was more than mere, sloppiness; the Blogger just plain sucks.
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Originally Posted by pknopp
A prosecutor most certainly will attempt to penalize a persons silence by getting them to claim their rights in this way while being tried. There is nothing that says they can't.
It's why a defendant is rarely allowed to testify for themselves.
True.
Some people are just lousy witnesses, even when they are innocent for any number of reasons. Not everyone handles pressure the same way, and it's very easy to get confused and get someone to admit to something when they the person actually believes they are denying it.
I know. Prosecutors, cops, we all took the same psych courses and seminars in interviewing tactics and techniques.
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Originally Posted by pknopp
During cross-examination by a prosecutor, Jenkins admitted that, while he had turned himself into police, he had not done so until two weeks after the crime. Then, in a closing argument to the jury, in an attempt to contradict Jenkins’s claim of self-defense, the prosecutor commented on the fact that Jenkins had admitted that he remained silent for two weeks. Jenkins was convicted.
All this is, is the prosecution saying "if it was self defense why did he not come forward for two weeks". No court is going to rule that a prosecutor can't question that.
Agreed.
It is an issue of Defendant's credibility. Either the Jury finds Defendant credible.....or not.
My guess is that Jury believed Defendant not to be credible and spent two weeks pondering some kind of "defense."
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Originally Posted by pknopp
As to the second example....
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Nowhere does it state that exercising this right can't be used against you. It's still up to the prosecution to provide the evidence that you are guilty. No jury will convict simply based upon the argument "he refused to answer our questions". To note that he refused to answer this one question while answering others and providing all the other evidence is only one small part of the big picture.
Correct again. It's a matter of evidence, and it's for the Jury to decide which Witnesses for the Prosecution and Defense are credible and which are not, including testimony provided by "expert witnesses."
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Originally Posted by ovcatto
That would be a first for SCOTUS Blog. When it comes to covering the Supreme Court their aren't many better... anyway.
"Pre-arrest silence" as an indication of guilt? Maybe the guy was depressed and feeling sorry for himself? Perhaps he may have even intentionally damaged his position with police because he has a self destructive personality disorder? Pre-arrest silence might send a signal of defiance or "toughness" to law enforcement. This would certainly cause the attitude of "how dare he remain quiet and defy our authority" - The court might rule from a Draconian point of view- of how dare a citizen defy us...To be defiant is not illegal...It is the right to self expression and in a sense is silent free speech.
"Pre-arrest silence" as an indication of guilt? Maybe the guy was depressed and feeling sorry for himself? Perhaps he may have even intentionally damaged his position with police because he has a self destructive personality disorder? Pre-arrest silence might send a signal of defiance or "toughness" to law enforcement. This would certainly cause the attitude of "how dare he remain quiet and defy our authority" - The court might rule from a Draconian point of view- of how dare a citizen defy us...To be defiant is not illegal...It is the right to self expression and in a sense is silent free speech.
By noting an "indication of guilt" I'm assuming you are speaking about incriminating yourself. No court is or will rule that you have to do that and no jury is going to find someone guilty on that alone.
To make myself more clear. The court must ask - What is the person communicating through their silence? Not all communication is spoken. Is the person remains silent it may be a statement that can be later translated by the suspect at a later time when they feel it is time to speak. Authorities can not convict on an assumption- with assumptions there is always doubt in the quality of information.
Silence can not be fully translated - only speculation can take place to what is in the mind of the suspect- speculations are not always accurate or real. One can not be convicted on the bases of a dream.
By noting an "indication of guilt" I'm assuming you are speaking about incriminating yourself. No court is or will rule that you have to do that and no jury is going to find someone guilty on that alone.
Pre-arrest silence can not be seen as self incrimination anymore than stating verbally that you refuse to speak because of the possibility of self incrimination...To remain silent prior the arrest is an unspoken statement that clearly communicates your intentions to avoid self incrimination. As soon as there is a formal arrest then the person is informed of their rights- Now if the suspect suspects that he is going to be arrested - he has the right to a pre-emptive action of exercising his rights early- Why is the court even thinking about this? It's clear you have the right to remain silent before you are read your rights...rights do not suddenly come into being with the authorities state you have them- They are enshrined in the individual and not handed out like candy.
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