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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.
It will be interesting to see where this goes and if they apply Miranda to any interaction with police, which sounds like what is being sought based on my quick reading of the link.
In case you think you should talk to the police, even if you didnt commit a crime, you should watch this video. It is well worth the 25 minutes.
The video and other similar instructions are part of the reason why the National Association of Criminal Defense Lawyers, and by the American Board of Criminal Lawyers have joined in the case because of their advice never to give any statement to the police without a advise of an attorney.
Quite off the point...
A comedian I saw gave a hilarious account of why he doesn't litter. His fear is that if he tosses a soda bottle into the busses, it might land next to a dead woman's body and the cops will find the bottle with his DNA on it.
The video and other similar instructions are part of the reason why the National Association of Criminal Defense Lawyers, and by the American Board of Criminal Lawyers have joined in the case because of their advice never to give any statement to the police without a advise of an attorney.
Quite off the point...
A comedian I saw gave a hilarious account of why he doesn't litter. His fear is that if he tosses a soda bottle into the busses, it might land next to a dead woman's body and the cops will find the bottle with his DNA on it.
I think this case is a bit more complicated. Certainly anyone in contact with the police, has a right to, and should take the advice of the ABCL, but the defendant in this case, answered nearly an hour worth of questions before not verabally answering one question, but at the same time, physically reacting in a way that clearly was indicative of his guilt.
Likely, regardless of his actual guilt or innocense, he would likely not be in jail today, had he simply not cooperated with the police from the start.
First off, the article isn't stating the facts. Maybe he was just sloppy with his words, I do not know.
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.
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.
That usually means that the individual has been arrested, and taken to a police station for questioning.
No it doesn't. It means as soon as anyone is taken into custody.
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.
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.
First off, the article isn't stating the facts. Maybe he was just sloppy with his words, I do not know.
That would be a first for SCOTUS Blog. When it comes to covering the Supreme Court their aren't many better... anyway.
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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.
That can only happen if they take the stand. If they do not, if a defendant invokes the there 5th Amendment protections the prosecution is excluded from using that in any way. The question before the Court is whether the exclusionary rule would allow a prosecutor to use silence in the case where a defendant is neither under arrest, has not been advised of their right to remain silent or affirmatively invokes their 5th Amendment rights.
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No it doesn't. It means as soon as anyone is taken into custody.
Poorly written or poorly read because in toto I fail to see the distinction?
The duty of police to give a Miranda rights warning exists only when the individual is formally in custody — that is, remains under police control and is not free to get up and leave. That usually means that the individual has been arrested, and taken to a police station for questioning.
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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.
Again, re-reading the article I fail to see what your point is since the author is explaining the fact pertaining to Jenkins v. Anderson, not the case before the court.
That can only happen if they take the stand. If they do not, if a defendant invokes the there 5th Amendment protections the prosecution is excluded from using that in any way. The question before the Court is whether the exclusionary rule would allow a prosecutor to use silence in the case where a defendant is neither under arrest, has not been advised of their right to remain silent or affirmatively invokes their 5th Amendment rights.
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.
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Poorly written or poorly read because in toto I fail to see the distinction?
The duty of police to give a Miranda rights warning exists only when the individual is formally in custody — that is, remains under police control and is not free to get up and leave. That usually means that the individual has been arrested, and taken to a police station for questioning.
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.
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Again, re-reading the article I fail to see what your point is since the author is explaining the fact pertaining to Jenkins v. Anderson, not the case before the court.
My point is that the first case is really irrelevant to the issue before the courts.
If I'm not mistaken, Thomas and Scalia voted in a similar case years ago AGAINST Miranda rights by saying that it wasn't constitutional. Rehnquist I think was the swing vote...shockingly going the other way by saying that constitutional or not, Miranda was simply too ingrained to just simply toss out.
If I'm not mistaken, Thomas and Scalia voted in a similar case years ago AGAINST Miranda rights by saying that it wasn't constitutional. Rehnquist I think was the swing vote...shockingly going the other way by saying that constitutional or not, Miranda was simply too ingrained to just simply toss out.
I'm not on my laptop, so I can't find the case.
That would be a different discussion. That is arguing that the police do not have to inform you of what you should already know.
It's also not a constitutional issue as far as I can see. We can pass a law stating that law enforcement has to inform people of their rights.
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