talkpolitics | "The Right to Remain Silent Requires You To Speak"

a-new-machine.livejournal.com posting in

That's the headline I'd have chosen for this month's big criminal law case out of the Supreme Court, Salinas v. Texas. The result is a bit fragmented, with the "majority" opinion being just 3 justices, but the long and short of it is that, in a non-custodial interview with the police, if you want to invoke your right to remain silent, you have to tell the police that you're doing so. Otherwise, they can describe your physical, non-verbal reactions to questions -- like, as was the case in Salinas, looking nervous and being silent after being asked whether shells found at the scene of a murder would match your gun. This is not, according to the Justices, a violation of the privilege against self-incrimination guaranteed by the Fifth Amendment.

Now, many contrast this with Miranda v. Arizona, the source of the oh-so-famous "you have the right to remain silent" warning that you hear on Law and Order right after the scumbag suspect is arrested in front of his company's board meeting and/or mistress. Miranda, perhaps the most well-known decision in pop culture, deals with slightly different subject matter, in that it applies only in custodial interrogations -- that is, where you're not free to leave. Notably, Miranda created no new rights. Instead, it established a prophylactic rule (which may be why Scalia, a noted devout Catholic, opposes it, har har har). You have the right to remain silent and get an attorney with or without Miranda warnings. However, the existence of the warning and your waiver of those rights is what renders your testimony admissible. After all, you're hardly being "compelled" to talk to the cops if you'r explicitly told that you have the right not to do so, or to do so with an attorney of your own present.

Of course, in typical restrained fashion, the press has reported that the decision in Salinas "held that you remain silent at your peril" and that the Court was moving to "cut off the right to remain silent." Some have even gone so far as to say that Salinas totally destroyed the right to remain silent.

In reality, Salinas is well in line with prior case law on the subject of invoking the right to silence. For instance, take a look at Berghuis v. Thompson from 2010. There, the Court required that a post-Miranda warning invocation of the right to silence must be done explicitly, or else it is treated as not invoked at all. Merely remaining silent for the majority of a 2 hour, 45 minute custodial interview was insufficient to act as an invocation of the right to remain silent. So, the suspect's responses near the end were admissible. Here's some more on the decision in Berghuis for the curious.

Now, the Slate article I rather derisively linked above does raise some good points. I'll re-link here to save you the scroll. He writes about the other concerns in any interrogation, with false confessions and forceful interrogations. However, it's worth noting that in a case like the one he cites (that of Nicholas Yarris), the cops already lied about what details the suspect confessed. Really, if they're going to outright frame someone, what's to stop them from simply saying he never invoked his right to silence?

To me, the greater concern isn't police corruption -- after all, if they're lying about X, they'll lie about Y as well. No, the real problems are the perfectly legal things that can go on in an interrogation that take advantage of the public's legal ignorance. The average interrogation, even a non-custodial one, confronts legal novices with legal experts, often without any legal expert on the citizen's side. Worse, the novices largely overestimate their own legal knowledge. A lot of folks still believe common legal myths, like the idea that the police have to read you the Miranda warnings as they're arresting you, or that an undercover cop must identify himself if directly asked. Most don't know that the police can lie about almost anything during an interrogation. Salinas likely believed that his silence could not be used against him, despite a long history requiring that the invocation of the right to remain silent be explicit, because he simply had no idea.

This is why the best possible advice you can get on police interrogations is this: never, ever talk to the police.

Flat | Top-Level Comments Only

From:

musicpsych.livejournal.com

Huh. That's interesting. I don't plan on ever needing to know that, but it's good to know. They say "silence speaks volumes," I guess... To me, in my experience, what happened in Salinas would be problematic. I know there are people who have a guilty reaction if you accuse them of something, even if they had nothing at all to do with it. "He looked nervous" wouldn't be sufficient to me because, well, he's being interrogated by the police - of course he's going to be nervous. Plus, a description of a person's reaction seems like it would be really subjective, much more so than words they say (which can still be read in different ways, I suppose).

From:

a-new-machine.livejournal.com

All of which is the type of discussion of the evidence I'd expect out of the defense's closing argument.

From:

rick-day.livejournal.com

At this point, I think we are all becoming numb to this gang rape of the Constitution.

No one represents the common man but himself.

From:

badlydrawnjeff.livejournal.com

I don't see why this is against the Constitution, to be honest, and I felt the same way about the Miranda ruling from a couple years ago as well. I agree with the final line in this post - never talk to the police. With that said, it's better for all parties involved to have an explicit invocation in place. By invoking that right explicitly, you're not only shutting down questioning, but you're disallowing things that aren't "silence," as noted in the OP (facial gestures, nervousness, whatever) from being in play.

From:

wight1984.livejournal.com

Wouldn't it be easier and better to just have that as the legal default?

Why have it as an invoked right when you could have it as a passive right that always belongs to you?

Re-affirming through speech is great and everything, but I wouldn't want that to be a requirement of having a right.

From:

badlydrawnjeff.livejournal.com

Wouldn't it be easier and better to just have that as the legal default?

Maybe? It would then imply, however, that the police could not question anyone at all, and then create a ton of legal headaches on how to get an explicit confirmation that the questioning is okay, and then the retractions thereof, and so on.

EDIT: to be clear, I'm sure we'd see lawsuits to that effect, and I'm sure some would win. I don't know for certain if that would actually end up being the functional case.

I'm all in favor of making the police's work more difficult in the name of the rights of the common man, but I don't see this as an insurmountable or intolerable compromise, either.

It's easy for me to say, though, since I'm already pretty aware that I probably shouldn't talk to police and would have explicitly invoked my rights with or without a court ruling saying so.

Edited Date: 30/6/13 21:48 (UTC)

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"The Right to Remain Silent Requires You To Speak"

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