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talkpoliticsThat'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.
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.
apt description is apt
Date: 1/7/13 16:49 (UTC)Is it politically incorrect to type the words 'gang' and/or 'rape' now?
ETA:
Don't beat around the bush. Why don't you do what you REALLY want to do'; tell me exactly how YOU want me to use or not use words?Your question does not seem pertinent to the thread.(no subject)
Date: 2/7/13 13:41 (UTC)(no subject)
Date: 2/7/13 14:22 (UTC)(no subject)
Date: 3/7/13 03:08 (UTC)(no subject)
Date: 3/7/13 05:56 (UTC)Using rape in a metaphor, yep, it is.
(no subject)
Date: 3/7/13 07:35 (UTC)Go tell the people who write dictionaries about how offended you are there are very acceptable alternative uses of the term 'rape'.
http://dictionary.reference.com/browse/rape
Ignore the first two and concentrate on the other six definitions. And please try to not jump to erroneous conclusions. It comes off as bullying.
(no subject)
Date: 3/7/13 07:43 (UTC)I used to use it for a variety of different uses, usually meaning something like aggressively using all of something up "I am going to rape this can of coke". I had several female friends ask me to not say things like that, and I like them and want to keep spending time with them, so I stopped using it.
I'm not sure why you feel like I'm being bullying, it certainly wasn't my intent. I've re-read my post four times now to find out how you've come to that conclusion and reading it in the voice it was intended I just can't see it. I guess you're projecting some anger on to me that you've gotten from someone else. I was just answering a question you seemed to be unaware of the answer to. In retrospect it seems you didn't want an answer but were actually trying to provoke a fight with someone.
I apologise for mistaking your trolling for a genuine request for information, you may carry on.
(no subject)
Date: 3/7/13 07:47 (UTC)So you have to ask, was it worth it? Did you fully convey the violence you wished in your initial statement? Did your choice of words increase the value of the following discussion, or has it just detracted from it? Rape is one of those words, like cunt, that you have to reserve for special occasions, knowing it will make an impact, but that it will also mean that large chunks of your audience won't listen to another word you say.
(no subject)
Date: 3/7/13 13:46 (UTC)Okay. They are entitled to be...be...what are they being? Sensitive? Word Worryists? So are you.
Making a comment about a subject is not trolling. Having to explain the use of ONE word in 8 or so boxes of text (when everyone knows perfectly well what it means in context, yet can find some way to be offended of they try REALLLY hard) is just par for this community these days.
(no subject)
Date: 4/7/13 00:14 (UTC)Again, you asked a question not looking for an answer, but as an introduction to an argument, that's the very definition of trolling. You clearly understood that using rape was not "politically correct" (which is just a bullshit way of whinging about people being offended by your words) yet you wanted to have a whinge about that fact.
Use the word all you want, I'm not the word police, but don't ask "can I use this word" and then be pissed off when people say "no". Just use the word and alienate half the population.