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Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

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Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#31

Post by hga »

cynix wrote: post #28
warmwaffles wrote: post #23

Earlier quoted context omitted.

You need to reiterate it until you elicit an answer

Are they legally required to give you an answer? If not, this could go on for hours, and if their intention was to restrict your movement then they've already succeeded.

Who knows, but if they claim their refusal to say "Yes" to the question "Am I free to leave" actually means you were free to leave, I kind of doubt they'll get very far. And the safety exceptions won't be in effect after a few minutes of such obfuscatory questioning.

For that matter, I suspect most will realize that they aren't going to get anywhere with someone who's knowledgeable and disciplined enough to only say "Am I free to leave?", and will move on for easier prey. Spending "hours" in such a game isn't going to generate the arrest statistics they need, they'd only make that sort of investment if it was a really serious felony. (Unless of course their reward was an internal one of successful harassment ... and this sounds very tedious.)

Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#32

Post by miles »

fleitz wrote: post #5
sukuriant wrote: post #4

The debate mental-chess that the lay-person needs to understand is, quite honestly, terrifying. So now, if a police officer asks you an incriminating question off the cuff, and you say "I would like a lawyer" or "I invoke the 5th" or even say nothing, without a legal background you may find yourself in a situation where what was said / wasn't said can be used against you? This can't be what was originally intended by…

Am I under arrest? No? Walk away. Yes? Please read me my rights. Problem solved. Don't answer half the questions, immediately ask why you are being detained, and if you are under arrest.

Here it is in practice:

http://www.youtube.com/watch?v=QNzgkruFw5g

Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#33

Post by pondababa »

fleitz wrote: post #5
sukuriant wrote: post #4

The debate mental-chess that the lay-person needs to understand is, quite honestly, terrifying. So now, if a police officer asks you an incriminating question off the cuff, and you say "I would like a lawyer" or "I invoke the 5th" or even say nothing, without a legal background you may find yourself in a situation where what was said / wasn't said can be used against you? This can't be what was originally intended by…

Am I under arrest? No? Walk away. Yes? Please read me my rights. Problem solved. Don't answer half the questions, immediately ask why you are being detained, and if you are under arrest.

You can be detained without being under arrest. When you get pulled over for a traffic stop, you aren't under arrest, but you are being detained.

Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#34

Post by passwdispasswd »

sukuriant wrote: post #4

The debate mental-chess that the lay-person needs to understand is, quite honestly, terrifying. So now, if a police officer asks you an incriminating question off the cuff, and you say "I would like a lawyer" or "I invoke the 5th" or even say nothing, without a legal background you may find yourself in a situation where what was said / wasn't said can be used against you? This can't be what was originally intended by…

"you may find yourself in a situation where what was said / wasn't said can be used against you?"

How is any interaction with law enforcement anything but this? Or with any party opponent?

Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#35

Post by passwdispasswd »

warmwaffles wrote: post #23
cynix wrote: post #20

Earlier quoted context omitted.

What if the police officer does not answer your "am I under arrest" or "am I free to go" questions?

You need to reiterate it until you elicit an answer

Or just stop talking altogether.

You have the right to remain silent, remember?

Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#36

Post by passwdispasswd »

cynix wrote: post #28
warmwaffles wrote: post #23

Earlier quoted context omitted.

You need to reiterate it until you elicit an answer

Are they legally required to give you an answer? If not, this could go on for hours, and if their intention was to restrict your movement then they've already succeeded.

Depending on the facts they already have the right to detain you for 24 hours, or if federal agencies, kidnap you indefinitely. So why do you care so much about an answer to a question that has no power before the force of these people? Just be quiet and hope they leave you alone.

Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#37

Post by passwdispasswd »

sageikosa wrote: post #12

So we are now in a situation where if I am not under arrest, the things I don't say may be used against me, unless I explicitly assert that I am not waiving my rights as soon as possible.

They are simply describing your reaction to the question, and when you are formally in custody you have an immunity to that reaction being described, is the best I can dumb it down.

It's sad that the legal context of your presence would be the basis for whether or not you have a constitutional safe harbor that you can rely upon. But that seems to be Scalia's reasoning.

Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#38

Post by durkie »

miles wrote: post #32
fleitz wrote: post #5

Earlier quoted context omitted.

Am I under arrest? No? Walk away. Yes? Please read me my rights. Problem solved. Don't answer half the questions, immediately ask why you are being detained, and if you are under arrest.

Here it is in practice: http://www.youtube.com/watch?v=QNzgkruFw5g

let's not forget https://www.youtube.com/watch?v=6wXkI4t7nuc

50 minutes long, but worth it.

Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#39

Post by dietrichepp »

relaunched wrote: post #3

This court has taken a very interesting stance. This ruling, plus some earlier rulings regarding the 4th amendment has made it clear, that one has to understand, intimately, the nuances of ones' rights and act accordingly, in order for those rights to apply. Otherwise, they have agreed to waive those rights.

The same thing already applies in the courtroom (ignoring the hyperbolic word choice of "intimately" and "nuances"). When you take the stand in court, you have to explicitly invoke your fifth amendment right. Nobody is required to tell you your rights.

The article explains how Miranda rights were already special. The requirement for the police to explain your rights was to mitigate the fact that custodial interrogation is inherently coercive (am I free to go? no.) and there is no judge present to interpret the law.

Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#40

Post by aqme28 »

fleitz wrote: post #5
sukuriant wrote: post #4

The debate mental-chess that the lay-person needs to understand is, quite honestly, terrifying. So now, if a police officer asks you an incriminating question off the cuff, and you say "I would like a lawyer" or "I invoke the 5th" or even say nothing, without a legal background you may find yourself in a situation where what was said / wasn't said can be used against you? This can't be what was originally intended by…

Am I under arrest? No? Walk away. Yes? Please read me my rights. Problem solved. Don't answer half the questions, immediately ask why you are being detained, and if you are under arrest.

That assumes people are smart and informed. What happens if someone less informed than you gets in a bad situation with the police? Should they be punished for it?
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