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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

#51

Post by sageikosa »

rflrob wrote: post #26
DannyBee wrote: post #18

Earlier quoted context omitted.

To be clear: This was always true (legally), and this decision doesn't change this. As long as it was not a custodial interrogation, and you had not been formally charged, your words could be used against you (ignoring other procedural evidence rules for a second) without Miranda or other warnings. The only thing his decision changes is a long-standing open issue of when silence can be offered as proof of guilt.

>> The things I don't say may be used against me >This was always true (emphasis mine) On the other hand, the fact that there was a SCOTUS case about it means that while it may always have been true, it wasn't clear to everyone that it was true.

That was my emphasis as well. There are all sorts of internal internal-psychological/perceived-sociological reasons someone may go silent when in the presence of seemingly friendly authority (if one comes from an authoritarian household or religious background) that suddenly appears to turn on you.

The layman who hasn't had a brush with adversarial police investigation techniques and doesn't have an explanation for a (seemingly) factual assertion by the police may simply not know how to respond, knows he needs to tread carefully lest something get pinned on him, but is unaware that silence is not considered careful at this moment (since, if he remembers, he is talking to the police without being cautioned or under custody).

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

#52

Post by darkarmani »

DannoHung wrote: post #6

When will motherfucking Scalia and Thomas just god damned die already?

After the recent rulings, I'm sure you could be arrested and DNA swabbed under the assumption that you are threatening them. You'd be let go, but they'd keep your DNA.

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

#53

Post by ctdonath »

hga wrote: post #27
ctdonath wrote: post #21

Earlier quoted context omitted.

This. There was a video a few months ago showing someone recording in-country immigration checkpoints (dozens of miles inland, checking IDs without cause in a very unconstitutional manner). The driver reiterated "am I free to go?" until he got a "yes". Chilling, and informative that "am I free to go?" is the ONLY thing you say/ask. If they say "no", lawyer up & shut up; if "yes", leave. Only question remaining is at…

I say the refusal to answer is an answer; since you are asking the very specific question that reveals if you're under custodial interrogation, a refusal to say "Yes" has to mean "No". I mean, unless you get that yes, you clearly can't leave, right? Furthermore, one could hope that your refusal to answer his questions with anything other than "Am I free to go?" would not be so easy to construe as this sort of silence…

I'd take it the other way. If you're not under custodial interrogation, they have no obligation to tell you anything - so a non-response to "am I free to go?" amounts to "yes". I mean, unless I get that no, they're just stalling for time to find some reason to detain where they otherwise have none. I'd be awfully tempted to include a "if you don't answer the question in 30 seconds I'll assume the answer is 'yes' and I will leave", but methinks that just complicates things. If they can't affirm arrest (however loosely defined), their delaying you is NOT for your benefit.

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

#54

Post by ctdonath »

aqme28 wrote: post #40
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.

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?

According to the courts, ignorance of the law is no excuse.

Hence the importance of keeping major legal issues as simple as the Founding Fathers instantiated them in the Constitution and Bill Of Rights: the common man is presumably incapable[1] of keeping up with voluminous manifestations of nuances of legislative and case law. If the police aren't expected to keep up with it all, in no way should prospective detainees (i.e.: all of us) be as well.

But, alas, the legal system being what it is, that's why those of us smart enough to try to keep up with such matters must do so: protect, at least, our own skins.

[1] - Not in an insulting way; there's a reason we pay lawyers big bucks to know such things.

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

#55

Post by hga »

ctdonath wrote: post #53
hga wrote: post #27

Earlier quoted context omitted.

I say the refusal to answer is an answer; since you are asking the very specific question that reveals if you're under custodial interrogation, a refusal to say "Yes" has to mean "No". I mean, unless you get that yes, you clearly can't leave, right? Furthermore, one could hope that your refusal to answer his questions with anything other than "Am I free to go?" would not be so easy to construe as this sort of silence…

I'd take it the other way. If you're not under custodial interrogation, they have no obligation to tell you anything - so a non-response to "am I free to go?" amounts to "yes". I mean, unless I get that no, they're just stalling for time to find some reason to detain where they otherwise have none. I'd be awfully tempted to include a "if you don't answer the question in 30 seconds I'll assume the answer is 'yes' and…

Ah, but they are still spending time on you, being there in your face. If they truly weren't interested in you, then they'd leave in search of easier prey.

Since your leaving could be spun as felony (in at least some jurisdictions) fleeing the police, you'd best not leave without their OK, explicit, or implicit by their leaving first.

Note: don't let yourself get startled by the police into running away. One of the things that reified all I've been reading about the modern police in the last decade or so was retiring and returning to my home town, and one day in 2007-8 a new, improved policeman played a game of chicken with my body and his car, that is, as soon as he noticed me, he veered it on a near collision course. I was an experienced enough pedestrian---which I think is unusual here---that I could tell his vehicle would miss me by a good foot or more and the mirror by at least half that, so I stared him down, and he then veered away. Based on my readings, I have have to assume he was trying to get me to run ("this crazy cop is trying to kill me!"), at which point the crime of fleeing the police could be claimed.

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

#56

Post by hga »

r00fus wrote: post #48
AnIrishDuck wrote: post #45

Earlier quoted context omitted.

You can still win the game be refusing to play. Assert your right to depart as soon as possible. State (politely) that you refuse to answer off-the-cuff questions. Upon any indication of detention, ask if you are free to leave. If you no longer have this right, you're in hot water. Shut up. Lawyer up. The law is a dangerous animal that you do NOT want to face alone and unguided. Most people trip up by either: (1) Ass…

This is a horrible result - how can law enforcement be effective if no one trusts them enough to willingly assist them? Their job just got tougher today.

It's a horrible result from horrible, quota etc. driven policing, especially as "real" crime continues to drop (you don't notice any layoffs in the police-judicial complex strictly from this statistical decline, do you?). If they really wanted to do what we perceive as their jobs, they wouldn't be faced with this problem. (And that's not even getting into the thesis that outside of e.g. very small rural departments there are by definition no good police, since even the "good" police look the other way in observing the Blue Wall of Silence http://en.wikipedia.org/wiki/Blue_Code_of_Silence.)

Perhaps the most important thesis in Arrest Proof Yourself (http://www.amazon.com/Arrest-Proof-Yourself-Ex-Cop-Reveals-A...) is that the decline in real crime, which the police and courts by and large still do as good a job of dealing with, has required them to generate more arrests, convictions, and parole based entrapments, primarily from those the authors describe as "the clueless", the harmless to mostly harmless who do dumb things that are illegal but not a great threat to society.

To the extent they view "their job" as doing whatever their superiors demand to e.g. achieve quotas of arrests, my heart bleeds.

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

#57

Post by hga »

passwdispasswd wrote: post #36
cynix wrote: post #28

Earlier quoted context omitted.

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.

You care because "just stop talking altogether" and staring dumbly at the cop doesn't end the confrontation, unless he then leaves (and if you've tried for a while to get a definitive answer, you might as well quit asking for a while). If you get his OK, then he's not detaining you and you can leave.

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

#58

Post by hga »

gizmo686 wrote: post #43

I think there's a secondary issue that should be at play in this case (I haven't read the opinion, so they might have addressed this). Independent of the 5th amendment, prosecutors are generally not allowed to introduce prejudicial evidence, or evidence that would exploit the irrationality of humans more that provide actual evidence. It feels like this type of body language analysis would qualify. Perhaps if there wa…

I have to disagree, the body language as described in the Nth hand reports I've read sounds like a useful "tell", especially in the context of the questioning.

But as you imply, let the jury decide by watching the video.

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

#59

Post by AnIrishDuck »

r00fus wrote: post #48
AnIrishDuck wrote: post #45

Earlier quoted context omitted.

You can still win the game be refusing to play. Assert your right to depart as soon as possible. State (politely) that you refuse to answer off-the-cuff questions. Upon any indication of detention, ask if you are free to leave. If you no longer have this right, you're in hot water. Shut up. Lawyer up. The law is a dangerous animal that you do NOT want to face alone and unguided. Most people trip up by either: (1) Ass…

This is a horrible result - how can law enforcement be effective if no one trusts them enough to willingly assist them? Their job just got tougher today.

> This is a horrible result - how can law enforcement be effective if no one trusts them enough to willingly assist them?

I agree. I would much prefer living under a legal code where we could even estimate the number of federal crimes. I want to live in a country where possession of a rare bird feather isn't a felony [1]. Unfortunately, that country is not the US today, and as such you can't trust LEOs.

> Their job just got tougher today.

It really didn't, not by much. There's one born every minute. The fraction of the US population that doesn't understand their basic constitutional rights, or the restrictions put on the police force, is overwhelming. See [2].

Honestly, just look through the entire collection of comics I linked to. They're definitely worth your time.

1. http://thecriminallawyer.tumblr.com/post/29326904495/16-a-pr... 2. http://thecriminallawyer.tumblr.com/post/19810672629/12-i-wa...

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

#60

Post by ctdonath »

hga wrote: post #55
ctdonath wrote: post #53

Earlier quoted context omitted.

I'd take it the other way. If you're not under custodial interrogation, they have no obligation to tell you anything - so a non-response to "am I free to go?" amounts to "yes". I mean, unless I get that no, they're just stalling for time to find some reason to detain where they otherwise have none. I'd be awfully tempted to include a "if you don't answer the question in 30 seconds I'll assume the answer is 'yes' and…

Ah, but they are still spending time on you, being there in your face. If they truly weren't interested in you, then they'd leave in search of easier prey. Since your leaving could be spun as felony (in at least some jurisdictions) fleeing the police, you'd best not leave without their OK, explicit, or implicit by their leaving first. Note: don't let yourself get startled by the police into running away. One of the t…

They're checking everyone, and do not take well to anyone who questions their authority with "you have no reason to detain me, so I'll be going now."
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