Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas • Hacker News Board

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

#61

Post by hga » Tue, Jun 18, 2013, 7:44 PM UTC

ctdonath wrote: post #60

hga wrote: post #55

Earlier quoted context omitted.

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."

And your point is?

Nowhere am I advocating that. I'm only suggesting "Am I free to leave?" and silence in response to anything but an unequivocal "Yes" to the question. And noting their leaving is also an implicit Yes.

Now, depending on your reading of the situation and the cop(s), you could play games with an equivocal answer, i.e. follow with "OK, you are detaining me", and if they object, go back to the free to leave theme, then press them on deciding one or the other. But that's not what I think one should generally do.

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

#62

Post by gizmo686 » Tue, Jun 18, 2013, 11:31 PM UTC

hga wrote: post #58

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.

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

That is not at all what I intended to imply. If the defendant choices to do so, let him present to video to the jury. If the prosecution wants to show the video (or use the gesture at all), they should be prepared to demonstrate that it is not prejudicial evidence, and probably get an expert to testify and explain what the gestures do and do not suggest.

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

#63

Post by DannyBee » Wed, Jun 19, 2013, 7:49 AM UTC

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.

It is still always true, legally, it just never made it to the supreme court in most contexts.

SCOTUS held it could be used for purposes of impeachment in Jenkins. Most courts had held it could be used for all purposes, though there were some divisions, which were just resolved by the supreme court.

So the view presented here, which seems to be "they just took away a right from me", is false.