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Thread: Do You Have A Right To Remain Silent? Orin Kerr's thoughts on 'Salinas' SCOTUS 12-246

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    Do You Have A Right To Remain Silent? Orin Kerr's thoughts on 'Salinas' SCOTUS 12-246

    Justice Breyer, dissenting; To permit a prosecutor to comment on a defendant’s constitutionally protected silence would put that defendant in an impossible predicament. He must either answer the question or remain silent. If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances—even if he is innocent. See, e.g., Griffin, supra, at 613; Kassin, Inside Interrogation: Why Innocent People Confess, 32 Am. J. Trial Advoc. 525, 537 (2009). If he remains silent, the prosecutor may well use that silence to suggest a consciousness of guilt. And if the defendant then takes the witness stand in order to explain either his speech or his silence, the prosecution may introduce, say for impeachment purposes, a prior conviction that the law would otherwise make inadmissible. Thus, where the Fifth Amendment is at issue, to allow comment on silence directly or indirectly can compel an individual to act as “a witness against himself ”—very much what the Fifth Amendment forbids. http://www.supremecourt.gov/opinions...2-246_1p24.pdf

    http://www.volokh.com/2013/06/17/do-...linas-v-texas/

    Orin Kerr; Why Salinas Matters. First, it is relatively easy for the government to claim that a suspect’s reaction to an incriminating question suggests guilt — and very hard for a defendant to challenge that characterization. [ ... ] Second, as a practical matter, it seems unlikely that a person questioned by a police officer outside of custody is going to formally assert his Fifth Amendment right. Most people are not lawyers, and they don’t think in terms of legal formalities. And outside of custody, the police don’t have to give warnings or talk about the law.
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    Within the first few sentences of this ruling, the lie is put to how the ruling is being portrayed. The defendant DID NOT remain silent. He answered questions. In the process of answering questions, he suddenly stopped. The point at which he stopped was highlighted.

    I need to read the ruling further to make a complete judgment (don't have time right now). I just wanted to point out that mere silence was not used against the defendant. So it ain't as simple as some would have us think.

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by eye95 View Post
    Within the first few sentences of this ruling, the lie is put to how the ruling is being portrayed. The defendant DID NOT remain silent. He answered questions. In the process of answering questions, he suddenly stopped. The point at which he stopped was highlighted.

    I need to read the ruling further to make a complete judgment (don't have time right now). I just wanted to point out that mere silence was not used against the defendant. So it ain't as simple as some would have us think.

    A right is a right is a right, it matters not when you decide to exercise it. (well apparently it matters to prosecutors looking for more ways to incriminate you).


    He never chose to speak on political matters until 2008...... judge let us point out that this is when Obama was elected....

    The reasons are numerous why someone may choose to plead the 5th at a sudden point in an interrogation, I can name one that is completely innocent, the person could be under an assumption he is helping police catch the real criminal, and suddenly realize the police and prosecutors are going to twist every little utterance into a way of convicting him. (not saying that is the case in this case but do we want to set that precedent?? Oh wait they just did.......)
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Quote Originally Posted by sudden valley gunner View Post
    A right is a right is a right, it matters not when you decide to exercise it...
    I never said otherwise. Just so the implication that I did does not obscure the point I was making, I will restate it--in bold:

    This thread, the other one, and some articles imply that the defendant remained silent and that was held against him. The FACT is that he talked. A lot. Then he stopped talking. The fact that he was talking, what he said, and the question that was asked when he stopped talking were ruled admissible. Nothing after that was ruled admissible.

    As I already said, I want to read further before expressing my judgment on this ruling. However, he was talking. There is no question that what he said is admissible. The only bone of contention is whether the last question asked and the fact that he stopped answering at that point are admissible. If he is talking, and without stating why, stops, is it reasonable to consider everything up to the point when he stopped talking, including the question asked that he did not answer part of the communication back and forth?

    I have to think on that. Right now, I see both sides. After some thought, I may only see one.

    However, please don't try to drown out what I did say by arguing against something I did not say when replying to one of my posts.

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by eye95 View Post
    I never said otherwise. Just so the implication that I did does not obscure the point I was making, I will restate it--in bold:

    This thread, the other one, and some articles imply that the defendant remained silent and that was held against him. The FACT is that he talked. A lot. Then he stopped talking. The fact that he was talking, what he said, and the question that was asked when he stopped talking were ruled admissible. Nothing after that was ruled admissible.

    As I already said, I want to read further before expressing my judgment on this ruling. However, he was talking. There is no question that what he said is admissible. The only bone of contention is whether the last question asked and the fact that he stopped answering at that point are admissible. If he is talking, and without stating why, stops, is it reasonable to consider everything up to the point when he stopped talking, including the question asked that he did not answer part of the communication back and forth?

    I have to think on that. Right now, I see both sides. After some thought, I may only see one.

    However, please don't try to drown out what I did say by arguing against something I did not say when replying to one of my posts.
    My intention sir was not to argue against something you didn't say but to ad my two cents in that it shouldn't matter when he begins to exercise a right. And I for one second do not believe that an intentional mentioning in court of the fact he stopped talking is nothing more than a plot of the prosecutors to implicate him.

    And then I brought out an example when this very well could hurt an innocent person.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by sudden valley gunner View Post
    My intention sir was not to argue against something you didn't say but to ad my two cents in that it shouldn't matter when he begins to exercise a right. And I for one second do not believe that an intentional mentioning in court of the fact he stopped talking is nothing more than a plot of the prosecutors to implicate him.

    And then I brought out an example when this very well could hurt an innocent person.
    Apparently you do not understand SCOTUS-speak. Let me try to translate for you:

    If you are not in full custodial arrest, you do not have any right against being compelled to incriminate yourself - because there can be no compulsion, which is the heart of the right. And since you are not in custodial arrest, there is no "right" for you to consult with an attorney before answering and question.

    If you are not in custodial arrest there is nothing that requires you to answer any question put by the police - with some minor exceptions regarding identification as outlined in Terry and its progeny. If you are not in custodial arrest there is no requirement that you go somewhere with the police, or that you remain where they have taken you if you first agreed to be taken somewhere.

    There are many ways of telling the police to show their warrant to your attorney, who you desire to be present during any questioning they want to do.

    "The best" advice seems to be:

    If "Am I free to leave?" = YES, then leave.
    If "Am I free to leave?" = NO, then immediately say you want to consult with your attorney before answering any questions, and then keep your big mouth shut (KYBMS) until your attorney arrives. (Do not talk with the cops about the weather, or last night's game, or anything. They may be allowed to pose questions that are not related to investigating a crime you are suspected of/charged with committing, but how do you know talking about the weather or last night's game or anything else will not give them information related to their investigation? There is no chance of screwing up if you KYBMS.)

    stay safe.
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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by skidmark View Post
    Apparently you do not understand SCOTUS-speak. Let me try to translate for you:

    If you are not in full custodial arrest, you do not have any right against being compelled to incriminate yourself - because there can be no compulsion, which is the heart of the right. And since you are not in custodial arrest, there is no "right" for you to consult with an attorney before answering and question.

    If you are not in custodial arrest there is nothing that requires you to answer any question put by the police - with some minor exceptions regarding identification as outlined in Terry and its progeny. If you are not in custodial arrest there is no requirement that you go somewhere with the police, or that you remain where they have taken you if you first agreed to be taken somewhere.

    There are many ways of telling the police to show their warrant to your attorney, who you desire to be present during any questioning they want to do.

    "The best" advice seems to be:

    If "Am I free to leave?" = YES, then leave.
    If "Am I free to leave?" = NO, then immediately say you want to consult with your attorney before answering any questions, and then keep your big mouth shut (KYBMS) until your attorney arrives. (Do not talk with the cops about the weather, or last night's game, or anything. They may be allowed to pose questions that are not related to investigating a crime you are suspected of/charged with committing, but how do you know talking about the weather or last night's game or anything else will not give them information related to their investigation? There is no chance of screwing up if you KYBMS.)

    stay safe.
    Apparently you don't understand what I am getting at. Snark will get snark.

    Yes the best is for everyone to shut up. And yes the courts have ruled as you said.

    It does not make it any less of an interrogation just because you weren't considered to be in custody by SCOTUS standards. To me your rights are always your rights, and I repeat this is another underhanded attempt by the courts to water down your rights.

    Like I said you might think you are helping cops (not all interrogations are done in legal custody) and realize you are screwing yourself and these asshats are intent to use every scrap of info you gave against you.

    Like it was stated in the OP, not everyone has the knowledge or even think it's legal to do exactly what most of us here would say you are to do.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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