SCOTUS to decide if silence can be used as evidence of guilt

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I can't believe this is even an issue.
We have a right to remain silent.
We have a right against self-incrimination.
The peaceful exercise of a protected civil right is not & can never be evidence of a crime.

The Supreme Court on Friday agreed to consider whether a suspect's refusal to answer police questions prior to being arrested and read his rights can be introduced as evidence of guilt ...
federal appeals courts are split as to whether "pre-arrest, pre-Miranda silence is admissible as substantive evidence of guilt."

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http://www.reuters.com/article/2013/01/11/us-usa-court-silence-idUSBRE90A13P20130111

Uhhhhhh....what

MKEgal said:

I can't believe this is even an issue.
We have a right to remain silent.
We have a right against self-incrimination.
The peaceful exercise of a protected civil right is not & can never be evidence of a crime.




http://www.reuters.com/article/2013/01/11/us-usa-court-silence-idUSBRE90A13P20130111

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LOL. You wrote this on tax day. No 4th or 5th amendment when it comes to legal plunder.

I thought that was already decided as a "no."

On the tax rules violating the 4A and 5A: If you want those rights restored, support the Fair Tax.

They pulled this stunt several years ago in the UK. Changed the "you have the right to remain silent, anything you say can be used in evidence against you..." part to include (and I'm paraphrasing here, not quoting exactly) something to the effect of "but it could harm your defence if you fail to mention now, something you later rely on in court"

This question was settled hundreds of years ago. Literally.

In his book Origins of the Fifth Amendment: The Right Against Self-incrimination, Leonard Levy tells the history of the right in detail. One huge oppression was the use of the oath ex officio.

Church leaders came from out of their office (ex officio) to investigate accused religious non-conformity and heresy. The oath was administered without the suspect even being told of what he was suspected. The suspect was required to swear to tell the truth. Telling a lie left the suspect in danger of eternal damnation. This was all part of the investigation phase. Not trial.

A refusal to swear or answer was convict-able on the same penalty as the suspect offense.

So, you could be penalized for not answering. And, you could be penalized for answering truthfully; and you can be penalized for lying. Exactly the question before the court today. Can your exercise of a right be used against you--can you be penalized for answering, not answering, and lying? Even though the trials of John Lilburne settled the question some 350 years ago in favor of the right against self-incrimination.

In fact, the right existed even further back. It was the church that tried to pull a fast one and pretend it didn't. Even late in Elizabeth's reign, non-conformists were citing every Englishman's right to not convict himself from out of his own mouth: nemo tenetur prodere seipsum.

just goes to show you. you are guilty until proven innocent in America.

This is a test of SCOTUS increasing fetish for foreign law. The UK has already allowed silence as evidence of guilt and abolished double jeopardy. Australia will eventually follow the UK's lead, I'd bet. Why shouldn't SCOTUS follow?

randian said:

This is a test of SCOTUS increasing fetish for foreign law. The UK has already allowed silence as evidence of guilt and abolished double jeopardy. Australia will eventually follow the UK's lead, I'd bet. Why shouldn't SCOTUS follow?

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Because we have "written rules" they should follow.

just for information and a cautionary view of where this could lead us

A couple of links with some insight to how remaining silent is treated in the UK.

http://www.lawgazette.co.uk/blogs/blogs/news-blogs/going-no-comment-a-delicate-balancing-act

http://www.yourrights.org.uk/yourrights/the-rights-of-suspects/the-rights-of-suspects-in-the-police-station/curtailment-of-the-right-to-silence.html

Turns out I was close when I paraphrased earlier, I left out the 'when questioned'. Apparently the caution was changed to this format in 1994 and has been declared to make a trial verdict unfair by the European Court of Human Rights (http://www.fairweatherstephenson.co.uk/site/frsservices/frscrime/)

Q. Does the formal caution introduced by the government in 1994 (..."it may harm your defence if you fail to mention when questioned something you later rely on in Court") mean that you have lost the right to silence in interview?
A. Yes and No. The law is rapidly developing and a recent ruling of the European Court of Human Rights said this provision made a trial verdict unfair. The decision as to whether to answer questions or not is complex and should be discussed in detail with your solicitor.

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The caution in the UK is generally as follows

"You do not have to say anything, but it may harm your defence if you fail to mention when questioned something which you later rely on in court. Anything you do say will be given in evidence."

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scouser said:

A couple of links with some insight to how remaining silent is treated in the UK.

http://www.lawgazette.co.uk/blogs/blogs/news-blogs/going-no-comment-a-delicate-balancing-act

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but it raises the question of when it is in a defendant’s best interest to keep quiet and when exercising the right to silence could potentially do more harm.

Its always in your best interest to keep your mouth shut...when is it not? Dumb-ass brits.

Talking criminal cases here ... civil cases, taking the 5th can cause injury to your case.

randian said:

This is a test of SCOTUS increasing fetish for foreign law. The UK has already allowed silence as evidence of guilt and abolished double jeopardy. Australia will eventually follow the UK's lead, I'd bet. Why shouldn't SCOTUS follow?

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Awww, you're just baiting us....

scouser said:

They pulled this stunt several years ago in the UK. Changed the "you have the right to remain silent, anything you say can be used in evidence against you..." part to include (and I'm paraphrasing here, not quoting exactly) something to the effect of "but it could harm your defence if you fail to mention now, something you later rely on in court"

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I better mention my bowel movements for the past 20 yrs ... they may have some relevance ...

davidmcbeth said:

Awww, you're just baiting us....

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You got me

eye95 said:

I thought that was already decided as a "no."

On the tax rules violating the 4A and 5A: If you want those rights restored, support the Fair Tax.

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I could be wrong, as I'm only a student of the constitution and not a scholar, but I believe it's only been decided that you cannot use someone's silence as grounds for probable cause or reasonable suspicion. That said, I couldn't see a scenario that could cause the SCOTUS to allow a person's exercise of their fifth amendment right to in any way be evidense of their guilt. Keep in mind, this is the same supreme court that upheld the Affordable Care Act, so it's anyone's guess what they're gonna say these days.

The ACA is not the disaster of jurisprudence that some claim re SCOTUS, Kelo is.

One week after the Kelo decision by the Supreme Court, Americans are still reeling from the shock of having our nation's highest tribunal endorse using government power to condemn private homes to benefit a property developer. Even as we celebrate our independence from England this July 4th, we find ourselves increasingly enslaved by petty bureaucrats at every level of government. The anger engendered by the Kelo case certainly resonates on this holiday based on rebellion against government.

http://www.lewrockwell.com/paul/paul259.html

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Nightmare said:

In re Kelo; http://www.volokh.com/2013/05/28/in...e-states-post-kelo-eminent-domain-reform-law/

Of personal interest for having lived in Fort Trumbull.

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One very distinct difference between Kelo and the Southeast Missouri Regional Port Authority decision, The Port Authority is a "political subdivision" of the State of Missouri. In Kelo, the "city" was not attempting to acquire more "city land" to then be developed by private firms, and then to lease the "new land" to other private firms for economic development. The city, in Kelo, used its power of condemnation where the private firm in Kelo had no such power. The Port Authority has condemnation authority granted to it by the state of Missouri.

http://www.courts.mo.gov/file.jsp?id=62253

http://www.law.cornell.edu/supct/pdf/04-108P.ZC

SCOTUS blew it big time in Kelo.

The Missouri Supreme Court got it right, The Port Authority did not come up with a better excuse to meet the requirements and intent of RSMO 523.271 that would have permitted them to condemn the desired parcel of land.

I refuse to say anything in respect to this thread ... for obvious reasons..

Nightmare said:

Towns, cities and villages, counties, are often political subdivisions of the state in my limited experience.

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True, condemnation power applies to towns, cities, villages, counties, and the state. In the Kelo decision, New London was acting on behalf of a private developer. The private developer did not have condemnation power so they "enlisted" New London who did have condemnation power to condemn then transfer the parcel to the private developer.