[Frank Ettin]

Originally Posted by speedrrracer

...To decide that one reaction is normal and all others are evidence of guilt is ridiculous. Human experience is far too diverse to be confined to one acceptable reaction....

We're getting very far afield here.

The reality is, whether or not you think it's right, that in litigation inferences may be drawn from a party's conduct, that evidence of a party's conduct can be admitted at trial, that the side offering the evidence can argue what inferences should be drawn from that evidence of conduct, that the other side can argue a contrary result, and that the trier of fact will be allowed to draw its inferences from the evidence of conduct. That has been the rule in both civil and criminal litigation for a very time, and it is well settled.

In the Salinas decision, which is the subject of this thread, SCOTUS has expanded and clarified the circumstances under which the Constitution permits silence to be treated in criminal litigation essentially the same as other forms of conduct. And note that this has always been the case in civil litigation where the Fifth Amendment privilege against being compelled to testify against one's interests has never applied.

That is what the law now is. If someone thinks that the law is wrong, our system provides ways of changing the law. One can become politically active and urge a legislature to "fix" what he thinks is wrong about current evidence law.

Note also that it's not the role of the Court to decide if the result is good or bad. It's the job of the Court to apply the Constitution and applicable precedent to decide the case. If the result of applying the Constitution and precedent is unsatisfactory to you, you might consider how the law might need to be changed and take the opportunities provided by our system to bring about such change. However, changing the law is the province of legislatures, not the courts.

In fact, sometimes when precedent and the law as applied by a court don't achieve a satisfactory result, a legislature can change the law -- checks and balances at work. Recently there was the case of Kelo v. City of New London, 545 U.S. 469 (2005). It was a ruling on a technical point of eminent domain law (specifically involving the "takings" clause of the Fifth Amendment applied to the States through the 14th Amendment and the meaning of "public use"). The result was found to be unsatisfactory by many. As a consequence, the legislatures of 42 States revised those States' eminent domain laws to avoid a Kelo result.

It would be within the powers of legislatures to by statute provide for a broader "right to remain silent." If there is enough political pressure for changing the rules of evidence to provide more protection for the individual than required by the Constitution, legislatures can do that.

Originally Posted by speedrrracer

...That you would even ask such a question supports my previously-stated theory that lawyers have created a complicated system which seems acceptable only to them and in which only they have any hope of functioning adequately...

So what? It is still the system that we have. Feel free to avail yourself of the opportunities our systems offers to change that. But in the meantime, we still need to understand and be able to work with and in the existing process.