|
Forum Rules | Firearms Safety | Firearms Photos | Links | Library | Lost Password | Email Changes |
Register | FAQ | Calendar | Today's Posts | Search |
|
Thread Tools | Search this Thread |
June 17, 2013, 08:06 PM | #1 | |||
Senior Member
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 9,142
|
Important Fifth Amendment SCOTUS Opinion
From time to time on this forum, there is discussion about the best way to handle yourself with police if you have to defend yourself using deadly force. Today, the Supreme Court issued an important opinion in Salinas v. Texas that should be factored into the equation. Here's a one paragraph summary from ScotusBlog:
Quote:
Note that this was a plurality opinion with three justices concurring. Two other justices would have more broadly ruled that prosecutors could use pre-custody silence against the suspect even if they asserted their Fifth Amendment right (there is a circuit split on this issue). That means that Alito's plurality opinion is the law of the land: Quote:
One noteworthy statement form the plurality: Quote:
|
|||
June 18, 2013, 02:57 AM | #2 |
Senior Member
Join Date: August 28, 2011
Location: Virginia Beach, VA
Posts: 433
|
Does this mean that our long-standing national standard on miranda needs to be revised:
"You're under arrest. You don't have the right to remain silent. You may verbally indicate under the 5th Amendment that you choose to say nothing and not answer my questions, but I will keep asking them anyways, and you will then be committing an additional crime by not talking to me. Anything you say can and will be used against you in a court of... blah blah..." |
June 18, 2013, 04:49 AM | #3 |
Senior Member
Join Date: February 10, 2010
Posts: 720
|
thanks for the post KyJim. I had been waiting for this decision and will read it in length later.
Without going in to more depth, it seems to once again say that a person must state that they want to use his/her fifth amendment rights. A dumb look and silence doesn't do it, it must be clearly communicated. There was a previous SCOTUS case that touched on stating ones fifth amendment right recently also. Seems to be pretty even so far with reading just the short version on scotusblog. |
June 18, 2013, 06:59 AM | #4 | |
Staff
Join Date: September 25, 2008
Location: CONUS
Posts: 18,458
|
Quote:
This decision seems to be saying that right commences only when an officer reads it to a suspect, but IMHO that's not how "rights" work. I either have the right or I don't. The fact that an officer is -- at some point in the proceedings -- required to remind me that I have the right doesn't make it not a right until he has reminded me. |
|
June 18, 2013, 07:54 PM | #5 | |
Senior Member
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 9,142
|
The key difference in Miranda is that it involved an in-custody interrogation which the Supreme Court thought was inherently intimidating and coercive. Thus, they decided to require police to prophylactaclly warn in-custody suspects of their rights. It specifically excluded persons not in custody from this protection. "In-custody" can be custody short of a formal arrest. On the other hand, police are not automatically required to give the Miranda warning even when arresting someone; only if they plan to interrogate them. There are many examples of suspects blurting out incriminating statements after arrest and without being warned.
The court also forbade commenting upon a defendant's silence after being given the Miranda warning, reasoning it was unfair to tell them they could remain silent but then turn around and use it against them. The judge usually admonishes the jury not to draw any adverse inferences from a defendant's silence during trial. That's partially because the Fifth Amendment is primarily a "trial right." The text of the Fifth Amendment only speaks about compelled testimony, not about making voluntary incriminating statements pre-trial. In colonial days, it was common for a person to appear in person and answer charges. It was expected he or she would speak. They could then be held for trial where they were not actually compelled to testify. There is some support for the view that it was proper to draw adverse inferences on their silence if they did not speak in their own defense before trial. So, in Salinas the guy was not in custody and did not affirmatively invoke his Fifth Amendment right. The court requires a clear invocation of his right to remain silent so that police are not misled and to draw a "bright line." There was a fairly recent thread about silence in a self-defense scenario at http://thefiringline.com/forums/show...ghlight=silent. At that time I said: Quote:
Added: Lots of rights have to be affirmatively invoked. For example, a criminal defendant has an absolute right to testify at trial even over his/her attorney's advice. But the defendant has to affirmatively invoke that right and is presumed to waive if he doesn't. |
|
June 19, 2013, 10:41 AM | #6 |
Senior Member
Join Date: May 16, 2009
Location: Kentucky
Posts: 999
|
could this include all of the bill of rights?
such as the fourth amendment? |
June 19, 2013, 10:49 AM | #7 |
Senior Member
Join Date: October 24, 2008
Location: Orange, TX
Posts: 3,078
|
Here's a very interesting (at least in my opinion) writeup of the SCOTUS ruling/opinions in Salinas v. Texas:
http://www.nationalreview.com/bench-...ory-j-sullivan |
June 19, 2013, 12:02 PM | #8 |
Staff
Join Date: September 25, 2008
Location: CONUS
Posts: 18,458
|
So here we have a guy who got hammered because he shut up, and in the case of the kid in WV with the NRA tee shirt we have a case of a kid who is getting hammered because hw wouldn't shut up.
Catch-22, anyone? |
June 19, 2013, 02:52 PM | #9 |
Senior Member
Join Date: September 13, 2005
Posts: 4,700
|
I think saying the words "I have nothing to say" is enough to invoke one's rights, no?
|
June 19, 2013, 03:50 PM | #10 | |
Senior Member
Join Date: October 24, 2008
Location: Orange, TX
Posts: 3,078
|
Quote:
Until you are in custody, that is insufficient. What I would do is ask if I am free to go. If the answer is yes, then bolt. If the answer is No, then Miranda applies (it's a custodial interview/interrogation at that point). Last edited by csmsss; June 19, 2013 at 05:35 PM. |
|
June 19, 2013, 06:53 PM | #11 | |
Senior Member
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 9,142
|
Quote:
I thought this case was important, not because it was a huge change in the law, but because it very clearly makes a point that most people just don't understand. If you want to assert your Fifth Amendment right, you need to specifically assert the Fifth Amendment right and not just remain silent or "I have nothing to say." |
|
June 19, 2013, 06:59 PM | #12 | |
Senior Member
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 9,142
|
Quote:
|
|
June 20, 2013, 08:09 AM | #13 | |
Senior Member
Join Date: October 24, 2008
Location: Orange, TX
Posts: 3,078
|
Quote:
Bottom line as far as I'm concerned is that based on the Salinas decision, it is imperative to learn whether you are in custody as soon as possible. And if you are not in custody, what you don't say can be used against you just as much as what you do say - so there is a strong case to be made for leaving the interaction with the LEO forthwith. |
|
June 20, 2013, 02:18 PM | #14 | |
Senior Member
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 9,142
|
Csmsss - you said:
Quote:
No, Salinas did not involve justification of a defensive shooting. I raised that scenario since this is a gun board and we have an awful lot of discussions about defensive use of force.Salinas might nevertheless come into play if the shooter is not in custody and simply "bolts" without giving a statement. Even before Salinas, that type of "silence" could be used for impeachment purposes if the shooter testified (by far the most common scenario). Now, Salinas clarifies that silence can be used in the state's case-in-chief if the shooter does not affirmatively invoke the Fifth Amendment. The concurring opinion raises the specter of silence being used even if the shooter affirmatively asserts the Fifth. We'll have to wait on that to see what happens. In addition, failing to explain why the shooter used deadly force on someone is going to naturally cast additional suspicion on the shooter and perhaps cause police to pay some additional attention to the shooter. Acting guilty implies guilt. |
|
June 20, 2013, 04:15 PM | #15 | |
Senior Member
Join Date: October 24, 2008
Location: Orange, TX
Posts: 3,078
|
Quote:
|
|
June 21, 2013, 09:45 AM | #16 |
Senior Member
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 9,142
|
csmsss -- I tied Salinas into a defensive shooting scenario in the very first sentence of the very first post in this thread. That was, indeed, the point of the thread. So please forgive me when I read your comment about bolting to refer to that scenario, rather than a non-specific encounter with police. I now understand your point.
|
June 21, 2013, 11:48 AM | #17 | |
Senior Member
Join Date: October 24, 2008
Location: Orange, TX
Posts: 3,078
|
Quote:
|
|
June 21, 2013, 09:21 PM | #18 | |||
Senior Member
Join Date: February 10, 2010
Posts: 720
|
The more that I have read on this decision, the more that I tend to like this ruling. The fifth amendment is not an end all amendment (at least to me, and also SCOTUS). As stated in this decision, and how its also been taught to me is that the fifth amendment says that:
http://www.supremecourt.gov/opinions...2-246_7l48.pdf Quote:
Quote:
Quote:
By proving that the force was used is within the legal standards, you may be waiving your fifth amendment rights initially (depending on specific circumstances), so that you can proceed forth placing the ground work for your self defense claim. Also, immediately after the use of force, it would be best to point out such things which can support your case, such as evidence, witnesses, and possible surveillance footage that may be available immediately after, but would be difficult to find or connect later on. Why do I say that you need to lay the ground work after a self defense incident? Its better to claim self defense immediately, instead of clamming up and only to later claim at trial that is was self defense. In a self defense situation, if the law enforcement asked for a voluntary encounter (come by the office and speak with us), it would be best to either consult with your lawyer, and have them present, or go out and hire a lawyer to represent you. Beyond the right to the fifth amendment protections, you also have a right to a lawyer to assist/direct you as well. My feelings right now are that this case will not have much effect on a self defense case, because I feel its best to waive the fifth amendment right in order to protect evidence that supports the claim of self defense. Last edited by Fishing_Cabin; June 21, 2013 at 09:28 PM. |
|||
June 24, 2013, 04:24 PM | #19 | ||
Senior Member
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 317
|
Quote:
Quote:
Does anyone see the logical flaw here? Anyone getting why lawyers are screwing up our society? I'm not saying there's a solution to the evil of lawyers. Everyone sees the world through the lens of their own experience, so if this nation were run by (e.g.) surgeons we'd all have big zipper scars. However this quote makes my point perfectly, which is to say that lawyers are making the legal system impossible to deal with, and that's a big problem, and imo, wildly in conflict with what the Founders intended. |
||
June 24, 2013, 04:40 PM | #20 | |
Staff
Join Date: July 28, 2010
Location: Arkansas
Posts: 8,821
|
Well, given that more than a handful of the Founding Fathers were lawyers, I'll have to go with "I disagree with that assessment." If you think you can do a better job than the lawyers, feel free to go get licensed. Law schools and the courts are open for business.
Despite common misconceptions, the A5 does not actually say that you "have a right to remain silent." It says Quote:
__________________
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some. |
|
June 24, 2013, 08:08 PM | #21 | |
Senior Member
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 317
|
Quote:
That doesn't make any sense at all. |
|
June 24, 2013, 08:23 PM | #22 | |
Staff
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 9,471
|
Quote:
But unless/until our legal system changes, it will continue to decide disputes, affecting the lives and property of real people in the real world. You have the option to learn about it, understand it and deal with it. Or you can gnash your teeth and rend your garments complaining about it. The later isn't well calculated to help you deal with things if the law and legal system could become a factor in your life.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper |
|
June 24, 2013, 09:54 PM | #23 | ||
Senior Member
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 317
|
Well that's very condescending of you.
I hope this simple, logical statement is not incomprehensible...I'm an an engineer, and complex logical statements come easily, probably like complex legal wording is easier for lawyers than many other professions. learning / understanding / dealing with / effecting change in the system is not equal to becoming a lawyer Getting back to the decision, maybe I'm misunderstanding something...does it not change the rules from Miranda: Quote:
user kyjim posting (I'll assume kyjim is completely accurate in all things) Quote:
Am I understanding this correctly -- I must now know that it's my 5A rights I want to invoke (and, under great stress, not mistake them and ask for my 14A rights or temporarily forget it's an enumerated right altogether and ask for "that thing that protects me from this kinda thing") and then invoke them? |
||
June 24, 2013, 10:56 PM | #24 | |||
Senior Member
Join Date: February 10, 2010
Posts: 720
|
Quote:
You are confusing a voluntary encounter with a custodial interrogation. A voluntary encounter you make the choice to participate in, and you go in to it knowing (or you should know) your rights. A custodial interrogation is one in which you do not have a choice, but are brought in by LE and questioned, but at first you are read your rights due to Miranda. Side note. I was always taught to NEVER do Miranda rights in a voluntary encounter, because that the mere presentation of giving Miranda rights can/will convert it from voluntary to a custodial investigation, since Miranda is a key in if someone is free to leave or not. To over simplify things, if its voluntary, know your rights, and feel free to invoke them. If it is custodial, your rights will be read to you if you are questioned. Keep in mind (depending on your state) some questions are not covered completely by Miranda, such as name, and address, since that is considered basic identification. This case dealt with a voluntary encounter, not a custodial encounter. Its a big difference. |
|||
June 25, 2013, 07:57 AM | #25 | ||
Staff
Join Date: July 28, 2010
Location: Arkansas
Posts: 8,821
|
Quote:
You don't have to like us, but there's nobody better suited to dealing with the realities of legal matters than lawyers.
__________________
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some. |
||
|
|