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You no longer have the right to remain silent

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I used to tell people (until today) that they should be willing to talk to cops, with a lawyer.  The phrase to use was, “I’ll be glad to speak with you when my lawyer gets here,” for anything except a witness statement at the scene of the incident (i.e. if they want a statement at a later time, esp. where you didn’t volunteer yourself as a witness, you don’t talk without a lawyer present).

The Supreme Court changed the rules today. Miranda, as a functional object, no longer exists.  Silence is no defense against self-incrimination; refusing to speak can be used against you as evidence of guilt.  One must specifically invoke the 5th Amendment to get it’s protections.  That’s my takeaway (with some support) from Salinas v Texas.

First thing to know, cops don’t have to remind you of your rights if they don’t arrest you.  If they can deny that you were a suspect until you slipped up and gave them something suspicious, they can ask you anything they like.  Under this new ruling your silence can be used against you.  If you stop talking, that’s suspicious, and can be used by the prosecution to show a guilty mind.  Moreover, the only way to get out of that is to say the magic words, “I am not talking to you because I have a 5th Amendment right to avoid saying anything which might be used to incriminate me”.

Petitioner, without being placed in custody or receiving Miranda warnings, voluntarily answered some of a police officer’s questions about a murder, but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime. At petitioner’s murder trial in Texas state court, and over his objection, the prosecution used his failure to answer the question as evidence of guilt. He was convicted, and both the State Court of Appeals and Court of Criminal Appeals affirmed, rejecting his claim that the prosecution’s use of his silence in its case in chief violated the Fifth Amendment.

That’s bad enough.

(b) Petitioner seeks a third exception to the express invocation requirement for cases where the witness chooses to stand mute rather than give an answer that officials suspect would be incriminating, but this Court’s cases all but foreclose that argument. A defendant normally does not invoke the privilege by remaining silent. See Roberts v. United States, 445 U. S. 552, 560. And the express invocation requirement applies even when an official has reason to suspect that the answer to his question would incriminate the witness. See Murphy, supra, at 427-428. For the same reasons that neither a witness’ silence nor official suspicion is sufficient by itself to relieve a witness of the obligation to expressly invoke the privilege, they do not do so together. The proposed exception also would be difficult to reconcile with Berghuis v. Thompkins, 560 U. S. 370, where this Court held in the closely related context of post-Miranda silence that a defendant failed to invoke his right to cut off police questioning when he remained silent for 2 hours and 45 minutes. [*2]

That was a case where the defendant was silent after being reminded of his rights.  Since he didn’t say, “I am asserting my right to remain silent”, the cops were allowed to badger him.  When he started talking  they argued not only that he had waived his right, but that he had never asserted it, so they weren’t violating it when they kept asking him questions.

This rulig goes further.  It asserts that you have to specifically mention the 5th amendment or it doesn’t count (that’s why I said you need to know “magic words” to exercise your rights).

To be sure, petitioner might have declined to answer the officer’s question in reliance on his constitutional privilege. But he also might have done so because he was trying to think of a good lie, because he was embarrassed, or because he was protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amendment. Petitioner also suggests that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his “right to remain silent.” But the Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself,” not an unqualified “right to remain silent.” In any event, it is settled that forfeiture of the privilege against self-incrimination need not be knowing.

Alito is saying the cops (trained in how to exploit peoples vulnerabilities to get them to talk; to get them to incriminate themselves) don’t have to worry about people’s rights: People de facto surrender them the moment the cops start to talk to them, and only get them back if they know what formula to say.  It looks as if they need to know two formulae: One to assert the 5th Amendment, and one that they are going to remain silent (I recommend knowing one about demanding a lawyer: if they say you are free to leave, then leave).

Scalia and Thomas go futher:  they don’t think there was a case to start with.  The Prosecution would have been allowed to use it against him even if he had pleaded the 5th Amendment.  They argue the 5th only prohibits a prosecution from using a refusal to testify against you.  Refusal to co-operate is fair game.

The only defense a citizen has is to refuse to speak to the police, without a lawyer in attendance; and to mention the 5th Amendment first.

Why do I say this?  Because cops aren’t “the good guys”.  They may do good work, but they are in the business of thinking ill of people.  They have a huge amount of power.  Juries tend to trust them. They have incentives to be less than forthright, even to lie. If a cop thinks you did it, the cop will start to look for evidence.  Confirmation bias will set it, evidence which doesn’t fit will be ignored.  The final reports will reflect those things which make you look bad.

You may even find out you have made a “confession”.  All of this was a risk before, but it’s a greater risk now.

Does the prosecution know about it?  Yes.

 

Probably the most stunning evidence of prosecutorial and judicial nonchalance toward police perjury is Myron Orfield’s study of the Chicago system. [FN39] His study is stunning because, unlike many of the comments on this issue, [FN40] Orfield’s findings are based on the views of prosecutors and judges as well as those of defense attorneys.  In his survey of these three groups (which together comprised twenty‑seven to forty‑one individuals, depending on the question), 52% believed that at least “half of the time” the prosecutor “knows or has reason to know” that police fabricate evidence at suppression hearings, and 93%, including 89% of the prosecutors, stated that prosecutors had such knowledge of perjury “at least some of the time.” [FN41]  Sixty‑one percent, including 50% of the state’s attorneys, believed that prosecutors know or have reason to know that police fabricate evidence in case reports, and 50% of the prosecutors believed the same with respect to warrants (despite the fact that many prosecutors refused to talk about this latter area). [FN42]  While close to half of all respondents believed that prosecutors “discourage” such perjury and fabrication, [FN43] a greater percentage believed that they “tolerate” *1047 it, [FN44] and 15% believed that prosecutors actually “encourage” it. [FN45]  One former prosecutor described what he called a “commonly used” technique of steering police testimony by telling officers “[i] f this happens, we win.  If this happens, we lose.” [FN46]  Most amazingly, 29% of the respondents did not equate lying at a suppression hearing with the crime of perjury. [FN47]  Although the respondents’ views on judicial, as opposed to prosecutorial, attitudes toward testilying were not as directly plumbed in this survey, when asked whether Chicago’s criminal justice system effectively controls policy perjury at suppression hearings, 69% of the respondents answered “no.” [FN48]

 That’s what the system admits to doing.

That’s what you are up against if you give the cops anything to work with.  Do I think the majority of cases are corrupt?  No.  I know lots of cops, and I trust most of the cops I know (not all).  But when you interact with a cop, that cop is not looking out for your interests; that cop is out to catch a perp: even if you are the victim, it’s not you the cop cares about; not at root (as a human being they might, but the case is what they are focused on; closing it is the aim.  Justice [if any] is a side effect).

You no longer possess a right against self-incrimination, the police are holding it for you.  Don’t let them have it, take it back.

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2 thoughts on “You no longer have the right to remain silent

  1. Linked to this. I am so upset that I am Godwinning (and invoking Stalin and Franco and Mussolini and Peron and Pinochet and dimly remembered police states from childhood) all over the place (except at the blog), only mostly nonverbally and sputtering. Maybe I shouldn’t leave the house at all. Sometimes I jaywalk or drive.

  2. The system gets more corrupt beyond reason as time goes on. Obviously we should still have this right, but also, just because you talk does not mean you completely gave up your “right to remain silent”, it only means you were willing to talk at that moment. Just because you don’t mention, or even if you don’t know about a right that you have, does not mean you don’t have it. That is a load of bull. So if I don’t know that I have the right to life, and lets say someone happens to know that about me or even brainwashed me to think that way, then they can legally kill me? Better yet, no one can likely PROVE beyond a “reasonable” doubt that I knew I had the right to life anyway, so that shouldn’t even matter by that logic. What’s even more hypocritical about this is that since they believe that “ignorance of the law is no excuse”, there’s no reason that: “ignorance of your rights is no excuse to not take them” shouldn’t apply as well.

    While I’m on it, why should the right to remain silent only apply to the defendant? Heck, if a witness doesn’t want to incriminate, or even just trash (or defend) a defendant’s reputation FOR WHATEVER REASON, they should have a right not to. I mean, a spouse doesn’t have to (or did they change that too!?), so why should another family member, or a friend, or even a total nobody have to testify against someone? You can’t force someone to speak against their will. Right to remain silent is just that, the RIGHT TO REMAIN SILENT! You can’t take take our rights away, that’s why they are there!

    You know what I’d propose as a deal to the whole government if I had the power to do so? That no more laws can be made to take away or hinder anymore of our rights (essentially no or almost no more new laws). New technology to spy on us? Sorry, you can’t use it since it violates our privacy that we’ve always had before such technology existed. Congress/State/County/Town’s new job? To review and remove current dumb laws or to give us more rights (including those that were taken away). Actually, I had that idea years ago, and yes, it’s a brilliant idea isn’t it?

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