Left Side of the Aisle #115 - Part 2

Update #2: Salinas v. Texas

Something else I told you about two weeks ago, something that has received scant media attention, was a Supreme Court decision in the case of Salinas v. Texas, in which a man named Genovevo Salinas was convicted of murder based in part on prosecutors arguing that his not answering some police questions before he was arrested indicated he was guilty.

The Supreme Court, in a truly creep-you-out ruling marked by circular logic, said that because Salinas had not yet been arrested, there was no need to read him his Miranda rights and because he did not positively state he was invoking his right to silence, a right of which the Miranda warning was designed to inform him, he had no constitutional protection against his silence being used against him.

In other words, unless you out loud say you are invoking your right to silence, you don't have one. Put another way, you can't be silent if you don't speak - and what you don't say can be used against you.

Well, it turns out that the decision, while largely ignored by the media, it's getting attention - and, happily, criticism - in legal circles.

For one example, Erwin Chemerinsky, dean of First Amendment law at the University of California, Irvine School of Law, said that “Constitutional protections should not be just for those who have legal training and know what they need to say to the police to invoke their rights. Salinas was penalized for exercising his constitutional right to remain silent in the face of police questioning. This should not be tolerated under the Fifth Amendment.”

He's not the only one saying that and hopefully, there will be a lot more of that sort of thing, enough to spread the word so people know about it and enough to deter cops and prosecutors from taking advantage of this new gouged-out hole in your Constitutional rights. In the meantime, if a cop asks you pretty much anything, say "I am invoking my rights under the Fifth Amendment to remain silent" and then shut up.

Sources:
http://www.salon.com/2013/06/30/scotus_no_right_to_remain_silence_unless_you_speak_up_partner/?source=newsletter
http://www.abajournal.com/news/article/chemerinsky_silence_is_not_golden_supreme_court_says/
http://www.slate.com/articles/news_and_politics/jurisprudence/2013/06/salinas_v_texas_right_to_remain_silent_supreme_court_right_to_remain_silent.html
http://www.volokh.com/2013/06/17/do-you-have-a-right-to-remain-silent-thoughts-on-the-sleeper-criminal-procedure-case-of-the-term-salinas-v-texas/