Friday, June 21, 2013

Left Side of the Aisle #113 - Part 8

Outrage of the Week: SCOTUS says no right to remain silent before arrest

Okay - I had some good news from the Supreme Court this week, so it's only right that it get returned to the place we usually find it. This is the Outrage of the Week.

You know about the Miranda warning, the one cops on every TV show read out starting with "you have the right to remain silent." It's drawn from a 1966 SCOTUS ruling based on a Fifth Amendment right against self-incrimination. What you likely do not know is how many loopholes, limitations, and exceptions to that rule the Court has created in the years since. Now it's come up with one of the worst.

Part of the rule is that prosecutors can't use a defendant's silence against them in court. Exercising your right to remain silent is just that, your right, and just as juries can't properly regard a defendant's refusal to testify on their own behalf as any sort of indication of guilt, so too prosecutors can't raise the possibility that refusing to answer police questions indicates guilt.

Now, however, the Supreme Court says prosecutors can use a person's silence against them if it comes before they are told of their right to remain silent.

The case is that of Genovevo Salinas, who was convicted of a 1992 murder. While he was being questioned by police, but before he was arrested or read his Miranda rights, Salinas answered some questions but did not answer others, including when he was asked if a shotgun he had access to would match up with the murder weapon - which is kind of a "have you stopped beating your wife" kind of question, but leave that aside.

Prosecutors in Texas emphasized his silence on that question in the summation to the jury, saying it helped demonstrate his guilt. Salinas appealed, saying his Fifth Amendment rights to stay silent should have kept lawyers from using his silence against him in court. Prosecutors argued that since Salinas had answered some questions and since he wasn't under arrest and so wasn't compelled to speak, his silence on the incriminating question doesn't get constitutional protection. Texas courts agreed with the prosecutors, saying pre-Miranda silence is not protected by the Constitution.

The Supreme Court has now upheld that decision by the usual and predictable 5-4 ideological split.

The logic, if you can call it that, the logic of the decision, written by Sam Alito, is that Salinas' "Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question."

Follow that? In other words, because he remained silent and didn't answer the question rather than saying something like "I am invoking my Constitutional rights under the Fifth Amendment's provision regarding self-incimination to remain silent," prosecutors were justified in claiming that silence proved his guilt. Remember, this refers to a question asked by the cops before he was arrested, so before the time he had to be informed of his right to remain silent.

That is, the Court has essentially ruled that prior to an actual arrest, anything you say or don't say can be used against you unless you specifically and in so many words invoke your rights to silence, rights which you are not expected to know about which is why the cops have to tell you about them if you are arrested.

This decision is the product of diseased minds prepared to twist logic and law into any shape necessary to say "cops and prosecutors win" - and it is an outrage.


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