Monday, June 17, 2013

And there goes the Fifth Amendment

So, today we have another ridiculously mind-boggling SCOTUS decision. This one deals with the 5th Amendment right to remain silent.

Here is how this plays out in court normally. A defendant who exercises his or her right to remain silent is protected from the state using that against them. The prosecutor can't argue to a jury, for example, that if the defendant wasn't guilty that he or she would have told the police that much. The fact that a defendant decides not to talk to police not admissible as evidence against the defendant.

So, if police question you, just remain silent & that should protect you, right? Well not according to the SCOTUS. In an absurd ruling today in Salinas v. Texas, the Court decided that in order to be protected by the right to remain silent, you can't remain silent.

Need a minute to try to wrap your brain around that?

The Court has ruled that your right to remain silent only kicks in if you explicitly say that's what you're doing. Because, as they apparently determined, your right to remain silent only exists if you've got the right reasons for utilizing it.

So in this case, the Def had voluntarily started speaking w/ police about a murder. (Don't ever do this. I know I say that all the time but it bears reiterating that because no one ever listens to me & they always run their mouths. So, just don't.) When the questioning became such that he didn't want to talk anymore, he just quit answering questions and shuffled his feet & looked down, etc. And the State used this as evidence of his guilt @ trial.

And the Court said this was totes fine, no problem here, move along, nothing to see...

From the opinion: “A witness’s constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim."

I know, I am just a bleeding heart, crime loving, liberal defense attorney who shouldn't even be able to sleep @ night, so of course I think this is a problem. But everyone should.

The problem here is that the Court has once again decided your rights are contingent upon when the government wants to allow you to utilize them. Your rights, be that the right to remain silent, the right to counsel, the right to be free from unreasonable searches & seizures, exist on their own. They are not bestowed upon you by the government. The Constitution guarantees them bc governments have been known to snatch them away from people. But the Constitution did not create them out of whole cloth. You have them because you do.

And so, the fact that you have these rights regardless of what the government wants to let you have has paved the way for landmark rulings such as Miranda, when the Court decided your rights were so important that you had to be told them before police talked to you if you were in custody. Shit, if I were arrested, they would have to tell me my rights even though I tell them to defendants roughly 10x/day. The fact that you have these rights led to Gideon, where the Court determined that your right to counsel was so inherently important that if the government wanted to prosecute you & you couldn't hire your own attorney, then the government had to pay for one for you.

These rights are inherent and do not exist just because the government decides to let you have them. All the important cases have established, over the government's objection, that these rights exist for you even if the government would rather they didn't and even if it makes it harder to prosecute people.

But now, apparently the right to remain silent during a voluntary conversation with police only exists if you tell the police that you want to remain silent, so the courts can determine the "merits" of your 5th amendment claim.

Bullshit! The right to remain silent doesn't (well, shouldn't, since the Court has made it so it does) depend on whether you explicitly state that you are using its protection. If you have the right to remain silent, and then choose to remain silent, there shouldn't be any question that you are using the protection afforded to you. It's absurd that in order to remain silent, you have to do the exact opposite & say that you're remaining silent.

Only a group of lawyers could reach such a tortured result. Anyone else, anyone who isn't an attorney and who uses common sense (something that isn't always in the court system), would assume that shutting your damn mouth is the best way to remain silent.

So, the Court bashed the 4th Amendment on its head a week or so ago, this week it's the 5th. Maybe I should worry about my job security, since they are on a roll & my job is found in the 6th Amendment.

I just cannot even with this nonsense.

1 comment:


    Cross examine that!