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5th Amendment Ruling

WASHINGTON -- The Supreme Court says prosecutors can use a person's silence against them if it comes before he's told of his right to remain silent.

The 5-4 ruling comes in the case of Genovevo Salinas, who was convicted of a 1992 murder. During police questioning, and before he was arrested or read his Miranda rights, Salinas answered some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon.Prosecutors in Texas used his silence on that question in convicting him of murder, 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. Texas courts disagreed, saying pre-Miranda silence is not protected by the Constitution.

The high court upheld that decision.

The Fifth Amendment protects Americans against forced self-incrimination, with the Supreme Court saying that prosecutors cannot comment on a defendant's refusal to testify at trial. The courts have expanded that right to answering questions in police custody, with police required to tell people under arrest they have a right to remain silent without it being used in court.

Prosecutors argued that since Salinas was answering some questions – therefore not invoking his right to silence – and since he wasn't under arrest and wasn't compelled to speak, his silence on the incriminating question doesn't get constitutional protection.

Salinas' "Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question," Justice Samuel Alito said. "It has long been settled that the privilege `generally is not self-executing' and that a witness who desires its protection `must claim it.'"

The court decision was down its conservative/liberal split, with Alito's judgment joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Antonin Scalia.

Liberal Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented. "In my view the Fifth Amendment here prohibits the prosecution from commenting on the petitioner's silence in response to police questioning," Breyer said in the dissent.

Salinas was charged in 1993 with the previous year's shooting deaths of two men in Houston. Police found shotgun shells at the crime scene, and after going to the home where Salinas lived with his parents, obtained a shotgun kept inside the house by his father. Ballistic reports showed the shells matched the shotgun, but police declined to prosecute Salinas.

Police decided to charge him after one of his friends said that he had confessed, but Salinas evaded police for years. He was arrested him in 2007, but his first trial ended in a mistrial. It was during his second trial that prosecutors aggressively tried to use his silence about the shotgun in closing remarks to the jury.

Salinas was sentenced to 20 years in prison. The Texas Court of Appeals and the Texas Court of Criminal Appeals upheld the conviction, with the latter court saying "pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment right against self-incrimination, and that prosecutors may comment on such silence regardless of whether a defendant testifies."
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Comments

  • FIRENATHANIELHACKETTFIRENATHANIELHACKETT Posts: 35,453 spicy boy
  • FLATFLAT Posts: 60,700 spicy boy
    Fuck that. But if he did it 0, go to jail.
  • ShaneShane Posts: 15,229 balls deep
    edited June 2013
    Simple answer when stopped by cops. Give name then invoke 5th amendment, Say you do not consent to a search, ask if your being arrested or are you free to go.

    most won't go through the trouble to try to screw you when they know you know your rights. i thought it was pretty clear you couldn't invoke the 5th after you started answering things
  • FIRENATHANIELHACKETTFIRENATHANIELHACKETT Posts: 35,453 spicy boy
    "pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment right against self-incrimination, and that prosecutors may comment on such silence regardless of whether a defendant testifies"
  • SkullAndCrossbonesSkullAndCrossbones Posts: 16,452 destroyer of motherfuckers
    easy fix. don't commit a felony and you will have nothing to worry about
    "That's another thing I love about metal, it's so fuckin' huge yet certain people don't even know it exists." - Rob Zombie
  • ShaneShane Posts: 15,229 balls deep
    i would still say absolutely nothing without a lawyer
  • ShaneShane Posts: 15,229 balls deep
    read up on it, you can still be silent pre Miranda without it being used against you but you have to explicitly express your using the 5th amendment. if you fail to say it then it can be held against you
  • FIRENATHANIELHACKETTFIRENATHANIELHACKETT Posts: 35,453 spicy boy

    easy fix. don't commit a felony and you will have nothing to worry about

    Can you not read? A person's level of guilt has little to do with it. The point is the prosecution can bring up the fact that you refused to answer questions and use that as some sort of admission of guilt REGARDLESS of whether you were guilty or not.
  • SkullAndCrossbonesSkullAndCrossbones Posts: 16,452 destroyer of motherfuckers
    that won't be the sole reason for a conviction lol. they need evidence to prove your guilt other than not saying anything. if you did it you're pretty much fucked whether you say anything or not
    "That's another thing I love about metal, it's so fuckin' huge yet certain people don't even know it exists." - Rob Zombie
  • drinkwine732drinkwine732 Posts: 20,418 destroyer of motherfuckers

    read up on it, you can still be silent pre Miranda without it being used against you but you have to explicitly express your using the 5th amendment. if you fail to say it then it can be held against you

    It's pretty clear cut that they have to Mirandize you after you are arrested. If you're not being arrested, this shouldn't matter, and if they arrest you, you can maintain your silence using the 5th amendment legally.

    Your protocol for what to do when stopped for cops is pretty much exactly what to do.
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  • Rex_Capone420Rex_Capone420 Posts: 69,663 spicy boy
    edited June 2013
    Didn't they change the law that they don't have to mirandize you when being arrested?
  • drinkwine732drinkwine732 Posts: 20,418 destroyer of motherfuckers
    Perhaps, I'm not sure, but my understanding of it is that they basically have to do it, because they want to use information in interrogations against you. If they don't do it, they can't use interrogation evidence against you. Post-miranda silence is not affected by this law, so if you're arrested and they mirandize you, then your silence is not admissible as evidence.
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  • ShaneShane Posts: 15,229 balls deep
    All this does is make you have to invoke the 5th amendment verbally pre miranda, its not automatic anymore. Also if you answer any question you pretty much waive your 5th amendment rights
  • drinkwine732drinkwine732 Posts: 20,418 destroyer of motherfuckers
    I'm not sure that's necessarily true. You at no point are required to say anything that could incriminate you, so if I were arrested, and the police asked me what my favorite color is and I said blue, that's not me waiving my 5th amendment rights.
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  • ShaneShane Posts: 15,229 balls deep
    i'm not saying that will every time but its a very bad idea in general to answer questions without a lawyer present if you've already been arrested
  • Rex_Capone420Rex_Capone420 Posts: 69,663 spicy boy
    Yeah I think if there questioning you as a suspect in a crime yes...but when your being arrested I don't think they have to any more...not 100 % though :-??
  • MetalCoresadesMetalCoresades Posts: 57,769 spicy boy
    In my law class my teacher said they no longer had to read you the rights.
    Do You Like Hurting Other People?
  • OPPOPP Posts: 50,132 spicy boy
    they didnt read me mine at any point when I was arrested
    I love winning with women
  • 1D_for_life1D_for_life Posts: 13,785 destroyer of motherfuckers
    What were you arrested for :-?
    image
  • drinkwine732drinkwine732 Posts: 20,418 destroyer of motherfuckers

    i'm not saying that will every time but its a very bad idea in general to answer questions without a lawyer present if you've already been arrested

    Absolutely can agree with that.
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