During the last couple months the media has been concentrating hard at keeping our attention distracted. Meanwhile in the US Supreme Court, there have been many decisions that are unspoken in the media. There has been DOMA, Proposition 8, voting rights that have got some media coverage due to the controversial nature of the content, but while we were sleeping and distracted on all the other things the Supreme Court made a decision that potentially guts the 5th Amendment to the US Constitution. In a stunning decision, in the case of SALINAS v. TEXAS (supremecourt.gov/opinions/12pdf/12-246_7l48.pdf), the United States Supreme Court decided that your right to remain silent is not a right but a privileged, even if you have had your Miranda Rights read. But it gets better. If you read the opinion of Supreme Court Justice Alito, and is the opinion agreed by the Supreme Court, that simply remaining silent does not prevent the individual from self incrimination. In fact, the opinion states that in order to have the individual right to remain silent, one must openly declare it. In fact they don’t word it as a right to remain silent, they word it as a privilege. Here is the direct quote: (a) To prevent the privilege against self-incrimination from shielding information not properly within its scope, a witness who “ ‘desires the protection of the privilege . . . must claim it’ ” at the time he relies on it. The case in question can be dated back as far as 1993 before it was heard this year. Twenty years ago, Houston PD was questioning a man (Salinas) about the murder of two brothers. Shell casings had been found at the scene and the two men had been shot to death. They brought in Salinas for questioning. He was not under arrest at the time and just a suspect, so his Miranda Rights were not read, and he was amenable, at the time, to police inspecting his shotgun. That was when his fortune turned from bad to worse. From the court records: “When police asked if the shells would match his shotgun, Salinas did not answer the question. He stayed silent, looked down at the floor, shuffled his feet and bit his bottom lip.Salinas was later arrested on an unrelated traffic warrant, at which time police decided there was enough evidence to charge him with the murders. Salinas did not testify at the trial, but his reaction to police questioning — the fidgeting, lip-biting, etc. — was used as evidence.” In other words, Salinas had his Right to Remain Silent, a stable of the Fifth Amendment and Miranda, Violated. Or so we all would have thought. Turns out that the Supreme Court feels that this isn’t a right. They even go so far as to list it as a privilege. In order for him to be compliant with his 5th Amendment rights, he would have had to interrupt the police and stated verbally “I desire the Protection of my Privilege. ” First of all, how does one know that they have to do this? Second, doesn’t Miranda v Arizona clearly state that one has a right (not a privilege) to protection from self incrimination? Another big note on this is that while the police may have suspected Salinas, at the time of his questioning he would have been treated as a witness. So therefore this case not only states that if you are a suspect under arrest for a crime and want to invoke your Constitutional right, you have to state it, but also if you want your protection under the 5th amendment as a witness to a crime, you also have to verbally state you want your right against self incrimination. Some legal scholars not only find this new law confusing, but potentially punitive to those who may not be aware of the potential implications. Erwin Chemerinsky, dean of First Amendment law at the University of California, Irvine School of Law, writes: “The case is troubling because it is so divorced from reality. Most people don’t know that they have the right to remain silent when questioned by police during an investigation. And certainly most are unlikely to know that even if they have such a right, they must explicitly say, “I wish to invoke my right to remain silent.” Although the plurality rejects that there are any specific magic words that must be uttered, it seems fairly close to that because the suspect must unambiguously and expressly invoke the right to remain silent. There is a profound irony to the plurality’s approach: exercising the right to remain silent by being silent is not sufficient to invoke that right. A defendant must speak in order to claim that right and likely must do so with exactly the type of “ritualistic formula” that the court has previously rejected. 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. From a common sense perspective, 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.” Sounds of Silence writes: “Defense attorneys, therefore, must not only be well aware of the law themselves, they must specifically and clearly advise their clients to unequivocally demand their right to silence with or without Miranda rights being read. But what of the unwitting witness who hasn’t “lawyered up” because he or she is not a suspect, but simply being asked questions by the police or other law enforcement? Clearly in the case of Genovevo Salinas, the nervous, lip-biting silence elicited by police questioning became evidence that put him away for 20 years.” In essence even if questioned we must demand our right to remain silent in order to be privileged to be silent without a gesture so much as the rolling of one’s eyes can be used against us? This is an important issue for all. For truly now being silent is not golden for all. - See more at: freepatriot.org/2013/09/15/sleeping-supreme-court-guts-fifth-amendment/?fb_source=pubv1#sthash.hcUXDZWm.dpuf
Posted on: Sun, 15 Sep 2013 09:21:39 +0000
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