Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas | Hacker News Reader

Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

volokh.com

61 pointsmjn62 comments

This is fairly legal-nerdish, but submitted because it relates pretty directly to some issues in the tech community over when you can (under U.S. law) refuse to give up passwords, and similar issues.

It's also worth a read if you're simply an American interested in these issues, because it recaps the current 5th-amendment law quite clearly.

The tech community honestly needs more legal literacy, so I for one encourage this kind of posting. The general level of literacy I've seen is about average for the American public, but we often believe it's much, much higher than that because Internet Principles.

This court has taken a very interesting stance. This ruling, plus some earlier rulings regarding the 4th amendment has made it clear, that one has to understand, intimately, the nuances of ones' rights and act accordingly, in order for those rights to apply. Otherwise, they have agreed to waive those rights.

The same thing already applies in the courtroom (ignoring the hyperbolic word choice of "intimately" and "nuances"). When you take the stand in court, you have to explicitly invoke your fifth amendment right. Nobody is required to tell you your rights.

The article explains how Miranda rights were already special. The requirement for the police to explain your rights was to mitigate the fact that custodial interrogation is inherently coercive (am I free to go? no.) and there is no judge present to interpret the law.

In the courtroom you have legal counsel, and if your lawyer doesn't help you to the best of their abilities they can be disbarred.

You won't necessarily have legal counsel if you're a witness.

So we are now in a situation where if I am not under arrest, the things I don't say may be used against me, unless I explicitly assert that I am not waiving my rights as soon as possible.

> ... unless I explicitly assert that I am not waiving my rights as soon as possible.

... and it is determined that I am in a situation in which I am deemed lawfully allowed to have asserted said rights.

To be clear: This was always true (legally), and this decision doesn't change this.

As long as it was not a custodial interrogation, and you had not been formally charged, your words could be used against you (ignoring other procedural evidence rules for a second) without Miranda or other warnings.

The only thing his decision changes is a long-standing open issue of when silence can be offered as proof of guilt.

>> The things I don't say may be used against me

>This was always true

(emphasis mine)

On the other hand, the fact that there was a SCOTUS case about it means that while it may always have been true, it wasn't clear to everyone that it was true.

That was my emphasis as well. There are all sorts of internal internal-psychological/perceived-sociological reasons someone may go silent when in the presence of seemingly friendly authority (if one comes from an authoritarian household or religious background) that suddenly appears to turn on you.

The layman who hasn't had a brush with adversarial police investigation techniques and doesn't have an explanation for a (seemingly) factual assertion by the police may simply not know how to respond, knows he needs to tread carefully lest something get pinned on him, but is unaware that silence is not considered careful at this moment (since, if he remembers, he is talking to the police without being cautioned or under custody).

It is still always true, legally, it just never made it to the supreme court in most contexts.

SCOTUS held it could be used for purposes of impeachment in Jenkins. Most courts had held it could be used for all purposes, though there were some divisions, which were just resolved by the supreme court.

So the view presented here, which seems to be "they just took away a right from me", is false.

They are simply describing your reaction to the question, and when you are formally in custody you have an immunity to that reaction being described, is the best I can dumb it down.

It's sad that the legal context of your presence would be the basis for whether or not you have a constitutional safe harbor that you can rely upon. But that seems to be Scalia's reasoning.

"At trial, the government argued that Salinas had committed the murder based in part on his response to the question about the shotgun shells. The prosecutor argued to the jury that an innocent person would have said, “What are you talking about? I didn’t do that. I wasn’t there.” But Salinas didn’t do that; he remained silent. And that suggested guilt. Notably, Miranda‘s footnote 37 didn’t apply because Salinas was not in “custody” for Miranda purposes. He was at the stationhouse voluntarily, not by force, so Miranda didn’t apply. The question before the Court was whether the government was allowed to argue about the significance of the defendant’s pre-arrest silence to the jury."

The gist of the case, for those not keen on reading the lengthy introduction.

Which is stupid. I would think to myself I am being accused of a crime, I better remain silent lest they try to pin this on me.

I have tried being polite, but it's quickly getting to the point where the righteous indignation is such that you want to resort to cursing the judge for his moronic legal fiction to justify this.

When will motherfucking Scalia and Thomas just god damned die already?

Not the most sophisticated approach to constitutional law, but they are 77 and 64 respectively. Please consult your local actuarial table.

Thomas and Scalia are on the right side of civil liberties and constitutional issues about a third of the time, anyway. What we really want is to replace someone who's almost always wrong, someone who sides with power and hierarchy and insider influence over the individual whenever he gets the chance. Alito is 63.

It's pretty ridiculous that they would both overturn Griffin if given the chance. I kind of "understand" their viewpoint but its just wrong and completely erodes the spirit of the fifth amendment. I can't think of a better way to say it though.

You should try actually looking at Scalia's rulings about defendant's rights.

After the recent rulings, I'm sure you could be arrested and DNA swabbed under the assumption that you are threatening them. You'd be let go, but they'd keep your DNA.

I think there's a secondary issue that should be at play in this case (I haven't read the opinion, so they might have addressed this). Independent of the 5th amendment, prosecutors are generally not allowed to introduce prejudicial evidence, or evidence that would exploit the irrationality of humans more that provide actual evidence. It feels like this type of body language analysis would qualify. Perhaps if there was someone with training in body language, and he could cite research generally accepted by the scientific community, that his method of analysis produces reliable results, then this may be admissible.

Of course, they should also maintain a recording of the interview so the defense can use it, and to mitigate the potential for human failures. The cost of this seems negligible, so the only reason I can see them not doing this is if they don't want the full account of what happened precisely to be shown.

I have to disagree, the body language as described in the Nth hand reports I've read sounds like a useful "tell", especially in the context of the questioning.

But as you imply, let the jury decide by watching the video.

>But as you imply, let the jury decide by watching the video.

That is not at all what I intended to imply. If the defendant choices to do so, let him present to video to the jury. If the prosecution wants to show the video (or use the gesture at all), they should be prepared to demonstrate that it is not prejudicial evidence, and probably get an expert to testify and explain what the gestures do and do not suggest.

The debate mental-chess that the lay-person needs to understand is, quite honestly, terrifying. So now, if a police officer asks you an incriminating question off the cuff, and you say "I would like a lawyer" or "I invoke the 5th" or even say nothing, without a legal background you may find yourself in a situation where what was said / wasn't said can be used against you?

This can't be what was originally intended by those amendments.

Am I under arrest?

  No? Walk away.
  Yes? Please read me my rights.

Problem solved. Don't answer half the questions, immediately ask why you are being detained, and if you are under arrest.

The critical problem here is the police response to an attempt to walk away. This may lead to an arrest that is aggravated by a charge of resistance. One might be able to fight that away in the courts, but the state of policing over the last few years leaves me feeling quite uncomfortable with the prospect of walking away unscathed.

How do you anticipate a charge of resisting arrest occurring when the cop isn't arresting you?

1: Am I under arrest?

2. No.

1. Okay, I'm going to walk away now.

2. You can't do that. I'm asking you questions and you are not free to leave.

1. But you just said I am not under arrest. Are you arresting me?

2. No.

1. Okay, I'm going to walk away now.

... [a few iterations later] ...

1 starts to walk away.

2 informs 1 that s/he is not free to go.

1, on the basis that 2 has said s/he is not under arrest, and tired of the back and forth, begins to walk away.

2 performs a physically or verbally threatening action to prevent 1 from leaving--e.g., blocking exit path, ordering to remain in place, etc.

1, on the basis that 2 has said s/he is not under arrest, and tired of the back and forth, continues to walk away or otherwise informs 2 s/he is going to continue to walk away (or ask 2 to leave).

... [several rapidly escalating iterations later ...]

1 attempts to walk away.

2 physically apprehends 1 in some fashion and orders 1 to stop.

1 continues to try to leave.

2 decides to arrest 1 and charge 1 with obstructing, opposing, and endeavoring to prevent (with or without force) an officer in the lawful discharge of his duty. 1 is at increased risk of physical harm from 2 in the course of being arrested as this is the kind of situation that appears many times in cases where an officer uses excessive force to apprehend a 'difficult' individual (whether s/he actually was being difficult or merely attempting to assert his/her rights and avoid being bothered by the officer).

This is needlessly complicated; instead, I offer:

1. Am I free to leave?

2. No.

OK, now you've made it clear you are under custodial interrogation (I suppose there are safety exceptions to that), Miranda is invoked according to the Orin Kerr, and you can keep your mouth shut beyond the requirement to give your name in some states.

Again, as specified elsewhere, I am responding to the parent's original suggestion to ask if one is under arrest, and the question of how I anticipate the situation getting out of hand.

Needlessly complicated? I suppose that's a matter of interpretation when you're on the receiving end of a power imbalance and are wanting to both go on your way and assert and protect your rights.

Yes, the shorter path is to ask if one is free to leave, and then respond accordingly. And yet still, it is not incomprehensible that an officer might respond with something more complex than a simple "No" when asked if you are free to leave. Say, something along the lines of, "Yes, as soon as you answer a couple questions." This is much closer to a "no", but still legally debatable (especially within the context of this decision) whether or not you are in a situation in which you may rightfully assert your rights.

Sure, he could say that, but it still is a "No", you can declare it as as such, and unless he's going to ask you if you're armed or the like he's then made it crystal clear you're now in an custodial interrogation. I really doubt it would be subject to much debate, but then again I really doubt you and he would provide the same accounting of the event unless it was being recorded and he knows it.

This.

There was a video a few months ago showing someone recording in-country immigration checkpoints (dozens of miles inland, checking IDs without cause in a very unconstitutional manner). The driver reiterated "am I free to go?" until he got a "yes". Chilling, and informative that "am I free to go?" is the ONLY thing you say/ask. If they say "no", lawyer up & shut up; if "yes", leave.

Only question remaining is at what point does the LEO's refusal to say "yes" or "no" constitute one or the other.

I say the refusal to answer is an answer; since you are asking the very specific question that reveals if you're under custodial interrogation, a refusal to say "Yes" has to mean "No". I mean, unless you get that yes, you clearly can't leave, right?

Furthermore, one could hope that your refusal to answer his questions with anything other than "Am I free to go?" would not be so easy to construe as this sort of silence signaling guilt.

I'd take it the other way. If you're not under custodial interrogation, they have no obligation to tell you anything - so a non-response to "am I free to go?" amounts to "yes". I mean, unless I get that no, they're just stalling for time to find some reason to detain where they otherwise have none. I'd be awfully tempted to include a "if you don't answer the question in 30 seconds I'll assume the answer is 'yes' and I will leave", but methinks that just complicates things. If they can't affirm arrest (however loosely defined), their delaying you is NOT for your benefit.

Ah, but they are still spending time on you, being there in your face. If they truly weren't interested in you, then they'd leave in search of easier prey.

Since your leaving could be spun as felony (in at least some jurisdictions) fleeing the police, you'd best not leave without their OK, explicit, or implicit by their leaving first.

Note: don't let yourself get startled by the police into running away. One of the things that reified all I've been reading about the modern police in the last decade or so was retiring and returning to my home town, and one day in 2007-8 a new, improved policeman played a game of chicken with my body and his car, that is, as soon as he noticed me, he veered it on a near collision course. I was an experienced enough pedestrian---which I think is unusual here---that I could tell his vehicle would miss me by a good foot or more and the mirror by at least half that, so I stared him down, and he then veered away. Based on my readings, I have have to assume he was trying to get me to run ("this crazy cop is trying to kill me!"), at which point the crime of fleeing the police could be claimed.

They're checking everyone, and do not take well to anyone who questions their authority with "you have no reason to detain me, so I'll be going now."

And your point is?

Nowhere am I advocating that. I'm only suggesting "Am I free to leave?" and silence in response to anything but an unequivocal "Yes" to the question. And noting their leaving is also an implicit Yes.

Now, depending on your reading of the situation and the cop(s), you could play games with an equivocal answer, i.e. follow with "OK, you are detaining me", and if they object, go back to the free to leave theme, then press them on deciding one or the other. But that's not what I think one should generally do.

This could be nitpicking an abbreviated binary choice. The usual advice is to ask if you are free to leave. If the answer is no, then you know you're being detained and can act accordingly.

Indeed, asking if you are free to leave is the better question. Not so much an abbreviated binary choice, but more a response to the suggestion as given.

To be sure, there's such a thing called 'custodial interrogation' which is, essentially, a situation where a person's freedoms are restrained, but not fully under arrest. http://en.wikipedia.org/wiki/Custodial_interrogation

I've previously heard the suggested language of 'Am I being detained or am I free to go?', which seems good enough to make the situation a lot less ambiguous.

What if the police officer does not answer your "am I under arrest" or "am I free to go" questions?

You need to reiterate it until you elicit an answer

Are they legally required to give you an answer? If not, this could go on for hours, and if their intention was to restrict your movement then they've already succeeded.

Who knows, but if they claim their refusal to say "Yes" to the question "Am I free to leave" actually means you were free to leave, I kind of doubt they'll get very far. And the safety exceptions won't be in effect after a few minutes of such obfuscatory questioning.

For that matter, I suspect most will realize that they aren't going to get anywhere with someone who's knowledgeable and disciplined enough to only say "Am I free to leave?", and will move on for easier prey. Spending "hours" in such a game isn't going to generate the arrest statistics they need, they'd only make that sort of investment if it was a really serious felony. (Unless of course their reward was an internal one of successful harassment ... and this sounds very tedious.)

Depending on the facts they already have the right to detain you for 24 hours, or if federal agencies, kidnap you indefinitely. So why do you care so much about an answer to a question that has no power before the force of these people? Just be quiet and hope they leave you alone.

You care because "just stop talking altogether" and staring dumbly at the cop doesn't end the confrontation, unless he then leaves (and if you've tried for a while to get a definitive answer, you might as well quit asking for a while). If you get his OK, then he's not detaining you and you can leave.

Exactly. Elsewhere in this sub-thread we discuss it, and I point out a refusal to say "Yes" to the question "Am I free to leave" is a No, you very clearly can't leave until you get a Yes.

Or just stop talking altogether.

You have the right to remain silent, remember?

Here it is in practice:

http://www.youtube.com/watch?v=QNzgkruFw5g

let's not forget https://www.youtube.com/watch?v=6wXkI4t7nuc

50 minutes long, but worth it.

You can be detained without being under arrest. When you get pulled over for a traffic stop, you aren't under arrest, but you are being detained.

That assumes people are smart and informed. What happens if someone less informed than you gets in a bad situation with the police? Should they be punished for it?

According to the courts, ignorance of the law is no excuse.

Hence the importance of keeping major legal issues as simple as the Founding Fathers instantiated them in the Constitution and Bill Of Rights: the common man is presumably incapable[1] of keeping up with voluminous manifestations of nuances of legislative and case law. If the police aren't expected to keep up with it all, in no way should prospective detainees (i.e.: all of us) be as well.

But, alas, the legal system being what it is, that's why those of us smart enough to try to keep up with such matters must do so: protect, at least, our own skins.

[1] - Not in an insulting way; there's a reason we pay lawyers big bucks to know such things.

"you may find yourself in a situation where what was said / wasn't said can be used against you?"

How is any interaction with law enforcement anything but this? Or with any party opponent?

You can still win the game be refusing to play. Assert your right to depart as soon as possible. State (politely) that you refuse to answer off-the-cuff questions. Upon any indication of detention, ask if you are free to leave.

If you no longer have this right, you're in hot water. Shut up. Lawyer up. The law is a dangerous animal that you do NOT want to face alone and unguided.

Most people trip up by either:

(1) Assuming that the law officer is their friend and they are not a suspect. That's what happened here.

(2) Foolishly thinking they can talk their way out of their predicament with what they gleaned from the last episode of law and order. The cops probably know more than you about the law.

I personally would refuse to answer any questions beyond the level of "how fast were you going" from a LEO without a lawyer present. I would advise others to do the same.

This is a horrible result - how can law enforcement be effective if no one trusts them enough to willingly assist them?

Their job just got tougher today.

It's a horrible result from horrible, quota etc. driven policing, especially as "real" crime continues to drop (you don't notice any layoffs in the police-judicial complex strictly from this statistical decline, do you?). If they really wanted to do what we perceive as their jobs, they wouldn't be faced with this problem. (And that's not even getting into the thesis that outside of e.g. very small rural departments there are by definition no good police, since even the "good" police look the other way in observing the Blue Wall of Silence http://en.wikipedia.org/wiki/Blue_Code_of_Silence.)

Perhaps the most important thesis in Arrest Proof Yourself (http://www.amazon.com/Arrest-Proof-Yourself-Ex-Cop-Reveals-A...) is that the decline in real crime, which the police and courts by and large still do as good a job of dealing with, has required them to generate more arrests, convictions, and parole based entrapments, primarily from those the authors describe as "the clueless", the harmless to mostly harmless who do dumb things that are illegal but not a great threat to society.

To the extent they view "their job" as doing whatever their superiors demand to e.g. achieve quotas of arrests, my heart bleeds.

> This is a horrible result - how can law enforcement be effective if no one trusts them enough to willingly assist them?

I agree. I would much prefer living under a legal code where we could even estimate the number of federal crimes. I want to live in a country where possession of a rare bird feather isn't a felony [1]. Unfortunately, that country is not the US today, and as such you can't trust LEOs.

> Their job just got tougher today.

It really didn't, not by much. There's one born every minute. The fraction of the US population that doesn't understand their basic constitutional rights, or the restrictions put on the police force, is overwhelming. See [2].

Honestly, just look through the entire collection of comics I linked to. They're definitely worth your time.

1. http://thecriminallawyer.tumblr.com/post/29326904495/16-a-pr... 2. http://thecriminallawyer.tumblr.com/post/19810672629/12-i-wa...

apropos: http://www.youtube.com/watch?v=6wXkI4t7nuc

Edit: ahh didn't realize link was posted below as well.

How in the world "Would the shells from his shotgun match the shells found at the murder scene?" is "the government is not actually forcing him to be a witness against himself"?

And why police even allowed to ask questions like this when person is not even a suspect?

So you have the right to remain silent...as long as you're abreast of the latest SCOTUS ruling and understand them. In rather words you may need to be a lawyer and no niceties with the cops: am I under arrest? No, adios then.

If they want to arrest you, they'll arrest you anyway.

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