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Invokeing the 5th: your silence can and will be used against you!

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  • Invokeing the 5th: your silence can and will be used against you!

    If you have not seen this, important reading. It appears unless you specifically invoke the 5th, you're not protected by simple silence. Has the LE community been specifically advise of this and of so, does it alter your approach in any way? As as US citizen that you all are (regardless of being LEOs) what do you think of this?

    Supreme Court ruling on 5th Amendment puts you at even more risk

    The Supreme Court recently ruled in Salinas v. Texas that your silence can be used against you.

    As you probably know, once you are arrested, the police are required to read you the Miranda warning which advises you of your 5th Amendment rights: You have the right to remain silent, anything you say or do may be used against you in a court of law, and so on.

    This case asked the question, what about remaining silent before you are arrested? The defendant, Salinas, had not been under arrest when police started questioning him. At some point in the questioning, he just stopped talking.

    The Supreme Court said that since Salinas had not invoked his Fifth Amendment protections, the police could use his silence against him. We think this is a bad ruling.

    In his dissenting opinion, Justice Stephen Breyer says this:

    "I would hold that Salinas need not have expressly invoked the Fifth Amendment. The context was that of a criminal investigation. Police told Salinas that and made clear that he was a suspect. His interrogation took place at the police station. Salinas was not represented by counsel. The relevant question—about whether the shotgun from Salinas’ home would incriminate him—amounted to a switch in subject matter. And it was obvious that the new question sought to ferret out whether Salinas was guilty of murder."

    We agree. As citizens, we should not be required to invoke a right in order to enjoy its protection. But regardless of what we think, the ruling is what it is. And it's just one more reason to know your rights and exercise them intelligently.

    You can invoke the 5th Amendment at any time and should do so, even before arrested.

    http://www.secondcalldefense.org/sel...even-more-risk

    Full court ruling:

    http://www.supremecourt.gov/opinions...2-246_7l48.pdf
    Last edited by WillBrink; 10-14-2014, 05:44 PM.
    - Will

    Performance/Fitness Advice For the Tactical Community

    www.OptimalSWAT.com

    General Performance/Fitness Advice for all

    www.BrinkZone.com

  • #2
    All the more reason to remain silent whenever approached by police. Where are you coming from? Fifth amendment. Do you have any weapons in your pocket? Fifth amendment. Did you see anyone suspicious here recently? Fifth amendment. Just put it in words expressly and then remain silent, but always (if asked) give required information, such as name, DOB, and address. And sometimes you have to inform the cop of your weapon if you have a concealed carry permit if you have a special agreement.

    Comment


    • #3
      Originally posted by TheTick
      I'll answer for you and it is the reason that this case is a sticky issue. The Fifth Amendment attaches after you have been arrested (ie- placed in custody) and that was the part that had to do with Salinas' questioning while in custody in the Interrogation Room. What this case was also arguing is a Fourth Amendment issue as the questions that he was asked before being arrested made it a Search and Seizure argument.

      Basically, on the street level, whenever someone starts to tip-toe around clamming up, I just ask them if that is in fact what they are doing. If so, fine, if not, fine. Your rights are your rights. Be mindful of what you were saying in regard to just saying "Fifth Amendment" to every question during a police encounter as it doesn't really make sense and makes you look like a dumb ***. Don't want to talk, that's perfectly okay, but make sure you know why you are doing it. When in the course of a investigatory detention based on Reasonable Suspicion of a crime, it's a Fourth Amendment issue.

      I'm sure you won't believe me or think I'm making it up, so good luck. Just do think of this piece of advice: I rarely ask a question that I don't already know the answer to and therefore I'm really just trying to gauge how the person who is soon to be/ already locked up wants to play it.
      My understanding is that one always has the right to remain, with a few exceptions and a few requirements. The requirement is obvious: it's generally a good idea to tell the policeman that you would like to remain silent and/or that you don't want to answer any questions. You should also make this decision as early in the investigation as possible in order to avoid the scenario in the first post, where he apparently clammed up as soon as he presumably could not answer honestly without confessing. The exceptions are situations with prior agreements to speak, such as in the case of some concealed carry permits which I believe require the carrier to inform the cop of the gun. Another exception is info like name, DOB and address. In some states it's an outright crime to not give this info during an investigation. These are known as stop-and-identify states. In states where it is not outright illegal, it can lead to arrest since the cop can't give you a ticket if he cannot verify your name. So you get arrested to go before the judge. But since name, DOB and address are so well recorded that they can generally be proven in court without any effort, it makes no sense to withhold it or lie. In some circumstances, one can also be forced to testify in criminal court against another party, but not himself.

      Oh, and you also have to sign citations (promise to appear/pay), in states where they are signed, or else you will be arrested immediately.

      While you may rarely ask a question you don't already know the answer to, a confession from the suspect will almost always have more weight than a policeman's testimony. It seems it never pays to answer police questions (except for the exceptions).
      Last edited by kot; 10-14-2014, 08:41 PM.

      Comment


      • #4
        Kot, yet again you show you have no understanding of the criminal justice system. In this case the Miranda Rights, and the 5th amendment.
        Professionalism always, courtesy until it's time not to be.

        Comment


        • #5
          I DONT have to Mirandize you when I arrest you. Ever. Figure it out.
          Now go home and get your shine box!

          Comment


          • #6
            Originally posted by ccthompsfs View Post
            Kot, yet again you show you have no understanding of the criminal justice system. In this case the Miranda Rights, and the 5th amendment.
            Originally posted by CCCSD View Post
            I DONT have to Mirandize you when I arrest you. Ever. Figure it out.
            Exactly. There is no "Miranda Rights." It's a Miranda WARNING. You have the right to remain silent regardless of the warning and there is no requirement for the cop to read you this warning. You might get some evidence tossed if you were arrested and interviewed without the warning, but this only applies to the statements made after arrest and as a result of questioning.

            Comment


            • #7
              I don't have to read you your Rights. I can question you without them, and it won't get tossed.
              Stop trying to tell us what to do and how to do it. We KNOW the vernacular and slang and what it means.
              Now go home and get your shine box!

              Comment


              • #8
                Kot you continue post after post to show just how well you comprehend anything to do with the legal system. Go back to playing WoW or D&D in Mommy's basement.
                Professionalism always, courtesy until it's time not to be.

                Comment


                • #9
                  Waiting for the "But I know my rights AND I watch COPS!!" rebuttal....
                  Originally posted by RSGSRT
                  We've reached a point where natural selection doesn't have a chance in hell of keeping up with the procreation of imbeciles.
                  Why is it acceptable for you to be an idiot, but not acceptable for me to point it out?

                  Comment


                  • #10
                    The annoying thing about these "mental midgets" is that they seem to attach and not let go........
                    It is better to keep your mouth shut and appear stupid than to open it and remove all doubt.

                    Comment


                    • #11
                      Originally posted by CCCSD View Post
                      I don't have to read you your Rights. I can question you without them, and it won't get tossed.
                      Stop trying to tell us what to do and how to do it. We KNOW the vernacular and slang and what it means.
                      Originally posted by ccthompsfs View Post
                      Kot you continue post after post to show just how well you comprehend anything to do with the legal system. Go back to playing WoW or D&D in Mommy's basement.
                      Originally posted by Aerohead View Post
                      Waiting for the "But I know my rights AND I watch COPS!!" rebuttal....
                      No need to go as far as COPS. It's right on these boards. Ask A Cop, in fact:

                      When a person is IN CUSTODY and is INTERROGATED, they must be Mirandized.
                      http://forums.officer.com/t15542/

                      From case law: 1. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment's privilege against self-incrimination.

                      Hence, CUSTODY (such as under arrest) + INTERVIEW (police-initiated questioning) = MIRANDA or else they MAY NOT USE IT IN COURT.

                      Comment


                      • #12
                        Wrong. Again. This is what happens when trolls try to teach.
                        Now go home and get your shine box!

                        Comment


                        • #13
                          Originally posted by CCCSD View Post
                          Wrong. Again. This is what happens when trolls try to teach.
                          Why should I believe you over the ruling?

                          Comment


                          • #14
                            Originally posted by kot View Post
                            From case law: 1. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment's privilege against self-incrimination.

                            Hence, CUSTODY (such as under arrest) + INTERVIEW (police-initiated questioning) = MIRANDA or else they MAY NOT USE IT IN COURT.
                            Since you have not cited the case law and you don't know what you are talking about I highly recommend you don't quit your day job, provided you have one.

                            There are plenty exceptions to this that allow statements and such to be admissible and used against someone who has been taken into custody. You know not what you speak and definitely live a sheltered existence.
                            Professionalism always, courtesy until it's time not to be.

                            Comment


                            • #15
                              Originally posted by kot View Post
                              My understanding is that one always has the right to remain, with a few exceptions and a few requirements.
                              But you have not invoked your 5th Amend Rights by doing so it appears. I asked a top defense attorney friend of mine:

                              "The Court held in this 2012 case that 5th Amendment protection is not "self-executing" (automatic); you have to "claim" it. So, "You have the right to remain silent" should, according to this Court, REALLY be "You have the right to speak up and affirmatively CLAIM the right to remain silent." Just not talking isn't enough."

                              From the ABA:

                              A person may not invoke the right to remain silent by being silent and not responding to police questions.

                              That seemingly oxymoronic statement was the holding in Salinas v. Texas, (PDF) which the U.S. Supreme Court issued June 17. The result is that unless a person explicitly invokes the right to remain silent in the face of police questioning before an arrest, prosecutors can use that silence as evidence of guilt at trial. The bottom line is that criminal defense lawyers should advise their clients to be explicit that they are invoking their right to remain silent whenever they wish to refuse to answer police questions.

                              http://www.abajournal.com/news/artic...me_court_says/

                              I posted this info to see how the LEOs felt about this (as LEO and citizen) and of that was something they were aware of via work. It's not a reason to simply clam up the second a cop approaches you, nor is that a wise course of action. One should be aware the 5th does not automatically apply to you and some research as to what that means to you may be warranted.

                              I was interested to know how street level LEOs viewed and approached it in "real world" settings.
                              Last edited by WillBrink; 10-15-2014, 06:57 AM.
                              - Will

                              Performance/Fitness Advice For the Tactical Community

                              www.OptimalSWAT.com

                              General Performance/Fitness Advice for all

                              www.BrinkZone.com

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