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The right to remain silent

Posted January 9, 2015 - College Students, Domestic Violence, Drug Cases, DUI Cases, Felony Cases, Misdemeanor Cases, Prescription Fraud, Prostitution Solicitation, Shoplifting, Tennessee Resisting Arrest, Vehicle Assault, Vehicle Homicide, White Collar Defense

The right to remain silent: a death blow to the Fifth Amendment

The right to remain silent was recently weakened in a Supreme Court ruling that received little publicity.  In Salinas v. Texas the court held that you remain silent at your own peril.  This may even be true before you are arrested when the police are only asking informal questions.  The court’s decision is not only terrible but it is also dangerous.  It encourages high-pressure questioning that can lead to false confessions.  I will give a brief review of the case below.

In Salinas, two brothers were shot in their Houston home without any witnesses to the homicide.  Only shotgun shell casings were left at the scene.  Genovevo Salinas had been at the house for a party earlier that night before the shooting.  Houston police invited him down to the station for questioning that lasted approximately for an hour.  Salinas was never arrested or Mirandized.  He agreed to give the police his shotgun for testing and the cops later asked him if his gun would match the shells taken from the murder scene.  According to the police, Salinas “stopped talking, shuffled his feet, bit his lip, and started to tighten up.”  In short, he appeared to be uneasy when accused of Murder.

Salinas did not testify at the trial but the prosecutors described his uncomfortable reactions to the jury.  Prosecutors argued that Salinas appeared guilty to the police when they questioned him about his shotgun.  Salinas argued that this violated his Fifth Amendment right to remain silent. He relied upon previous precedent that made it clear that prosecutors cannot bring up a defendant’s refusal to answer a question.  However, this time around the Supreme Court reversed course.  Justice Samuel Alito argued that Salinas was “free to leave” and did not assert his right to remain silent.  Remember, Salinas was silent!  With a lawyer present or being read Miranda, he was somehow supposed to affirmatively invoke his right to remain silent.  This defies logic and common sense.  This is just another terrible Robert’s Court ruling on confessions and the right to remain silent.  His court is eroding the Fifth Amendment.

The Salinas ruling is troubling because these informal and undocumented questionings pose dangers for coaxed false confessions from innocent suspects.  For example, DNA testing has exonerated many innocent people who falsely confessed to horrific crimes.  Remember, these people actually confessed verses being interpreted for subjective body language like Salinas.  Salinas encourages the police to adopt policies that allow them to judge suspects based upon “interpreted” body language.  This puts the accused in an impossible predicament.  They must either answer the question or remain silent.  Now, this silence and subjective body language can be used by prosecutors to show guilt.  Most people would naturally be uneasy while being interrogated for murder charges.  Who wouldn’t be uneasy?  This subjective body language and silence can now be used to show guilt.  This is clearly contrary to the purpose and intent of the Fifth Amendment.

The court is effectively endorsing a policy of questions first and rights later.  This decision gives the police incentives to ask questions informally and later read Miranda.  This ruling also undermines key reforms to prevent false confessions by videotaping entire interrogations.  Now, police are encouraged to trap a suspect before the camera starts rolling.  The Salinas decision will most likely result in shoddy interrogation techniques and wrongful convictions.  More importantly, this decision allows police officers to interpret guilt based upon silence and body language.  This will result in innocent people being convicted based upon subjective and not objective evidence.

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-Lee Martin is a nationally recognized DUI and criminal defense attorney who provides premier legal services by limiting his caseload exclusively to DUI and criminal matters.  He knows how to build a solid defense strategy for your upcoming court date.  Let Lee Martin be your choose as your Nashville area criminal defense lawyer.   If you have pending charges, give me a call at 615-345-1988.

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