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 Post Posted: Mon Sep 16, 2013 12:44 pm 
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The Supreme Court recently handed down a ruling on Salinas v. Texas. A quick summary of the case:

Two individuals were shot and killed. Police found six shotgun shell casings at the scene. The police suspected Salinas and went to go see him. He agreed to accompany the police to the station, where he was questioned for one hour. The questioning was "non-custodial," meaning he was not under arrest and he was free to leave at any time. The police did not inform Salinas of his Miranda rights, as such a warning is not required for non-custodial questioning. Salinas answered questions willingly until he was asked whether his own shotgun would match the shell casings. At that point he fell silent and acted nervously. Additional questions followed which Salinas answered. The prosecutor at the trial indicated that Salinas's silence suggested guilt, as an innocent person who had been voluntarily cooperating with police would not have remained silent.

Wikipedia article on the Fifth Amendment
The Fifth Amendment wrote:
No person shall be... compelled in any criminal case to be a witness against himself...

Wikipedia article on the Miranda warning
Miranda v. Arizona ruling wrote:
...The person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent, and that anything the person says will be used against that person in court...

The Supreme Court's ruling indicated that in a non-custodial situation, a person is not being forced to stay and cooperate with police, and therefore cannot be considered to have been compelled to incriminate themselves. Therefore, that person's silence in that situation can be used against them unless they explicitly invoke their Fifth Amendment rights.

My understanding is that while they are related, the Fifth Amendment right to protection from self-incrimination and the Miranda rights are not the same thing. The Fifth Amendment just says that you have to right not to be compelled to incriminate yourself, but you can still do so voluntarily. The Miranda rights say that when you are in custody, you must be informed of your right to remain silent and that anything you say may be used against you. In that case, your silence is considered to be "taking the Fifth" because your are not permitted to leave.

That said, I'm not sure I agree with the ruling. I have no intention of ever breaking the law, but I'm becoming more and more hesitant to answer freely should I ever be questioned by the police, even if they tell me I'm not a suspect. I worry that this ruling could make people less willing to help the police in criminal investigations. I don't like the idea that I should have to "lawyer up" to protect myself when I'm not even a suspect.

What do you think?

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 Post Posted: Mon Sep 16, 2013 3:15 pm 
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I disagree with the ruling. Silence does not imply guilt. The police are manipulating the rules in their favor in this situation. "no you are not a suspect, we are just asking you some questions. No you don't need a lawyer present, this is just a formality." Yeah right.

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 Post Posted: Mon Sep 16, 2013 6:05 pm 
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Silence can imply guilt given proper context, and if the report is accurate then the proper context was achieved to give an implication of guilt. That being said, I'd be hesitant to say that it could be used as evidence. More like, proper cause to look into the guy further.

Not quite willing to jump up and shout "slippery slope", but I am indeed rather hesitant over the whole situation. To say that people have the potential to be assholes and manipulate the situation in their own favor is to attest to a part of human nature I know very well. The police suspected he was guilty, so they manipulated the situation in their favor to get a possibly guilty party to implicate themselves.

It's semantics. I hate semantics.

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 Post Posted: Tue Sep 17, 2013 5:41 am 
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Although cooperation with a "non-custodial questioning" is theory completely voluntary, what are the chances that any sane person in real life is going to feel free to tell the cops, "Nope, don't feel like answering your questions right now, I'm late for yoga class". The police aren't your roommate asking to borrow your ketchup, they're authority figures. Most people would feel compelled to cooperate, otherwise that's obstructing a police investigation.

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 Post Posted: Tue Sep 17, 2013 11:31 am 
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It is in principle possible that the police questions someone as witness, victim, expert or otherwise not as suspect, and during the interview the police gets suspicions. I don't think, that it would be a good idea, to prevent using such interviews in court in principle, would be a good idea.

However if the police already considers it likely, that the interviewee owns the murder weapon, questioning him as witness rather then suspect seems like a trick to avoid the intent of the law. Measures should be taken to prevent such tricks, but i don't know enough about US law, to suggest specific measures.

Another point is, that actually the suspects refusal to answer can be reasonably explained in other ways as well. If you are being interviewed by the police, supposedly as witness, and they ask you, if you possibly own the murder weapon, reconsidering the situation you are in, and refuse to say anything, before that reconsidering has come to some result or before you have asked a lawer or other trusted person for advice, would be pretty normal behaviour for an innocent.

So unless there was something else in the interview, that i don#t know about, if such behaviour is considered as indication for guilt by the courts, there is something else going wrong as well.

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 Post Posted: Thu Nov 28, 2013 10:34 am 
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Alright this is an interesting quandary because at the point he didnt answer how everyone reacted is important. Apparently the police did not demand he answer the question they just went on to the next question. He didn't ask for a lawyer or demand to leave and the police didn't arrest him from what I am seeing no one did anything wrong. As for the prosecutor saying this implies guilt to the prosecution anyone that does not go "Yes officer I killed them" is lying and anything they do implies guilt.

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 Post Posted: Fri Nov 29, 2013 7:39 am 
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I would feel nervous in that situation even being innocent. I have no idea what the false positive rate is on that test.

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 Post Posted: Fri Nov 29, 2013 9:19 pm 
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It's been a while, but I seem to recall that part of the point behind Miranda is that there is no such thing as a completely non-coercive interview in such circumstances. Simply being in a cop shop in a criminal matter is much akin to being shown the torture instruments; even if it's not being used, coercive power is entirely in evidence.

As to the specifics of this case, I'm kind of torn between two points. One, the cops were not playing this in good faith and shouldn't be rewarded for flouting the rules. Two, it's almost impossible to conduct any kind of criminal investigation if every potential witness has to be given a Miranda warning and opportunity to seek counsel before they can be asked if they saw anything. Messy, very messy.

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