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Interesting Supreme Court case, Salinas v Texas:
The short summary is that, during the investigation of a murder, Salinas was questioned not as a suspect (not in custody, but in the police station, so no Miranda warning). The questioning went about an hour. Towards the end, the officer questioning him asked him whether the shotgun his father had voluntarily given the officers would match the shells they found at the crime scene; Salinas looked down and did not say anything.
He was later convicted of the murder. The prosecutor brought up this silence during the trial (among other evidence, which I'm not sure how solid that was) and during his closing arguments.
The attorney now has appealed based on his fifth amendment right to silence. It has been generally held that the 5th amendment privilege extends to preventing the prosecutor from using your invoked 5th amendment right against you - ie, the prosecutor may not mention that you chose not to testify to imply you were concealing your guilt (any other reading would render the right largely meaningless). However, the question is whether the 5th extends to this point (pre-custody).
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My thoughts on this one are that I'd generally like to think the 5th should extend to pre-custody questioning; but in this particular case, it seems it's not unreasonable to make the inference (from his body language, from his voluntary answering of many other questions, etc.) . There are some arguments that he could have invoked it explicitly, but I think that's a bad argument - in a police questioning situation it's often difficult to remember you have rights (even when you do know, which it's possible he didn't) and it's hard to engage those rights in any event (often people think the cops won't allow them to engage their rights, particularly in rural areas where the police might well get away with a significant use of force).
I think that the Miranda rule ought to extend to any question that is directly intended to elicit a fact about the guilt of the person being questioned. If the question is a truly general question ("Do you know if anyone was in the area with a gun") then it's okay, but if the question is "Were you in the area with a gun", that's a direct question and should be included as requiring a Miranda warning. I'd generally extend it to any situation where the person should be asking for an attorney, but that's a complicated situation to explain.
I'm very curious why the court took this, as well. It seems like this case is one where the correct ruling on the facts may well be different from the "correct" ruling in terms of precedent - the accused conveyed his guilt through body language and other details that do not exactly equate to 'silence', after all. Did they take it because it will make it easier to rule against expanding criminals' rights (as apparently this court tends to)? Or did they take it just because they wanted to make the precedent clear?
The short summary is that, during the investigation of a murder, Salinas was questioned not as a suspect (not in custody, but in the police station, so no Miranda warning). The questioning went about an hour. Towards the end, the officer questioning him asked him whether the shotgun his father had voluntarily given the officers would match the shells they found at the crime scene; Salinas looked down and did not say anything.
He was later convicted of the murder. The prosecutor brought up this silence during the trial (among other evidence, which I'm not sure how solid that was) and during his closing arguments.
The attorney now has appealed based on his fifth amendment right to silence. It has been generally held that the 5th amendment privilege extends to preventing the prosecutor from using your invoked 5th amendment right against you - ie, the prosecutor may not mention that you chose not to testify to imply you were concealing your guilt (any other reading would render the right largely meaningless). However, the question is whether the 5th extends to this point (pre-custody).
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My thoughts on this one are that I'd generally like to think the 5th should extend to pre-custody questioning; but in this particular case, it seems it's not unreasonable to make the inference (from his body language, from his voluntary answering of many other questions, etc.) . There are some arguments that he could have invoked it explicitly, but I think that's a bad argument - in a police questioning situation it's often difficult to remember you have rights (even when you do know, which it's possible he didn't) and it's hard to engage those rights in any event (often people think the cops won't allow them to engage their rights, particularly in rural areas where the police might well get away with a significant use of force).
I think that the Miranda rule ought to extend to any question that is directly intended to elicit a fact about the guilt of the person being questioned. If the question is a truly general question ("Do you know if anyone was in the area with a gun") then it's okay, but if the question is "Were you in the area with a gun", that's a direct question and should be included as requiring a Miranda warning. I'd generally extend it to any situation where the person should be asking for an attorney, but that's a complicated situation to explain.
I'm very curious why the court took this, as well. It seems like this case is one where the correct ruling on the facts may well be different from the "correct" ruling in terms of precedent - the accused conveyed his guilt through body language and other details that do not exactly equate to 'silence', after all. Did they take it because it will make it easier to rule against expanding criminals' rights (as apparently this court tends to)? Or did they take it just because they wanted to make the precedent clear?
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