WASHINGTON — The Supreme Court says prosecutors can use a person’s silence against them if it comes before he’s told of his right to remain silent.
The 5-4 ruling comes in the case of Genovevo Salinas, who was convicted of a 1992 murder. During police questioning, and before he was arrested or read his Miranda rights, Salinas answered some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon.
Prosecutors in Texas used his silence on that question in convicting him of murder, saying it helped demonstrate his guilt. Salinas appealed, saying his Fifth Amendment rights to stay silent should have kept lawyers from using his silence against him in court. Texas courts disagreed, saying pre-Miranda silence is not protected by the Constitution.
The high court upheld that decision.
The Fifth Amendment protects Americans against forced self-incrimination, with the Supreme Court saying that prosecutors cannot comment on a defendant’s refusal to testify at trial. The courts have expanded that right to answering questions in police custody, with police required to tell people under arrest they have a right to remain silent without it being used in court.
Prosecutors argued that since Salinas was answering some questions – therefore not invoking his right to silence – and since he wasn’t under arrest and wasn’t compelled to speak, his silence on the incriminating question doesn’t get constitutional protection.
Salinas’ “Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question,” Justice Samuel Alito said. “It has long been settled that the privilege `generally is not self-executing’ and that a witness who desires its protection `must claim it.’”
Ok, so…. contrary to what everyone else has told you, which to the best of their knowledge (myself included), was that remaining silent was the best thing to do. But since they’re changing the generally accepted meaning of the 5th Amendment, it seems the best thing to do when confronted by police is to “claim” your 5th Amendment right, and then stick to it. Don’t claim it 3 minutes into the conversation. Claim it right from the start and stick to it. The moment you start speaking, and then refusing to speak at other times, it can be used against you and highlight your so-called guilt. So right from the get-go, exercise your 5th Amendment right. Claim it and refuse to speak.
It’s bad enough the federal government spies on us. Must it insult our intelligence too?
The government’s response to Edward Snowden’s leaks about the National Security Agency’s secret monitoring of the Internet and collection of our telephone logs is a mass of contradictions. Officials have said the disclosures are (1) old news, (2) grossly inaccurate, and (3) a blow to national security. It’s hard to see how any two of these can be true, much less all three.
Can’t they at least get their story straight? If they can’t do better than that, why should we have confidence in anything else that they do?
Snowden exposed the government’s indiscriminate snooping because, among other things, it violates the Fourth Amendment protection against unreasonable searches and he had no other recourse.
Director of National Intelligence James Clapper says Snowden should have used established channels to raise his concerns, but there are no effective channels. Members of the congressional intelligence committees are prohibited from telling the public what they learn from their briefings. Two members of the Senate committee, Ron Wyden and Mark Udall, for years have warned — without disclosing secrets — that the Obama administration is interpreting the Patriot Act and related laws far more broadly than was ever intended by those who voted for those pieces of legislation. Their warnings have made no difference.
A court challenge wasn’t open to Snowden either. Glenn Greenwald, who published Snowden’s leaks in the Guardian, notes that for years the ACLU has tried to challenge the surveillance programs in court on Fourth Amendment grounds, but the Obama administration has blocked the effort by arguing that the ACLU has no standing to bring the suit. It’s a classic Catch-22. Since the surveillance is secret, no one can know if he has been spied on. But if no one knows, no one can go into court claiming to be a victim, and the government will argue that therefore the plaintiff has no standing to challenge the surveillance. Well played, Obama administration.
The administration should not be allowed to get away with the specious claim that telling its secrets to a few privileged members of Congress is equivalent to informing the people. It is not. It’s merely one branch of government telling some people in another branch. Calling those politicians “our representatives” is highly misleading. In what sense do they actually represent us?
Equally specious is the assertion that the NSA can’t monitor particular people without court authorization. The secret FISA court is a rubber stamp.
When Obama ran for president in 2008, he said Americans shouldn’t have to choose between privacy and security. Now he says that “one of the things that we’re going to have to discuss and debate is how are we striking this balance between the need to keep the American people safe and our concerns about privacy? Because there are some tradeoffs involved.”
What do you take us for, Mr. President? Do you say whatever serves your momentary interest?
It’s outrageous for Obama to say he welcomes this debate — when his regime is plotting to capture and prosecute the heroic whistleblower who made it possible.
The debate would be bogus anyway. No one has a right to make a security/privacy tradeoff for you. Our rights should not be subject to vote, particularly when a ruling elite ultimately will make the decision — out of public view!
Americans have learned nothing from the last 40 years if they have not learned that the executive branch — regardless of party — will interpret any power as broadly as it wishes. Congressional oversight is worse than useless; it’s a myth, especially when one chamber is controlled by the president’s party and the other chamber’s majority embraces big government as long as it carries a “national security” label.
Obama says, “If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here.”
That’s wrong. If the politicians’ only response to revelations that they’re violating our privacy is to ask for trust, then we already have problems.
This column originally appeared at The Future of Freedom Foundation.
#stopPRISM #FreeSnowden #NothingtoHide
Hundreds of people in Hong Kong have marched to the US consulate in support of ex-CIA whistleblower Edward Snowden.
The protesters demanded that local authorities protect Mr Snowden, who is in hiding in Hong Kong.
Mr Snowden’s leaks revealed that US agencies had systematically gathered vast amounts of phone and web data.
He also gave an interview to a local newspaper alleging that US intelligence had been hacking into Chinese computer networks.
Protesters and local politicians have demanded clarification from the US government on the allegations, the BBC’s Jennifer Pak reports.