# Salinas v Texas: "What you don't say may be used against you" or "Why do we even have Miranda laws?" **URL:** \ **Category:** Great Debates\ **Created:** [June 18, 2013, 5:12pm UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287 "2013-06-18T17:12:25Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![standingwave](https://avatars.discourse-cdn.com/v4/letter/s/9de0a6/32.png) [@standingwave](https://boards.straightdope.com/u/standingwave)\ **Post date:** [June 18, 2013, 10:19pm UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/21 "2013-06-18T22:19:51Z")
> [@The\_Lurker\_Above](#): > > It seems like poor public policy to require laypeople to know they have to take a positive action to maintain the right against self-incrimination; especially at a point in the process when there’s no way they could realistically have consulted an attorney. Not that being poor policy makes something unconstitutional but I really hope I’m misunderstanding something since the whole thing just _feels_ wrong. That was pretty much the minority opinion. Breyer: “But does it really mean that the suspect must use the exact words ‘Fifth Amendment’? How can an individual who is not a lawyer know that these particular words are legally magic?” ---
**Author:** ![ricksummon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ricksummon/32/3333_2.png) [@ricksummon](https://boards.straightdope.com/u/ricksummon)\ **Post date:** [June 18, 2013, 10:22pm UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/22 "2013-06-18T22:22:46Z")
Does this decision place the US more in line with British law with regard to the right to remain silent? “You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.” ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [June 19, 2013, 12:36am UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/23 "2013-06-19T00:36:44Z")
When the armed troops were standing at your door, you didn’t _expressly invoke_ your 3rd amendment rights. Sorry they took a giant shit on your living room carpet, but them’s the breaks. Rights are only rights when _expressly invoked_. Government said you couldn’t worship Jesus, sorry, you only have 5 seconds to _expressly invoke_ your 1st amendment rights. After that, better bow to the god Cthulu or get fucked. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [June 19, 2013, 12:47am UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/24 "2013-06-19T00:47:21Z")
> [@The\_Lurker\_Above](#): > > . . . If the police ask to search my car they can’t take my silence as a ‘yes’ can they? There was an old Wizard of Id comic strip where the cops bust the guy, and advise him of his rights. “You have the right to remain silent. You have the right to an attorney. Do you understand these rights?” And the guy thinks, “If I say yes, I blow the first one.” ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [June 19, 2013, 12:50am UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/25 "2013-06-19T00:50:09Z")
> [@trabajabamos](#): > > How exquisitely vague! Since when did the word “No” as a direct answer to your question constitute as any form of vagueness? The word “no” answered your question. Maybe you didn’t understand what you were asking? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 19, 2013, 2:15am UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/26 "2013-06-19T02:15:00Z")
> [@Bricker](#): > > No, he can’t. And I did invoke the Fifth Amendment: _…I’m not talking to you…_ On its face, that does not seem to satisfy the Berghuis/Salinas requirement for an explicit invocation. [QUOTE=Alito] …whatever the most probable explanation, such silence is “insolubly ambiguous.” See Doyle, v. Ohio, 426 U. S. 610, 617 (1976). To be sure, someone might decline to answer a police officer’s question in reliance on his constitutional privilege. But he also might do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amend- ment. Petitioner alone knew why he did not answer the officer’s question, and it was therefore his “burden . . . to make a timely assertion of the privilege.” Garner, 424 U. S., at 655. [/QUOTE] “I’m not talking to you” no more puts an officer on notice of the invocation than does remaining silent. All the same possibilities Alito lists apply. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 19, 2013, 1:13pm UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/27 "2013-06-19T13:13:50Z")
> [@kaylasdad99](#): > > I wonder when the case will come along that requires cops to notify people of THAT right. Perhaps “if” is a better operative question. _Miranda_ and her close cousin _Edwards_ have been challenged many times, both by the government in an effort to narrow their scope and by defendants in an effort to widen them. The basic reach of the rule has remained essentially intact since the late 1960s. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 19, 2013, 1:14pm UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/28 "2013-06-19T13:14:52Z")
> [@Really\_Not\_All\_That\_Bright](#): > > On its face, that does not seem to satisfy the Berghuis/Salinas requirement for an explicit invocation. > > “I’m not talking to you” no more puts an officer on notice of the invocation than does remaining silent. All the same possibilities Alito lists apply. And “I’m not talking to you without a lawyer present?” ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 19, 2013, 2:11pm UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/29 "2013-06-19T14:11:15Z")
That _is_ an explicit invocation of the right to counsel. ---
**Author:** ![trabajabamos](https://avatars.discourse-cdn.com/v4/letter/t/47e85d/32.png) [@trabajabamos](https://boards.straightdope.com/u/trabajabamos)\ **Post date:** [June 19, 2013, 4:29pm UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/30 "2013-06-19T16:29:11Z")
> [@NotreDame05](#): > > Since when did the word “No” as a direct answer to your question constitute as any form of vagueness? The word “no” answered your question. Maybe you didn’t understand what you were asking? I asked this question: > [@trabajábamos](#): > > Does the reading of Miranda rights imply that those taken into custody aren’t expected to understand their Fifth Amendment protections before they’re told? To which you replied: [QUOTE=NotreDame05] No…I can also live with the notion of not necessarily. [/quote] I characterized your response as vague for two reasons:[ul][li]Being able to “live with the notion of not necessarily” is kind of vague[\*]My (possibly flawed) understanding of Miranda is that inculpatory and exculpatory statements to the police are inadmissible in court unless 1) the speaker is informed of their Fifth Amendment rights and 2) the speaker acknowledges and explicitly waives those rights[/ul][/li] When you simply say, “No”, you seem to be waving away with no explanation at all what, to me, seems an obvious acknowledgment of the reality that people don’t actually know about their Fifth Amendment rights and must be told about them. If you feel that the reading of Miranda rights is in some way superfluous or is merely a legal ritual that implies nothing about the legal knowledge of people who come into contact with the police, I’d just like to know why. I’m not a lawyer and you’re under no obligation to explain your reasoning to me but, “No”, struck me as vague. Not trying to be objectionable or anything; I’m just here to learn a thing or two. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 19, 2013, 4:31pm UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/31 "2013-06-19T16:31:45Z")
[quote=“trabajabamos, post:30, topic:661287”] I characterized your response as vague for two reasons:[ul][li]Being able to “live with the notion of not necessarily” is kind of vagueMy (possibly flawed) understanding of Miranda is that inculpatory and exculpatory statements to the police are inadmissible in court unless 1) the speaker is informed of their Fifth Amendment rights and 2) the speaker acknowledges and explicitly waives those rights[/ul][/li][/QUOTE] If they are made in a custodial setting and/or post-arrest, yes. ---
**Author:** ![trabajabamos](https://avatars.discourse-cdn.com/v4/letter/t/47e85d/32.png) [@trabajabamos](https://boards.straightdope.com/u/trabajabamos)\ **Post date:** [June 19, 2013, 4:37pm UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/32 "2013-06-19T16:37:02Z")
> [@smiling\_bandit](#): > > Miranda exists in order to ensure that you have at least been made aware of the basics prior to serious quesitoning. But the police do not have to wave flags telling you when and how to behave in order to avoid scrutiny. Well, it exists because what you say can only be used against you if you’re informed of those rights, agree that you understand, and then waive them. Which gets back to the question I keep asking: If people in custody must be informed of their rights, it seems to follow that they need to be informed. That is, they’re ignorant of those rights. Why then, is it reasonable to assume that Joe Schmo who isn’t in police custody knows to explicitly invoke the Fifth Amendment? I feel like a broken record here? Am I crazy or what? This seems like an obvious question to me but maybe I’m just having a “slow” week. > [@](#): > > Likewise, you seem to have difficulty with the fact that you have different rights at different stages of the legal process. You do not have the right for police to not draw inferences or suspicions based on your behavior - that’s essentially their _job_. See above. I’m not talking about different rights at different stages; I’m talking about a right that you should probably have whether you know about the Fifth Amendment or not and what I see as a somewhat disingenuous argument be Alito et al. that everyone already knows about that right when Miranda seems to explicitly acknowledge that the do _not._ ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 19, 2013, 4:42pm UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/33 "2013-06-19T16:42:32Z")
It’s an issue of balance. SCOTUS has always had to tread a thin line between protecting rights and allowing effective police enforcement. Moreover, this is a matter of politics; conservatives have been (successfully) pushing to limit _Miranda_ more or less since it was decided. I daresay Alito would be happy to overturn it entirely. ---
**Author:** ![trabajabamos](https://avatars.discourse-cdn.com/v4/letter/t/47e85d/32.png) [@trabajabamos](https://boards.straightdope.com/u/trabajabamos)\ **Post date:** [June 19, 2013, 4:47pm UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/34 "2013-06-19T16:47:24Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It’s an issue of balance. SCOTUS has always had to tread a thin line between protecting rights and allowing effective police enforcement. Moreover, this is a matter of politics; conservatives have been (successfully) pushing to limit _Miranda_ more or less since it was decided. I daresay Alito would be happy to overturn it entirely. I get the same sense, actually. Maybe the answer to my question of the apparent philosophical conflict between Miranda and the Salinas decision is that the Salinas decision was written by people who don’t even want Miranda to be law. Not a terribly satisfying outlook, but possibly closer to the truth… ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 19, 2013, 4:50pm UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/35 "2013-06-19T16:50:17Z")
It shouldn’t be all that surprising. Miranda was decided 47 years ago and everyone who was on the court then is dead. ETA: It’s important to remember that SCOTUS’ constitutional criminal procedure jurisprudence has always been allmost entirely arbitrary. [There’s no Fourth Amendment equivalent to Miranda warnings, for example](http://www.law.cornell.edu/supct/html/historics/USSC_CR_0412_0218_ZO.html). Similarly, the remedy for Fourth Amendment violations is sometimes exclusion of the evidence, and sometimes it’s a civil remedy. ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [June 19, 2013, 4:52pm UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/36 "2013-06-19T16:52:46Z")
So what was the state of affairs before _Miranda_? If Scalia and (IIRC) Thomas get their publicly expressed wish (through a dissent) to overturn _Miranda_, what would be the practical effect(s)? I simply don’t know what other laws or Constitutional issues are controlling absent that one decision. ---
**Author:** ![trabajabamos](https://avatars.discourse-cdn.com/v4/letter/t/47e85d/32.png) [@trabajabamos](https://boards.straightdope.com/u/trabajabamos)\ **Post date:** [June 19, 2013, 4:57pm UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/37 "2013-06-19T16:57:40Z")
> [@Leaper](#): > > So what was the state of affairs before _Miranda_? If Scalia and (IIRC) Thomas get their publicly expressed wish (through a dissent) to overturn _Miranda_, what would be the practical effect(s)? I simply don’t know what other laws or Constitutional issues are controlling absent that one decision. One of the better informed posters can correct me but my understanding is that, prior to Miranda, pretty much the only thing the Fifth did for anyone was allow them to refuse to answer a question in court when faced with the possibility of reprisals from an angry judge. Basically, it prevented the judge from holding you in contempt or whatever if you refused to answer a question. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 19, 2013, 4:58pm UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/38 "2013-06-19T16:58:31Z")
_Miranda_ created a number of substantive changes in the law (the majority opinion alone is 26 pages, IIRC.) The most basic distinction is that suspects would no longer be advised of their right to counsel or to remain silent, though they would still enjoy them (the right to counsel during interrogations was established two years earlier in Escobedo v. Illinois.) ---
**Author:** ![Ranger\_Jeff](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ranger_jeff/32/2065_2.png) [@Ranger\_Jeff](https://boards.straightdope.com/u/Ranger_Jeff)\ **Post date:** [June 19, 2013, 4:58pm UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/39 "2013-06-19T16:58:45Z")
There are countries whose version of a Miranda Warning is “You can scream if you want to. We don’t mind. We have earplugs.” ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [June 19, 2013, 5:11pm UTC](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287/40 "2013-06-19T17:11:19Z")
[I carry these with me.](http://www.calgunlawyers.com/tear-away-business-card/) Seriously. I gave them away as stocking stuffers as well. [Previous page](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287.md?page=1) [Next page](https://boards.straightdope.com/t/salinas-v-texas-what-you-dont-say-may-be-used-against-you-or-why-do-we-even-have-miranda-laws/661287.md?page=3)