# 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:** 3
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [June 19, 2013, 5:43pm 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/661287/41 "2013-06-19T17:43:12Z")
Let’s say a cop comes up to me and asks me about my neighbor. Seemingly innocent questions like, “How long have you lived here?” and “How well did you know Joe Pedo?” Is there any reason for me, based on this ruling, to not refuse to answer ANY questions and immediately say, “I invoke my Fifth Amendment rights to not speak with you. Am I free to go?” Followup question: Since the 5th Amendment is to avoid self-incrimination and living next to someone for 3 years is not a crime, am I even allowed to invoke the 5th Amendment on that question? Or do I have to wait for “Were you at his house on the evening of June 31st?” to invoke the 5th (whether I was there or 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, 5:52pm 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/661287/42 "2013-06-19T17:52:33Z")
This ruling doesn’t affect the circumstances under which you can invoke the Fifth. If a cop just walks up to you and starts asking questions you can leave whenever you like notwithstanding the Fifth. As to the general gist of your question, you don’t have to justify invoking the Fifth unless you are otherwise obliged to speak (say, giving a deposition in an unrelated civil matter.) ---
**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, 5:59pm 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/661287/43 "2013-06-19T17:59:28Z")
If a cop walks up to you and starts asking questions that are clearly directed towards you, I would not suggest leaving without making sure you are free to go. It could morph into some kind of claim of evasion or running away which could be used to establish cause for detention. Your best bet is to decline to answer, refuse any search, and ask if you are free to go. ---
**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, 6:10pm 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/661287/44 "2013-06-19T18:10:21Z")
> [@trabajabamos](#): > > I asked this question: > To which you replied: > > 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. You didn’t ask for an explanation. You asked for an answer and I gave it to you. The answer to your question is “no.” There is nothing vague about the answer “no” to your question. In context, what did the answer “no” to your question reveal? The answer of “no” to your question conveys the message there isn’t any implication that subjects in custody are Miranda Rights because they are not expected to know those rights without the advisement. The answer of “no” was resoundingly clear and unambiguous here given the context. The answer of “no” in this context was not possibly “vague”, even if you perceived it as vague. However, there isn’t any implication those in custody and advised of their Miranda rights are not expected to know them prior to being advised of them. ---
**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, 6:18pm 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/661287/45 "2013-06-19T18:18:17Z")
> [@trabajabamos](#): > > 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. Hmm…I’d probably characterize the pre-Miranda law as permitting a person to refuse to answer government questions when there was a threat of a judicially imposed punishment. ---
**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, 6:47pm 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/661287/46 "2013-06-19T18:47:04Z")
> [@NotreDame05](#): > > The answer to your question is “no.” In my defense, the “no” was modified with the statement that you could “also live with the notion of not necessarily” which seemed to undermine its intent and finality. That’s what confused me, honestly. But this is a digression over misunderstanding; I apologize for snarking on what I perceived to be a frustratingly terse response. It was unwarranted and I ought to have just asked for an explanation instead. I may be a hothead but I do appreciate your input. > [@NotreDame05](#): > > However, there isn’t any implication those in custody and advised of their Miranda rights are not expected to know them prior to being advised of them. Not trying to be obtuse but I can’t really come up with a justification for the requirement of reading a person their Miranda rights apart from the presumption that they need to be informed about those rights. What am I missing? The implication of your statement is that we read Miranda rights for some purpose other than informing a person of their Miranda rights. What is that purpose? ---
**Author:** ![smiling\_bandit](https://avatars.discourse-cdn.com/v4/letter/s/e9a140/32.png) [@smiling\_bandit](https://boards.straightdope.com/u/smiling_bandit)\ **Post date:** [June 19, 2013, 7:13pm 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/661287/47 "2013-06-19T19:13:08Z")
> [@trabajabamos](#): > > Not trying to be obtuse but I can’t really come up with a justification for the requirement of reading a person their Miranda rights apart from the presumption that they need to be informed about those rights. What am I missing? The implication of your statement is that we read Miranda rights for some purpose other than informing a person of their Miranda rights. What is that purpose? In general, putting something in the Constitution would generally be pretty public knowledge. Edit: Generally. ---
**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, 7:19pm 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/661287/48 "2013-06-19T19:19:00Z")
The Fifth Amendment protection from self-incrimination does not necessarily mean you don’t have to talk to the cops. You could know the text of the Constitution forwards and backwards and not glean that distinction without a grounding in its subsequent interpretation. ---
**Author:** ![Toonces\_The\_Cat](https://avatars.discourse-cdn.com/v4/letter/t/b2d939/32.png) [@Toonces\_The\_Cat](https://boards.straightdope.com/u/Toonces_The_Cat)\ **Post date:** [June 19, 2013, 8:29pm 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/661287/49 "2013-06-19T20:29:42Z")
Reading this thread, the big thing that came as a surprise to me is the notion that you actually have to explicitly invoke your Fifth Amendment Right To Silence; just remaining silent apparently doesn’t cut it. What’s the philosophical justification for this? is there an Important Reason that Constitutional Rights must be invoked in this manner, rather than construed from actions such as merely remaining silent? What if I forgot it was the Fifth Amendment and tried in vain to invoke my Fourth Amendment Right To A Free Defense For The Indigent? Or what if I said correctly but I did so in Navajo and no one knew what I meant? What I’m trying to get at is that there are lots of problems to requiring an explicit invocation that wouldn’t be there if the rights could be invoked implicitly… ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [June 19, 2013, 10:13pm 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/661287/50 "2013-06-19T22:13:55Z")
It basically means the right to remain silent is a lie, because you can’t invoke it without first not being silent. And that’s not just a problem–it’s a paradox… But no one has ever accused our justice system as being rational. The fight against ignorance is a long, long road. EDIT: I mean, think about it. You have the right to remain silent, and everything you do say can and will be used against you. A literal reading of that is that, when you claim your right to be silent, you are by definition not being silent in that one statement, so your declaration of intent to use that right can in fact be used against you. ---
**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, 10:23pm 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/661287/51 "2013-06-19T22:23:31Z")
No, your invocation of the right is itself inadmissible (except for impeachment purposes.) ---
**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, 10:24pm 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/661287/52 "2013-06-19T22:24:34Z")
Use the business cards I linked to in post #40. Problem solved. ---
**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, 11:41pm 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/661287/53 "2013-06-19T23:41:08Z")
> [@BigT](#): > > It basically means the right to remain silent is a lie, because you can’t invoke it without first not being silent. And that’s not just a problem–it’s a paradox.. But no one has ever accused our justice system as being rational. > > The fight against ignorance is a long, long road. > > EDIT: I mean, think about it. You have the right to remain silent, and everything you do say can and will be used against you. A literal reading of that is that, when you claim your right to be silent, you are by definition not being silent in that one statement, so your declaration of intent to use that right can in fact be used against you. Wow, man, mind-blowing. The solution to this daunting paradox is: not everything you say can be used against you. Specifically, the invocation of the right to silence cannot itself be used against you; the prosecutor cannot even mention it at trial. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [June 19, 2013, 11:47pm 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/661287/54 "2013-06-19T23:47:53Z")
Someone explain this dichotomy to me. Before taken into custody I am expected to know my 5th Amendment rights and explicitly invoke them but once I am taken into custody the expectation is that I do not know my rights (hence being Mirandized) and I have the right to stay quiet without my silence being brought up in trial. So SCOTUS expects me to be a nomologist before being arrested and an idiot afterwards? ---
**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, 11:58pm 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/661287/55 "2013-06-19T23:58:13Z")
Before being taken into custody you don’t have to talk to the police at all, so in some sense the right to silence is unnecessary. ---
**Author:** ![The\_Lurker\_Above](https://avatars.discourse-cdn.com/v4/letter/t/dc4da7/32.png) [@The\_Lurker\_Above](https://boards.straightdope.com/u/The_Lurker_Above)\ **Post date:** [June 20, 2013, 12:15am 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/661287/56 "2013-06-20T00:15:00Z")
> [@Bricker](#): > > Specifically, the invocation of the right to silence cannot itself be used against you; the prosecutor cannot even mention it at trial. The part that’s blowing my mind is that: invoking the right \*\*can’t \*\*be used against you, simply exercising the right **can** be used against you. And the US supreme court seems to think that this is a perfectly reasonable state of affairs! Am I misunderstanding the situation? And do you, **Bricker** , think this is reasonable? ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [June 20, 2013, 12:45am 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/661287/57 "2013-06-20T00:45:02Z")
> [@The\_Lurker\_Above](#): > > The part that’s blowing my mind is that: invoking the right \*\*can’t \*\*be used against you, simply exercising the right **can** be used against you. And the US supreme court seems to think that this is a perfectly reasonable state of affairs! > > Am I misunderstanding the situation? And do you, **Bricker** , think this is reasonable? In this (clearly not a lawyer) layperson’s opinion - the difference here is that the testimony of the officers is that the ‘defendant remained silent when initially questioned on X, Y and Z but answered all other questions , this led us to believe…’ as contrasted with ‘the defendant invoked his rights’ (which cannot be testified to at all). The other difference is that in this case, the defendant was ‘selective’ in what he would answer and when he would stay silent - which is different than ‘invoking right to remain silent and then staying silent for the entire time’ - IMHO, if the defendant had not been selective in his answering pattern - it would have been the same as invoking. It’s not really a paradox - refusing to answer by saying ’ I don’t want to answer’ is not the same thing as ‘staying silent’ ---
**Author:** ![The\_Lurker\_Above](https://avatars.discourse-cdn.com/v4/letter/t/dc4da7/32.png) [@The\_Lurker\_Above](https://boards.straightdope.com/u/The_Lurker_Above)\ **Post date:** [June 20, 2013, 1:01am 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/661287/58 "2013-06-20T01:01:46Z")
> [@simster](#): > > The other difference is that in this case, the defendant was ‘selective’ in what he would answer and when he would stay silent - which is different than ‘invoking right to remain silent and then staying silent for the entire time’ - IMHO, if the defendant had not been selective in his answering pattern - it would have been the same as invoking. It is my understanding, and I’m neither a lawyer or an American, that a suspect in custody can stop talking to the police/start talking to the police again as much as they want. And that selectively not answering certain topics isn’t something that the prosecutor can mention to the jury. If a suspect in custody can’t selectively answer questions would this case have even gotten heard by the SC? ---
**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 20, 2013, 1:04am 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/661287/59 "2013-06-20T01:04:45Z")
Why couldn’t the prosecutor mention a defendant’s selective answers? ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [June 20, 2013, 1:25am 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/661287/60 "2013-06-20T01:25:38Z")
> [@The\_Lurker\_Above](#): > > It is my understanding, and I’m neither a lawyer or an American, that a suspect in custody can stop talking to the police/start talking to the police again as much as they want. And that selectively not answering certain topics isn’t something that the prosecutor can mention to the jury. If a suspect in custody can’t selectively answer questions would this case have even gotten heard by the SC? the suspect(s) can, and often do, all kinds of stupid things when in custody - in this case - the suspect was not yet ‘in custody’ - the point is - if you want to invoke your right to silence, etc - invoke and then STAY SILENT (and ask for your attorney) - if the police tehn say “we’re just talking here” - ask if you’re free to go - if not - then invoke - if so - then leave. Seems so simple - [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=2) [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=4)