# 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:** 4
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [June 20, 2013, 12:58pm 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/661287/61 "2013-06-20T12:58:17Z")
> [@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. I don’t believe this is the case. The 5th amendment says you cannot be compelled to be a witness against yourself. If you consent to an interview with the police and incriminate yourself with your responses (or non-responses), you haven’t been compelled. Continuing to take questions and give answers is giving consent to an interview. If you don’t want to be interviewed, you say so, and the police are barred from compelling you to talk. ---
**Author:** ![trabajabamos](https://avatars.discourse-cdn.com/v4/letter/t/47e85d/32.png) [@trabajabamos](https://boards.straightdope.com/u/trabajabamos)\ **Post date:** [June 20, 2013, 3:16pm 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/661287/62 "2013-06-20T15:16:37Z")
> [@Saint\_Cad](#): > > 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? Well, that’s essentially been my question this whole time. For both our sakes I hope you get an answer! 😉 ---
**Author:** ![trabajabamos](https://avatars.discourse-cdn.com/v4/letter/t/47e85d/32.png) [@trabajabamos](https://boards.straightdope.com/u/trabajabamos)\ **Post date:** [June 20, 2013, 3:28pm 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/661287/63 "2013-06-20T15:28:50Z")
> [@Bricker](#): > > 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. What’s mind-blowing to me is that the law is so hard to understand that we seem to need endless court rulings, [threads](http://boards.straightdope.com/sdmb/showthread.php?t=694139), [videos](http://www.youtube.com/watch?v=CkZf6_jK3Zs), [cheat sheets](http://www.calgunlawyers.com/tear-away-business-card/), etc. because very few non-lawyers seem to know how they’re supposed to (or if they’re supposed to!) interact with the police or what their rights are at any given moment. Ultimately, I feel like you ought to have all your rights whether you’re clever enough to understand the law or not. The stupid or uninformed ought to receive the same justice delivered to the legally savvy. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 20, 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/661287/64 "2013-06-20T16:42:00Z")
> [@trabajabamos](#): > > Well, that’s essentially been my question this whole time. For both our sakes I hope you get an answer! 😉 Bricker answered it earlier. The idea isn’t so much that the Court thinks that people are so ignorant of their 5th amendment rights that they need to be informed by police, but because of the inherently coercive nature of a custodial interrogation you need a little reminder. Interrogation while in police custody is a daunting and stressful thing. It’s enough to overcome a regular person’s free will to invoke his rights. The Miranda Court crafted a remedy to this by saying that these 4 cops sitting at a table with you in the hot seat, need to tell you (what you probably already know) that you don’t have to answer questions. This may allow you to regain your composure enough to invoke your rights. There is not such a coercive nature to a non-custodial interrogation, say, when a police officer walks up to you on the street. A regular person’s free will won’t be overcome, so courts have not seen fit to provide for Miranda in those cases. It’s not so much about ignorance of rights, but the position that a regular citizen finds himself in so as to make those rights meaningful. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 20, 2013, 4:45pm 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/661287/65 "2013-06-20T16:45:40Z")
Do I understand the whole case? Mr. Stupid Criminal, before he was taken into custody, voluntarily answered some questions and declined to answer others. Then he was taken into custody, and the prosecutors used the fact that he declined to answer some questions (but not others) as evidence against him. How is that different from using answers that some Stupid Criminal gives, voluntarily, before being taken into custody? One need not convey any information to police under any circumstance. The only times the police cannot use your answers or non-answers against you is after you are taken into custody, and after they have warned you of your Miranda rights. After you are taken into custody and warned, they can’t use your silence against you but they can use your answers. Before they take you into custody they can use both your answers and your selective silences. Because the silences are part of your voluntary dialog with the police. Bottom line is that if you voluntarily talk to police, they will use the interview against you. After they arrest you, they can use your answers but not your silence against you. Or am I missing something? Regards, Shodan ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 20, 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/661287/66 "2013-06-20T16:50:28Z")
> [@Shodan](#): > > The only times the police cannot use your answers or non-answers against you is after you are taken into custody, and after they have warned you of your Miranda rights. > > Or am I missing something? > > Regards, > Shodan Almost there. Even before being taken into custody, if you respond to police questioning by saying, “I invoke my 5th amendment right to remain silent” that statement, or your silence, can’t later be used against you. According to this case, simply remaining silent can be used against you for the reasons mentioned in Alito’s opinion: It can’t be assumed that by just being mute that you intended to invoke a constitutional right. Maybe you were just flummoxed by the question and were trying to think of a lie. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 20, 2013, 5:13pm 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/661287/67 "2013-06-20T17:13:20Z")
> [@jtgain](#): > > Almost there. Even before being taken into custody, if you respond to police questioning by saying, “I invoke my 5th amendment right to remain silent” that statement, or your silence, can’t later be used against you. > > According to this case, simply remaining silent can be used against you for the reasons mentioned in Alito’s opinion: It can’t be assumed that by just being mute that you intended to invoke a constitutional right. Maybe you were just flummoxed by the question and were trying to think of a lie. I thought the problem was that the criminal answered some questions and was silent about others. So the cops weren’t exactly using his silence against him - just that he was refusing to answer some questions but answering others. Plus wasn’t all this before he was taken into custody? If the opinion is saying that the cop asks you “what are you up to?” and you just stand there and stare at him, they can use that against you, that’s one thing. I am pretty sure the cops can’t take you into custody if you refuse to answer questions. ISTM that the issue here is selective silence, not a general refusal to answer questions. So Alito is saying that if the criminal had said “I refuse to answer on the grounds that it may incriminate me” to some questions and “I was at my friend’s house” to others, he would have been OK. And would a blanket “I don’t answer questions from cops” still prevent silence from being used in court? Regards, Shodan ---
**Author:** ![trabajabamos](https://avatars.discourse-cdn.com/v4/letter/t/47e85d/32.png) [@trabajabamos](https://boards.straightdope.com/u/trabajabamos)\ **Post date:** [June 20, 2013, 7:32pm 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/661287/68 "2013-06-20T19:32:03Z")
> [@Shodan](#): > > If the opinion is saying that the cop asks you “what are you up to?” and you just stand there and stare at him, they can use that against you, that’s one thing. Not to be alarmist or anything, but that’s kind of the way [the decision](http://www.supremecourt.gov/opinions/12pdf/12-246_7l48.pdf) reads: [QUOTE=SCOTUS] Petitioner’s Fifth Amendment claim **fails because he did not expressly invoke the privilege against selfincrimination in response to the officer’s question.** It has long been settled that the privilege “generally is not selfexecuting” and that **a witness who desires its protection “must claim it.”** Minnesota v. Murphy, 465 U. S. 420,425, 427 (1984) (quoting United States v. Monia, 317 U.S. 424, 427 (1943)). Although “no ritualistic formula is necessary in order to invoke the privilege,” Quinn v. United States, 349 U.S. 155, 164 (1955), **a witness does not do so by simply standing mute.**** Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner’s Fifth Amendment claim is affirmed.** [/quote] …bolding mine. IANAL, but that kind of sounds to me like you just standing there and staring at him could be evidence against you in court. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [June 20, 2013, 7:49pm 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/661287/69 "2013-06-20T19:49:15Z")
> [@trabajabamos](#): > > 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. > > 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? Being advised of Miranda rights is not constitutionally required. There does not exist a constitutional requirement to be advised of any rights by law enforcement. The Court conjured up the Miranda rights as a means, or more accurately as judicially created procedural safeguards to protect the constitutional rights of “No person . . . shall be compelled in any criminal case to be a witness against himself” and " the accused shall . . . have the Assistance of Counsel." The Miranda warnings then were judicially created procedures to ensure or make more likely any confession or statement was truly voluntary. The fact remains that in none of these cases did the officers undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice…Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice. We have concluded that, without proper safeguards, the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights, and the exercise of those rights must be fully honored. _Miranda v. Arizona_. The purpose, as expressed by Chief Justice Warren in the _Miranda_ case, is to impose some procedural requirements to minimize or abate the “compulsion inherent in custodial surroundings” thereby ensuring or making more likely any statement given by the defendant during custodial interrogation was truly voluntary. The _Miranda_ advisements are not given on the basis people do not know their rights prior to being advised of them but rather to serve the purpose of ameliorating the “compulsion inherent in custodial surroundings.” If the defendant did not know their rights prior to advisement, then the advisement will inform them of their rights, and undoubtedly some will already know their rights before advisement. However, Miranda and advisement of Miranda was never conceived on the basis of any understanding, perception, belief, notion, implication or expectation people or person isn’t aware of their rights prior to advisement but instead the origination of Miranda has its impetus in ensuring or making as likely as possible any confession or statement is voluntary. ---
**Author:** ![trabajabamos](https://avatars.discourse-cdn.com/v4/letter/t/47e85d/32.png) [@trabajabamos](https://boards.straightdope.com/u/trabajabamos)\ **Post date:** [June 20, 2013, 7:51pm 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/661287/70 "2013-06-20T19:51:47Z")
> [@jtgain](#): > > Bricker answered it earlier. The idea isn’t so much that the Court thinks that people are so ignorant of their 5th amendment rights that they need to be informed by police, but because of the inherently coercive nature of a custodial interrogation you need a little reminder. > > Interrogation while in police custody is a daunting and stressful thing. It’s enough to overcome a regular person’s free will to invoke his rights. The Miranda Court crafted a remedy to this by saying that these 4 cops sitting at a table with you in the hot seat, need to tell you (what you probably already know) that you don’t have to answer questions. This may allow you to regain your composure enough to invoke your rights. I get that this is the legal rationale but, as I opined to Bricker in the conversation you mentioned, it strikes me as rather far-fetched to suggest that police only gain coercive power over people after they’re taken into custody. And that’s the whole point, right? The police ostensibly had no coercive influence over Salinas so A) they didn’t have to tell him anything and B) he had no 5A rights because he was too dumb to explicitly invoke them. It doesn’t sit well with me and it doesn’t have to, I suppose. I put it in GD so people could editorialize a bit and wander away from a dry recitation of existing law if they felt so inclined. ---
**Author:** ![trabajabamos](https://avatars.discourse-cdn.com/v4/letter/t/47e85d/32.png) [@trabajabamos](https://boards.straightdope.com/u/trabajabamos)\ **Post date:** [June 20, 2013, 7:57pm 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/661287/71 "2013-06-20T19:57:00Z")
> [@NotreDame05](#): > > Being advised of Miranda rights is not constitutionally required. There does not exist a constitutional requirement to be advised of any rights by law enforcement. The Court conjured up the Miranda rights as a means, or more accurately as judicially created procedural safeguards to protect the constitutional rights of “No person . . . shall be compelled in any criminal case to be a witness against himself” and " the accused shall . . . have the Assistance of Counsel." The Miranda warnings then were judicially created procedures to ensure or make more likely any confession or statement was truly voluntary. > > The fact remains that in none of these cases did the officers undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice…Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice. > > We have concluded that, without proper safeguards, the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights, and the exercise of those rights must be fully honored. > > _Miranda v. Arizona_. > > The purpose, as expressed by Chief Justice Warren in the _Miranda_ case, is to impose some procedural requirements to minimize or abate the “compulsion inherent in custodial surroundings” thereby ensuring or making more likely any statement given by the defendant during custodial interrogation was truly voluntary. The _Miranda_ advisements are not given on the basis people do not know their rights prior to being advised of them but rather to serve the purpose of ameliorating the “compulsion inherent in custodial surroundings.” > > If the defendant did not know their rights prior to advisement, then the advisement will inform them of their rights, and undoubtedly some will already know their rights before advisement. However, Miranda and advisement of Miranda was never conceived on the basis of any understanding, perception, belief, notion, implication or expectation people or person isn’t aware of their rights prior to advisement but instead the origination of Miranda has its impetus in ensuring or making as likely as possible any confession or statement is voluntary. That’s an excellent answer. Though, if the only purpose is to cut the tension in the room as you **jtgain** indicate, it strikes me that essentially any gesture empowering the interviewee would work. They could offer him ice cream. And maybe they should. Thank you for getting back to me on that. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [June 20, 2013, 9:11pm 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/661287/72 "2013-06-20T21:11:19Z")
> [@Zakalwe](#): > > 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. I’ll have you know that Cthulhu has no interest in fucking anyone. Eating them, however, is a whole other story ---
**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 20, 2013, 9:22pm 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/661287/73 "2013-06-20T21:22:23Z")
> [@trabajabamos](#): > > …bolding mine. IANAL, but that kind of sounds to me like you just standing there and staring at him could be evidence against you in court. Yeah. So? If you’re going to act strangely or out-of-place, then police will (quite reasonably) conclude you _are_ out of place, and would therefore wonder if you were alright or doing something you shouldn’t. That is essentially their job. The officer may indeed testify in that case that you just didn’t answer. While he could not speculate as to _why_, he could say that he though it was odd or suspicious given a specific context. All you do have to say is that you didn’t care to answer question or wished to go, and the court would say that was kosher and could not be used against you. > [@](#): > > I get that this is the legal rationale but, as I opined to Bricker in the conversation you mentioned, it strikes me as rather far-fetched to suggest that police only gain coercive power over people after they’re taken into custody. And that’s the whole point, right? The police ostensibly had no coercive influence over Salinas so A) they didn’t have to tell him anything and B) he had no 5A rights because he was too dumb to explicitly invoke them. The police only have coercive power when they make you are detained in some way. They are not required in any sense to make you _comfortable_. Second, the suspect has 5th Amendment Rights. He always has his 5th Amendment rights, and will always have his 5th Amendment rights. If he does not exercise them for some reason, he cannot then rely on them ex post facto. Clear enough? The right to remain silent does not actually apply _literally_. ---
**Author:** ![trabajabamos](https://avatars.discourse-cdn.com/v4/letter/t/47e85d/32.png) [@trabajabamos](https://boards.straightdope.com/u/trabajabamos)\ **Post date:** [June 20, 2013, 9:41pm 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/661287/74 "2013-06-20T21:41:45Z")
> [@smiling\_bandit](#): > > Yeah. So? If you’re going to act strangely or out-of-place, then police will (quite reasonably) conclude you _are_ out of place, and would therefore wonder if you were alright or doing something you shouldn’t. That is essentially their job. I was just answering **Shodan** ’s question which I quoted in my post. If you’re cool with a world in which a criminal prosecutor can have a police officer testify about how you “looked suspicious”- good luck winning the argument that you didn’t “look suspicious” against a uniformed officer in court- then you’ll probably be happy with the world as it is. > [@](#): > > The officer may indeed testify in that case that you just didn’t answer. While he could not speculate as to _why_, he could say that he though it was odd or suspicious given a specific context. All you do have to say is that you didn’t care to answer question or wished to go, and the court would say that was kosher and could not be used against you. Didn’t work out that way for Salinas though, according to the defense. But clearly SCOTUS disagrees, so there’s that. > [@](#): > > The police only have coercive power when they make you are detained in some way. They are not required in any sense to make you _comfortable_. I disagree. I think people behave differently around authority figures- particularly cops- than they otherwise would and that the police could (and probably do) make use of this fact. It may be legally impossible to “coerce” (legal significance) a person not in custody but I think it’s obvious that the police can coerce (colloquial significance) a person not in custody. I’d wager that most of the “dumb criminals” who get nervous and self-incriminate before they’re taken into custody could tell you about such coercion first-hand. The rhetoric that such people are just stupid is satisfying, but there’s a good chance they’re just normal people who were made nervous by the police and pressured into saying things they wouldn’t have otherwise said. > [@](#): > > Second, the suspect has 5th Amendment Rights. He always has his 5th Amendment rights, and will always have his 5th Amendment rights. If he does not exercise them for some reason, he cannot then rely on them ex post facto. Clear enough? Clear as crystal; I understand that this is the ruling, certainly. Again, I have a problem with the whole “magic spell” aspect of this. Ignorance of the law is no defense and neither, it seems, is ignorance of your rights. What can I say? I’m not a fan. ---
**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 20, 2013, 10:39pm 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/661287/75 "2013-06-20T22:39:29Z")
> [@trabajabamos](#): > > If you’re cool with a world in which a criminal prosecutor can have a police officer testify about how you “looked suspicious”- good luck winning the argument that you didn’t “look suspicious” against a uniformed officer in court- then you’ll probably be happy with the world as it is. I’m cool with an officer factually stating his opinion or reasoning in explaining what happened during the investigation and why. > [@](#): > > Didn’t work out that way for Salinas though, according to the defense. But clearly SCOTUS disagrees, so there’s that. This would be the key point of disagreement. I highly doubt the defense’s version of events. I have no great trust is prosecutors, but it is not the _law_ which is error here. The _application_ of that law by a particular court may be in error, but there’s no real evidence to that effect. > [@](#): > > I disagree. I think people behave differently around authority figures- particularly cops- than they otherwise would and that the police could (and probably do) make use of this fact. It may be legally impossible to “coerce” (legal significance) a person not in custody but I think it’s obvious that the police can coerce (colloquial significance) a person not in custody. I’d wager that most of the “dumb criminals” who get nervous and self-incriminate before they’re taken into custody could tell you about such coercion first-hand. The rhetoric that such people are just stupid is satisfying, but there’s a good chance they’re just normal people who were made nervous by the police and pressured into saying things they wouldn’t have otherwise said. I have no great admiration for the police myself, but I also have no real problem with them investigating things… which is exactly what they must do. Yes, people probably will behave different in front of the police. I personally get rather nervous if I even see a cop on the road, even if I’m not doing anything wrong at all. At the same time, I cannot in good sense argue that they can or should wear kid gloves. At the moment, all they can really do is glare meaningfully - and if you want to argue that the police must be forbidden from the Evil Eye then I don’t see how we can agree on anything. More to the point, if you’re concerned about police misconduct, you can look at much more subtle and more effective techniques than reporting the suspicious behavior of stupid criminals. Police have a wide range of dubiously moral methods I look balefully upon. Many people will break under police methods and confess to anything, regardless of the facts. It doesn’t take much pushing in some cases, and some officers know how to manipulate people very effectively. ---
**Author:** ![trabajabamos](https://avatars.discourse-cdn.com/v4/letter/t/47e85d/32.png) [@trabajabamos](https://boards.straightdope.com/u/trabajabamos)\ **Post date:** [June 20, 2013, 11:07pm 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/661287/76 "2013-06-20T23:07:34Z")
> [@smiling\_bandit](#): > > I’m cool with an officer factually stating his opinion or reasoning in explaining what happened during the investigation and why. And that’s OK. Personally I found Breyer’s dissenting opinion on this matter compelling: [QUOTE=Justice Breyer] To permit a prosecutor to comment on a defendant’s constitutionally protected silence would put that defendant in an impossible predicament. He must either answer the question or remain silent. If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances—even if he is innocent. See, e.g., Griffin, supra, at 613; Kassin, Inside Interrogation: Why Innocent People Confess, 32 Am. J. Trial Advoc. 525, 537 (2009). If he remains silent, the prosecutor may well use that silence to suggest a consciousness of guilt. And if the defendant then takes the witness stand in order to explain either his speech or his silence, the prosecution may introduce, say for impeachment purposes, a prior conviction that the law would otherwise make inadmissible. Thus, where the Fifth Amendment is at issue, to allow comment on silence directly or indirectly can compel an individual to act as “a witness against himself ”—very much what the Fifth Amendment forbids. [/QUOTE] > [@smiling\_bandit](#): > > This would be the key point of disagreement. I highly doubt the defense’s version of events. …Would you trust Breyer’s account? [QUOTE=Justice Breyer] In January 1993, Houston police began to suspect petitioner Genovevo Salinas of having committed two murders the previous month. They asked Salinas to come to the police station “to take photographs and to clear him as [a] suspect.” App. 3. At the station, police took Salinas into what he describes as “an interview room.” Brief for Petitioner 3. Because he was “free to leave at that time,” App.14, they did not give him Miranda warnings. The police then asked Salinas questions. And Salinas answered until the police asked him whether the shotgun from his home “would match the shells recovered at the scene of the murder.” Id., at 17. At that point Salinas fell silent. [/quote] > [@smiling\_bandit](#): > > I have no great admiration for the police myself…\… and if you want to argue that the police must be forbidden from the Evil Eye then I don’t see how we can agree on anything. I don’t want to argue that at all. In fact, I’d be fine with police doing what they’re doing now provided they couldn’t tiptoe past the Fifth Amendment by sort-of-but-not-really interrogating people or otherwise relying on potential perpetrators failing to explicitly invoke their rights. > [@smiling\_bandit](#): > > More to the point, if you’re concerned about police misconduct…\ I absolutely am concerned about all the things to which you allude; I just happen to be on about this thing in this thread. 😉 Don’t get me wrong, I’m not some hand-wringing, bleeding heart who would rather hug criminals and bemoan their poor upbringing than punish them; if they’re guilty, I want their ass in jail. I just think the government should mostly bear the responsibility of proving their guilt w/o their help. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 20, 2013, 11:53pm 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/661287/77 "2013-06-20T23:53:00Z")
> [@Shodan](#): > > I thought the problem was that the criminal answered some questions and was silent about others. So the cops weren’t exactly using his silence against him - just that he was refusing to answer some questions but answering others. > > Plus wasn’t all this before he was taken into custody? > > If the opinion is saying that the cop asks you “what are you up to?” and you just stand there and stare at him, they can use that against you, that’s one thing. I am pretty sure the cops can’t take you into custody if you refuse to answer questions. > > ISTM that the issue here is selective silence, not a general refusal to answer questions. So Alito is saying that if the criminal had said “I refuse to answer on the grounds that it may incriminate me” to some questions and “I was at my friend’s house” to others, he would have been OK. > > And would a blanket “I don’t answer questions from cops” still prevent silence from being used in court? > > Regards, > Shodan In this case, his selective silence was only one factor in concluding that his periods of silence weren’t intended to be a blanket 5th amendment refusal to answer questions. If instead of standing mute, he had affirmatively asserted his 5th amendment right to some questions, the police could testify to the questions he answered, but not mentioned the question or the invocation of the 5th to the questions to which he asserted his 5th. Along with others, while no great fan of the police, surely they can testify as to observations. If there is a bank robbery and they walk up to me and ask me who did it, can I turn ashen, start shaking, fall to the ground, and rock like a baby with my eyes closed and the cops not be able to testify to any of it simply because I was silent? Or should they be able to testify to all of those actions but have to not mention the fact that I didn’t say anything? In my example, my silence is not an invocation of my 5th amendment right, but a reaction from extreme fear, which is something that the police are supposed to be looking for. This whole “yuk, yuk, how can you have the right to remain silent if you have to speak to assert it! yuk, yuk” is a misstatement of the law. The “right to remain silent” is a shorthand way of saying that you don’t have to be a witness against yourself. It doesn’t mean that you can literally stand mute. Many things in our language is that way. To be so literal would mean that mute persons would have no 1st amendment freedom of speech since they are unable to talk. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [June 21, 2013, 12:39am 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/661287/78 "2013-06-21T00:39:51Z")
> [@smiling\_bandit](#): > > . . . Clear enough? The right to remain silent does not actually apply _literally_. ??? Not at all clear! What kind of figurative silence is permitted if literal silence can be broken? This sounds like a shitten decision from a bad court. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [June 21, 2013, 12:41am 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/661287/79 "2013-06-21T00:41:43Z")
> [@jtgain](#): > > . . . It doesn’t mean that you can literally stand mute. . . . Again… And if I do…what? They can break my fingers in desk drawers? You aren’t making any sense at all with this “literally” stuff. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 21, 2013, 12:49am 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/661287/80 "2013-06-21T00:49:32Z")
> [@Trinopus](#): > > Again… And if I do…what? They can break my fingers in desk drawers? You aren’t making any sense at all with this “literally” stuff. Then they can tell the jury that you stood silent when they asked you a question and the jury can use your silence as evidence of guilt (or not as it sees fit). If you read Thomas’ concurrence, joined by Scalia, he contends that the original intent of the constitution was to have a right to refuse to testify, but that the prosecution could use the fact that you didn’t TESTIFY as a factor for the jury to consider when deciding your guilt. (e.g. Ladies and Gentlemen of the jury, if Trinopus was really innocent of this crime, why didn’t he get up here on this witness stand like a man and tell you what happened?) [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=3) [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=5)