So it turns out I’m not a lawyer

I’ve spent much of the past hour nervously watching the live feed over at SCOTUSblog in hopes that we’d get an opinion on marriage equality today.  Alas, no.  I’ll have to wait a bit longer to find out if my pending nuptials will come with rights at the federal level.

But it did make me aware of other cases that I would probably have overlooked entirely.  Among them was a case out of Texas regarding whether or not silence from a suspect prior to his being read his Miranda rights is admissible at trial.

From the New York Times:

The Supreme Court says prosecutor can use a person’s silence against them in court if it comes before he’s told of his right to remain silent.

Perhaps it is my lack of legal expertise showing, but this strikes me as just plain nutty.

Suppose I am arrested on suspicion of some heinous crime or another.  Erecting a totem pole made out of corpses, let’s say.  And let us further suppose that I am aware of the Fifth Amendment and that I cannot be compelled to offer evidence against myself.  Moreover, I am fully aware of my good chum Burt’s Rule #1 and similar good advice.

What is the correct response under these circumstances should I be asked “Do you happen to know how that totem pole made out of corpses appeared in your backyard?” by a member of the law enforcement community prior to being read my rights?  Silence apparently is no longer a possible option.  I suppose I could always say “No,” but I imagine that could lead to other charges in addition to the rather heavy penalties associated with making a totem pole out of people you’ve murdered.  Is the Supreme Court saying that suspects have no choice but to lie?

I know there are a great many very smart lawyer types around these parts, and I’d love to hear from them.  Is this decision insane, or is it me?  If it is not insane, can you please explain why so that a person of small brain such as myself might understand?

Russell Saunders

Russell Saunders is the ridiculously flimsy pseudonym of a pediatrician in New England. He has a husband, three sons, daughter, cat and dog, though not in that order. He enjoys reading, running and cooking. He can be contacted at blindeddoc using his Gmail account. Twitter types can follow him @russellsaunder1.


  1. I’d like this explained too. Could a suspect say, “I am invoking my fifth amendment rights.” or would that too be evidence of shady business?

    • In a trial, when someone pleads the 5th, the jury is not supposed to make a judgment call on their doing so. Whether they do or not in their unconscious is another issue entirely.

      • It’s silly to think a jury won’t hear a Fifth Amendment invocation and not immediately draw a conclusion that the witness is guilty.

        I’m informed from the bench that a lawyer who is aware that her client will invoke his Fifth Amendment rights has a duty to tell the judge of the likely situation beforehand, at sidebar or better yet in a chambers conference, such that the question and the invocation are made (if at all) outside the presence of a jury.

        The bench further tells me that if the situation arises totally unplanned and the jury hears the invocation, it’s potentially a mistrial.

        Is this judge who told me these things wrong? I don’t know, because I don’t practice in a discipline where the Fifth Amendment comes up a whole lot.

        • Me neither. So I will defer to you and your bench reference.

      • New Dealer,

        If I understand the case correctly, Salinas’s non-response wasn’t in a trial setting. He wasn’t even formally in custody.

  2. 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.'”

    Privileges are not self-executing, sure. Rights are. That’s what makes them “Rights”.

    • Eh? The “right” against self-incrimination has become merely the privilege against self-incrimination? I guess the first ten amendments are the bill of privileges?

    • Just so. Alito’s logic seems totally tortured to me. Apparently silence only counts as such if you point out that you’re being silent.

    • Yet more evidence in favor of the idea that rights are nothing of the sort.

        • He’s a bear on corporate rights, but not so much when it comes to persons who were born rather than chartered.

          • He’s pretty horrible, pretty much a corporate tool. Even Scalia steps out of line occasionally particularly on Fourth Amendment issues. But not Alito.

  3. The Supreme Court says prosecutor can use a person’s silence against them in court if it comes before he’s told of his right to remain silent.

    Knowledge of the law is no excuse.

    • My thoughts, as well. I’d remain silent because I know I have the right to remain silent; and in so doing, I’d damned well be watching to see if Miranda is recited to me. Because of my knowledge.

      • I was going to say something about that, but decided not to; hereby specifically invoking my rights under the Fifth Amendment.

  4. The whole of criminal justice is often a hash and patchwork decisions. There are entire treatises written about the ins and outs and exceptions of the 4th Amendment.

    The simple truth is that criminal justice and the rights of criminal defendants are one of the most important parts of the legal system but also the hardest to defend on a very emotional level. The truth is that a lot of criminal defendants are guilty and often guilty of very heinous crimes. Like the whole NSA debate, any debate about freedom v. security is very intractable.

    Even wrongfully convicted defendants are often not very sympathetic characters. A year or two ago, the New Yorker published an article about the high probability of Texas executing a wrongfully convicted man. The defendant, Cameron Todd Willingham, was convicted of an arson that killed his three children and maybe his wife. The truth was that it was probably a bad wiring accident. However, Cameron Todd was not a good person. He was a drunk and wife-beater. This does not mean that he should be convicted and executed for a crime he did not commit but it does mean that it takes a special kind of person to defend him despite his past.

    I’ve gotten into these what-if debates with other lawyers as well especially when someone is convicted of an incohate crime that is based on speech. There was a college student in Illinois who was arrested and killed for scribblings about a massacre. He said they were rap lyrics. Eventually his conviction was thrown out by the Illinois Supreme Court but I still know a lot of people who do the what-if he really meant it questioning.* Nancy Grace is a lawyer as well (and if you anything about her biography, she seemingly has a psychological complex because her fiancee was a murder victim and this seems to have compelled her down the prosecutor’s track with the zeal of the Kindly Ones.)

    Jamelle Bouie wrote an essay at the American Prospect last week called “Why America Does Not Care About Surveillance?” His stark opening sentence was that there is simply not a market for Civil Liberties on both sides of the isle. At least as it applies to the rights of alleged criminals and terrorists. I certainly know plenty of liberals who are very good for civil liberties when it comes to gay rights, affirmative action, and marijuana. But not so good when it comes to the stuff as described above.

    There is a very Puritan streak in the American public still that borders on the boorishness. A lot of simplistic “If you can’t do the time, don’t do the crime” mentality without looking at the economic and lack of opportunity causes of crime.

    *This makes me sympathetic to the idea that politicians do have a lot to fear by appearing soft on crime or terrorism.

    • If I may summarize what I’m getting from your comment, it’s that this is a bad decision but one that few people will care that much about since it will probably apply only to guilty people anyway?

      • Thats part of it. Most people see themselves as good people and unlikely to need the 4th, 5th, or any other of the Amendments pertaining to police and trial conduct and do not really care about them. I think another isssue is that the 4th, 5th, and related Amendments are passive. You don’t use them or invoke until a very specific scenario when you need them. The 1st and 2nd Amendments involve rights that people use actively every day and are more understandable for that reason.

        • “Most people see themselves as good people and unlikely to need the 4th, 5th, or any other of the Amendments pertaining to police and trial conduct and do not really care about them.”

          I guess I’m weirdly wired in that I tend to think A) Hey, I may need those rights one day and B) Even if I don’t, they are inherently a good thing (not all so-called “rights” mind you, but these ones in particular).

          As I try to teach my students, the ideal world is one in which our rights, our responsibilities, our powers, our privileges, etc. are all fairly universal. Such that if Joey takes a toy from Jimmy and expects no repercussions, he has now created a culture wherein toy taking with impunity is the norm and he might as well expect to get all his toys taken without any recourse. (I explain it differently, but that is the gist). It just boggles my mind that people tend to think restricting the rights of others doesn’t open the door for their own rights to be restricted. But, again, maybe I’m just weird like that.

          • The big difference is that the toy argument can also be summed up as don’t be a thief. Very anti-criminal. The Miranda thing is more complicated because it involves the rights of someone in trouble with the Police and we teach children that law enforcement is their friend.

            The relationship between liberty and law enforcement is very tricky.

          • I don’t necessarily teach children that law enforcement is their friend. Not explicitly so, at least. I tend not to go deeply into the topic because it is so fraught, usually saying something to the effect of, “It is the police’s job to help people.” In some way, I hope they internalize this in such a way that they will object to the police acting in a way that is not helpful.

            I do teach my kids to appropriately and respectfully challenge authority.

        • Every time I lay out the evidence that post-New-Deal commerce clause jurisprudence is bunk, I get a lecture about evolving standards, and who cares what a bunch of dead slave owners thought, anyway?

          Sure is a bitch when standards don’t evolve your way, isn’t it?

          • Brandon,

            Except that the judges allegedly most committed to the idea that dead slave owners should be routinely considered are amongst the five that made up the majority here.

          • The theory of the 5th Amendment that Alito et al. are trying to walk back was an invention of the Warren Court.

          • Except that the Marshall court (as in Chief Justice John Marshall) was equally broad on the Commerce Clause. Also things do change.

            Plus Sam and Mike’s comments.

          • Mike,

            Exactly. A large chunk of conservatives always hated the Warren Court. They hated it from Day One. Impeach Earl Warren was a popular saying among the right.

          • NewDealer:
            It would be uncharitable to assume that you’re talking about Gibbons, because Gibbons was a textbook example of the intended purpose of the commerce clause as stated in Federalist 43: prohibiting individual states from interfering with interstate commerce. So what cases are you talking about?

          • Pierre,

            Wickard v. Filburn seems to be the case that causes everyone to cry “SOCIALISM” when it comes to the commerce clause. However, there are background facts that rarely get reported but are relevant. The AAA program was voluntary and the Farmer signed up for it.

            So in some ways, it is very much like a contracts case but under the guise of federal law.

            Wickard might be a bride too far. My main concern is with cases like Heart of Atlanta and Olie’s BBQ. This is where liberals get annoyed/angry at Conservatives and Libertarians over their narrow commerce clause views. I don’t care about quotas on wheat. I do care about the Civil Rights Act and not allowing businesses to discriminate against minorities. The Civil Rights Act was passed and upheld on Commerce Clause grounds.

          • New Dealer,

            I wonder if the second AAA was “voluntary” in the sense that the first Guffey Act was “voluntary” or the NRA was “voluntary.” However, you most likely know more about Wickard than I do and I’m too lazy to research it, so I’ll defer on the facts.

            I haven’t much problem with using the commerce clause to enforce the CRA, although I would hope that Congress could do so via the 14th directly instead of through the commerce clause. (I understand there may have been precedents that curbed Congress’s power to police private discrimination….again, you’re more an expert than I am.)

            Bringing the issue to John Marshall, I think it’s hard to know what he would’ve done and whether he would’ve signed off on, say, Heart of Atlanta. My impression is that with the exception of Marbury v. Madison, he was quite deferential to duly enacted federal laws (AJ’s treaty violations and state laws like Maryland’s tax on the bank and the law at play in Gibbons were different matters). At the same time, federal legislative activism c. 1964 was a very different animal than it was c. 1803.

            Of course, the WWCHJMHD* is probably beside the point unless one is an originalist, which I’m not and I suppose you’re not, either, or unless one believes respect for stare decisis means never deviating from precedent (again, I don’t believe so, and I suppose you don’t either).

            Finally, your point is well-taken and thanks for addressing my comment.

            *What Would Chief Justice John Marshall Have Done

          • I’ll just point out here that NewDealer was not merely making a claim about how John Marshall would have ruled on certain later commerce clause cases, but claiming that the Marshall court actually did issue rulings that interpreted the commerce clause as broadly as did the rulings that upheld the New Deal and later constitutionally dubious acts. Which cases he had in mind remains a mystery.

      • Russell,

        Your summary sounds right to me. I don’t know if it captures NewDealer but it sounds like an accurate encapsulation of the actual situation.

      • That’s how most people would feel about it. Though I think a person can be wrongfully convicted with this decision.

        4th Amendment violations are trickier because it means that the police did find some kind of evidence of a crime. Often a drug crime but not always….

    • There is a very Puritan streak in the American public still that borders on the boorishness

      Which side of the border would that be?

    • There was a college student in Illinois who was arrested and killed for scribblings about a massacre. He said they were rap lyrics. Eventually his conviction was thrown out by the Illinois Supreme Court.

      I assume you meant “convicted,” since he’s still alive.

  5. Again, I think it requires a certain level of abstract thought to care about civil liberties especially when compared to concrete examples of really horrible crimes going undetected for decades.

  6. My two cents? Don’t built totems out of dead people in your back yard.

    Build tree houses. Everyone loves a tree house.

    But, yea, this seems ridiculous.

    Doesn’t Miranda include, “Anything you say can and will be used against you in a court of law”? Now we’re basically saying, “Anything you don’t say can and will be used against you in a court of law.” Literally damned if do, damned if don’t.

    • Everyone loves a tree house.

      Not the insurance companies.

    • Yes!

      Now even people with genious level response to police interviews ( someone who shuts up and immediately requests representation) are screwed.

      I am much more freaked out by this than the NSA stuff.

      • Fortunately it was only a plurality opinion, with no majority. That means it only applies to this case, and is not settled law.

    • Don’t built totems out of dead people in your back yard.

      Throw the cops off your tracks by building them in your neighbor’s backyard. The one who throws those loud parties on Tuesday nights.

  7. This is more Fourteenth Amendment related, but in relation to SSM.
    It’s about the domestic relations exception in federal jurisdiction.
    Some courts have recognized a distinction between pleading federal question (under 28 USC 1331) jurisdiction vs. pleading diversity jurisdiction (under 28 USC 1332).

    While the DRE unquestionably remains a bar to jurisdiction in diversity suits, the Supreme Court and lower courts have redefined traditional notions of marriage, procreation, contraception, family relationships, and parental choices concerning children, finding such choices are central to the liberty protected by the Fourteenth Amendment, which frequently serves as a check on state prerogatives that deny liberty. As a consequence, many litigants have brought federal question suits to challenge the constitutionality of state domestic relations laws and procedures.

    On this subject, the Fourth, Fifth, Sixth, Ninth, and Tenth Circuits have held that the DRE presents no bar to subject matter jurisdiction on federal questions. . . .

    [I]n identical cases, the Sixth and Tenth circuits issued lengthy and reasoned opinions that directly conflict with the Second Circuit’s summary order in Ashmore, holding that that it is appropriate for the “[district] court to examine whether certain judicial proceedings, which happened to involve a divorce, comported with the federal constitutional guarantee of due process.”

    The article here.

    But it looks like it’s closer to the time when the courts realize that DOMA is inconsistent with the DRE.

      • Well, thank goodness someone finally told me that.
        It’s the Domestic Relations Exception; an abstention doctrine, like others, based on the full faith and credit statutes, though limited to issues of marriage, child custody, and probate issues.
        Say, if a husband & wife were separating, and one of them is a citizen of Armenia who then returns to that nation, the Armenian has to bring action in a state court rather than a federal court under the DRE.
        I forget who it was that was blabbing about “Our Federalism” so much, but it seems to be an important concern.

  8. I haven’t taken the time to read this opinion yet. From the SCOTUSblog summary, I’d almost certainly have voted with the dissenting Justices.

    It’s maybe worth it to note that the judgment was the result of a fragmented majority. Three Justices (Alito, joined by Chief Justice Roberts and Justice Kennedy) opined that the defendant had to affirmatively invoke the Fifth Amendment because he had not yet been arrested.

    Two Justices (Scalia and Thomas) argued that the prosecutor’s questions — presumably part of an “adoptive admission by silence” theory of proof, that there are some things at which a normal, reasonable, innocent person simply would protest — did not directly implicate guilt one way or the other, so the Fifth Amendment was never an issue in the first place.

    So it’s perhaps not quite right to say that pre-arrest silences are definitionally admissible. Rather, pre-arrest silences are admissible if they are not used as direct evidence of guilt. How else might they be used, you ask? General impeachment of a witness’ veracity, for starters.

    Four Justices seemed to see pretty clearly that a right is a right is a right and took the notion of a right seriously. As I mention above, they seem to have the more logically rigorous and liberty-enhancing position, at first blush and without digging in to the precedent cited by Altio and Scalia in support of their own positions.

    • That’s pretty close to all of it. The opinions are, by recent standards, pleasantly brief and straightforward. Alito puts great emphasis on the state’s need for information, and a–to me–spurious claim that if the person being questioned is not explicit about invoking his right, then neither the polic nor the courts can be sure why he’s being silent, and they can’t know if his silence is justified by the 5th Amdt, or not justified because he has information the police need and have a right to.

      Thomas’s concurrence is even worsen, IMO, because he and Scalua seem to think the 5th Amdt. is inapplicable until after you’ve been formally arrested.

      My longer take is here, in case anyone’s interested in the legal musings of a two-bit political scientist.

  9. I think my first comment in response to any inquiry from a law enforcement official might be, “I unfortunately have no idea what my rights and responsibilities are, under state law, and I’m highly disturbed at the moment. I’d like to consult with an attorney before I answer any questions.”

    • I think it depends a lot on what the question is.

      I have to wonder about the legal implications of answering police questioning with questions; e.g.
      “Is that really important?”
      “How long have you been a police officer anyway?”
      “Is this somehow relevant?”
      “Are you asking that professionally, or as a matter of personal curiosity?”

      Although there doesn’t seem to be a bona fide right to be absolutely stupid, it would seem from all appearances that the right of all Americans to be stupid as all hell shall not be infringed.

      Though I’m sure at least on Justice would dissent to that.

  10. So, reading the first few pages of the decision, it looks like the salient point is that he wasn’t under arrest, and knew that he was free to go at any point, and thus he wasn’t being coerced into testifying against himself. Constitutionally speaking, I’m not sure that this is wrong (but also not sure that it’s right). I haven’t read the cases they cite as precedent, and much of the reasoning behind this decision seems to lie in those.

    Which is not to say I’m happy about it, but “unconstitutional” is not a synonym for “bad policy.”

    • Brandon:

      it looks like the salient point is that he wasn’t under arrest, and knew that he was free to go at any point, and thus he wasn’t being coerced into testifying against himself.

      I haven’t read the decision, so you have a leg up on me. But here are my problems with the decision, even if, as appears to be the case, the defendant wasn’t in custody:

      1. I imagine for a large number of people, being questioned by the police or being called in for an “interview” feels like custody. Maybe he could leave, but I imagine it is not clear to the person called in that he can do so. Speaking for myself, I’ve watched enough law-and-order style shows to know that if they say I’m not under arrest, then I can leave. But even so, I know that if I were in such a situation, I would have a hard time asserting myself enough even though I would have every legal right to leave.

      2. If Mr. Salinas’s sudden silence can be used against him, I don’t see why his choosing to leave cannot also be used against him. If instead of clamming up and no longer speaking, he just got up and left, I imagine that action would have been still used in this case as evidence of his guilt.

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