I’ll miss you, Fifth Amendment

In the Supreme Court’s continued efforts to destroy the Bill of Rights, the Fifth Amendment just took a big hit:

Here are the facts from Salinas v Texas: Two brothers were shot at home in Houston. There were no witnesses—only shotgun shell casings left at the scene. Genovevo Salinas had been at a party at that house the night before the shooting, and police invited him down to the station, where they talked for an hour. They did not arrest him or read him his Miranda warnings. Salinas agreed to give the police his shotgun for testing. Then the cops asked whether the gun would match the shells from the scene of the murder. According to the police, Salinas stopped talking, shuffled his feet, bit his lip, and started to tighten up.

At trial, Salinas did not testify, but prosecutors described his reportedly uncomfortable reaction to the question about his shotgun. Salinas argued this violated his Fifth Amendment rights: He had remained silent, and the Supreme Court had previously made clear that prosecutors can’t bring up a defendant’s refusal to answer the state’s questions. This time around, however, Justice Samuel Alito blithely responded that Salinas was “free to leave” and did not assert his right to remain silent. He was silent. But somehow, without a lawyer, and without being told his rights, he should have affirmatively “invoked” his right to not answer questions.

Political Figure Scalia and Lap Dog Thomas went further and said Salinas didn’t have any right to silence whatsoever because he hadn’t be arrested or detained by police.

This is all very disturbing. As Ken of Popehat tells us, a prosecutor cannot mention a defendant’s decision to remain silent. If we allowed the authorities to get away with such garbage – and we do now – then the right to remain silent wouldn’t, in fact, be a right. It would simply become this thing people try to do in order to protect themselves, but without any success. “I don’t know, fellow jurors, the police said the guy got shifty and uncomfortable when they questioned him. Then he clammed up! Sounds guilty to me.”

(Know why that last part isn’t a good analogy? Because it just fucking happened.)

I had more to say on this matter, but my time is currently limited. I leave you with this excellent piece of advice:

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One Response

  1. Heck, why bother with testimony at all? Let’s just go ahead and let prosecutors lie outright. “The defendant probably confessed to police earlier, but now he’s in ths courtroom denying it.” Anything less would be ‘soft on crime,’ after all….

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