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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Talking to the police will not help you

I was recently having a discussion with someone about the 5th Amendment and I thought I would throw an old post up here. This may be the third time I’ve posted it, but the central point is a good one: Speaking with the police always has the potential of getting you in trouble. It doesn’t matter if you’re innocent, guilty, or even sometimes the victim. (Bio just ran an interesting piece about battered women and their spouses, including John and Lorena Bobbitt; John, despite being the primary victim, was placed on trial with scant evidence against him.) The police provide a valuable service, but it is important to know one’s rights when interacting with them. Remember, except in particular trial and trial-related circumstances, you never have to speak with someone from the government. Approached by them in your home? On the street? In your car? After being arrested? Invoke your right to silence. Always. Read this post for more information:

~~~

I’ve posted this before, but I think it’s worth repeating. I’ve actually read a few local stories where the police had limited leads, thought maybe they had the right suspect, but then someone threw magic fairy dust all over the place and the person just confessed. That’s all sunshine and flowers for those of us who abide by the law, but I hate the reason guilty people do it: police trick them into believing it is in their best interest to do so. That is rarely, if ever, the case. The police are not looking to help out those they suspect of crimes. That isn’t their job. And don’t think to yourself, ‘Oh, I’m innocent. Where’s the harm?’ You can still get screwed.

Unless your reason is that you need help, it isn’t worth the risk to talk to the police. If they come to you for whatever reason, turn them away (unless a loved one is injured or some similar incident, obviously). Don’t fill out or sign any affidavits, don’t tell them where you’ve been or where you’re going, and if you can avoid doing so, don’t even tell them who you are. (For my fellow Mainers, you have to give them your name and address during any traffic or terry stop, and if you’re trespassing, you have to tell them why you’re there. Only give out minimal information. The laws for every state can be found here.) UPDATE: Upon further investigation, it appears that Maine does not have any Stop and Identify statutes that require citizens to tell the police anything during a Terry Stop or casual conversation. Twenty-four states do, including nearby New Hampshire. I recommend independent research by those interested in the specifics of all this.

But for most of us, the situation isn’t going to be so significant as to require a lot of legal forethought like what’s in James Duane’s video above. Instead, most people are going to interact with police officers during traffic stops. There’s a way to handle those, too.

(Keep annotations on.)

There’s a longer version to that video where the kids actually had pot in their car, so they had good reason to be assertive in order to avoid a search. This may not be the best way for everyone to handle being pulled over. Sometimes there isn’t anything to hide, so asserting one’s rights is a good way to end up paying a $200 fine (like those kids) because the cop prefers his citizens friendly. But then there are times when it only seems like there isn’t anything to hide. Fast forward to the 22 minute point of this next video.

That video contains the entire clip with the first group of kids, but it’s the second kid who matters for this point. He may well have been innocent, but the fact that he allowed the police unnecessary access to his property got him in trouble. Keep watching for when he handles the situation correctly, giving minimal information. The police don’t need to know what they claim they should know.

Don’t talk to the cops.

Don’t trust the police

I tell people time and time again, don’t talk to the cops. If an officer has pulled you over, or has terry stopped you, or otherwise has you detained, you two are not friends. That cop is not there to help you. Giving him more information than what is legally required of you – usually just your name and address – will only help his record look a little better when his annual review comes around.

But people don’t want to believe me. When online I can just point them to my post advising them not to talk to the cops, but I don’t have that luxury in person. It’s frustrating. Everyone believes they can talk their way out of any situation. “B-but if I just get a chance to tell my side of the story, I’ll be fine!” No, you won’t. Remember when ex-politician and current beautiful hair model Rod Blagojevich had close to two dozen charges against him? He was showboating and proclaiming about his day in court. Boy was he going to show the government what was what! And then the government put on a terrible case, failing to prove Blagojevich guilty of almost everything. Needless to say, the man didn’t take the stand – it doesn’t pay to say more than what must be said. But he was found guilty of one count: lying to the FBI. He had made the mistake of talking to agents before his lawyers could get him to shut the hell up.

Which brings me to an excellent article from the law blog Popehat:

Is there ever a situation where, by being friendly and cooperative and answering questions, you can deflect government suspicion or satisfy their concerns without charges? Yes. Very rarely, there is. And when the government comes knocking, they count on you grasping at the hope that this is one of those times. Don’t be a fool. If there’s a chance that cooperation will satisfy the authorities today, there will still be a chance in a day or a week or a month after you’ve consulted a lawyer who understands the situation. When you answer law enforcements’ questions — especially when you do it in a stressful situation like a search — you take grave risks of substantially worsening your situation.

Read the entire post and it’s obvious the given scenario is one most of us will never experience. But that isn’t the point. The most law-abiding among us is plenty likely to encounter a cop that wants to ask us questions. And most of us would probably answer everything plenty blindly. But don’t. That cop is not your friend, he doesn’t want to help you, and it will not benefit you to talk to him.

But maybe you’re worried about looking guilty. If you don’t talk, that will only raise suspicions, right? Maybe. But how many prosecutors have given the closing statement, “And so the defendant was silent when questioned. I think you know what that means. I rest my case.”?

Keep your mouth shut.

Blago

The only interesting thing about Rod Blagojevich is that he was found guilty on one charge: lying to the FBI. Gee, what could have entirely prevented that conviction from happening?

Cops

One characteristic of the show Cops is the use of footage showing dumb as dirt, inbred hicks contending with properly acting, professional officers. That probably reflects a good deal of what most police do, but it isn’t the whole story. Cops are people. They aren’t perfect.

That’s why I’m glad I was linked on Unknown News for my post about not talking to the police.

The whole page is just link after link of the negative stories about police – the ones you won’t hear on Cops. I like this. It isn’t that I’m glad someone is finally shitting on the police; that isn’t what makes this appealing (and shitting on the police isn’t remotely original). It’s that it recognizes this conscious campaign by channels like FOX and SpikeTV to portray the police as always getting the bad guy, always playing by the book. They’re human. I like to see when they get treated as such.

No, seriously: Don’t talk to the cops

I’ve posted this before, but I think it’s worth repeating. I’ve actually read a few local stories where the police had limited leads, thought maybe they had the right suspect, but then someone threw magic fairy dust all over the place and the person just confessed. That’s all sunshine and flowers for those of us who abide by the law, but I hate the reason guilty people do it: police trick them into believing it is in their best interest to do so. That is rarely, if ever, the case. The police are not looking to help out those they suspect of crimes. That isn’t their job. And don’t think to yourself, ‘Oh, I’m innocent. Where’s the harm?’ You can still get screwed.

Unless your reason is that you need help, it isn’t worth the risk to talk to the police. If they come to you for whatever reason, turn them away (unless a loved one is injured or some similar incident, obviously). Don’t fill out or sign any affidavits, don’t tell them where you’ve been or where you’re going, and if you can avoid doing so, don’t even tell them who you are. (For my fellow Mainers, you have to give them your name and address during any traffic or terry stop, and if you’re trespassing, you have to tell them why you’re there. Only give out minimal information. The laws for every state can be found here.)

But for most of us, the situation isn’t going to be so significant as to require a lot of legal forethought like what’s in James Duane’s video above. Instead, most people are going to interact with police officers during traffic stops. There’s a way to handle those, too.

(Keep annotations on.)

There’s a longer version to that video where the kids actually had pot in their car, so they had good reason to be assertive in order to avoid a search. This may not be the best way for everyone to handle being pulled over. Sometimes there isn’t anything to hide, so asserting one’s rights is a good way to end up paying a $200 fine (like those kids) because the cop prefers his citizens friendly. But then there are times when it only seems like there isn’t anything to hide. Fast forward to the 22 minute point of this next video.

That video contains the entire clip with the first group of kids, but it’s the second kid who matters for this point. He may well have been innocent, but the fact that he allowed the police unnecessary access to his property got him in trouble. Keep watching for when he handles the situation correctly, giving minimal information. The police don’t need to know what they claim they should know.

Don’t talk to the cops.