Not Content With Gutting The Fourth Amendment, The Government Continues Its Attack On The Fifth And Sixth

from the and-as-for-'presumed-innocent,'-let's-not-even-bring-up-that-farcica dept

The government seems to be doing all it can to gut the Fourth Amendment these days. Between the NSA’s domestic data collections and the administration’s recently filed amicus brief arguing for warrantless searches of arrestees’ cell phone contents, our supposedly guaranteed rights are looking more and more like rarely granted privileges.

Perhaps due to their proximity both in number and scope, the government is also working hard to eliminate the protections afforded by the Fifth and Sixth Amendments as well. One of the more recent blows to these rights came from a court decision in Salinas v. Texas, in which the court ruled that simply remaining silent is not the same as invoking your right to remain silent, and as such, can be used (under specific circumstances) as evidence of guilt. Another earlier decision (Berghuis v. Thompson) also weighs on this, putting the onus of invocation on the arrestee. The Berghuis decision makes the invocation the key element, post-arrest. Simply refusing to talk to police officers when detained or arrested doesn’t protect you. The Miranda rights are available but you’ll have to be the person invoking them. Otherwise, your lack of cooperation becomes problematic. For you.

The problem is that silence (as in, just shut up), is not an invocation of either the right to remain silent or the right to counsel. Silence is an invitation for the police to persist in the interrogation until, maybe, the silence ends. Unfortunately, most people can’t “just shut up.” Even if they can, it’s only for a brief period, after which the words of police interrogators cajoling them to help themselves, just clear a few things up so you can go home, whatever point in the Reid Technique they’re at, overcomes the three word warning and out comes the confession.

It’s not that just shut up isn’t good advice, but that it’s inadequate and takes your eye off the ball…

The invocation of these two crucial rights must be made clearly and unequivocally. That means that there can be no doubt, from the words that leave your mouth, that you are invoking your rights. This is how you do so:

I do not want to answer questions.

I want to speak with my lawyer.

Your rights, properly invoked, prevent the things you say from being used against you, but only if you a.) stop talking and b.) wait for your lawyer. And these rights need to be invoked loudly and clearly whenever another member of law enforcement enters the interrogation room, otherwise the newcomer can claim the arrestee never invoked his rights.

That handles part of the Fifth. For better or worse, the Miranda decision folds in the Sixth Amendment, which makes this recent decision a bit more problematic, even if the outcome is a small win for citizens’ rights. Because of Miranda’s blend, the Fifth and Sixth are intertwined, meaning that bad precedent can adversely affect two rights at one time while good precedent can be very limited in its application, especially in the hands of a determined prosecutor.

The courts have already found that simply not answering questions post-arrest can be used as evidence of guilt. But what happens when you ask for legal representation before the police have arrested or detained you?

Here’s an excellent summary of the situation from A Public Defender:

In US v. Okatan [PDF], the court was confronted with the case of Mr. Okatan who tried unsuccessfully to smuggle one Uysal – a German citizen – into the U.S. illegally. He failed: Uysal was turned away, although Okatan – a citizen – was allowed entry. The next day, Uysal was found at a border checkpoint and arrested and Okatan was spotted in a car in the vicinity and tailed to a rest area where an Officer Boucher pulled up behind his car, activated his lights and told him to remain inside the vehicle. Then:

Boucher walked over to Okatan’s car, identified himself as a border patrol agent and asked Okatan if he was a United States citizen. Okatan said that he was and handed over his passport. Boucher then asked why Okatan had passed the rest area on the east side of the highway and made a U-turn to enter the Beekmantown rest area. Okatan replied that he had to use the bathroom.

Boucher warned Okatan that lying to a federal officer is a criminal act and asked whether he was there to pick someone up. Okatan said that he wanted a lawyer. At that point, Boucher placed Okatan under arrest and transported him to the Champlain border patrol station.

When the case came to trial, Okatan’s lawyer moved to suppress statements made after the defendant requested a lawyer (which was still pre-arrest). The court granted this but the prosecution argued that Okatan’s request for a lawyer was itself an admission of guilt.

The key, according to the Second Circuit Court, was Okatan’s invocation of his rights. That it happened pre- or post-arrest didn’t matter nearly as much as the invocation did, thanks to the Salinas decision. The court also declared the state really had no business dragging his pre-arrest invocation into its “case in chief.”

This melange of court decisions has resulted in the following situation, which every American should find disturbing whether or not they’ve ever committed a crime.

Here we had a situation of a man, who by sheer dumb luck, managed to navigate the complex and moving obstacle course that the judiciary has set up en route to the invocation of Constitutional rights and yet the prosecution wanted to take that turn it to its advantage yet again.

When we live in a world where “I want a lawyer” is de facto evidence of guilt, we will live in a world where that lawyer wouldn’t even be able to help us.

Scott Greenfield arrives at the same conclusion. The common man has no chance, even with this favorable decision.

Clearly, this is a minefield for the person who wishes to rely on his right to remain silent and right to counsel. While the Second Circuit came out the right way here, it nonetheless ignores the level of sophistication demanded of a regular guy to recognize the myriad details necessary to effectively exercise his constitutional right not to be interrogated. While it’s facile to say “ignorance of the law is no excuse,” it’s reached the level of requiring a Juris Doctor to know and appreciate the rules imposed for the exercise of rights under the Fifth Amendment.

What’s the best course of action for citizens who wish to invoke their rights without creating “evidence of guilt” when being questioned by the police? Greenfield again:

So back to the bottom line of what to do when the cops ask questions nicely, the answer for now appears to be await a substantive question, the answer to which might create a risk of jeopardy, and then clearly say “I want to speak with my lawyer.” Sorry that this has become so prolix, but it’s better than getting it wrong.

While we all supposedly have a right to remain silent and the right to an attorney, the government (meaning law enforcement and prosecutors — both operatives of the state) have been poking and prodding at the amendments’ weak spots over the years, turning these “rights” into privileges that have to be asserted loudly, unwaveringly and timed correctly. What a joke.

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Comments on “Not Content With Gutting The Fourth Amendment, The Government Continues Its Attack On The Fifth And Sixth”

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77 Comments
Anonymous Coward says:

Re: Re: And this is why...

Exactly. Things are they way they are because the people have let them get that way. Instead of standing up to the government like people in other countries (Egypt, for example), they just keep taking it. They pee and moan but don’t actually DO anything. The American people are wussies. America is not the land of the free because it’s not the home of the brave.

crade (profile) says:

Both remaining silent and requesting a lawyer can be (circumstantial) evidence of guilt in some situations.. Pretending otherwise is just that. It’s certain not rock solid evidence or anything though.

I’m not sure waiting for a “substantive” question is a great idea, since it tells them exactly what question you find substantive (ie: don’t want to answer).

The right to remain silent and the right to an attorney do not include the right to make people pretend they don’t know that you chose to invoke those rights (and when) if that information is relevent.

Anonymous Coward says:

Re: Re:

Both remaining silent and requesting a lawyer can be (circumstantial) evidence of guilt in some situations.. Pretending otherwise is just that. It’s certain not rock solid evidence or anything though.

When it is your right to request a lawyer or remain silent at any step of your arrest or interrogation, then no. It should never be considered evidence in any case.

You can’t have protections afforded by those amendments and not give those protections to all invocations of it. It’s not intelligent, it makes no distinction between invocations you like and invocations you don’t, and it never should. It applies to everyone under that circumstance that wishes to apply it.

The second you start adding “exceptions” then you’ve just turned it into glorified toilet paper. Anyone can find a way to pigeonhole people into those ‘exceptions’ as proven by these court rulings.

Putting holes in your rights only means that you won’t have the right to use them.

Anonymous Coward says:

Re: Re: Re: Re:

It shouldn’t, the evidence should stand as it is. Requesting your lawyer is nothing to be ‘guilty’ over. And you can’t compromise and say “BUT WHAT IF AWFUL PEOPLE INVOKE IT?” because the law, by it’s construction, presumes you are innocent before you are proven guilty. The person invoking it could be Adolf Hitler himself and it shouldn’t change the presumed guilt of the suspect.

Putting holes and exceptions to catch “bad people” is only going to hurt the innocent eventually, maybe even yourself.

crade (profile) says:

Re: Re: Re:

Whether you consider it or not, it is still evidence.
If you ask someone if the kidnap victim is stashed in the
“atick?” “no.”,
“basement?” “No.”
“Storage Locker?” No.
“At your work?” No.
“Your vacation cabin?” “shifty eyes/I Want a lawyer”

You can pretend there is no reason to look in the cabin if you want, but it’s not going to help.

Anonymous Coward says:

Re: Re: Re: Re:

Your straw-hypothetical situation doesn’t account for search warrants, which would have already been used if the suspect is taken into custody.

“But what if pedophiles and kidnappers use it!” doesn’t and shouldn’t change the strength of your right to invoke a lawyer without presumed guilt. Your suggestion that it should suddenly result in more suspicion and guilt because “bad people could use it” is preposterous. And I hope you realize that you only hurt your own rights because you want to “catch bad people who are doing suspicious things”.

I hope you realize that the very people you mock about wanting to censor the internet would love your wishy-washy interpretation that you have taken on.

Bergman (profile) says:

Re: Re: Re:4 Re:

To people who grew up watching Law & Order but failed to learn critical thinking skills in school, claiming rights IS an admission of guilt, or at least of being the bad guy.

After all, only criminals have rights they need to invoke, good people cooperate with the police, and police never ever get it wrong or railroad people. So no one but the guilty would ever need to invoke rights.

And those are the people who, more and more often these days, sit on juries.

Anonymous Coward says:

Re: Re: Re:3 Re:

It doesn’t matter who “uses” it, theres nothing to use.

I don’t understand what you are saying. That is the protection given to request a lawyer at any time during one’s arrest or proceeding. That is ‘something’ to use.

It’s just a simple fact that it is evidence and pretending it isn’t is just denying reality.

Now you’re just trying to push your incorrect statements by pretending they’re ‘right’. No, if you request the assistance of a lawyer, under the stature you are not admitting guilt or incriminating oneself. As it is your right to request legal assistance at any time of the proceeding.

The only time where this was considered a statement is in the court proceedings that we’ve already established are poor court rulings.

You can’t pretend you have these protections while not affording them to people or situations that you don’t like. Otherwise you have no protection.

crade (profile) says:

Re: Re: Re:4 Re:

Sorry, so what I was trying to say is the “who” in my little example wasn’t important to the point, the point was justto show that refusing to answer can be evidence in reality. You could just as easily use an example that your kid refusing to tell you what they have in their hand is evidence that they probably have something they don’t want you to know about.

No one is saying you are admitting guilt, we are just talking about not suppressing the fact that you refused to answer the question when you are trying to find out the truth.

Anonymous Coward says:

Re: Re: Re:5 Re:

The problem is that you’re arguing about reality in the face of a scenario where a person did actually commit the crime and their request for a lawyer at a particular question could indicate that they did it.

Others are arguing that the law means that prosecutors shouldn’t assume (and judges shouldn’t allow prosecutors during the trial to assert) that the particular time during questioning that you request a lawyer is indicative of your guilt.

The law presumes innocence and without real evidence, the request for a lawyer at a key moment of questioning might only be a hint to the police officers to keep digging for real evidence that could actually be used to convict.

The law allows for the entirely-reasonable possibility that someone just gets fatigued through the course of the interrogation and asks for a lawyer after hearing a question that the police officer then thinks is indicative of guilt. Maybe the suspect invokes the right at that moment because that’s when they realize that the cops are trying to pin it on them rather than just asking questions to get more information about the case. Each scenario will be different and the law has to allow for that.

That One Guy (profile) says:

Re: Re: Re:3 Re:

I think the problem here is the difference between ‘evidence’ and ‘admissible evidence’.

If someone being questioned is fine with talking but suddenly demands their lawyer/goes silent on a particular question than I agree that that would be suspicious, but I do not agree that their sudden silence/asking for their lawyer should be able to be used against them.

Anonymous Coward says:

Re: Re: Re:4 Re:

This entire discussion is in the focus of the legal system and the courtroom

If he is sincerely rusing us by playing dumb at the meaning and difference of ‘evidence’ and ‘admissible evidence’. When we clearly mean the latter because the former has no place in the court of law, then we need to stop responding to the troll.

This is far too important of an issue to talk about than to waste our time with someone who wishes to play word games instead of discuss the matter intelligently.

Anonymous Coward says:

Re: Re: Re:3 Re:

Oh so your entire argument thus far has been your pedantic ramblings about ‘evidence’ when you clearly meant ‘admissible evidence’.

Get off the school computers, kid, us adults are talking about the future of a cornerstone of our legal system. We don’t have time to argue with you about the meaning of well-defined words.

If your entire argument was that silence is admissible evidence, then you should already know that is wrong.

crade (profile) says:

Re: Re: Re:4 Re:

Sheesh no need to go all ad. hominem on me, insert some unsubtantiated belittling remark here.
No, I wasn’t saying it is admissible, that depends on the current policy in your country. To some extent I’m playing devil’s advocate but I just don’t know that I agree that it should always be inadmissable/suppressed. It’s relevent information and imo noone overstepped any bounds or did anything untoward to obtain it.

DCX2 says:

Re: Re: Re:5 Re:

Despite staying “within bounds”, it is both a leading question and prejudicial.

I noticed that you didn’t pick up on the “have you stopped beating your wife yet?” That’s a leading question, in that it implies that you have beaten your wife before.

It is also prejudicial, because there are reasonable explanations for why an innocent person may want a lawyer, however it is very easy for the general public – like yourself – to assume that a request to exercise one’s constitutional rights is an admission of guilt.

John Fenderson (profile) says:

Re: Re:

I’m not sure waiting for a “substantive” question is a great idea, since it tells them exactly what question you find substantive (ie: don’t want to answer)

That was my thought as well. I think it’s better to follow the long-held rule of never talking with the police.

The response to any question, no matter how innocuous, should be as the article stated: “I do not wish to answer questions, and I would like to speak to my lawyer.”

crade (profile) says:

Re: Re: Re:

It’s not my personal rule, but I think that would work be better than waiting for something you think might get you in trouble and then suddenly refusing to answer.. I mean even if they aren’t allowed to use it against you officially, it can’t be a good idea to tell them exactly what you don’t want to answer.

Anonymous Coward says:

Re: Re: Re: Re:

I mean even if they aren’t allowed to use it against you officially, it can’t be a good idea to tell them exactly what you don’t want to answer.

If there is any evidence that it is used against you, their entire case falls apart, any smart state prosecutor knows better than to do business with tampered or off-limits evidence.

Dave Xanatos (profile) says:

Re: Re:

Both remaining silent and requesting a lawyer can be (circumstantial) evidence of guilt in some situations.

Or it could be an indication that I don’t understand the law well enough to know how my answers might be interpreted. Or it might mean I don’t trust the questioner, so I want a witness on my side for any answers I give. Or I think they are on a fishing expedition and I want to avoid answering in a way that will give them more circumstantial evidence. Or it might be an emotional moment I need a calm third party perspective. Or I want someone to mediate my answers so I don’t mistakenly give an incorrect answer and then get charged with lying. Or about five hundred other reasons, none of which have anything to do with me being guilty.

A non answer or a request for a lawyer are not evidence. They might increase suspicion, but actual evidence, not just “acting suspicious”, should always be required to convict.

Anonymous Coward says:

And these rights need to be invoked loudly and clearly whenever another member of law enforcement enters the interrogation room, otherwise the newcomer can claim the arrestee never invoked his rights.

That’s a pretty tall order for a stutterer whose vocal capabilities are nigh non-existent when under the level of stress that would accompany such an interrogation.

Ima Fish (profile) says:

This all started when the Right started complaining that criminals were getting off on “technicalities.” Think about that. Such complaints reduced the Constitution to being nothing more than a a mere technically. Not something real, but a collection minor and esoteric points of law that should be fixed.

The government violating the Constitution should never be seen as a trivial matter.

out_of_the_blue says:

And that's why to despise and mistrust lawyers.

They’re all in the same secretive medieval guild, having as unifying purpose gaining money and power by taking those away from The People. Lawyers can reach any needed decision without regard to justice, humanity, or the centuries of tradition in Western civilization as when John Yoo justified torture by the Bush administration.

And beware most of all those who pretend to be on your side: all lawyers are in a confidence racket, their first loyalty is to the guild which controls their future, NOT to any particular client.

shg (profile) says:

Okatan & Invocation of Right to Counsel

This is not to become embroiled in any discussion here, but to correct some of the discussion in the comments that is simply wrong.

In the Okatan case, the reason the 2d Circuit held that his invocation of his right to counsel (pre-arrest, pre-custodial detention) could not be used against him was because he invoked it in response to a substantive question. Had he invoked it in response to a question such as “what’s your name” or “where are you going,” it would have been admissible as evidence against him at trial.

This is not to argue the merit or propriety of the point, but to explain what the decision says. You don’t have to agree with it, but if you prefer not going to prison, it’s worth knowing.

Rapnel (profile) says:

Re: Re: Re:2 Re:

The point is to prevent the tyrannical government from ever gaining a footing. If it gains a footing you can rest assured that there will have been no other amendment that could effectively prevent its ascent.

I will speak and I will shoot. I will remain silent. My “guilt” would be at the mercy of the court and whichever law the DOJ summons that they can get to stick from their seemingly bottomless bag of tricks.

It’s not a little ironic that the department of justice spearheads the charge into the unjust.

There is law, justice and order and, apparently, it is a rare occasion when the three intersect.

1 in 100 Americans are behind bars. And there was law and order.

Speach, arms and silence. Rights are not privileges.

silverscarcat (profile) says:

Re: Re: Re: Re:

As I’ve said before, what has the 2nd Amendment protected lately?

Other countries, such as the U.K., Japan, Germany, France, Italy, have VERY strict gun laws, no 2nd amendment and they don’t have their governments taking away their rights to become a fascist police state any faster than the U.S. is.

Not saying get rid of the guns or the 2nd amendment, I’m just pointing out that it’s not as important as some people make it out.

That One Guy (profile) says:

Re: Re:

Actually there are plenty of reasons for not wanting to talk to police, whether someone is completely innocent or guilty.

Watch the following, it’s decently long(just shy of 50-minutes), but it’s a presentation given by a criminal attorney that explains why even completely innocent people would want to invoke the 5th. Not only that but about halfway through he hands the mike off to a former police officer who basically agrees that everything he said was true.

http://www.youtube.com/watch?v=6wXkI4t7nuc

Ezekial says:

Re: Re: Re:

Youre confusing the 5th amendment with the right to remain silent. They are 2 different things. The 5th amendment only applies when you are asked questions under oath in court. Not talking to a police officer is using your right to remain silent and totally different. In addition you can only invoke the 5th amendment when answering a question in court would cause you to self incriminate.

That One Guy (profile) says:

Re: Re: Re: Re:

Given the right to remain silent is based on the fifth amendment, I’d say they are pretty much interchangeable.

Also someone can invoke the fifth/right to remain silent at any time during questioning, since it’s to protect against self incrimination, and you can’t know for sure what could incriminate you; it’s not just a court case only thing.

nasch (profile) says:

Re: Re: Re: Re:

Since there is no reason to invoke the 5th amendment other than so you can use it to avoid admitting you committed the crime that youre accused of, using it should automatically be taken as an admission of guilt, and Im sure most everyone else would agree

You’re absolutely wrong – the Supreme Court in particular does not agree with you: ‘The Supreme Court has held that “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.”‘

If you think about it for a minute, it doesn’t make any sense for the privilege to be there in order to protect the guilty. Why would the framers set out to craft an amendment with the purpose of helping guilty persons escape punishment? Just like all the other guarantees, it’s there to protect the innocent from government overreach.

The 5th amendment only applies when you are asked questions under oath in court.

“nor shall be compelled in any criminal case to be a witness against himself”

So where are you getting this idea that it only applies under oath in court? Is there some Supreme Court decision that says so?

Not talking to a police officer is using your right to remain silent and totally different.

And what guarantees that right, if not the 5th Amendment?

DCX2 says:

Re: Re:

Not sure if Poe’s Law or serious…

“Lying to a federal agent” is a crime. A pretty serious crime – even if the federal agent knows it’s a lie. They can get you for anything, too. If they ask you a question, chances are they already know the answer – “did you go to McDonalds last Tuesday”, and you say yes, but you actually went to Wendy’s, and they know it – bam, you’re guilty. Title 18, U.S. Code, section 1001

If you are smart, any time an individual in a position of authority starts asking you questions, you would reply with the 5th amendment every time. The only time you might consider safely interact with authorities is when you initiate the interaction.

silverscarcat (profile) says:

Re: Re:

You’re wrong.

Using the 5th Amendment keeps you from CONFESSING to a crime.

There’s a BIG difference between admitting you did something and confessing you did something.

Admitting means, yeah, you did it.

Confessing means you say you did it, whether you did or not.

The 5th Amendment was to protect people from being convicted from false confessions.

John Fenderson (profile) says:

Re: Re:

Since there is no reason to invoke the 5th amendment other than so you can use it to avoid admitting you committed the crime that youre accused of

That’s not really the case. The 5th amendment is used to prevent you from being compelled to make statements that could incriminate yourself. Without it, such statements could be compelled even if you really are innocent. In Ye Olden Times, that was a pretty common prosecutorial tactic, and is why the amendment was considered an important protection.

Cowards Anonymous says:

I always believed that the only way to exercise your right to remain silent was to just remain silent. To say anything at all, even “I don’t want to answer questions”, was by definition not remaining silent and therefore waiving the right.

It’s like giving someone the silent treatment and saying “I’m not talking to you” is breaking the silent treatment because you just said something to them.

?I had the right to remain silent… but I didn’t have the ability.? — Ron White

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