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The Erosion of the Fifth

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  • The Erosion of the Fifth

    The ever changing history of the Bill of Rights.
















    Written by: Andy Carney




    Today, I'm continuing exploration into the erosion of our 5th Amendment rights.

    You have the right to remain silent. Right?

    Back in the day, that was the case. Today, not so much thanks to two Supreme Court decisions in the last 5 years. Those decisions make remaining completely silent a potentially bad choice. Let's start with the older of the two erosions…

    In 2000, Van Thompkins was considered a suspect in a fatal shooting. Throughout his initial interrogation, Thompkins remained completely silent. The police described the 3 hour interrogation as "nearly a monologue".

    In a follow up session, the police asked him three questions:
    Did he believe in God?
    Did he pray?
    Did he pray to God for forgiveness for shooting the victim?

    Thompkins answered "Yes." to each of those questions. Dummy.

    The police took these statements to be incriminating, made the arrest and Thompkins made a motion to suppress based on the fact that he had not waived his 5th Amendment protections. His motion was denied by the presiding judge and he was subsequently convicted and sentenced to life in our already overcrowded prisons.

    As I mentioned before, this wound up in front of the Supreme Court, who were not helpful to Mr. Thompkins' case, holding that the police questioning was not coercive.

    Writing for the majority, Justice Kennedy affirmed the courts position that Thompkins' silence during questioning was not an invocation of his Miranda rights and that he knowingly and without coercion made a statement to the police.

    Fast forward to 2013 to Salinas v. Texas. If the Thomkins case was cause for concern, this decision is downright scary. Essentially, the court states an individual can remain silent at their own peril.

    Here's the detail - Two brothers were shot at their home in 1992, no witnesses, only a few shell casings. Among others, Genovevo Salinas was at a party at the house the prior night. As the police started interviewing all the party goers, they eventually got to Salinas. They talked for an hour, never formally arresting him or Mirandizing him. Salinas eventually agreed to give the police his shotgun for ballistic testing.

    When the police asked Salinas if the shells would trace back to being fired from his shotgun, Salinas stopped talking and (as the police characterized) began shuffling his feet and avoiding eye contact with the police.

    The police let Salinas go, he skipped town, and was eventually caught. In the meantime, the police had found a witness who claimed Salinas admitted to the shootings.

    Salinas didn't testify at his trial, but the prosecution brought up his reaction to the questions about the shotgun, characterizing it as "suspicious". Upon conviction, Salinas appealed, his appeal eventually making its way to the Supreme Court.

    Justice Alito, joined by Chief Justice Roberts and Justice Kennedy concluded that the Fifth Amendment’s privilege against self-incrimination does not extend to defendants who simply decide to remain mute during questioning. The court also held that the 5th Amendment does NOT establish a complete right to remain silent.

    Justice Breyer, writing the dissent, noted that Salinas' silence was certainly enough to claim 5th Amendment protection and that the majority decision was problematic to defendants who were not well enough versed to clearly and specifically state their intent to remain silent.

    Shhhh…. Listen carefully. That is the sound of your rights being slowly and methodically eroded.

    Do me a favor. Tell everyone you know about this. If that's the game that they want to play, play it. Make sure everyone you know understands that they can simply state - "I want to remain silent. I would like a lawyer. Am I being detained? I want to leave."

    If you want more, there's plenty of other case law to research if that's your thing. Perhaps start with Hiibel v. Sixth Judicial District Court of Nevada, US v. Sullivan and Garner v. US to see how the 5th Amendment has been dismantled.

    In the future, expect to see rulings against privacy protections such as computer passwords as there are currently some outstanding cases in the lower courts. For this, try Boucher (2009), 11th circuit (2012) and the Wisconsin District Court Magistrate (April, 2013) cases.

    • usmcveteran
      #2
      usmcveteran commented
      Editing a comment
      I think the people in these cases were more idiots then getting screwed necessarily by the system .

    • prambo
      #3
      prambo commented
      Editing a comment
      MHO - YMMV - Nice writeup!!

      Regardlessm of the stupidity of the people, the Supreme Court is wrong and, therefore you can remain silent. Any unconstitutional "law", or SCROTUM decision IMHO, is NOT law. The BOR is inviolate, period, end of story. No part of "the government", which includes SCROTUM, who operate at our behest, may modify the rights delineated therein.

      It is a list of what .GOV can NOT touch, not what .GOV "gives" us, thus they can't modify anything. This is my opinion obviously, and it is a very strict, hard-ass, in .GOV's face way of viewing things.

      You're correct - I don't like SCROTUM and, as with many things .GOV wants to do - I will not comply with very little of .GOV's BS.

    • 24Pink14Stink
      #4
      24Pink14Stink commented
      Editing a comment
      It's interesting to see just how many SCOTUS decisions were driven by the dregs of society. Miranda, Heien, Salinas, Thompkins, the list is long. When it comes right down to it, it's good to see anyone's rights being preserved.

      You'll also note convictions were likely even without the evidence in some cases.
    Posting comments is disabled.

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