What you say (and don't say) can be used against you in Court.

We have all heard the suspect in cop movies being told that "any thing you say will be used against you in court". This information that the police tell suspects comes from the landmark case of Miranda. These warnings are referred to as "Miranda warnings" and include the right to an attorney as well as your constitutional protections under the 5th amendment.

Nearly all of us have heard of Miranda but have you heard of Salinas v. Texas?? Salinas is a very recent case heard in the United States Supreme Court and vastly undermines your right against self incrimination.  The focus point of the Salinas case is  - If you choose to not talk to the police, can your silence be used against you?

In short, Salinas was asked by the police to come down to the police station to answer some questions about a murder. Salinas goes down to the station and answers a few  non accusatory questions. Then when the cops ask Salinas if his gun would match the gun in the murder. Salinas didn't answer, just hung his head and did not answer any further accusatory questions.

The case ultimately goes to trial and the prosectors and cops focus on Salinas silence when asked the accusatory questions. The prosecutor tells the jury that innocent people don't act like that. Salinas's defense objects adamantly to Salinas silence being admitted into the trial. The evidence was admitted into the trial and Salias was ultimately found guilty.

The United States Supreme Court found that since Salinas didn't expressly inform the cops of his invoking his 5th amendment rights then the silence was admissible.  What does this mean for the lay citizen? A person being questioned by the police must invoke their constitutional rights if they are not going to answer any questions. This means that saying "i don't want to talk to you (police)" may not be enough. You should affirmatively state that you are invoking your constitutional rights.

Remember though, that Salinas voluntarily went to the police station for questioning. The case would probably have been much different if Salinas was already under arrest and then remained silence. There could be a multitude of situations where Salinas's silence would have been inadmissible.

Why do I feel that this case is such an injustice? I see the silence as possibly hiding the guilty of a crime. However, there is also other possibilities that silence could represent. Salinas could not have understood the question or he could have simply been remaining silent to cover for the true killer whom he knows. Neither of which makes Salinas guilty of murder.  I have put together a form to give to police to assert constitutional rights. If you would like a copy of my form feel free to email me and I will get that to you.

Questions and Comments are encouraged...

Filming the Police

On May 15, 2010 Chris Sharp recorded the Baltimore Police Dept. forcibly arresting his friend.  BPD seized Mr. Sharp's cell phone and immediately deleted the recording. Come to find out, BPD was actually following their own department policy to seize and delete recordings by citizens of their police in action. Mr. Sharp filed a  federal lawsuit which prompted the the United States Justice Department to issue a formal letter stating their opinion on the citizenry filming the police. 

Below are excerpts  from the DOJ letter to the BPD. If you or a loved one have been seized or have had a camera or other property seized by law enforcement after filming the police contact our office at 865.774.5515

DOJ - Dept of Civil Rights Division - May 14, 2012

Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.2 See, e.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)

First Amendment principles” and federal case law “unambiguously” establish that private individuals possess “a constitutionally protected right to videotape police carrying out their duties.”); Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) 

The right to “[g]ather[] information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’” Glik, 655 F.3d at 82 (citing Mills v. Alabama, 384 U.S. 214, 218 (1966)).

Courts have also extended First Amendment protection to recordings taken on private property, including an individual filming police activity from his or her home or other private property where an individual has a right to be present. See Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007)

Because recording police officers in the public discharge of their duties is protected by the First Amendment, policies should prohibit interference with recording of police activities except in narrowly circumscribed situations. More particularly, policies should instruct officers that, except under limited circumstances, officers must not search or seize a camera or recording device without a warrant. In addition, policies should prohibit more subtle actions that may nonetheless infringe upon individuals’ First Amendment rights. Officers should be advised not to threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or recording devices.  

A person may record public police activity unless the person engages in actions that jeopardize the safety of the officer, the suspect, or others in the vicinity, violate the law, or incite others to violate the law. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942)

See, e.g., Duran v. City of Douglas, Arizona, 904 F.2d 1372, 1377-78 (9th Cir. 1990) (individual who was “making obscene gestures” and “yell[ed] profanities” at an officer engaged in conduct that “fell squarely within the protective umbrella of the First Amendment and any action to punish or deter such speech—such as stopping or hassling the speaker—is categorically prohibited by the Constitution.”).