Verify, Then Trust

Today's first lesson: if you live in the United States and you are being questioned by a law enforcement officer, and you want to decline to answer a question, be sure to state explicitly that you are exercising your legal right to silence.

Today's second lesson, unrelated but equally important: don't sign a petition or call a public official until you've verified for yourself that you have the facts about the issue at hand.

I tend to be somewhat left-leaning on many political issues, and I get a lot of e-mail from left/progressive/liberal/Democratic/green organizations telling me about their cause du jour. Frequently these e-mails come in the form of a statement that something horrible has happened, accompanied by a plea to contact someone in authority and complain about it. For the most part, I appreciate getting these e-mails, because it lets me know when someone is trying to organize a coordinated outcry about an issue I care about.

But I always double-check the information these organizations are sending me. I'll go and look up the text of the law in question, or the facts about the Supreme Court decision we're talking about. Unfortunately, I have do do this homework on my own, because I've found that I can't trust my so-called allies on the left to give me the straight facts.

The note I got today is one such example. The underlying issue may well be something for folks to be concerned about, and is certainly something that everyone should be aware of, but the e-mail I received about it is misleading, exaggerated, and inappropriate.

In brief, I got a note about the SCOTUS Salinas v. Texas decision that was given in June of 2013. The court decision pertains to a criminal investigation in which a person of interest was being questioned by authorities but had not yet been placed in custody. The individual declined to answer a question about the crime, and later, the prosecutor included this refusal as part of the evidence of the person's guilt. This case made it up to the Supreme Court because the accused's defense claimed that this silence could not be used as evidence against the defendant, as per the Fifth Amendment. The Supreme Court nixed this defense, indicating that it is critical that law enforcement officers must have a clear indication of when a suspect is claiming his Fifth Amendment rights, as opposed to when a suspect is aware of his rights but has not yet chosen to exercise them. Therefore, the defendant's silence was admissible as evidence, since the defendant in this case did not explicitly declare that he was exercising his Fifth Amendment rights.

The e-mail I got, however, doesn't say any of this. The e-mail contains no details of the case, and simply includes language such as the following:

• The Supreme Court Just Eliminated The Fifth Amendment.
• This Supreme Court ruling guts the Fifth Amendment and turns the Constitution into a list of privileges, not rights.
• The Supreme Court just handed down a decision that rewrites the Constitution, claiming we have no Fifth Amendment protection unless we explicitly call for it.

About the only thing missing here is a statement that Justice Roberts has established his own personal army and has seized control of the government. It's a small blessing that the e-mail did include a link to an article explaining exactly what happened, which has very little to do with what the e-mail claims. First of all, the Fifth Amendment, in total, reads as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It should be clear at a glance that this SCOTUS decision applies only to one clause of this amendment. The assertion that the decision "rewrites the Constitution" or "eliminated the Fifth Amendment" is a ridiculous bit of hyperbole.

In fact, it's not at all clear that even the clause "nor shall be compelled in any criminal case to be a witness against himself" has been nullified by this decision. The SCOTUS case was specifically about a defendant who was not in custody and declined to answer a question. The decision seems to have no bearing whatsoever about the testimony (or lack thereof) given during a formal trial.

What we're talking about here are Miranda rights, which are a facet of this clause of the amendment. And while this decision does seem to weaken the protection given by Miranda rights, it's important to note that this is merely a repeat of a similar SCOTUS ruling given back in 2010.

Yes, there is a legal issue here to be concerned about. Yes, this decision raises a legal hazard for any potential defendant who isn't aware of this particular ruling and its implications. But no one has torn up the Constitution or the Bill of Rights, and in fact, the legal precedent here was set three years ago, if not earlier.

I would be happy to get an e-mail informing me that a recent SCOTUS ruling has re-affirmed what seems to be a weakening of my Miranda rights, and suggesting that I talk to my Congresscritters about it. I'm not at all pleased to get an e-mail telling me that the Supreme Court has started burning the founding documents of our democracy.