Fifth Amendment

Man Convicted of Manslaughter for Not Expressing Concern About Crash Victims


Next step is to claim that drug-sniffing dogs can also detect guilt.
Credit: CJS*64 / photo on flickr

Last summer, the Supreme Court ruled 5-4 that citizens don't have a natural right to remain silent to avoid self-incrimination before they're arrested and read their Miranda rights, unless they invoke such a right. That is to say, if you are questioned by police and you haven't been arrested, what you don't say can be used against you in a court of law, unless you have the good sense to invoke your Fifth Amendment right to not incriminate yourself directly, out loud.

It was a terrible ruling, and we're seeing the consequences now in a case in the Bay Area in California. Richard Tom, speeding and possibly drunk, got into a car crash that killed a little girl in 2007. He was convicted of manslaughter, and during the trial, prosecutors used his failure to ask about the condition of the victims as evidence of his guilt. This was before he was arrested and read his rights. His conviction was challenged, but California's Supreme Court is upholding the verdict, 4-3, partly on the basis of the Salinas v. Texas case from last year. As such, because Tom failed to invoke his Fifth Amendment rights, "The prosecution may … use a defendant's prearrest silence in response to an officer's question as substantive evidence of guilt, provided the defendant has not expressly invoked the decision," the court wrote.

Maybe "Don't talk to the police" isn't enough training anymore. We may have to say "Don't talk to the police except for invoking your Fifth Amendment right not to incriminate yourself" as the new libertarian thing.

Read the court ruling here (pdf).

(Hat tip to Reason contributor Steven Greenhut)

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  1. As I said in the thread about this earlier, now that you must speak to invoke your right to remain silent, remaining silent is essentially impossible.

  2. What about the rest of my natural rights? Must I specifically invoke each one in order to enjoy them? Must I walk around all day conjuring up my rights via uttering spells in order for them to exist? How long do they last? How long before I have to re-conjure them?

    1. Most Civil Rights have 60-120 duration but unless you were wise enough in your class selection your mana will not regenerate fast enough to keep them active at all times. I blame the developers for a shoddy product.

      1. This actually makes sense if by mana you mean moolah and your mercenaries are lawyers.

    2. Must I walk around all day conjuring up my rights via uttering spells in order for them to exist?

      Welcome to a civil law country. And even then, the state gets a saving throw vs. spell.

  3. Only a criminal wouldn’t want to self-incriminate! GUILTY.

  4. Can some snarky politician please introduce a bill to rename the Bill of Rights as the Bill of Privileges?

    The Freeing You From Worry act or something.

  5. L’?tranger en Am?rique.

  6. Does saying “5A, bitch!” as your initial opening line to the cop count?

  7. After being pulled over for speeding:

    “I may or may not respond to questions, inquiries, or statements of fact. If I do not respond, it is because I invoke my Fifth Amendment right to remain silent. Any statement, utterance, or noise that I may make after remaining silent for any period of time does not revoke my invocation of my Fifth Amendment rights. I hereby declare that my lack of response, whether in writing, orally, or via gesture or other bodily movement, is done under my Fifth Amendment right to remain silent. Please initial here, here, and here, and sign here, to affirm that I have invoked my Constitutional rights. Here is your copy of the form, and if you could initial here and sign here on my receipt for this copy, I will initial and sign the confirmation that you have given me a receipt.

    Thank you, officer. Pursuant to my assertion of Fifth Amendment rights, I am now giving you my license and registration, which production of documents is not a waiver of my Fifth Amendment rights, should I choose to exercise them.”

    1. Let’s start getting these printed out. Just hand it over on top of your drivers license and insurance card.

      1. You’d better memorize it? what if the officer prevents you from pulling out the card to recite it???

  8. See dude that is ewhat I am talking about. WOw.

  9. Is convicting someone of manslaughter for killing someone by going 67 mph in a 35 mph zone really that much of a stretch, regardless of what they said or didn’t say?

    1. *Is convicting someone of manslaughter for killing someone by going 67 mph in a 35 mph zone really that much of a stretch, regardless of what they said or didn’t say?*

      For a website called “Reason” they sure employ a lot of hyperbole, emotion and general dunderheadedness in formulating their headlines.

    2. No, but this is how bad precedent gets made. And that’s what the article is about: the bad precedent, not the factual details of the case.

      Now that the idea that your 5A rights don’t exist until you conjure them by uttering the right incantation is well established, you can look forward this being abused in cases you do care about.

  10. Then of course there must be carve-outs made for mutes, deaf mutes, those who have had tongue or esophageal surgery, those who speak only Navaho… These judges are retarded, for lack of a better word.

  11. The more I think about this the madder I am getting.

    Previously, if you were arrested and questioned but were not given your miranda warning, then things you said could not be used in prosecuting you. Now, your right not to incriminate yourself does not exist unless you invoke it before your arrest. What if the cops do not give you a miranda warning when arresting you? In the same fashion, the right is not invoked and thus does not exist. Have the Nazgul killed miranda warnings with Salinas?

  12. Shouldn’t even have reached the 5th Amendment issue.

  13. Very clever to use a generally deplorable act (causing a death with your vehicle because of impairment) in order to set another right-raping precedent. Very clever indeed. Hence idiots on this comment section focusing on the crime instead of the right we all just lost.

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