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Wednesday, July 17, 2013

You have the right to be silent – so long as you say so, out loud.

In the recently decided Salinas v. Texas, (No. 12–246. Argued April 17, 2013—Decided June 17, 2013), the U.S. Supreme Court held that a defendant cannot exercise his right be silent by – well, by being silent.*

In order to be silent in a constitutionally protected way, we must give a loud and hearty shout-out to the Fifth Amendment privilege. We must, in fact, say something like “I want to exercise my Fifth Amendment privilege against self-incrimination”. Perhaps the cops on TV should start telling people: “You have a right to tell me you don’t want to tell me anything, but not a right just not to tell me anything.” Except, what would they do with the next line – “Anything you say can be used against you”?

The intellectual gymnastics of modern U.S. courts in gutting the rights of American citizens in criminal cases are truly mind-bending. How is anyone who did not graduate from Harvard or UVA Law supposed to function, let alone the poor and uneducated? And who was the Bill of Rights intended to protect anyway?

This absurdity in the law I will meet with my own. On the back of my business cards is written:


I do not consent to any searches. I do not waive any of my rights. I hereby assert my rights under the U.S. Constitution, Virginia Constitution, and other applicable law, including without limitation: free speech, assembly, freedom from unreasonable or warrantless searches, seizures, detention and arrests, due process, counsel, privilege against self-incrimination, speedy trial, bail, and equal protection. We are not having a voluntary conversation or encounter. I do not want to make any statements. I want an attorney.

I wanted to add “Have a Nice Day!” but my office manager wouldn’t let me. (Probably wise.) There are occasions when it is beneficial to talk to the police – (usually AFTER you have a lawyer, and a written “proffer” agreement signed by the Commonwealth’s Attorney) – but when the poor kid with the 4th grade education and 25 cents in his pocket doesn’t want to answer the officer’s questions on the street corner at midnight, he shouldn’t have to publish a legal treatise in order to “say” so.

*To be fair, there have been other cases with this holding in the past, just based on different factual circumstances. I just can't believe it every time I read it....

Andre Hakes
Criminal Defense Attorney
Tucker Griffin Barnes
Charlottesville, VA
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