Articles Tagged with “Fifth Amendment”

Today marks the 109th anniversary of the devastating Supreme Court case of Twining v. New Jersey[1]. Twining[2] was a landmark case which established a clear path of incorporating Constitutional rights against the state via the 14th amendment, while simultaneously rejecting the incorporation of the 5th amendment right against self-incrimination.

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The Case[3]

The case behind this landmark decision was sadly all to common in this era of criminal justice. Mr. Albert C. Twining and Mr. David C. Cornell bank directors of the Monmouth Trust & Safe Deposit Company were both indicted on charges of bank fraud. At trial both men chose to not take the stand at trial. At that time in New Jersey the law allowed for a jury instruction which allowed the jury to make an adverse inference form a defendant choosing not to testify at trial[4]. This effectively meant that juries were instructed to find guilt from a defendant exercising their 5th amendment right against self-incrimination. New Jersey was one of the few states that didn’t have a state constitution that allowed for the right against self-incrimination. Both men were found guilty and both men appealed arguing their 5th amendment right against self-incrimination had been violated by the New Jersey law.

In the history of Supreme Court jurisprudence, there is perhaps no greater rights that has been drilled into the minds of the public than those of the “Miranda Warning”. From movies to television shows, Law and Order to CSI, no phrase is more ubiquitous in cop dramas than the warnings enshrined in Miranda. However, these warnings, in their ubiquity are not fully understood by the American public. Such ignorance; the very reason why the Supreme Court enshrined these rights[1], has proven the warnings ineffective at actually informing suspects of what their rights actually mean.

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What is a Miranda Warning

The Miranda warning developed from the 1966 case of Miranda v. Arizona[2]. In this landmark decision the Supreme Court consolidated four cases of individuals who, during police interrogations, where not specifically informed of either their fifth amendment right to remain silent[3], their sixth amendment right to counsel[4], or both of these rights. All four cases also involved suspects who sat through between two and fourteen hours of police interrogations before they confessed.

Today marks the 12th anniversary of the decision in Gonzales v. Raich, a decision whose repercussions still resonate across the legal marijuana market. Following precedent, the Supreme Court held that the Commerce Clause[1] of the Constitution allowed for the federal government to criminalize the private cultivation of marijuana, even if that cultivation was in compliance with state law.

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The Case

The facts of the case demonstrate federalism at work. In 1996, California ratified proposition 215 otherwise known as “The Compassionate Use act of 1996”. This act legalized the use, sale and cultivation of medical marijuana with a recommendation from a doctor. California had become the third state to legalize medical marijuana, and the first to legalize it via referendum.

The protections enshrined in the ubiquitous words of the Miranda rights are meant to protect your right against self-incrimination. However, these rights are not self-executing, and require affirmative invocation in order to be effective. The need for invocation is particularly important regarding the right to remain silent.

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In order to invoke your right to silence, you must affirmatively invoke that right[1]. Following the decision of Berghuis v. Thompkins[2] The Supreme Court in a 5-4 judgment has held that to invoke your right to remain silent, you must affirmatively invoke that right. If you fail to affirmatively invoke your right to silence but remain silent, that silence may be used against you to show that you had knowledge of your right to remain silent.

Today marks the 48th anniversary of the decision in Leary v. United States, and often forgotten Supreme Court case from 1969 that effectively legalized marijuana on the federal level with the declaration that the 1937 Marijuana Tax Act violated the fifth amendment of the United States Constitution.

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The Case[1]

The facts behind the case are interesting to say the least. On December 20th 1965 Doctor Timothy Leary; a famous professor, psychologist, and political activist, left on a road trip from New York to the state of Yucatan in Mexico with his two adult children, and two others.

iStock_000006052358XSmall.jpgThe right to remain silent is a hot topic of Constitutional rights. In a brief nutshell, this is how the right to remain silent works. A defendant’s silence cannot be used in Court to show his or her guilt. When a defendant can invoke this right, however, is a little bit of a tricky concept. First and foremost, the defendant has to be under arrest to invoke his right to remain silent. If a police officer arrests a suspect, the officer must read the suspect his Miranda rights, which includes the right to remain silent. There are other areas where silence receives different Constitutional treatment, such as the right to remain silent and not testify during trial. A criminal defendant’s silence is usually protected by the Constitution and not allowed to be used by the prosecution to prove guilt.

However, a recent Supreme Court decision has created new limits and rules on the right to silence. This decision is based on a recent Texas criminal case involving Genovevo Salinas. The defendant in this case was at a party that got out of hand. Shots were fired at the party and two men were killed as a result. The police found Salinas at the party and brought him in for questioning. Salinas had a shotgun that he turned over to the police and he began answering their questions. He was being cooperative until the police asked him why the shotgun shells that were found at the crime scene matched Salinas’s shotgun. Salinas did not answer this question and instead remained silent. At this point, Salinas was not under a formal arrest and was not given his Miranda warnings as a result.

Salinas was eventually charged with murder. During his trial, the prosecution aggressively used his silence about the shotgun during closing arguments. Salinas was convicted and appealed his case. His case eventually made it to the Supreme Court. When it reached the Supreme Court Justices, the main issue was whether the defendant’s silence could be used during the closing argument. The Court held, in a 5-4 decision, that the silence was usable because it was pre-Miranda silence. The Texas Court of Criminal Appeals explained that “pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment right against self-incrimination, and that prosecutors may comment on such silence regardless of whether a defendant testifies.” Justice Samuel Alito further explained “Salinas’ Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question. It has long been settled that the privilege ‘generally is not self-executing’ and that a witness who desires its protection must claim it.” So if you remain silent before you get arrested, that silence can be used to show your guilt unless you CLAIM your right to remain silent.