CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, June 18, 2013

"Do You Have A Right to Remain Silent? Thoughts on the “Sleeper” Criminal Procedure Case of the Term, Salinas v. Texas"

This interesting post is by Orin Kerr at The Volokh Conspiracy. In part:

[I]t’s unclear to me what is supposed to happen when a suspect outside of custody clearly asserts his Fifth Amendment privilege. Recall that under the pre-1965 caselaw, a suspect only has a Fifth Amendment right against self-incrimination when 1) he asserts his right formally and 2) a failure to answer would subject him to punishment under the law. A judge then is called in to rule on the assertion, and the judge either rules that the suspect has to answer the question or not. Salinas deals with part (1); it tells us that the Fifth Amendment privilege in the pre-arrest questioning has to be asserted. But I wonder, why does that even matter given that the second requirement won’t be met? And why does it matter when a judge isn’t going to be called on to review the assertion of the privilege and the suspect isn’t going to be compelled to answer the question?

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