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Greetings!
Welcome to our monthly E-newsletter. We hope that the stories and information you receive here will heighten your interest and awareness in criminal defense law and the issues surrounding the cases we come across.
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U.S. Supreme Court: The Right To Remain Silent Is Not Automatic
On June 17, 2013, in a decision that triggered nationwide outcry from civil rights proponents, a sharply divided U.S. Supreme Court ruled 5-4 that suspects during pre- custodial questioning must expressly invoke their Fifth Amendment right to remain silent in order to actually benefit from it. According to the high court's plurality opinion in Salinas v. Texas, delivered by Justice Samuel Alito and joined by Chief Justice John Roberts and Justice Anthony Kennedy, as well as by Justice Clarence Thomas and Justice Antonin Scalia in a concurring opinion, "petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege against selfincrimination in response to the officer's question. It has long been settled that the privilege 'generally is not selfexecuting' and that a witness who desires its protection 'must claim it." The case involved a 1992 incident where Genovevo Salinas, petitioner, voluntarily accompanied officers to a police station in Houston, Texas, where he freely answered some of a police officer's questions about a murder. He was not under arrest at the time. However, when questioned about whether ballistics testing would match his shotgun to shell casings found at the scene of the crime, Salinas fell silent, and was later arrested. At his murder trial in Texas state court, the prosecution used his failure to answer the officer's question as evidence of guilt, to which Salinas objected. He was ultimately convicted of the crime.
The high court's plurality argued that the Fifth Amendment is not a blanket right to remain silent:
To be sure, petitioner might have declined to answer the officer's question in reliance on his constitutional privilege. But he also might have done so because he was trying to think of a good lie, because he was embarrassed, or because he was protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amendment. Petitioner also suggests that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his "right to remain silent." But the Fifth Amendment guarantees that no one may be "compelled in any criminal case to be a witness against himself," not an unqualified "right to remain silent." In any event, it is settled that forfeiture of the privilege against self-incrimination need not be knowing.
In their dissent, Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, argued that, in fact, the Fifth Amendment "prohibits the prosecution from
commenting on the petitioner's silence in response to police questioning" and that the plurality's conclusion was inconsistent with the Court's case law and its "underlying practical rationale."
"[S]ince 'it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation,' the 'prosecution may not . . . use at trial the fact that he stood mute or claimed his privilege in the face of accusation,' wrote the dissent, citing Miranda v. Arizona, 384 U. S. 436, 468, n. 37 (1966).
"It is consequently not surprising that this Court, more than half a century ago, explained that 'no ritualistic formula is necessary in order to invoke the privilege'," wrote the dissent, citing Quinn v. United States, 349 U. S. 155, 164 (1955), and arguing that the very act of silence during any circumstance of police questioning is in itself an invocation of the already guaranteed Constitutional privilege of it
"Circumstances, not a defendant's statement, tie the defendant's silence to the right. ... It is not any explicit statement but, instead,the defendant's deeds (silence) and circumstances (receipt of the warnings) that tie together silence and constitutional right. Most lower courts have so construed the law, even where the defendant, having received Miranda warnings, answers some questions while remaining silent as to others." (emphasis added)
The dissent maintained that the Fifth Amendment right to silence in protecting one's self from self-incrimination cannot be invalidated by mere failure on the part of citizens to grasp the particulars of legal doctrine which followed long after the Amendment's ratification.
"The plurality says that a suspect must 'expressly invoke the privilege against self-incrimination.' But does it really mean that the suspect must use the exact words 'Fifth Amendment'?
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Funny Laws & Lawsuits
Bang, bang. A water gun fight in the pool on a hot summer day. Often a familiar scene for family life, but for how long?
According to the new Senate Bill 1315, the state of California may now tighten restrictions against the manufacture and sale of any type of imitation firearm: including bb guns, rifles, and toy guns. Any imitation firearm that so much as resembles a gun in shape or coloration is under effect by the law, prone to harsh restrictions and limitations by the county in sale, manufacture, possession, or use.
This bill amends Section 53071.5 of the Government Code by authorizing the county of Los Angeles, or any city therein, to execute the imitation gun law in a more stringent matter.
That being said, I'd cross toy guns off the birthday list and buy water noodles instead.
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Testimonials
"I originally hired a lawyer recommended by my professional organization 200 miles away from my home. After awhile I realized he was not making much progress so I hired a friend from the city in which my case was being tried, Fresno. Mark treated me not only as a friend but a respected client.
Within a short period of time he had contacted the D.A. and the wheels of justice were in motion. For a number of reasons beyond our control, the case took a long time to conclude.
Mark handled the whole situation very professionally and very competently. His legal expertise along with his personal knowledge and experience with the legal system in Fresno made for a win-win situation. I am very glad I hired Mark and would recommend him to anyone who needs a lawyer."
Allen - Criminal Defense Client
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How can an individual who is not a lawyer know that these particular words are legally magic?" the dissent continued.
To a vast number of civil rights proponents, the very act of silence is a rightful exercise of the Fifth Amendment guarantee against self-incrimination, and which the Supreme Court has now relegated to a legal magic spell whose powers can only be effected by some "Abracadabra!" invocation. Many legal experts feel the Supreme Court's ruling is a perilous undoing of one of the most fundamental civil rights afforded criminal defendants in this country for over two hundred years: the right to be free from having one's silence used against them.
The dissent concluded:
The basic problem for the plurality is that an effort to have a simple, clear "explicit statement" rule poses a serious obstacle to those who, like Salinas, seek to assert their basic Fifth Amendment right to remain silent, for they are likely unaware of any such linguistic detail. At the same time, acknowledging that our case law does not require use of specific words ... leaves the plurality without the administrative benefits it might hope to find in requiring that detail.
Far better, in my view, to pose the relevant question directly: Can one fairly infer from an individual's silence and surrounding circumstances an exercise of the Fifth Amendment's privilege? The need for simplicity, the constitutional importance of applying the Fifth Amendment to those who seek its protection, and this Court's case law all suggest that this is the right question to ask here. And the answer to that question in the circumstances of today's case is clearly: yes.
To be clear, it is not difficult to see the dangers inherent in the Supreme Court's decision in Salinas v. Texas. should nonetheless encourage us to always speak up and speak out for our rights. But we must first know our rights. In this regard, you should know that you have an absolute Constitutional right under the Fifth Amendment to have an attorney present during questioning by police officers under any circumstance. You cannot be compelled to answer a police officer's questions. With few exceptions, such as a lawful traffic stop where you must provide identification, registration, and insurance information, you always have the right to respectfully tell police that you will not answer any questions without an attorney present.
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Spotlight:
George Zimmerman Trial and Verdict Analysis: Attorney Mark Broughton Says "Lots of holes" In Prosecution's Case
On Saturday July 13, 2013, in a live televised interview with KSEE-24 News (video here), criminal defense attorney Mark Broughton, of Hammerschmidt Broughton Law Corporation in Fresno, California, presented a legal analysis of the verdict in the George Zimmerman trial, which took place in Florida. A six-woman jury, after deliberating for sixteen hours, found Zimmerman, 29, not guilty of second-degree murder in the shooting death of 17-year-old Trayvon Martin in February 2012. Following is a transcript of Mark's analysis from the interview . . .
On the prosecution's case . . .
"The prosecution had a very tough case. In addition to being able to prove beyond a reasonable doubt all the elements of either of the charges, they had to prove that self-defense did not exist. And on the basis of the facts that they had, that was next to impossible task."
"It was a little confusing to me on how [the prosecution] presented their case, but they had a lot of holes. In order for prosecution to be successful, they have to eliminate all reasonable possibilities in terms of the defense. There were so many holes in that case that they simply weren't able to overcome that burden."
On George Zimmeran not taking the stand . . .
"It was a big strategy move on the behalf of the defense [to not put George Zimmerman on the stand]. But I think in part it was due to how the prosecution presented the case. They presented almost all of the statements that [Zimmerman] made to the various media and the police, and so forth, so that Mr. Zimmerman didn't have to take the stand. So it was a risk on the part of the defense, but in most criminal cases we aren't going to put the defendant on the stand unless we feel that it's appropriate. So obviously it worked out for the defense this time."
On George Zimmerman's self-defense claim . . .
"Self-defense was a huge issue in the case, and I don't think the prosecution dealt with it. In this particular case you had not only the fact that, apparantly, the jury believed that Trayvon Martin came back towards Mr. Zimmerman, but you had the injuries. And when you had injuries like that it's very unusual when we have a self-defense case that you have something like that, and I don't know that the prosecution was able to overcome that it was reasonable for Mr. Zimmerman to have reacted in the way that he did."
On the jury of six women . . .
"It's quite surprising that they had a jury of entirely women, but I've found women in juries to be extremely conscientious and very thorough. And even though many of them, if not all of them, were mothers in this case, I think they were very, very thorough as seen by the number of hours they spent in [deliberations]."
On the media hype surrounding the George Zimmerman trial, and its effect . . .
"I have to admit, when I watched the trial, if we were trying that case without the cameras being present and so forth, it would probably take about maybe two weeks to try that case. But as it was it took quite a bit longer. And I noticed that the objections and the rulings and the sort-of pontificating in court is something that we normally see. So I think when the cameras go on, something happens to all the participants in a trial."
About Mark Broughton . . .
An attorney with 35 years' experience, Mark Broughton is recognized by the attorney rating firm Martindale-Hubbell as an AV rated attorney. The AV rating is established through peer review by attorneys as well as members of the judiciary, and is the highest rating available to any individual attorney. Mark Broughton has furthermore earned a 10.0 rating from Avvo.com , the highly acclaimed online attorney profile directory. Categorized by Avvo as "Superb", the 10.0 rating is the highest possible and most sought after rating to achieve.
Mark was also recently selected to the 2012 Northern California Super Lawyers in Criminal Law. Super Lawyers is a highly regarded resource which provides a listing of exceptional attorneys as an aid to individuals who are seeking legal counsel. Mr. Broughton was among only a select few attorneys from the central valley selected for the "Criminal Defense" practice area.
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About Hammerschmidt Broughton Law Corporation
 The Hammerschmidt Broughton Law Corporation is dedicated to providing the highest level of legal representation to persons accused of crimes in Federal and State courts. We also represent clients in Department of Motor Vehicle driver's license revocation hearings and administrative licensure proceedings. We take on appeals, expungements and other post-conviction matters.
The firm is rated "AV" by Martindale Hubbell, the highest rating awarded to a law firm. The firm is also listed in the Bar Register of Preeminent Lawyers, a distinction reserved for the top five percent of law firms in the United States. The firm focuses on putting the client's needs first by keeping clients up to date on the status of the case, and by returning telephone calls quickly.
Contact Us to discuss your case. The sooner you call for a free consultation, the sooner we can begin working for you.
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Disclaimer: The information you obtain in this newsletter is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
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