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Con: Ruling encourages dangerous, high-pressure questioning

By Jessica Priest
July 7, 2013 at 2:07 a.m.


Anna Rodriguez began distrusting cops after a man without a uniform stopped her and claimed to be in law enforcement but couldn't flash her a badge to back it up.

That is why she is uncomfortable with the idea of prosecutors using pre-arrest silence as evidence of guilt at trial.

"Lawyers are there to help you get out of the problem you're in, and the cops are not," said Rodriguez, 36, of Victoria.

In Victoria defense attorney Brent Dornburg's experience, the reaction by Genovevo Salinas, the subject of the recent Supreme Court ruling, to police questioning is somewhat rare.

"Usually, they are trying to explain their way out of it, whether they are being truthful or not," he said.

He is troubled by the ruling and believes that someday there might be "magic legal words" needed to invoke the Fifth Amendment privilege, not "I don't want to answer any more questions."

While people should try to inform themselves about the law, not everyone will know its nuances, and defense attorneys cannot prepare their clients beforehand.

An extreme example of this - Dornburg once represented a man who admitted to authorities he had sexual relations with a 14-year-old. His client mistakenly thought he did not need to contact a lawyer because the girl consented.

"By the time they come to me, we're already past that point in the game," Dornburg said.

He will likely advise people over the phone at no cost to ask before sitting down with an officer, "Am I free to leave?" because this ruling encourages high-pressure questioning.

High-pressure questioning could result in false confessions, and Texas has already exonerated more than 20 people, said Bobby Mims, the president of the Texas Criminal Defense Lawyers Assocation, which has 3,500 members.

"This is a further erosion of our constitutional rights and an empowerment of law enforcement, which is quite frankly unnecessary," he said.

Connecting silence to guilt is illogical, former Victoria County Court-at-Law Judge Laura A. Weiser said.

"There's just so many other reasons someone could not answer the question. They could be confused about the question; they could be angry they are still being questioned; they could be scared," she said, adding that otherwise justices were correct in their ruling.

"I don't think you get to make that argument unless you have something else," said Weiser, who now works as a judicial resource liaison in Austin.

A videotape of the pre-arrest interview would allow a jury to decide whether an officer was exaggerating about what he witnessed or not, said George Filley, a Victoria defense attorney.

He required it be used as a prosecutor after the technology became available. It offers jurors the "whole picture."

Salinas' interview with Houston police was not videotaped, Filley said.

Pro: Pre-arrest silence a lawful observation that should be presented

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