Patrick Durusau: A Salinas Card

By Patrick Durusau, who consults on semantic integration and edits standards. Durusau is convener of JTC 1 SC 34/WG 3, co-editor of 13250-1 and 13250-5 (Topic Maps Introduction and Reference Model, respectively), and editor of the OpenDocument Format (ODF) standard at OASIS and ISO (ISO/IEC 26300). Originally published at Another Word for It.

Salinas v. Texas

The Scotusblog has this summary of Salinas v. Texas:

When petitioner had not yet been placed in custody or received Miranda warnings, and voluntarily responded to some questions by police about a murder, the prosecution’s use of his silence in response to another question as evidence of his guilty at trial did not violate the Fifth Amendment because petitioner failed to expressly invoke his privilege not to incriminate himself in response to the officer’s question.

A lay translation: If the police ask you questions, before you have been arrested or read your rights, your silence can and will be used against you in court.

I could go on for thousands of words about why Salinas v. Texas was wrongly decided, but that won’t help in an interaction with the police.

I have a simpler and perhaps even effective course of action, the Salinas Card.

My name is: (insert your name).

I invoke my right against self-incrimination and refuse to answer any and all questions, verbal, written or otherwise communicated.

I invoke my right to counsel and cannot afford counsel. I request counsel be appointed and to be present for any questioning, lineups or other identification procedures, and/or any legal proceedings.

I do not consent to any searches of my person, my immediate surroundings or any vehicles or structures that I may own, rent or otherwise occupy.

Date: ___________________________

Police Officer ______________________

Get a local criminal defense attorney to approve the language for your state (some states have more protections than the U.S. Constitution). Print the card up on standard 3″ x 5″ index card stock.

When approached by the police, read your Salinas Card to them, date it and ask for their signature on it. (Keep the original, give them a copy.)

Personally I would keep four (4) or (5) 2-card sets on hand at all times.

PS: This is not legal advice but a suggestion that you get legal advice. Show this post to your local public defender and ask them to approve a Salinas card.

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    1. Patrick Durusau

      True, true, but that doesn’t change the prophylactic effect of having the cards in wide circulation.

      Yes, in any particular case the police may (will) do that but when the same story keeps being repeated in court, time after time, remembering it only matters if they want to use your silence against you, some judges are going to side with the defendants. The more professional police departments will recognize this isn’t a fight they can win.

      Will abuses still occur? Such as BWB (driving while black)? Sure, I never meant to imply otherwise. But, if the system gives you an opening, you had best better take it.

      Process is part of the mentality of the system. Some people cheat at it but not as many as you would think.

      1. Lambert Strether

        There was a fad in Philly for awhile for black male teens to wear white T-shirts — they were all wearing them. My recollection is that asked why, the answer from several was “He fits the description,” meaning of they all “looked alike” (snort) it was in fact harder for the police to identify any one of them.

        In a way, this is the same sort of strategy, except it’s a positive assertion of rights.

  1. Jose L Campos

    Silence being a confession of guilt is the substance of the first scene of the fourth act of Aida.
    The priests accuse, Radames remains silent and the priests sing “traditore” then Amneris and the orchestra break into the most glorious sound of fury and damnation.

  2. Justicia

    Nice try but … an African-American male would be lucky if he got the card out of his pocket without being shot.

    1. Ben Johannson

      Once these cards catch on it will become policy to restrain any individual who refuses to answer questions and reaches into her pocket.

    2. Lambert Strether

      That’s a very good point.

      Fascinating how the functions of one’s humanity are systematically removed: One cannot speak, one cannot even gesture….

      I have to think there’s a workaround, though….

      1. Patrick Durusau

        @Lambert – You could ask them to remove the card from your pocket, but there’s no guarantee they can read. Which is the reason Miranda is read to a suspect. The signing is to get acknowledgement it was read to them.

        Not a panacea by any means and will make the police, shall we say, less cooperative but anything other than helping them is going to do that.

        Be a good citizen. Do help the police when it is crimes in your community. Do not help the police when it is political crimes or U.S. sponsored terrorist propaganda meant to frighten the general public.

    3. Patrick Durusau

      But remember your legal history. The only reason we have Miranda cards is to that the police can say that they read the warnings off of the card so there is no ambiguity of what was said.

      Salinas was (IMHO) in police custody. No danger of being shot. All he has to do is refused to talk to the police and read the card.

      Sudden motions in a road side encounter are never recommended. Ask the officer to take the card out. Then read it to them. In a nice way. Yes, if you are a screaming drunk or simply the target of police harassment, it probably won’t do any good.

      On the other hand, given the current atmosphere, pushing back, even a little, is worth while.

  3. Crazy Horse

    A few pieces of card stock seems like a pretty flimsy means of defense to me. Much better to have Santa deliver a set of Kevlar bulletproof long john underwear, and always carry a Blaster pistol like Hans Solo.

  4. Optimader

    Yaeh yeah yeah, unless you’re stone cold guilty, then blurt it all out before being mirandized so that it’s inadmissible .
    Carry four or five 2card sets!? I must lead a very sheltered exsistence!

    1. The Infamous Oregon Lawhobbit

      Erm….spontaneous admissions before the officer has a chance to Mirandize a suspect are admissible.

      Y’all take your chances with internet legal advice. ;-)

      Oh, and a more accurate lay summary of the decision, for the non-lawyer, would be, “You need to actively invoke your right to remain silent in order to not have your silence used against you.” Sort of a weird-butt “use it or lose it” theory, I guess, understandable only by judges and lawyers who clearly never expect to be in police custody themselves.

      A socio-legal comment on the world at large, I guess – the people who’ll remember the decision and the requirement won’t need it, and the people who need it won’t remember it (or even know about it). I’d have to agree with Lambert on the slow-but-steady removal of humanity from We The Groundlings….

  5. SubjectivObject

    Persistently verbally assert; “I do not understand, officer”
    Forewarn the officer of your intent to get the/a card from your pocket.
    Continue to assert “I do not understand” as the answer to any question.

  6. Lambert Strether

    Can somebody with knowledge of police work please answer:

    Could “Officer, would you please take this card out of my pocket and read it?” (repeat as needed) be construed as aggressive? It seems to be the reverse, because you are inviting the officer into your personal space, but I have had the privilege of very few encounters with the police.

    1. The Infamous Oregon Lawhobbit

      Consent to search? Who knows WHAT the officer will find if he starts pawing around my personal space????

  7. Perry Masonry

    I’m not a lawyer–Perry’s the name, masonry’s the game–but I think I’ve spotted a wormhole in your theorum.

    “I invoke my right against self-incrimination and refuse to answer any and all questions, verbal, written or otherwise communicated.”

    This is what is known as pleading a blanket Fifth…and it won’t work. You have to respond to each and every request for a response with some variant of “I invoke my Fifth Amendment rights against self-incrimination and decline to answer that question.” Try taking a shortcut and it will blow up on you.

    By the way, I also understand that you MUST provide identification or that could be construed as obstructing a police investigation. Since your name and address will likely not be incriminating in and of themselves, they are not covered. Yes I know, there are situations where such information will provide the police with what they need to nail you. At that point, you might assert the Fifth and have your refusal stand up in a righteous court. But for the rest, no, not a good idea.

    The single most important thing to remember when interrogated by any authority: The more you say, the more likely you will say something that can be used against you. Even innocent sounding information can be distorted to get a charge to stick. Say little…think much, but say little.

  8. Patrick Durusau


    Well, that is how you invoke the right to a lawyer in interrogation. You don’t have to keep asking after every question. That’s fairly clear.

    But I do second your advice, best defense is to say as little as possible. But I would also invoke the 4th, 5th and 6th rights just to be sure.


  9. LarryE

    I wrote about Salinas back in June, at which time I said that

    the Court has essentially ruled that prior to an actual arrest, anything you say or don’t say can be used against you unless you specifically and in so many words invoke your rights to silence, rights which you are not expected to know about which is why the cops have to tell you about them if you are arrested.

    I called the decision “the product of diseased minds.”

    Unfortunately, this is also why the cards, while a good idea on their own, would not do much in an actual situation, even if you entertain the fantasy that a cop would actually sign one: They would be obtained only by, and therefore of use only to, people who already know of the need to specifically invoke their right to silence.
    A better use of them (and perhaps this is the real idea and I’m just being dense) would be as a hook to spread the knowledge of the need to invoke your rights.

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