Also known as: silent partner
Written by attorneys — see sources below.
3 senses
A suspect's failure to respond verbally after receiving Miranda warnings during custodial interrogation. The failure alone does not invoke the Fifth Amendment right to remain silent. A clear and unambiguous assertion is required to invoke the right, and answering even one question can establish an implied waiver.
A situation in which Congress has enacted no statute on a subject, permitting executive action that does not usurp another branch's constitutional functions.
A suspect's failure to respond verbally after receiving Miranda warnings during custodial interrogation. The failure alone does not invoke the Fifth Amendment right to remain silent. A clear and unambiguous assertion is required to invoke the right, and answering even one question can establish an implied waiver.
Stella Shapiro was arrested and given Miranda warnings. She stayed quiet when officers asked about the robbery. After several minutes she answered one question about the getaway car. Her answer supplied probable cause for further charges.
A situation in which Congress has enacted no statute on a subject, permitting executive action that does not usurp another branch's constitutional functions.
Sydney Santos challenged an executive order on federal employee discipline. Congress had enacted no statute addressing the subject. The court upheld the order because it did not prevent another branch from performing its functions.
A court record containing no affirmative showing that a defendant understood the rights waived by a guilty plea.
Seth Shapiro pleaded guilty to theft. The transcript contained no questions or statements confirming he understood the rights he waived. The appellate court vacated the plea because the record was silent on the required advisements.
1 common questions
A court record containing no affirmative showing that a defendant understood the rights waived by a guilty plea.
Each sense below has its own examples, sources, and questions.
Skylar Sullivan was taken into custody at the station. Officers questioned her about the fraud scheme without first giving the required warnings. Her later statements were offered at trial. The court excluded them because no warnings preceded the interrogation.
Samuel Soto met with a federal agent who never disclosed the limits of his power. Soto relied on the agent's apparent authority and transferred funds. The later denial of authority came too late to avoid liability.
On the morning of November 26, 1965, agents of the Federal Bureau of Narcotics entered Webster Bivens's apartment in the Bronx. The agents broke open the door, handcuffed Bivens in front of his wife and young children, and thoroughly searched the apartment. They then transported Bivens to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search. Several days later Bivens was released on his own recognizance, and he was never indicted or prosecuted for any offense. Bivens filed suit in the United States District Court for the Eastern District of New York against the six agents in their individual capacities. His complaint sought fifteen thousand dollars in damages from each agent and alleged that the arrest and search were effected without a warrant, that unreasonable force was employed, and that the arrest was made without probable cause. Bivens claimed to have suffered great humiliation, embarrassment, and mental suffering as a result of the agents' conduct. The District Court dismissed the complaint on the ground that it failed to state a cause of action. The United States Court of Appeals for the Second Circuit affirmed the dismissal. The Supreme Court of the United States granted certiorari to review the judgment.
View caseStephen Shaw sought a commission that a statute did not expressly require the Secretary to deliver. The Court held that the legal right vested once the appointment was complete even though the statute said nothing about physical delivery.
In December 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper petitioned the Supreme Court for a rule requiring Secretary of State James Madison to show cause why a writ of mandamus should not issue commanding delivery of their commissions as justices of the peace in the District of Columbia. The applicants had been nominated by outgoing President John Adams. The Senate had advised and consented to the appointments. Commissions in due form were signed by the President with the seal of the United States affixed by the Secretary of State. During the proceedings the Court heard testimony from Department of State clerks Jacob Wagner and Daniel Brent, who described the preparation and handling of the commissions. Wagner recalled that two commissions had been signed but could not confirm whether those of the applicants were recorded. Brent believed Marbury's and Hooe's commissions were made out. Ramsay's was omitted by mistake. None of the Adams-signed commissions for District justices were recorded. Attorney General Levi Lincoln, who had acted as Secretary of State, testified that he had seen signed and sealed commissions but did not know whether any for the applicants were ever sent out. James Marshall's affidavit stated that on March 4, 1801, he received and later returned several commissions from the Secretary of State's office, including those for Hooe and Harper. The applicants also submitted the affidavit of Hazen Kimball confirming that commissions for Marbury and Hooe were in the office on March 3, 1801. Madison did not appear or show cause after the rule was served. The motion for the writ itself was heard in the February 1803 term.
View case2 common questions
No. Silence after warnings does not invoke the right. The suspect must make a clear and unambiguous statement asserting the right. Answering even one question can constitute a valid implied waiver.
Warnings must be given before any custodial interrogation begins. The warnings inform the suspect of the right to remain silent, that statements can be used in court, the right to counsel, and the right to appointed counsel if indigent.
A silent record is constitutionally inadequate. The record must affirmatively show that the plea was voluntary and intelligent and that the defendant understood the rights being waived.
…sought is not for performance of an act expressly enjoined by statute but to deliver a commission where the acts of Congress are silent. That difference does not affect the case. The applicant has a vested legal right which the Executive cannot deprive him of. The act of Congress may not order the Secretary to send it but…