The U.S. Supreme Court recently ruled that a murder suspect’s silence when asked a question by a police officer could be used against him in his trial.
The accused was not in custody and had not received his Miranda warnings when he had voluntarily answered a police officer’s questions regarding a murder. However, when the officer asked the accused whether his shotgun could be traced to the murder through ballistics testing, the accused remained silent and did not answer the question in any manner. He did not nod, he did not imply any agreement. He simply remained silent.
Isn’t that what you are allowed to do? They can’t use silence against you as admission of guilt.
Wrong, says the U.S. Supreme Court. The Court held that the accused’s 5th Amendment right against self-incrimination did not apply to this situation because the accused did not “expressly invoke the privilege in response to the officer’s question.” Salinas v. Texas.
The Court reasoned that in order to enjoy the benefits of the 5th Amendment, you must expressly claim it. So that nonsense about having the right to remain silence is, in fact, nonsense. If you do not want to speak to police you need to let them know that you do not want to speak with them.
Using his silence to the question about ballistics as an admission of guilt, the jury convicted the accused of murder. However, the U.S. Supreme Court was little help to the convicted murdered as they maintained that his failure to “claim” his right to remain silence, in essence, waived any protections he might have enjoyed.
The Constitution plainly states that no person “shall be compelled in any criminal case to be a witness against himself.” However, courts are narrowly tailoring that definition to the detriment of the accused. From a policy standpoint, courts understand how important confessions, statements, and in this case - a silent reaction - are in prosecuting dangerous offenders.
The Constitution makes no mention about the level of 5th Amendment protection you receive depending on the crime that are charged with. You don’t get less protection simply because you are charged with murder, as opposed to a petit theft.
Nevertheless, that sometimes feels like the case. It seems that as long as serious crimes are being investigated, the rights of the accused become less and less important.
If the police want to speak with you, let it be known without any ambiguity that you are invoking your rights and are not going to provide a statement.
Until the courts do away with the 5th Amendment entirely, that seems to be the best way to preserve your constitutional protections.