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 guilt 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.
He did not assert his right to remain silent, but instead was just silent. In the majority opinion, Justice Alito claims that in order to be protected by the fifth amendment, you have to affirmatively “invoke” the right to not answer questions. Yup, in order to remain silent, you have to formally say that you are invoking your fifth amendment right. And this is true even if you haven’t been read the Miranda warnings.
What’s next? In order to have free speech, I have to formally announce that I am exercising my first amendment rights? Do churches have to formally invoke their religious rights before they can exercise them? If I want to own a gun, I have to formally invoke the right to bear arms? If I want to be secure against unreasonable searches and seizures, I have to formally invoke that right (even when the government is doing the searches without my knowledge)?
Silly me. I thought that rights were things that I am born with and which always apply to me, not things I have to request or announce. I must have been confused when I thought the bill of rights was not a list of nice things that the government gives to me if I ask for them, but are meant to protect me against the abuse of power by the government.
This is another example of how we are losing our right to privacy. Imagine the police are questioning you about a crime and they ask you where you were on a certain date. If you refuse to answer, can this be used against you as evidence of your guilt? Maybe you didn’t want to answer because you were cheating on your girlfriend. Or you called in sick to work but were really playing golf. Those things are not illegal, but they can get you into serious trouble. Or maybe you haven’t done anything wrong at all, but you are afraid to answer the question because the real guilty party has threatened you if you talk to the police.
In this case, the defendant’s silence was used against him in a court of law. And the Supreme Court said that was ok. What good is a right if it is used against you if you exercise it? Is it even a right anymore?
Well, just to be on the safe side, I am hereby formally announcing that I am exercising my first amendment rights to free speech and freedom of press in creating this blog. There. Am I safe now?