Skip to content

You have to Talk to remain Silent?

Last week, the Supreme Court made another bizarre and wrong decision, led by the conservative justices. Here’s the summary from SCOTUSblog:

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?



  1. PATRIOTSGT wrote:

    I’ afraid you already spoke and everything you’ve said up to this point is admissible.

    I don’t see how this could have happened, I know in my dealings with criminal investigations when a law enforcement officer presents information obtained in an interview the first question I always ask them is “did you get a signed Miranda form on this?” If the answer is no or I think so, I tell them we can’t use it unless they are 100% positive and have in their possession said form.

    If I were advising the officer during the interview I would have told them when they asked the question that could implicate the (now suspect) to Mirandize them.

    Can anyone say Orwellian…. It makes Tom Tomorrow look even more like Nostradamus.

    Monday, January 6, 2014 at 8:20 am | Permalink
  2. Hassan wrote:

    Does it have to be in English? I have seen rich corrupt people in their testimonies to congress invoking 5th. I guess only rich and educated (and informed of this ruling) people can have all bill of rights, minorities and less informed people are going to suffer.

    Monday, January 6, 2014 at 8:34 am | Permalink
  3. Don wrote:

    Hassan, you are absolutely right. It may also lead to folks who are simply witnesses being reluctant in some cases to answer questions from law enforcement folks, as well.

    Monday, January 6, 2014 at 12:53 pm | Permalink
  4. Iron Knee wrote:

    Hassan, that’s because rich (corrupt) people usually have expensive lawyers sitting by their side telling them what to do.

    Don, you have a good point. Why would anyone talk to the police about anything if crap like this happens?

    And PSgt, you are obviously a good egg (as they say). In this case, they had not arrested him, and so had not read him his Miranda rights. And what makes it even worse, Justices Thomas and Scalia claim Miranda rights should be overturned — that the defendant is responsible for knowing their rights and exercising them (and with this new ruling, must also know HOW to exercise them formally, including the right magic words to use in order to remain silent without it being used against them). It looks, once again, like the only winners here are the lawyers.

    Monday, January 6, 2014 at 1:31 pm | Permalink
  5. Iron Knee wrote:

    BTW, everyone should watch this video entitled “Don’t Talk to Police” —

    What makes it especially interesting is that it is from a law school professor and former criminal defense attorney, along with a police officer.

    Monday, January 6, 2014 at 1:58 pm | Permalink
  6. fodderwing wrote:

    IRON K, I was just going to refer to that video. He is quite convincing, isn’t he? Certainly helped to adjust my view of civic duty.

    Monday, January 6, 2014 at 3:30 pm | Permalink
  7. Michael wrote:

    So, I’m kind of ambivalent on this one. For one thing, it was a voluntary encounter and Salinas was not being detained; he was free to leave at any time. The original Miranda ruling was solely about informing individuals of their rights when they are being detained. Second, the officers used his sudden silence and body language (looking down, shifting feet, etc.) as circumstantial evidence; there was additional evidence and testimony that came to light later. I think there is a reasonable argument to be made that, if Salinas had prevailed, this ruling could significantly restrict police officers’ ability to use discretion to determine reasonable suspicion. (I’m not saying if that’s a good thing. I’m just saying that if this case had been decided differently, the implications would have been significantly more far-reaching.)

    Lastly, note the Alito verdict’s point: “the Fifth Amendment guarantees that no one may be ‘compelled in any criminal case to be a witness against himself,’ not an unqualified ‘right to remain silent.'” The Court history has generally interpreted the right to remain silent as applying to official interrogations and trials. Informal encounters and interviews have not been held to the same level of protection, as individuals’ participation in such conversations are assumed to be voluntary and not compulsory. (I think this assumption completely ignores the power differential involved, but that’s a different discussion…) That’s why I was also going to point out the video you linked to.

    Given the precedent of cases like Berghuis v. Thompkins (which I do think was wrongly decided and is much worse than Salinas), I certainly do not think this outcome is surprising.

    Tuesday, January 7, 2014 at 11:36 am | Permalink
  8. Austin 3:16 wrote:

    Hey Guys,

    Point of view from Australia if anybody is interested. Down here you have the right to silence and generally it’s absolutely when you are being questioned by the police.

    BUT if a private citizen asks a question and gets no response where a denial would have been expected that can be used against a person.

    eg if you ex-wife’s house burns down and a friend of yours asks “you didn’t have anything to do with that did you” well an innocent person might answer “no” or “of course not” etc so if you answered with “I don’t want to talk about it” or similar that may be admissible. If you fail to deny an accusation made against you by an ordinary person there may be an inference drawn from that.

    Further although you have a right of silence when questioned by police selectively answering police questions can be held against you.

    This goes back to the 1964 case of R v Woon.

    In his interview with the police Woon selectively answered questions such as

    (Q) Do you deny breaking into the bank?
    (A) I do not deny it and I do not admit it.
    (Q) Do you deny being in Melbourne that night?
    (A) I will not answer that question.
    (Q) Have you anything to say about the allegations which have been made against you?
    (A) I should not say too much, I am just trying to work out what I should do now.

    He answered a number of question in similar fashion and had lied in questioning about knowing on of the co-accused.

    The trial judge directed the jury that directed the jury that ” Woon was within his rights in saying nothing, and that no adverse inference could properly be drawn from refusals to answer, he added that such answers that Woon chose to give, though not amounting to admissions of any of the facts suggested by the police, might be considered by the jury ‘for the purpose of
    seeing whether they revealed a consciousness on the part of [Woon] that he was guilty of the crime about which he was being questioned.’

    On appeal the court found
    “If the jury had been left under an impression that they were entitled to draw inferences against the applicant from mere refusals to answer, or from statements that amounted only to
    refusals to answer, there would have been serious fault to find with the charge”


    “the judge, taking the jury as he did in detail through the evidence of the interrogations, left them with a question of whether the applicant, by the replies he chose to make disclosed, albeit unwittingly, that he was conscious of having
    been a member of the party that broke into the bank on the relevant occasion”

    Monday, January 27, 2014 at 5:28 pm | Permalink