Silence Used Against You: Trimming the 5th Amendment

Thought you had a right to remain silent? Read the fine print.

Arguably the second most popular amendment, the 5th Amendment says a person accused of a crime shall not be “compelled in any criminal case to be witness against himself.” The Supreme Court interpreted that in it’s famous Miranda decision to include a right to remain silent, at least when in custody. Further, Miranda says that officers have to advise you of your right to remain silent (among other things) when you are arrested– at least, they have to do that if they are going to interrogate you once you are in custody (whether or not you’ve been formally arrested).

For a long time now, the 5th Amendment (along with Miranda‘s interpretation) has meant a few important things: cops can’t slam your hand in a drawer to try and get you to talk. The prosecutor can’t call you to the stand to tell the jury what happened the night of the alleged offense. Nor can the prosecutor tell the jury: “if he didn’t testify, he must be hiding something.” Nor can the prosecutor tell the jury, “because he didn’t speak with the detective, he must be hiding something.” These are constitutional rights, they are profoundly serious, and your exercise of these rights can not be used against you.

Except when they can, according to the Supreme Court’s recent 5-4 decision in Salinas v. Texas.

In Salinas, the majority decided that pre-custodial (necessarily pre-arrest, pre-Miranda warning) silence can be used against a person, unless the person specifically states that the reason he’s being silent is the 5th Amendment. So, if you are not in custody and don’t want to talk to police for ANY reason, but you don’t have the legal training, the desire, the composure, or the presence of mind to state that the reason is your constitutional right under the 5th Amendment, then be prepared for the prosecutor’s closing argument: “You know this man is guilty. Why? Because police asked him a simple question about what happened, and he clammed up. He must be hiding something. Find him guilty.”

What’s wrong with this? Nevermind all the outstanding reasons for an innocent person not to speak with police: the serious risk of police misinterpreting your words, or you not being able to articulate your innocence to their satisfaction, or the fact that they may have already jumped to a conclusion about your guilt and just need one smidgen of corroboration from you before they arrest. Nevermind all the reasons for a guilty person to not speak with police: the fact that the criminal justice system is rarely 100% fair, and that your words might be misinterpreted or misused by an overzealous prosecutor to overcharge and overpunish you.

The real issue is that the ruling places unrealistic expectations on those speaking with police.  This 5th Amendment right is special, and it should be available to all. But the Salinas decision means that only those clever enough to specifically invoke it will get its benefit. The casual, the over-honest, the people with a story to tell but who are cautious about sharing it with an aggressive police officer, they will suffer by simply refraining to speak. People questioned by police (prior to arrest) are now in an unenviable dilemma: share an innocent story that might sound awfully incriminating, or don’t share it and have the police, the prosecutor, and the jury infer the worst.  Damned if you do, damned if you don’t.   In every sense, this dilemma amounts to being “compelled…in a criminal case.. to be a witness against himself.”

The only way out of the dilemma, the only way to get the protections of the 5th Amendment, is to utter magic words: “I am silent because I am exercising my 5th amendment rights.” Who among us will think and speak so clearly in a time of such fear and stress? Perhaps the career criminals, and the lawyers. Everyone else: you’re on notice.