You know that whole “right to remain silent” spiel the police give when they “Mirandize” you or read you your rights? Well it turns out you really don’t have that unequivocal right; you have the right to remain silent sometimes and only when you verbally invoke that right. Yes, in order to remain silent you may have to speak up.
The Supreme Court ruled that a suspect’s silence during pre-arrest questioning can be considered evidence of guilt.
The court was split 5-4 in the decision, with Justice Samuel Alito writing for the majority.
The Fifth Amendment guarantees that no one may be compelled in any criminal case to be a witness against himself; it does not establish an unqualified right to remain silent,” Alito wrote. “Before petitioner could rely on the privilege against self-incrimination, he was required to invoke it,” he added referring to the defendant in the case before the court.
The case in question involved Genovevo Salinas, convicted of shooting two brothers in 1992. During informal questioning and before his arrest, officers engaged Salinas, who answered most of their questions willingly. But, when they asked Salinas if the shotgun shells found at the murder scene would match his weapon, he fell silent. This, the prosecutor said at trial, was evidence of his guilt.
In his appeals, attorneys for Salinas argued that his silence was protected by the Constitution. The Supreme Court felt otherwise.
In their opinion, the Supreme Court justices said Salinas was not protected because he did not “expressly invoke the privilege against self-incrimination in response to the officer’s questions.” In other words, in order to remain silent, you have to not be silent.
In writing for the dissent, Justice Stephen Breyer framed the argument differently.
“The Fifth Amendment prohibits prosecutors from commenting on an individual’s silence where that silence amounts to an effort to avoid becoming a witness against himself…“I would hold that Salinas need not have expressly invoked the Fifth Amendment. The context was that of a criminal investigation. … And it was obvious that the new question sought to ferret out whether Salinas was guilty of murder.”
The High Court’s decision is an interesting one to be sure. However, one issue that cannot be argued is that Salinas did not have to answer their questions at all. Had he been savvy to his rights, he would have asked, “Am I free to leave?” and if the answer was no, demand an attorney be present for questioning.
About David Matson