The average person knows a little about having a “right to remain silent”. Even if you’ve never personally been arrested, you’ve heard that line before on television. But if remaining silent in the face of criminal charges is a right, how could it be used as evidence of our guilt in court? The Supreme Court has recently decided to hear a case where this question is the crux of the matter.
According to Grits for Breakfast, the case, Salinas v. Texas, involves a man who chose to remain silent before his official arrest. He was brought in for questioning; he was free to leave (even if he didn’t realize it), but at one point in the questioning, he decided he didn’t want to speak. Later, at trial, this silence was used against him to prove his guilt.
The state argues that your Miranda rights (those rights the police read to you at the time of arrest) can only be invoked post-arrest. In other words, if you choose to remain silent after you’ve been arrested, they cannot use this silence as evidence of your guilt. However, they argue that pre-arrest silence can be used against you as evidence of your potential guilt.
If the object of due process is to help protect the rights of the people, it would seem that your silence should never be used against you as evidence of your guilt. The Constitution protects us against self-incrimination. This means we can choose to keep our mouths shut without feeling legally compelled to spill our guts. And we shouldn’t be punished for invoking this right at any stage in the arrest or pre-arrest process.
However, not everyone agrees with that. According to a brief filed with SCOTUS by the National Association of Criminal Defense Lawyers (NACDL), “the Fourth, Eighth, and Eleventh Circuits, along with the States of Minnesota, Missouri, and Texas, have held that a defendant’s pre-arrest silence may be commented on by prosecutors and used as evidence of guilt at trial.”
SCOTUS will have the ultimate say.
When you are questioned by police, should you remain silent? While the choices you make as a suspect or witness to a crime are yours alone to determine, you should always act with caution when dealing with police. While you may see answering their questions as “clearing things up”, they could see it entirely differently.
You can always ask, “Am I free to go?” If you are not free to go, you are in effect under arrest and you can invoke your right to remain silent. Also, the moment you are informed of your arrest, you can ask for an attorney.
Availing yourself of your Constitutional rights is not a legal technicality, it is how our system is supposed to work, for the fair treatment of all citizens.
About David Matson