June 18, 2013
In order to invoke your right to remain silent, you must speak. Silence in and of itself is, evidently, not evidence of your intention to invoke protections provided by the Constitution’s 5th Amendment Rights and/or the Miranda Rights. I can understand the prosecutor’s claim that because he was not under arrest and was answering some questions and remained silent on some others, his silent could be use as evidence of his guilt. But, I think that is splitting hairs. The spirit of the law is to prevent a person who is not well versed on the laws to not say something, without the presence of his attorney, that might be self-incriminating.
The Supreme Court says prosecutors can use a person’s silence against them if it comes before he’s told of his right to remain silent.
The 5-4 ruling comes in the case of Genovevo Salinas, who was convicted of a 1992 murder. During police questioning, and before he was arrested or read his Miranda rights, Salinas answered some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon.
Prosecutors in Texas used his silence on that question in convicting him of murder, saying it helped demonstrate his guilt. Salinas appealed, saying his Fifth Amendment rights to stay silent should have kept lawyers from using his silence against him in court. Texas courts disagreed, saying pre-Miranda silence is not protected by the Constitution.
The high court upheld that decision.