Watch any crime show drama on television, and you’ll at some point hear an arrestee being formed of his right to remain silent.
Our Birmingham drug crime defense lawyers want you to know this is a fundamental right afforded to any person who is accused of any crime. You have the the right, under the Fifth Amendment, not to make a statement that could result in self-incrimination.
The recent U.S. Supreme Court ruling in Salinas v. Texas doesn’t strip you of that right. However, what it does is require that you be more explicit when expressing that your silence is an exercise of your Fifth Amendment Rights. In other words, you must speak up about why you are remaining silent, or remain silent at your own peril.
This is true not just when a person is being formally questioned following an arrest. The same can be applied when a person is just casually being questioned.
We believe this is a terrible ruling, and we’re going to see an influx of criminal cases in which prosecutors will be attempting to use any lapse during an interrogation, any lull in the discussion, as some evidence of guilt.
The other side effect we fear is that by stripping a person of the right to remain silent, we welcome the kind of high-pressure interrogation tactics that inevitably result in false confessions.
Here’s what happened in this case: Two brothers were shot and killed at their home in Texas. There were no witnesses, but police found shotgun shell casings at the scene. The investigation led to the defendant, who was subsequently questioned by investigators. He cooperated and answered their questions – until they asked whether the shotgun shell casings found at the scene would match ballistics tests on his own gun. At that point, he reportedly became very uncomfortable, tensed up, bit his lip and looked down at his feet. He said nothing.
Later at trial, prosecutors brought up his reaction to this question. Now bear in mind, the Supreme Court had previously ruled that prosecutors can’t introduce a defendant’s refusal to answer a question as evidence of guilt. But this time, the justices did an about-face on the issue. Justice Antonin Scalia ruled that the defendant could leave if he so chose, as he wasn’t under arrest, and he failed to assert that he was expressing his Fifth Amendment right..
He was silent. He didn’t have a lawyer with him during questioning, but he was somehow supposed to know that he needed to invoke this right to silence. (Two other justices who signed on to the majority opinion believe a person have no rights at all prior to arrest, and in fact fundamentally disagree with the concept of Miranda rights altogether.)
Indeed, this ruling is troubling. It all the more drives home the point that if law enforcement asks to question you for any reason in connection with a criminal case, you must refrain until you can have a lawyer present at your side. When prosecutors can use even your silence against you in court, you can’t take your chances by trying to tackle this on your own.