Silence Can be Incriminating

“You have the right to remain silent. Anything you say or do may be used against you in a court of law.” These words typically begin the Miranda warning, a brief list of rights that come from the Fifth and Sixth Amendments to the United States Constitution. The warning is intended to protect the criminally accused against saying something during a police interrogation that might incriminate them. However, the Miranda warning does not apply to suspects who are not in police custody. Consequently, their silence during a noncompulsory police interrogation can be used against them in court should they be later charged and tried for committing a crime.

Case Example

Interrogation of a possible suspect by a detective.Twenty years ago, in Salinas v. Texas, police suspected a Texas man of murder. Police asked the suspect to come to the police station to be photographed and questioned about the murder. He voluntarily complied, and because he was not in police custody and was free to leave anytime, the police did not read him the Miranda warning. The suspect answered the officer’s questions until he was asked whether he thought the shotgun casings found at the murder scene would match the shotgun found at his home. The suspect fell silent, and his body language suggested surprise and anxiety. The police asked additional questions that the suspect answered.

The State later charged the suspect with murder. He did not testify at his trial. To help prove the defendant’s guilt, the prosecutor told the jury about his reaction to the question about the shotgun casings. The prosecutor said that an innocent person would have answered the question. The jury found the defendant guilty, and he is now serving a 20-year prison sen­tence. The man appealed the judgment to the United States Supreme Court, arguing that the State violated his Fifth Amendment right to remain silent by using his silence and body language during the police interrogation as evidence of his guilt.

The Court disagreed, holding that the defendant had the right to remain silent, but not by just being silent. He should have stated the magic words, “I want an attorney” or something to that effect. According to the Court, there is no privilege against self-incrimination by just standing mute during a non-custodial police interrogation. In other words, if you do not want your silence used against you in a court of law, you must speak up and “plead the Fifth.” Better yet, if the police want you to answer questions about a crime in which you may be suspect, you should consult with a criminal defense attorney before talking to the police.

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