Supreme Court Says All Silence Is Not Golden

Dividing along traditional conservative liberal lines in a 5 to 4 decision the United States Supreme Court today ruled that silence can be used against you even before you are advised of your Miranda rights.

The ruling dealt with a 1992 murder conviction for Genovevo Salinas. Salinas had gone to the police station voluntarily and answered some questions without being informed of his Miranda rights. But he refused to answer when he was asked whether a shotgun he had access to could be the murder weapon. He was not in custody at the time

Prosecutors used that silence as evidence of his guilt and he appealed claiming his Fifth Amendment right to stay silent should have Lawyers from using his silence against them in court.

The Texas courts disagreed ruling that pre-Miranda silence is not protected. The majority in this case upheld that decision while four justices dissented.

Writing for the majority justice Alito stated that Salinas’s Fifth Amendment claim failed because he did not expressly invoke the privilege against self-incrimination and that the privilege is generally not self executing but must be claimed.

Writing in dissent justice Breyer stated “in my view the Fifth Amendment here prohibits the prosecution from commenting on the petitioner’s silence in response to police questioning”

I must confess that I find it difficult to follow the logic of the majority. The Miranda case and its progeny clearly state that you not only have the right to remain silent but the right to be informed of your right to remain silent.

It is true that pass courts have ruled if you blurt out statements before being advised of your rights those statements can be used against you but I do not see the logic of using the silence against you.

Indeed it would seem to me that when Salinas refused to answer questions he was by implication invoking his Fifth Amendment rights. To claim that he must utter some magical words or phrases in order to obtain his constitutional rights is beyond pedantic

It is interesting that while Justice Scalia dissented last week and a Fourth Amendment case that had Justice Breyer in the majority this week the roles are reversed


Posted on June 17, 2013, in 5th Amendment, Constitution, Patrick and tagged , , . Bookmark the permalink. Leave a comment.

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