If you are scratching your head right now wondering how this headline can be true, you are not alone. Almost every show on television shows police officers informing those being arrested of even the most heinous acts that they have the right to remain silent. For once, Hollywood gets it right. Those being arrested do have rights, called Miranda Rights because they originated from Miranda v Arizona ((1966) 384 U.S. 436) as an interpretation of the 5th amendment. And yes, such individuals have the right to remain silent. What’s more, the Miranda bill guaranteed those being arrested several other rights that include:
●Knowledge that their words/actions may be used against them in a court of law.
●The right to an attorney.
●The right to have their attorney present during any questioning. ●That an attorney will be provided for them by the state if they cannot afford one.
●If they do answer any questions or offer information to the police during their arrest, they have the right to stop doing so whenever they choose.
BUT THIS IS ONLY WHAT HAPPENS WHEN YOU ARE BEING PLACED INTO CUSTODY!
The key that most Americans fail to recognize is that these rights only apply to those being placed into custody and being interrogated. It’s significant to note than an interrogation implies that the police are seeking to elicit responses that are incriminating and will help them secure a conviction. What’s more, it must be noted that custody refers to any situation where a normal or reasonable individual would not feel free to leave.
So what that means is that anyone who is not technically in custody doesn’t need to have their Miranda rights read to them. Officers are well aware of this and use it to their advantage by Interviewing suspects who they want to charge with a crime, but making sure they know up front it’s completely voluntary. Once a suspect agrees to such a voluntary questioning, the police are free from the obligation to Mirandize them. Now most Americans assume that the right to silence holds even if they’ve not been Mirandized. This used to be true, silence was indeed sacrosanct. But not anymore. Recently, prosecutors have successfully used the silence of someone not in custody as a cause for self-incrimination to secure a conviction.
SALINAS V TEXAS (Salinas v. Texas, 133 S. Ct. 2174 (2013))
It what was and continues to be a highly controversial decision in a 2013 case that went all the way to the US Supreme Court, the court found that in some certain circumstances a suspect’s silence can be considered evidence of guilt when being questioned in a voluntary setting (not an official interrogation and the suspect is not in custody).
In the case in question, the suspect had answered all the questions the police asked, but hesitated on a question about ballistics on a gun found at the scene. This hesitation ended up being used as part of the prosecution’s evidence in the conviction. The court ruled that since the defendant hadn’t indicated they wanted to invoke the 5th amendment, and thus the prosecution's use of that hesitation were proper.The results of this ruling are that silence to police questions in such a setting may indeed be used as evidence as long as it happens:
●When the suspect is not in custody and aware of this fact
●The suspect voluntarily submitted themselves to the questioning ●The suspect simply remains silent without stating they are invoking their 5th amendment right to not incriminate themselves.
This means that anyone who wants to ensure they have the right to not incriminate themselves when voluntarily answering questions for the police must expressly announce that intention. Thus, in order to remain silent, you must speak up or possibly incriminate yourself.
HOW TO INVOKE YOUR RIGHT TO SILENCE
Though it seems strange, the reality is now that if anyone hasn’t expressly informed you of your right to not incriminate yourself, you have to declare it in order to receive the protection of the 5th amendment. As is clear, there is much that many people find controversial about this ruling. What is also clear is that there is a genuine need for people to understand the new reality of how the right to remain silent works in light of this decision.
The simplest and best way to ensure you are protected against self-incrimination is to simply state one of the following:
●I am invoking my right to silence.
●I am invoking my privilege against self-incrimination
●I am invoking my 5th amendment guaranteed right to silence
The bottom line is that every situation varies and anyone being questioned by the police in any sort of voluntary situation should do whatever they can to make it clear they wish to invoke their right to silence and the 5th amendment protection against self-incrimination.
SITUATIONS WHERE IN-CUSTODY INTERROGATIONS CAN LEAD TO SELF INCRIMINATION
Believe it or not, there have even been cases where individuals in custody have had their silence be used against them. From the court’s perspective, simply being silent does not make it clear that a suspect wishes to invoke the privilege of non-self-incrimination. Specifically, in Berghuis v. Thompkins, 560 U.S. 370 (2010), a suspect had been silent for a long time and then provided a statement. After three hours of silence through a long interrogation, the suspect finally said something, which was used against him.
So even if you are in custody, it’s clearly best to state your desire to not incriminate yourself or, as the warning says, anything you do or say may be used against you."