WHEN SILENCE IS NOT SO GOLDEN
On June 17, 2013, the United States Supreme Court handed down a ruling that says:
“Prosecutors can use a person’s silence against him if it comes before he’s told of his right to remain silent.”
What led to this new ruling by five Justices sitting on our country’s highest court? Prior to being convicted of a murder that happened in 1992, a man once suspected, but not under arrest, was asked to go to police headquarters where detectives questioned him. Keep in mind, at this point of the investigation the man had not been arrested nor had he been given his Miranda rights. During the initial questioning, the man volunteered answers until one question was asked about the shotgun used during the murder. Did he have access to the shotgun that would match as the murder weapon? The man did not answer the question. Nor did he invoke his Fifth Amendment right. Texas prosecutors turned the man’s silence on him in court, swaying the jury by saying that “if he wasn’t guilty, then why wouldn’t he answer the question?” After a mistrial the man was retried and eventually found guilty of murder.
ARRESTED OR NOT, JUST PLEAD THE 5th!
The Fifth Amendment protects Americans against forced self-incrimination, with the Supreme Court saying that prosecutors cannot comment on a defendant’s refusal to testify at trial. The courts have expanded that right to answering questions in police custody, and police are required to tell people under arrest that they have a right to remain silent without it being used in court.
Prosecutors in Texas used the one question the man decided to remain silent on in convicting him of murder, saying the man had been answering some of their questions–thereby he had not invoked his Fifth Amendment right to remain silent. Because he was not under arrest, he was not compelled to speak. However, prosecutors claimed that because he would not answer a very incriminating question, it helped to demonstrate his guilt, and his silence was not afforded any constitutional protection. The man and his defense team appealed, saying his Fifth Amendment right 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. So, onward the man goes to the Supreme Court to appeal his conviction. Prosecutors argued before the nine Justices of the Supreme Court that since the man was answering some questions – therefore not invoking his right to silence – and since he wasn’t under arrest and wasn’t compelled to speak, his silence on the incriminating question shouldn’t get constitutional protection.
And the nine Justices voted 5 to 4 with the Texas court and against the man’s appeal, on grounds that his Fifth Amendment right did not preclude the Texas Prosecutors from using it against him in court.
BUT WHY?
The Supreme Court denied the man’s appeal with this explanation: The “Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question,” Justice Samuel Alito said. “It has long been settled that the privilege `generally is not self-executing’ and that a witness who desires its protection `must claim it.’ “
The court decision went down its usual conservative/liberal split, with Chief Justice John Roberts, Justices Kennedy, Alito, Thomas and Scalia voting to uphold the prosecutors’ case, while Justices Breyer, Bader Ginsburg, Sotomayor and Kagan dissented. Breyer said in the dissent: “In my view the Fifth Amendment here prohibits the prosecution from commenting on the petitioner’s silence in response to police questioning.”
And that is “justice” in today’s world of Supreme Court Chief Justice John Roberts. All Americans are guaranteed Constitutional Rights. One of those Constitutional Rights is being able to “plead the 5th Amendment,” which means not having to answer a question that will self-incriminate you in any way.
That is, until now. Now if I’m arrested for simple jaywalking and brought in for questioning, the first sentence out of my mouth will be “ I plead the 5th and I want my attorney.” My second sentence will be “May I please have a cup of coffee and a recorder?“ Think about it.
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