Supreme Court Might Decide Your Silence Can Be Used Against You

We all hear the line in police procedural TV shows and movies. When cops arrest someone they say, “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” To repeat: you have a right to remain silent.

Except your silence can be used against you as evidence that you must be guilty.

At least one person has been convicted by a jury in a court case where the prosecutor argued that, because the defendant refused to speak, he must have been guilty of the crime. The Washington Post reports:

“The case comes from Texas, where Genovevo Salinas was suspected of shooting and killing Juan and Hector Garza after a party in December 1992. Police went to see Salinas after he was identified as one of the attendees and his father had turned over a shotgun. Salinas cooperated with questioning at the police station until he was asked whether the shells found at the crime scene would match the shotgun. He did not answer and was later charged. The first attempt to convict Salinas ended in a mistrial. At the second, over the objections of Salinas’s defense lawyer, prosecutors put considerably more emphasis on his refusal to answer the question about the shotgun shells, according to court briefs. The prosecutor told the jury that ‘an innocent person’ asked such a question would say no. Salinas, on the other hand ‘wouldn’t answer that question.’ Salinas did not testify.”

I have no idea if Salinas did the crime or not. If he is guilty, I hope he gets convicted. But I hope he gets convicted in a way that does not overturn our basic civil rights.

If we can be prosecuted in court and our refusal to speak be presented as evidence of our guilt, then plainly the claim that we have the right to remain silent is not true. If it is not true, then the Miranda rights are nothing more than false promises to make vulnerable to prosecution. We should strike, “You have the right to remain silent,” and edit the rest as, “Anything you say or any refusal to speak or offer up information can and will be used against you in a court of law.”

The Supreme Court is going to hear the case, Salinas v. Texas. The defense wrote,

“When law enforcement agents question someone about his or her potential involvement in criminal activity, the individual has two choices: speak or remain silent… If the latter necessarily creates evidence of guilt, then the right the Constitution grants him to remain silent is little more than a trap for the unwary.”

That makes sense to me. Maybe someone decides not to speak to police not because they are guilty but because they don’t trust the police to be truthful about their testimony. Even a loyal FBI agent has admitted that the FBI’s process of interrogating and then writing down the gist of what the witness said is highly problematic. Agents “remember” what was said in a way that is consistent with what they wanted the witness to say.

The Fifth Amendment mandates that no person “shall be compelled in any criminal case to be a witness against himself.” If one’s silence can be used as evidence of one’s guilt, then it is hard to see how that part of the Bill of Rights isn’t being stripped out of Constitutional law.



Posted in Constitution, Crime, Law, Police State Tagged with: , , , ,
  • Jack Parker

    Of course he did it. But he still does NOT have to testify against himself.

  • Brabado

    Dear friends of Justice:
    Can someone plese tell me, under U.S. Law, what is the difference between Genovevo Salinas refusal to talk, and the alleged crime he is accused of, and AG Eric Holder, refusald to answer the questions U.S. Congress asked him, about Fast and Furious???
    Does our Nation must continue to believe that there is no one “above” the Law?

  • Linda

    My goodness, the effort now is being made to strip us of another Bil of Rights liberty? This used to be a country we could trust. What is happening to our beautiful America? I am deeply saddened.


    This is so true, I was pulled over sometime ago (going to my mothers) I was getting on the freeway 96 here in Michigan, I was pulled over and the officer asked me to get out of the car I asked him why? and he stated “A McDonald’s had been robbed,” he also stated it was by a man with long black hair, (I happen to be blonde) anyway he continued to tell me that when people commit crimes they usually get on the freeway, (Huh I guess just getting on the freeway makes you a criminal now) so he presided to handcuff me and said it was” for mine and his protection (not sure how it was for my protection… being handcuffed) then he put me into his car and presided to search my car; he found nothing, but my bottle of water which he spilled out onto the floorboard (guess he thought it was alcohol so as to make the car smell like it) once he was done usurping my right’s, he let me go on my way without any apology. I have had numerous encounters with the ‘police’ one in California (and yes I had been drinking but didn’t deserve the treatment I got) which was to be handcuffed and slugged in the stomach repeatedly, thus throwing up all over him (he he he). I was take to the Los Angeles county jail, held till 5:30am in the morning then let go, only to walk all the way back to Northridge, which took me till 1:30pm. I have no respect for the law enforcement of this country they wield there power like a child with a loaded gun with no and I mean NO respect for your rights whatsoever.

  • Henry Martin

    The key here is that this is a jury that made this decision based on argument(s) in a court of law. The fact that the man did not incriminate himself stands. The fact that the jury was persuaded by the prosecutor will be appealed by the defence. No rights have been denied.

  • Geoffrey Gould

    Check out the video at YouTube titled Dont Talk to Police (the one uploaded by russr).
    [A law school professor and former criminal defense attorney tells you why you should never agree to be interviewed by the police.]

  • eddyjames

    The correct answer is I don’t recall, I don’t remember. I don’t understand the question, it’s still doesn’t ring a bell. Could you repeat and rephrase the question.

  • Jason Cheung

    Remember, in order to actually use your rights, you must state clearly and loudly that you want a lawyer. After that, do not say anything else until you get a lawyer. Or to repeat that you want a lawyer.

  • Jennifer Boals

    Miranda rights are presented to you when you have been arrested. If you have not been arrested or charged with a crime, then the Miranda rights do not apply to you! Refusing to answer questions is refusing to coroperate, which can be stated in the court of law. If convicted, then you can plead the fifth, which in return is known by the court. So regardless of either route, it will be known that you are refusing to answer a question or questions to keep from incriminating yourself. In that regard, how is one better than the other? You have the right to remain silent to keep from incriminating yourself, no where does it say your silence won’t be known……Our silence has always been used against us, we just haven’t realized it until now!

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