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.