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IPFS News Link • Bill of Rights

Supreme Court Rules Pre-Miranda Silence Can Be Used Against You To Prove Guilt

• Jonathan Turley
In a major loss for individual rights vis-a-vis the police, the Supreme Court ruled 5-4 that prosecutors could use a person’s silence against them in court if it comes before he’s told of his right to remain silent.

3 Comments in Response to

Comment by Ed Price
Entered on:

Miranda-ize yourself.

“I have the right to remain silent. Anything I say can and will be used against me in a court of law. I have the right to an attorney. If I cannot afford an attorney, one will be provided for me. Do I understand the rights I have just read/recited to myself? With these rights in mind, do I wish to speak to anyone other than my attorney? No!”

Comment by J E Andreasen
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Orin Kerr posted an analysis of the Salinas case on  A trenchant response followed from Jeffrey Renz.  To wit:

"Right and privilege have historical connotations and so it is important to speak precisely about them. The privilege against self-incrimination was recognized in common law and defined as a right in the Fifth Amendment and the various states' bills of rights. The scope of the right varies from state to state and depends on the language of the constitutional provision. The privilege exists outside the various constitutions, which brings me to the next set of comments: What would Freeborn John Lilburn say?"

"Lilburn is widely recognized as the source of what became the right and privilege to remain silent. The significance of the Salinas decision is its willingness to restrict the privilege to remain silent on the basis of the language of cases that went before rather than to measure the right against what it was intended to prevent. Now, John Lilburn offers us little solace on the language side, since LIlburn was under arrest when he asserted his right to refuse to take the oath ex officio mero. The oath was important at the time since it put the accused on pain of damnation and because by taking it the accused agreed to answer all questions truthfully. Although LIlburn was under arrest, his justifications for refusing the oath ring true in Salinas. Lilburn argued that one should never be compelled to accuse (note the distinction between accuse and incriminate and "in criminal case. . . witness against") one's self. Lilburn saw the effort to obtain a self-accusation as an immoral (and impractical) act by the High Commission for Ecclesiastical cases sitting in the Star Chamber. So the question in Salinas, the question that we must confront, is when does the privilege become an enforceable right? The plurality in Salinas decided the case on the basis of language. The dissent rested on purpose and language. (Note, too, that the accused's silence is accepted as positive evidence of guilt in many accusatorial/inquisitorial systems.) Had Salinas been distributing religious tracts, the case might have come out differently. But he was a burglar and that's a different breed of cat for many cases."

"I don't think Salinas will survive its application. We'll see a proliferation of comments on pre-arrest silence at trial. Every traffic stop, every one that goes to trial, will include a comment by the prosecutor about the motorist's silence. Then there is the "oath ex officio" in the United States. 18 USC 1001 criminalizes false statements, including denials, to federal law enforcement officers (and other federal officials.) The accused in a federal investigation then starts under an oath ex officio. S/he will have four choices when asked about shotgun shells, insider trading, or communications to a lending agency: confess, deny wrongdoing and be charged with a violation of 18 USC 1001 (you can, by the way, tell the truth and still be charged), remain silent and have that silence be used as proof at trial, or assert the 5th amendment."

"Not a pretty picture."

Comment by Powell Gammill
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Try Explaining This to Young People