I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…
Just the other day, a colleague was seeking advice about what he should advise his client to tell the police, who were helpfully wanting to interview the poor sod so they could, you know, take him off the list of suspects. Quite rightly, everyone advised the client to, quickly as he could, stuff something large into his mouth to prevent him from saying anything, anything at all.
Well, not quite rightly.
The fact is, after a case decided less than a year ago by the Supreme Court (Salinas v. Texas, yet another 5-4 thriller), saying nothing can now most likely be used against you even if the police don’t ask you a thing, but just stare meaningfully your way. And silence can most definitely be used against you if you start answering some innocent-seeming questions, then shut up when they ask you a tough one.
It’s not quite on the level of:
Cop: How’s it going?
You: Fine, officer, Thanks for asking.
Cop: Did you kill that guy?
You: (Silence, having wisely if belatedly taken all our advice about stuffing it.)
But it doesn’t have to be a real poser, either:
Cop: Where were you tonight?
You: Chuck E. Cheese, playing the pinball machines.
Cop: Do you own a shotgun?
You: I might of, you know, a while ago.
Cop: That shotgun you used to own, you think it would match the shells recovered at the scene of the murder?
You: (Silence, you look down at the floor, shuffle your feet, bite your bottom lip, clench your hands in your lap, and begin generally to get tight as a tiger.)
That’s pretty much what happened in Salinas v. Texas. That guy, Genovevo Salinas? Serving twenty years.
Before that case, your silence couldn’t be used against you. But an inspired Roberts Court put a whole new spin on our venerable Bill of Rights, finding something new in the Fifth Amendment nobody seemed to have noticed for 221 years.
In case you’ve forgotten, this is the Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
That bold section is where the right to remain silent comes from: you don’t have to help the police convict you, and the fact that you don’t want to help them is not supposed to be used against you in court.
But it can, now, if you don’t actually say you don’t want to help them. “Simply standing mute,” Justice Alito wrote for the Court, doesn’t count anymore. (He didn’t say what would happen if you actually are medically mute.)
If you are under arrest, or in custody without yet being formally arrested, you still must be advised of your right to remain silent, along with the other Miranda rights, before the police question you further.
But before you’re in custody, before you’re under arrest, they can ask you anything they want, and that can be used against you. And since Salinas, they can even talk in court about how you just stood there looking guilty as hell, because you never specifically said you wanted to keep quiet until you talked with your lawyer.
Because of Salinas, police are waiting longer and longer to actually arrest people they question, knowing their suspects won’t be the first to mention Miranda because most of them aren’t lawyers. Before you’re arrested and before you’ve been read your rights, anything you say (or don’t say, with silence) can be used against you, whether or not it was in response to a police question.
So speak up, first thing — tell the cops you have the right to remain silent, and they can address all their questions to your lawyer.
— And THEN shut up.