What You DON’T Say Might be Held Against You

Joe Wright
Activist Post

It’s hard to believe, but yet another entrenched constitutional right is up for debate to be trampled upon: the right to remain silent. This right, in fact, even goes beyond the U.S. Constitution and has become a chestnut of virtue for all: silence is golden. Well, apparently not anymore if the Supreme Court sides for the police in the case of Salinas vs. Texas.

The case stems from a 1992 double-murder where police questioned Genevevo Salinas who was reported to have attended a party of the deceased. After Salinas voluntarily agreed to answer questions of the attending police officers, he refused one question: whether shotgun shells that were found at the scene would match a gun taken from the apartment. Instead, officers would later testify that his body language answered for him:

he ‘looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, began to tighten up.’  (Source)

Salinas was later charged and sentenced to 20 years based on this evidence, and the testimony of a friend who said he confessed.  The question then becomes if the constitutional right to remain silent extends to the pre-arrest phase of investigation.

The New York Times highlights the crux of the case:

The Supreme Court has said the amendment’s protection against self-incrimination applies after arrest and at trial. But it has never decided, in the words of a 1980 decision, ‘whether or under what circumstances pre-arrest silence’ in the face of questioning by law enforcement personnel is entitled to protection.

This has caused division in the way these cases are interpreted in lower courts. That division extends to law professors such as Stanford’s Jeffrey L. Fisher who is now representing Genevevo Salinas.

It is Fisher’s interpretation that:

‘When law enforcement agents question someone about his or her potential involvement in criminal activity, the individual has two choices: speak or remain silent,’ Fisher wrote. ‘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.’ (Source)

However, a couple of commenters debate this at the source for this article, law news site ABA Journal:


Seems like a no-brainer.  One is never obligated to speak to a police officer.

Uncle Jed: 

How can this NOT be a violation of the Fifth Amendment?  Try reading that amendment first.  It says, ‘no person …shall be compelled in any criminal case to be a witness against himself.’  Non custodial, pre-Miranda statements are admissible, everyone agrees.  That is, of course, because a person is not compelled to talk to authorities prior to Miranda-warnings and formal arrest.  If this is so, then the failure to speak, pre-Miranda and pre-arrest, is also not protected by the Fifth Amendment, because it is not compelled. 

The final decision made by the Supreme Court could very well have wide ramifications in an age where pre-crime technology and screening seeks to ferret out mal-intent. Soon, it will not be merely the word of police officers about your strange behavior during questioning (even if they verbally or physically abuse you I’d imagine), but whether or not you appear nervous in line at the airport, or exhibit subtle emotional markers that might indicate lying or the willingness to harm others. However, neither technology nor low-tech humans are 100% accurate; it seems that for this reason alone we are entitled to have a choice when asked a question by ‘authorities.’

We would be wise not to shrug off what seems to be an obvious ruling on the side of common sense, as most of us could not have imagined that torture and indefinite detention without trial would be legitimized on foreign battlefields, but also fully upheld by the Supreme Court for its own citizens.

You can read the full 26-page petition HERE (PDF) addressing the central question presented to the Supreme Court:

Whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.

We would love to hear comments from lawyers about what they expect in this ruling and the ramifications they see from a conclusion that sides with law enforcement. Please leave your comments below. 

Read other articles by Joe Wright Here

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