CommentarySince you were a young child, you were probably told that you should always watch what you say, but you were probably never told to watch what you don’t say. Unfortunately after a recent Supreme Court ruling, we now need to be teaching children to watch what they do not say. “But why?” you may ask. The reason is because the Supreme Court has held that a person’s silence may be used as evidence of his or her guilt.
Silence used as evidence of guilt? You must think I am crazy. How can not admitting guilt, or not saying anything at all, be used to prove a person’s guilt? The answer lies in Salinas v. Texas, where the Court held that silence during police questioning prior to an arrest and prior to being Mirandized can be used as substantive evidence of a person’s guilt. You probably still don’t believe me. You are probably thinking that this would be an obvious violation of the Fifth Amendment. Unfortunately, the court held that the Fifth Amendment does not protect pre-arrest, pre-Miranda silence. Here are a few excerpts from the court’s decision that support why it held that pre-arrest silence is not an invocation of the Fifth Amendment. “The government is entitled to every person’s testimony.” Yes, the court said that the government is entitled to your testimony unless the Fifth Amendment applies. But remember, it is the government who decides when the Fifth Amendment applies and apparently it does not apply to silence. A person must expressly invoke the Fifth Amendment. Gone are the days when no ritual was required for invoking an American’s constitutional rights.
Now to see how the court’s decision could affect the average American, pretend it’s 7:00 pm on a Friday and two detectives knock on your door. They tell you that there was a double homicide at an apartment in town and that they would like to ask you some questions about it. They tell you that the victim was a Mrs. Jane Smith and her sister, Jessica Smith. You agree to accompany the officers to the police station and answer some of their questions. Their questions range from whether you knew the victims to whether you were at the victims’ apartment that night. For approximately an hour you answer all of their questions. That is until they ask you if the ballistics on a gun that you own would match the ballistics of the bullets found at the crime scene. When the officers ask you if your gun will match, you do not answer. You do not say a word. You sit there quietly until the interview ends and you are allowed to leave.
Now most people would think that in the above situation, a prosecutor could not submit to a jury that you were guilty because you did not answer the police officer’s question. But that is exactly what happened in Salinas. Mr. Salinas was asked if his shotgun would match the shotgun shells found at the scene of a double homicide and Mr. Salinas did not answer. Since Mr. Salinas refused to answer the officer’s question, the officer suspected he was the perpetrator, which is an inference the Fifth Amendment is supposed to protect against.
The court failed to consider the many reasons why a person might choose to remain silent. A person may remain silent because he or she does not want to provide potentially incriminating evidence (which is likely the reason why Mr. Salinas chose to remain silent, but that should not negate the protections he is afforded as an American) or because he or she does not want personal secrets to become public knowledge. To force an American to explain why he or she is remaining silent defeats the purpose of remaining silent.
The court should have taken a liberal approach to determine whether a person invoked the Fifth Amendment, which would include remaining silent in the face of police questioning. This is because the amendment is commonly known to protect the “right to remain silent.” Therefore, a person who is refusing to answer a question posed by a police officer is implicitly invoking his or her Fifth Amendment rights. And it is reasonable for a person to assume that another person is remaining silent because he or she does not want to answer the question posed to them. Their reasons for remaining silent should be left to them, not to the government, as the court held. A person’s silence should not be used to insinuate that he or she is guilty of the charges alleged.
One can argue that it is not difficult to say “I invoke my Fifth Amendment rights” or “the Fifth Amendment protects me from self-incrimination,” but people may forget to say these words, or they may not actually know that it is the Fifth Amendment that protects them from self-incrimination. They may only know that they are protected against self-incrimination from television shows such as “Law and Order.” People should not be held accountable for not knowing the exact wording of the Amendment they seek the protection of or the need to specifically invoke it. The protections of the Fifth Amendment are meant to protect people, regardless of their specific knowledge of the Constitution.
In all likelihood, Mr. Salinas was guilty. He fled Harris County, Texas and lived under an assumed name. But Mr. Salinas’ innocence was not the issue in the case. The issue was whether a person could invoke Fifth Amendment protections by remaining silent and the court decided a person could not. The court should not have made it easier for a person to be convicted of a crime. Instead, the court should have focused on protecting Americans’ rights.
Shaun Hiller earned a B.A. in History and Anthropology, and a Certificate in Evolutionary Studies from Binghamton University. Shaun serves as an intern for NATO Allied Command Transformation. He was a student in St. John’s University School of Law’s Domestic Violence Litigation clinic, and an intern with the Rockland County District Attorney’s office. Shaun currently serves as a Copy Editor of the NATO Legal Gazette, and as a senior staff member of the Journal of Civil Rights and Economic Development.
Suggested Citation:Shaun Hiller, Teach Your Children to Watch What They Don’t Say, JURIST – Student Commentary, Dec. 1, 2014, http://jurist.org/student/2014/12/shaun-hiller-fifth-amendment.php
This article was prepared for publication by Joseph Macklin, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to him at commentary@jurist.org.
