Silence is the New Guilty Featured

By Seema Iyer, Esq.

June 20, 2013


This week the Supreme Court ruled that anything you DON’T say WILL be held against you. 

Wait………What??? 

Haven’t we been hearing “You have the right to remain silent” blah, blah, blah, from the days of Starsky & Hutch and in every single incarnation of Law & Order since?

That right to remain silent, and every other right, that has become the fabric of cops and robbers vernacular refers to Miranda warnings.  The case the Supreme Court reviewed,Salinas v. Texas, refers to what happens before Miranda, prior to arrest. 

Mr. Genovevo Salinas was a suspect in two murders.  The police went to his home where Mr. Salinas gave over his shotgun for ballistics testing, certainly before consulting with an attorney.  Then he accompanied the police to the station to “take photographs and to clear him as [a] suspect” (why oh why Geno didn’t you bring a lawyer?).  Mr. Salinas gets to the station and he is brought to an “interview room” (you say interview, I say interrogation , nevertheless 1-800-LAWYER anyone?). 

At this point, the police are questioning Mr. Salinas yet he is “free to leave” which is legalese for, you are not under arrest and the police haven’t read you Miranda warnings. Personally, I cannot comprehend that anyone thinks they can just strut out of a room full of cops after handing over a shotgun that may be connected to two murders…… but maybe that’s just me.  The parties in Salinas did not contest this issue.

So the police are asking Mr. Salinas questions.  About murder.  Two murders to be precise.  Mr. Salinas, who we can now say for certain does not own a television, is in blissful ignorance answering questions until he is asked whether the shotgun from his home would match the shells recovered at the crime scene.  Uh-oh.  Now Mr. Salinas is silent.

At Mr. Salinas’ trial the prosecutor, referring to testimony that came out at trial, told the jury during his closing argument that an innocent person would not have remained silent; an innocent person would have declared as such and would not have stood silent during police questioning.  The prosecutor tied that silence to what we in the legal game call ‘consciousness of guilt’ – which basically means exactly how it sounds.  Mr. Salinas was convicted. 

According to the ruling, what exactly was Mr. Salinas supposed to do?  He should have responded to that question about shotguns with this catchy little phrase – “I invoke my 5thamendment privilege”.  Well, that certainly rolls off the tongue.

Since the ruling lawyers and professors across this country are scrambling to find alternatives to those exact words because....HELLO.....who talks like that?  The Court’s opinion doesn’t give any variations of that incantation.  Bottom line, if you want your silence protected you have to invoke the privilege.  Simply put, we do not have the right to NOT speak to the police.

When do we have this right against self-incrimination (ie, the right to not flush our future down the toilet) without expressly stating it?  And when will our silence not be held against us?  If you are on trial you have a right to not testify on your own behalf and you never have to say anything about the 5th amendment.  The only other instance when you do not have to expressly invoke the 5th amendment is when you are “in custody” and have been given Miranda warnings.  At that point if you stand mute, like a deer caught in headlights, you are good.  Those are the only two exceptions when you do not have to say, “I invoke my 5th amendment privilege”.

So stop wasting your time teaching your babies how to say ‘daddy’ and ‘mommy’.  Teach them more useful words like ‘5th Amendment’ and ‘privilege’.  And when the joyous day comes to send them off to college don’t forget to pack the most important item – your lawyer’s phone number.

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Seema Iyer is an attorney in New York City with her own practice that specializes in Criminal Defense, Civil Rights and Constitutional Law. Seema is also a Legal Contributor at Arise News and frequent guest on MSNBC. Follow her on Twitter @seemaiyeresq


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