WASHINGTON — The Supreme Court says prosecutors can use a person’s silence against them if it comes before he’s told of his right to remain silent.
The 5-4 ruling comes in the case of Genovevo Salinas, who was convicted of a 1992 murder. During police questioning, and before he was arrested or read his Miranda rights, Salinas answered some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon.
Prosecutors in Texas used his silence on that question in convicting him of murder, saying it helped demonstrate his guilt. Salinas appealed, saying his Fifth Amendment rights to stay silent should have kept lawyers from using his silence against him in court. Texas courts disagreed, saying pre-Miranda silence is not protected by the Constitution.
The high court upheld that decision.
The Fifth Amendment protects Americans against forced self-incrimination, with the Supreme Court saying that prosecutors cannot comment on a defendant’s refusal to testify at trial. The courts have expanded that right to answering questions in police custody, with police required to tell people under arrest they have a right to remain silent without it being used in court.
Prosecutors argued that since Salinas was answering some questions – therefore not invoking his right to silence – and since he wasn’t under arrest and wasn’t compelled to speak, his silence on the incriminating question doesn’t get constitutional protection.
Salinas’ “Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question,” Justice Samuel Alito said. “It has long been settled that the privilege `generally is not self-executing’ and that a witness who desires its protection `must claim it.’”
Ok, so…. contrary to what everyone else has told you, which to the best of their knowledge (myself included), was that remaining silent was the best thing to do. But since they’re changing the generally accepted meaning of the 5th Amendment, it seems the best thing to do when confronted by police is to “claim” your 5th Amendment right, and then stick to it. Don’t claim it 3 minutes into the conversation. Claim it right from the start and stick to it. The moment you start speaking, and then refusing to speak at other times, it can be used against you and highlight your so-called guilt. So right from the get-go, exercise your 5th Amendment right. Claim it and refuse to speak.