NMA E-Newsletter #246: Silence is no Longer Golden

By Ted Levitt, NMA Member

Several years ago the NMA published an article I wrote about “Your Right to Remain Silent”. Since then several U.S. Supreme Court rulings have greatly eroded that right. Remaining silent is no longer the right thing to do, in my opinion. Here’s why.

In 2010 the U.S. Supreme Court decided that a criminal defendant “must make a simple, unambiguous statement that he or she wants to remain silent or that he or she does not want to talk to the police” before his or her Fifth Amendment “Miranda” right to remain silent comes into play (Thompkins v. Michigan). Justice Kennedy wrote, “A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to police”.

Worse yet, in February 2012 the Supreme Court refused to hear the appeal of a Florida case that allowed the state to use a defendant’s pre-arrest silence as evidence of guilt.

Federal courts have been split on the use of a defendant’s silence at trial. Several have ruled that the use of a defendant’s silence as evidence of guilt violates the Fifth Amendment protection against self-incrimination, while others have ruled that it does not violate a defendant’s Fifth Amendment rights.

Now comes Salinas v. Texas, in which the Supreme Court recently decided this issue for all U.S. courts. The overriding concern here was that some courts have allowed the use of a defendant’s silence as proof of guilt or “having a guilty conscience” at trial. Under this construct, the state is attempting to take a barrier to prosecution (the defendant’s silence) and turn it into a tool to aid conviction. I personally find this inference of guilt to be in direct conflict with our Fifth Amendment right against self-incrimination and our other constitutional due process rights.

The Supreme Court ruled the defendant’s “Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s questions. It has long been settled that the privilege ‘generally is not self-executing’ and that a witness who desires its protection ‘must claim it’ (Minn. v Murphy, 465 U.S. 420, 425,427 [1984]).”

Contrary to popular belief the phrase “innocent until proven guilty” does not appear in either the U.S. Constitution or the Bill of Rights. U.S. courts have embraced this concept as falling within the scope of the Fifth Amendment. The U.S. Supreme Court, in Taylor v. Kentucky, described this concept as “the presumption of innocence of a criminal defendant that is indulged in the absence of contrary evidence.” This inference goes all the way back to Roman and English Common Law where “the burden of proof lies with he who declares, not who denies.”

The Supreme Court has ruled that the Fifth Amendment requires the state to prove each and every element of the charge against the defendant beyond a reasonable doubt. Further, the court has ruled that a defendant need not put on a defense at all, and relying solely on the state’s failure to meet its burden of proof beyond a reasonable doubt, the defendant must be found not guilty.

To further muddy the waters the courts have never explicitly defined what is “beyond a reasonable doubt.” The accepted legal definitions follow:

The standard that must be met by the prosecution’s evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.

 A standard of proof that must be surpassed to convict an accused in a criminal proceeding.

A reasonable doubt exists when a juror cannot say with moral certainty that a person is guilty. This definition does not require that guilt be proven to an absolute certainty.

Another reason I find the Salinas opinion disturbing is that the Supreme Court has ruled that a jury, before retiring to deliberate, must be instructed by the judge to make no inference as to the defendant’s guilt, simply because the defendant choose not to testify at trial. This instruction must contain the statement that no adverse inference may be drawn from the fact that the defendant did not testify, or that it cannot be considered in arriving at a verdict.

I find the Salinas ruling allowing a suspect’s silence to be used against him to be in direct conflict with the Fifth Amendment as well as infringing on Fourteenth Amendment due process protections. The Supreme Court has at various times commented that these rights:

…protect the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. The standard provides concrete substance for the presumption of innocence…The presumption of innocence is valuable in assuring defendants a fair trial, and it operates to ensure that the jury considers the case solely on the evidence.

In light of the Salinas ruling I intend, if stopped by a police officer for any reason, to immediately state the following:

My attorney has advised me to invoke my Fifth and Fourteenth Amendment rights to remain silent and to not answer any of your questions unless and until my attorney is present. I will comply with any and all other lawfully required requests such as providing a valid driver’s license, valid proof of insurance and/or vehicle registration, but nothing more. Further, I do not grant you the right to search my vehicle.

The bottom line is silence is no longer golden. Speak up to protect your rights!

Editor’s Note: A more detailed version of this article with complete legal citations is available upon request. Email [email protected].

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