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You Can No Longer Remain Silent Unless You Speak Up
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Posted by

Michael M. Levin, Esq.


June 18, 2013 - 4:50 pm

The United States Supreme Court has handed down a game-changing decision, Salinas v. Texas, in which they have effectively said that you don’t have the right against self-incrimination unless you tell the police the reason you are silent is because you are invoking that right.  Sound convoluted?  It is.  This decision twists the Fifth Amendment into an almost unrecognizable concept.  The 5-4 decision goes to great lengths to undermine and weaken existing law.  The court’s reasoning goes something like this:

* Salinas was not under arrest.  He went to the police station voluntarily to talk to the police.  Since he was free to leave, there was no need for the Miranda admonishment to be given.

* Without a Miranda admonishment, Salinas had no right to specifically waive before or while talking to the police.

* When the police asked him an incriminating question, Salinas’ silence could be construed as an admission of guilt.

By the majority’s reasoning, had Salinas said “I invoke my right against self incrimination” and then become silent, the prosecutor at trial would not have been permitted to comment on that fact at trial.  However, since Salinas merely remained silent (which could have been either because he was invoking his right or because he was admitting guilt) the prosecutor was permitted to comment at trial that his silence during the police interview showed that he was guilty.

In reaching their tortured decision, the majority relied on a body of recent decisions which have been steadily chipping away at Fifth Amendment protections.  Their reasoning, that you had to specifically assert the right against self incrimination or your silence could be used against you, is a travesty to the Constitution.  Anybody who reads the opinion, whether conservative or liberal, should be offended by the interpretation chosen by the majority.

Unfortunately, we are now stuck with this decision.  From now on, if you choose to not answer the police’s questions you must invoke the following magic words or the Fifth Amendment will not protect you:

“I hereby invoke my right against self-incrimination under the Fifth Amendment to the United States Constitution and therefore refuse to answer your questions.”

Or, you might even get away with “I take the Fifth.”  But look out– the Fifth Amendment is almost a thing of the past.

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