Your Miranda Right to Silence Might Now Get You Into Trouble

Your Miranda Right to Silence Might  Now Get You Into Trouble

Your Miranda Right to Silence Might Now Get You Into Trouble

As most of us know, we have the right to remain silent once read our Miranda rights by law enforcement officers, in the event we are arrested and/or under suspicion for a shooting or a crime. However, a recent major U.S. Supreme Court decision on June 17th, 2013 changed this based on the Salinas v. Texas Case. Here is the general issue: what if we have not been arrested and haven’t been read our Miranda rights and we are merely being questioned? Can we remain silent? What this 5-4 Supreme Court decision means to this lay, non-attorney person is that in order to invoke your right to remain silent you have to initially speak up first. Confusing?

Hopefully, we will never have to be involved in a shooting or crime investigation, but if we are there are some new things we must understand. It now seems that we have to invoke our 5th Amendment rights in our U.S. Constitution immediately when the Police begin to question us. The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law and outlines basic constitutional limits on police procedure. It is a prohibition against required self-incrimination and applies to states through the Due Process Clause of the Fourteenth Amendment.

If we do not invoke the 5th, our silence now can be used against us. As a result of this Salinas Supreme Court decision, silence can now be more solidly construed as meaning we have something to hide or are trying to be deceitful. So, if that terrible situation occurs where there is much uncertainty of facts and circumstances, where someone is injured or dies, or a crime or shooting has occurred, and we are being questioned, we have to be very cautious, even as an innocent person, about the statements we make.

A complex issue that arises is do prosecutors violate an accused criminal’s Fifth Amendment right against forced self-incrimination when they use evidence of his silence against him, even when the evidence comes from questioning conducted before he was taken into police custody?

Here is a summary of the facts of the Salinas v. Texas case. Police in Houston, Texas questioned Genovevo Salinas during a murder investigation. Salinas answered all of their questions until the police asked whether he thought that casings found at the murder scene would match the shotgun the police found in his house. In response, Salinas remained silent. He looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, and began to tighten up. After a few moments of silence, the officer asked additional questions, which Salinas answered. Later, he was charged with murder, tried, and convicted partially on the basis of evidence that he had remained silent during police questioning before he was arrested and given his Miranda warnings.

Salinas claims that the Texas trial court should not have admitted evidence of his silence because of the Fifth Amendment privilege against self-incrimination. He argued that allowing evidence of his silence would violate the Fifth Amendment by forcing him to speak or have his silence used against him. The State of Texas argued that the evidence was appropriately admitted and outside the protection of Fifth Amendment privilege because Salinas’s silence was non-testimonial and the police questioning was non-coercive. The Supreme Court’s decision determined the scope of the Fifth Amendment protection against self-incrimination and, more specifically, whether it extends to the protection of a defendant’s pre-arrest, pre-Miranda statements to the police. Mr. Salinas’ silence was used against him in court. and the court sided with the prosecution. In essence, the Supreme Court is saying that you must speak up or silence will be used against you. So it seems according to the Supreme Court, the Fifth Amendment is now a privilege and not a right.

Click Here for the 6-17-13 full legal version of the decision.

Click Here for the U.S. Supreme Court Blog about the Case:

If this non-attorney with very limited legal background is involved in any way with a highly unlikely shooting or any crime investigation, I want to minimize any possible personal risks. So, the only initial statement I will probably make is:

“I want to cooperate fully with law enforcement, but I do not want to make a statement or answer any questions until I talk to my attorney.”

Understand this is not legal advice or a legal opinion, but just this lay person thinking out loud. Thus, I am communicating to the police that:

  1. I am willing to cooperate and have nothing to hide: “I want to cooperate fully with law enforcement”;
  2. I do not want to talk at all at this time for the official record: “I do not want to make a statement”; and
  3. I do not want to be questioned at all nor provide any answers or information until I speak with my lawyer: “or answer any questions.”

This case affects the Miranda Warning and we probably should consider adding this statement to protect ourselves from any further questioning by police. Without adding this, law enforcement can still ask us questions and if we answer any of those questions, it can be used against us.

Another consideration is to NOT initiate a conversation with law enforcement after invoking your Miranda rights. If you do initiate a conversation, it could possibly be interpreted that you revoked your rights under Miranda. Without a doubt, this decision will significantly impact law enforcement practices, including how police question individuals and advise them of their Miranda rights. It will also influence the way prosecutors introduce evidence and attempt to prove defendants’ guilt.

The Constitution was created to protect all of us, even the person like me who is not legally trained and doesn’t deeply understand the law. It is supposed to be the basis for fair justice for everyone. Because the Court on the surface seemingly disagreed in this situation, some might think it is best to not talk to the police at all and strictly invoke all their Constitutional rights. However, this can hinder justice. So if you are involved in a shooting or criminal investigation, perhaps the best approach is to think positive and only make the initial statement… and wait for your attorney to arrive. What are your thoughts about this?

Continued Success!

* This personal opinion article is meant for general information & educational purposes only and the author strongly recommends that you seek counsel from an attorney for legal advice and your own personal certified weapons trainer for proper guidance about shooting & using YOUR firearms, self-defense and concealed carry in your state. It should not be relied upon as accurate for all shooters & the author assumes no responsibility for anyone’s use of the information and shall not be liable for any improper or incorrect use of the information or any damages or injuries incurred whatsoever.

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  • dan

    seems to me…the only ‘rights’ we people have anymore are the ones that WE are willing to die for….on an individual basis…….our Constitution is manipulated and disrespected at ALL levels of government and law ‘enforce—ment…which leaves only self preservation and natural law in play…..Semper Fi

    • alannah mcgrowdie

      My Aunty recently got Acura
      TL by working part time off of a home computer. best site w­w­w.B­I­G­29.c­o­m

  • jessejames

    It would be interesting to read some actual encounters with LEO using this approach.

  • Shannon

    Know from the get go…YOU ARE GOING TO JAIL! Don’t be scared and stick to your guns…No matter if you answer ALL their questions, still getting arrested…Have an attorney in your phone for if this horrible event ever happens! Good thing my brother is attorney!!! LOL

  • cawpin

    The entire tone of this article is just ridiculous. They didn’t use his silence against him in court. They used his answers to questions against him. There is nothing newsworthy here, IMO.

    It has been ruled before that you must speak your decision to remain silent. It is simply to make it clear to everyone involved that you have done so and not that you don’t understand something.

    Edit: ” If you do initiate a conversation, it could possibly be interpreted that you revoked your rights under Miranda.”

    Of course it would be interpreted that way because that’s exactly what you are doing.

    • Looney52

      No, you need to read the Supreme court documents. They used his SILENCE as an admission of guilt. It was not his other statements that were at issue here, it was his silence on the question of whether the shells would match. They used his silence as testimony. This article is very good and should be taken in mind if you ever face a self-defense shooting situation.

      • StoutCortez

        Had he kept his mouth shut right from the beginning, they could not have used his silence against him. His mistake was answering questions and THEN going silent.

        • CJ Fuller

          You are correct sir.

  • Mike

    “COL Ben”, you should remember from your time in the Air Force that a rights waiver statement is only required when the person being questioned is suspected of a crime. There is no right to remain silent until the person conducting the interview actually suspects the interviewee of wrongdoing, at which point they must be notified of their Miranda rights before questioning can continue. A person being questioned, without suspicion of wrongdoing, who refuses to answer questions can certainly lead themself into suspicion with their refusal to answer. Once the suspicion is generated, they should be notified of their rights.

  • bumpysquish

    B.S.

    • ShiloSharp

      What are you saying B.S. to?

  • Gunluvr

    Just keep your mouth shut regardless.

    • JPKirkpatrick

      Unless you use an active defense verbalized on the Constitutional protections, your silence can and will be used against you!

  • Brad

    Cops hope for spontaneous utterance. Basically anything you say before you are read your rights can be used. Now a cop is not supposed to make any gesture, statement, or anything that can be interrupted as the fact he wants you to talk but if you volunteer info before you are read your rights, it can be used. The best thing to do is cooperate, but only say am I being arrested? I would like an attorney, Don’t get violent or belligerant because then you can be charged with resisting arrest.

  • LG

    By him not answering that question ab

  • LG

    By him not answering that question about shell casings……shows he was worried. Good thing they convicted him.

  • Kevin Yost

    As someone who has drawn his gun on a potential assailant, I needed to make some statements quick to avoid hearing my Miranda rights. So, on that note, though this post is good information, if you are involved in a shooting or near shooting, you might want to give some statements very carefully. If I was being grilled, I would state I had cooperated enough, and from this point on I would stand silent on my 5th amendment rights. I think pleading the fifth is maybe the only way to avoid obstruction of justice charges, when silence could there.

  • Mike King

    Great information, but lose the CTD adds if you want readers to take you serious…

    • JPKirkpatrick

      The Cheaper Than Dirt (CTD) ads are a site-driven ad for their revenue stream, not his personal choice…

  • druid

    Having read both the SCOTUS opinion and the blogs, I see a potential problem with this ruling, namely that the SC is creating a loophole to get around Miranda. The police could question anyone at any time about a case without Mirandizing them and enter their silence on any subject into evidence to be used against them, thus building a case and developing a suspect before even deciding to make an arrest. At that point. the Miranda provisions, which would have protected the individual, would be made null and void. This is a real Catch-22 situation and would only play into the hands of law enforcement to take the onus off unlawful interrogation. Now it becomes even more important for law-abiding individuals to learn the hard truth about the police- if they haven’t put the jewelry on you, get up and walk out, because anything you say, or don’t say, can and will be used against you.

    • JPKirkpatrick

      druid, good points. Having been in law enforcements for several years, it used to be that you could discuss anything with a person and whatever he said may lead up to his being considered a suspect, but could not be used against him since he had not been mirandized; but it appears that the Supreme Court is indeed allowing not only speech after miranda, but prior to and even silence and “body language” to be used against you.

      If you are even a witness to a crime, I think I would use the Colonel’s recommendation of

      “I want to cooperate fully with law enforcement, but I do not want to make a statement or answer any questions until I talk to my attorney.”

      This will become my mantra upon any official contact with Law Enforcement!

    • BenAround

      It is not a loophole. It is simply circumstantial evidence. The fact that a witness stopped being a witness when certain facts are presented is suspicious behavior and it is up to the witness to choose his or her behavior. It is up to the LEO to record the behavior as potential evidence. That is why you should never talk to police under any circumstances where there may be a question of whether or not you are involved as a potential subject of the investigation. Obviously, if a cop is chasing a robber and you know which way he or she went, it is OK to provide that assistance. But, in an interview situation where facts are in question and there is no “hot pursuit” element, just don’t talk without a written court grant of immunity or, at least an attorney present. If nothing else, you can be convicted of lying to a LEO if your “facts” are contradicted by circumstances or by other witnesses.

      • Anthony James

        So if you are involved in a shooting or criminal investigation, perhaps the best approach is to think positive and only make the initial statement… and wait for your attorney to arrive. What are your thoughts about this?

  • StoutCortez

    Say nothing, sign nothing, admit to nothing, agree to nothing, consent to nothing. You will make a statement after you confer with your attorney. PERIOD.

  • ShiloSharp

    I don’t agree with how the writer is viewing this. It’s not that silence is a problem, it’s that selectively answering some questions but not others is a problem. ‘Sort of like questioning one of you kids about wrongdoing – if he answers all your questions but refuses to answer one question in the middle, yes, you’re going to think he’s guilty on that one question. So with regards to one’s right to remain silent, you remain silent – not selectively silent. And you have a right to remain silent long before you’re read your Miranda rights – that notice is merely a reminder. In many or perhaps most states you have a duty to identify, that is, you have to tell police your name or enough information so that they can identify you, but you don’t have to a say single word more.

  • Laurence Almand

    Another example of political chipping away at the Constitution, part of the long-range plan to destroy our democracy. The best thing to say at a crime scene is NOTHING, until you have spoken to your lawyer. Cops are trained to trick people into saying what the cops want them to say, to nail a conviction.

  • Bornfightin

    America has become what I call “The Land of Illusions” As the years passes the concept of freedom and individual rights are slowly taken from the people (not for the rich and/or powerful). What ever happen with “Innocence until proven guilty”, every time I see cases in court I have the feeling that the accused has the burden to prove his innocence and not for the state to prove his guilt. The whole Justice system in America is broken. It’s a shame that any given individual who is involved with the “system” has to fear to be incriminated weather he cooperates or not, and in top of that, pay huge amount of money for legal fees just because the Law don’t care much for our rights.

  • JPKirkpatrick

    Thank you Colonel Findley for your service to our country and protecting our Constitution. Sir, the information that you have provided will indeed open many eyes on how we must conduct ourselves when we are in contact with Law Enforcement. It is indeed unfortunate that we must verbally cage ourselves when we should have nothing to hide, but your advice is spot-on and should be well heeded.
    JP Kirkpatrick, TSgt USAF-Retired

  • Producer2

    Lots of opinions here – watch the YouTube video referenced above – pretty much says it all.
    Don’t talk to the police – they are looking for ‘probable cause’. If you say nothing – they have no basis.

    Say nothing, consent to nothing, don’t ‘cooperate’ (whatever ‘cooperate’ means.) – then walk away.
    I took our town’s citizen police academy – and that’s what the police themselves said when the subject of talking to the police came up. They then showed us videos of suspects signing away their rights and babbling away. Guess who gets to go to jail?

    Any criminal defense lawyer you talk to will tell you that people get themselves in big trouble when they say anything to the police. As a lawyer I know is fond of saying: “The police are not your friends.”
    Any statements made after self-defense use of firearms should be vetted with your lawyer well before you need to use those statements.

  • BenAround

    While I applaud the intent of this article and agree with some of the suggestions, I dispute the basic premise. There is no such thing as a “Miranda Right.” There is the right not to give evidence against oneself. This is one of the inalienable rights and is specifically protected by the Constitution. So, using the language, “Miranda Rights,” is playing into a police state mentality. Miranda did not create any rights. No court decision can give us rights. We already have them. Miranda simply imposed a legal requirement on the executive branch that LEOs inform the Constitutionally challenged among us of their right not to incriminate themselves. You should never discuss the facts of an investigation with a LEO where you may be a “person of interest.” This includes anything from a traffic stop to a murder–regardless of how exculpatory you think your information may be. There is an excellent YouTube lecture on this subject by a law professor and a LEO with examples that will open your eyes on why “cooperating” with a LEO can only hurt you and never help you. You can find it by searching for “don’t talk to police.” You should watch it and make your whole family watch it. Then study up on why there is no such thing as “Miranda Rights.” You can always choose to remain silent and you don’t need a cop to tell you that. But, if you choose not to remain silent, then ANYTHING you say can ONLY be used “against” you but NOTHING you say can be used “for” you in a court of law.

    • gene

      “Unalienable”… The word is “unalienable” not “inalienable”. Unalienable is inherent in being whereas inalienable is granted. Our rights cannot be granted because they are an inseparable part of us.

  • Lui

    Just because you havent been warned of your miranda rights doesnt mean you dont have them. I know different courts can rule differently on the same situation. For instance when I used to make an arrest, as long as I was not going to question an individual about the crime, I would wait and let him talk. Its called a spontaneous utterance. If some guy is confessing his part unsolicited, who am I to stop him. I know in some courts they favor you mirandize immediately. In some, as long as you are not asking questions about the crime, you dont need to. Of course this is all predicated on the individual being a suspect based on probable cause. Witness’ are fair game to be asked whatever questions without being miranda’d. In the case presented, I doubt his refusal to answer weighed much in the guilty verdict, but it probably weighed much in law enforcements decision to focus the investigation on him, which would then probably lead to maybe a gunshot residue test? Law enforcement isnt expected to play dumb and ignore the obvious, the courts are. If his silence got the investigating officers hackles up and he looked deeper into it and found more physical evidence, then as far as investigations go, thats the nature of the beast.

  • michaelwloos

    If questioning goes where it shouldn’t and I’m not under arrest, then I’m leaving.

  • rod shier

    As a retired LEO, I would stay quit, mouth shut under the 5th amendment. The questions asked are always phrased for an answer that will be interpreted to be used against you. It’s always a win win for the police.

    • The Concerned Citizen

      Well! There you go! Right from the (retired) horses mouth! Thank you, sir, for your service and your honesty.

  • Paul

    “Miranda Rights” don’t exist. What exists is a “Miranda Warning.” The Miranda Warning is nothing more than a notification to the suspect that he has certain rights under the U.S. Constitution. It’s important to remember that those rights exist whether a police officer notifies you about them or not. Those rights apply all of the time, but police officers are only required to give the warning if the person being questioned is detained or arrested.

    The police (and I’m one of them) will often play a “gray area” game where they have no intention of letting a suspect go, but they don’t actually inform the suspect that he is under arrest or being detained. This allows us to question him without giving a Miranda Warning. He still has the right against self-incrimination, but he probably isn’t thinking about it just then. One way to protect yourself from this tactic is to politely inform that officer that you have somewhere else to be and ask if you’re free to leave. If he says “no,” then you are lawfully detained, and he must give you the Miranda Warning before asking any more questions (other than basic identification information and such).

    As others have said, expect to be arrested, or at least lawfully detained (which feels about the same as an arrest) any time you are in a deadly force encounter. It only makes sense that the police will want to detain the person who did the shooting until they can gather enough evidence to decide whether it was self defense. If they aren’t sure, then they will get in FAR less trouble for arresting you and losing the case later than they would get into for letting a murderer go free (in cases where deadly force is not justifiable).

  • GunTotingLib

    5-4, the conservative justices voting to take away your civil liberties, the liberal justices voting to defend them.

  • Anthony James

    However, this can hinder justice.

  • The Concerned Citizen

    Salinas vs. Texas tells us two things:

    1) We don’t have all of our constitutional rights unless we declare them.

    2) Because of #1 above, it proves we’re running under some other form of law. What would that be, hmmm? Maybe the *U* *C* *C*? …ane why are we running, by default, under the UCC? Well, that is the uniform COMMERCIAL code. The law for corporationis. Oh, wait! Could this be related tot he FACT that our government isn’t really our government since The Act of 1871?

    And by the way, if you “Invoke The 5th” you’ve invoked nothing. The fifth only says the right to remain silent can’t be used against you. The “5th” does not GIVE you that right, it only protects that right. You would, lawfully, have to declare both the right and the protection, “I have the right to remain silent and a constituional provision to guarantee it cannot be used against me.”

    I would prefer a more general statement, “Officer, I have certain rights which I claim that are inalienable and are protected by the constitution *FOR* the united states of America.”

    IF YOU SAY THAT, YOU JUST DETONATED A NUKE IN THE MIDDLE OF THEIR LEGAL FORTRESS. YOU JUST PUT THEM, AND YOURSELF, UNDER THE 1789 CONSTITUTION AND ALL ITS LAWFUL PROVISIONS UP TO AND INCLUDING ONES MADE RIGHT BEFORE THE STUB CONGRESS WAS UNLAWFULLY FORMED BY LINCOLN DURING/AFTER THE (not so) CIVIL WAR.

    But, again, I’m just thinking out loud using all the research and bits of info I’ve learned in the last 10 years. It would not surprise me if one invoked my general statement above when an officer stops you for a traffice violation would cause the officer to ask you to please slow down or not run those lights and do an about face and head back to his patrol car. Under constitutional law (which, as I mentioned before, we are NOT running under by default) there is no reason to stop you for anything but property damage, injury, theft or fraud.

    But, then, I’m just some idiot that knows nothing, right? 😀

    • The Concerned Citizen

      Ooops! Misspelled unalienable as inalienable.

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