It used to be that if you were ever arrested, detained, or questioned by police, you had an understood right to remain silent. That’s not just so that criminals can more easily get away with their crimes. In a sense, since we’re all to be treated equally under the law, it does protect criminals as much as innocents, but the point of the 5th Amendment is to protect law-abiding citizens from being forced to give self-incriminating confessions or evidence that will be used against them. In fact, historically, the 5th Amendment is related to the use of torture – er, “enhanced interrogation techniques” – in extracting confessions, whether truthful or not.
Your choosing to remain silent when encountered by police prevents them from being able to twist your words and use them against you to make you appear guilty before a prosecutor and judge. If they have no statement from you, they’re forced to follow evidence alone. However, any statement from you would most certainly be used against you, and there would be no need for evidence.
But it was ruled last week in the case of Salinas v. Texas that silence can be used against you when you choose not to talk to the police. Choosing to remain silent can make you look guilty. Cornell University Law School explains the origin of the case:
“Police in Houston, Texas questioned Genovevo Salinas in 1992 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. 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.”
According to Justice Alito and Kennedy, “[Salinas’s] Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officer’s question,” and “[The] Fifth Amendment guarantees that no one may be ‘compelled in any criminal case to be a witness against himself,’ not an unqualified ‘right to remain silent.’”
So, because he didn’t spell out to the officers that he was invoking his 5th Amendment rights, they can use that silence against him. Was Salinas guilty of murder? I don’t know. Maybe he was. But that’s largely irrelevant in considering what kind of precedent this will set. If you’re innocent, and you exercise your right not to incriminate yourself, they’ll associate you with Salinas. “Oh, you’re not answering our questions, because you know you’re guilty. You must have something to hide.”
If you talk to the police, you’re at risk of having your words used against you. If you don’t answer their questions, that will be used against you. Damned if you do; damned if you don’t.
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