The Price of Silence: Supreme Court Rules That Pre-Miranda Silence Can Be Used Against Defendant To Prove Guilt

225px-010_alitoIn a major loss for individual rights vis-a-vis the police, the Supreme Court ruled 5-4 that prosecutors could use a person’s silence against them in court if it comes before he’s told of his right to remain silent. The prosecutors used the silence of Genovevo Salinas to convict him of a 1992 murder. Because this was a non-custodial interview, the Court ruled that the prosecutors could use his silence even though citizens are allowed to refuse to speak with police. It is of little surprise that the pro-police powers decision was written by Samuel Alito who consistently rules in favor of expanding police powers.

The case began on the morning of December 18, 1992 when two brothers were shot and killed in their Houston home. A neighbor told police that someone fled in a dark-colored car. Police recovered six shotgun shell casings at the scene. Police inteviewed Salinas who was a guest at a party that the victims hosted the night before they were killed. He owned a dark blue car. While this was a noncustodial interview and Salinas answered questions by the police, he stopped answering when a police officer asked whether his shotgun “would match the shells recovered at the scene of the murder.” The record states that, rather than answering “petitioner ‘[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched hishands in his lap, [and] began to tighten up.'” Notably, there was insufficient evidence to charge him with the crime. However, a statement later by another man (who said that Salinas admitted to the killings) led to the charge.

Salinas did not testify at trial, so prosecutors used his silence against him.

In 1976, in Doyle v. Ohio, the Court held that the prosecution may not comment on a suspect’s silence when he was under arrest and had been given Miranda warning. Here Salinas was using his right to remain silent that belongs to every citizen. However, because the police did not move to arrest him, the prosecutors are allowed to achieve the prejudicial impact addressed in Doyle.

The prosecutors also served to undermine the right not to take the stand. In Griffin v. California, the Court ruled that prosecutors could not comment on an individual’s decision not to take the stand and testify. Yet, here the prosecutors succeeded in magnifying the impact of this failure to testify by directing the attention of the jury to his decision to remain silent in the pre-custodial interview.

Of course, now the police need only to ask questions before putting some into custody to use their silence against them. What is particularly troublesome is how subjective this evidence is. To use the silence and demeanor of a suspect on this question is highly prejudicial and equally unreliable. Yet, now the refusal to answer questions (which is your right) can now be used against you. You can imagine how this new rule can be used any time someone wants to speak with a lawyer or a family member. Police can now recount how they did not assist them or volunteer information.

Citizens will now be able to have protected silence only after being placed in custody. Of course you had that right before that point, but silence would now be incriminating. That gives police every incentive to delay custody — an incentive that already exists due to other rules like Miranda.

In his dissent, Justice Breyer stressed the danger:

the need to categorize Salinas’ silence as based on the Fifth Amendment is supported here by the presence, in full force, of the predicament I discussed earlier, namely that of not forcing Salinas to choose between incrimination through speech and incrimination through silence. That need is also supported by the absence of any special reason that the police had to know, with certainty, whether Salinas was, in fact, relying on the Fifth Amendment—such as whether to doubt that there really was a risk of self-incrimination, see Hoffman v. United States, 341 U. S. 479, 486 (1951), or whether to grant immunity, see Kastigar, 406 U. S., at 448. Given these circumstances, Salinas’ silence was “sufficient to put the [government] on notice of an apparent claim of theprivilege.” Quinn, supra, at 164. That being so, for reasons similar to those given in Griffin, the Fifth Amendment bars the evidence of silence admitted against Salinas and mentioned by the prosecutor.

Unfortunately, my prediction that Alito would show an overwhelming bias in favor of police powers has been realized. This ruling will likely open up an entire area of new prosecutorial arguments using silence as evidence of guilt. It is a major blow to the rights of citizens — and a telling addition to the troubling judicial legacy of Alito.

Ironically, I was at CNN in case of a “major” ruling and was telling producers why the media has missed this “sleeper” case which will have sweeping impact on citizens in their relation to police. In my view, it was one of the most significant rulings of the term. (Of course, given the result, it was “significant” in a negative way — the way that the Hindenburg was a “significant” moment for airship travel).

Here is the decision: 12-246_1p24

118 thoughts on “The Price of Silence: Supreme Court Rules That Pre-Miranda Silence Can Be Used Against Defendant To Prove Guilt

  1. The frightening potential that this decision opens up scares me. Now the police will do all of their interrogating in non-custodial situations. They will then become psychologists by putting their subjective bias into their police report.

  2. I think that you might get around this by asking the cops if you have a right not to say anything. Then they will be forced to admit that you have that right, and thus any silence will be covered under law.

  3. …and people say that the Supreme Court is the sole defense of our rights? What a joke but Im not surprised at this anymore

  4. This is very scary, since the cops already have great latitude in choosing when to read the Miranda rights.

  5. My experiences show that the First, Fourth and Fifth amendments are dead. I was imprisoned by DoJ according to them because of what I filed in court in a third party lawsuit, documents that I verified under penalty of perjury but was not charged criminally for. I was imprisoned by DoJ for 5 months and they claimed that a bench warrant doesn’t require an oath or affirmation. I lost my liberty and my property without due process of law.

  6. With so many unsolved crimes in the US, the Courts believe this will help lower ‘the numbers’? I am wondering how a prosecutor will use a person’s silence? In his/hers closing arguments? Or as another form of evidence? How would a defense attorney circumvent or circumnavigate ‘a person’s silence as evidence of his/hers guilt’? Did the Supreme Court refer to the lower courts as how to implement or enforce this decision (sometimes they do, in certain cases)?

    I guess the Miranda Rights have to be revised? ‘You don’t have the right to remain silence, because we can still use your silence against you in the court of law’?

  7. Yeesuz,
    No one said cops reports could be entered, but they darn sure use them to “refresh their recollection” all the time while testifying.
    I would think if you knew that they can write whatever they want and jurors believe them. We want to believe them, we NEED to believe that they are truthful, as Joe Friday used to say “Just the facts Mam.” If you read the opinion, the cop described the acts as if they were saying that the man was evidencing guilt by his actions. There are many reasons people do what they do. Not just guilt. Maybe wanting to cover for his brother, his friend. Doesnt make em guilty

  8. “While this was a noncustodial interview and Salinas answered questions by the police, he stopped answering when a police officer asked whether his shotgun “would match the shells recovered at the scene of the murder.”

    I think we’ve got an equal protection problem. We lawyers all know about Miranda from no better governmental actor than the justice who wrote it. Can they use our pre-arrest silence against us? Probably not. How about all those watchers of Dragnet or Adam-12 or any other police show? Think Jack Webb isn’t a reliable source?

    If you’ve lived under a rock all your life or are poorly educated you get popped; if not you go free. What a country!

    By the by, why would any person suspected of anything talk to police in a non-custodial situation in the first place?

  9. Nuts! Just nuts!

    So, if I were to say to the police, if they were interviewing me in a non-custodial fashion, that I am exercising my 5th, would that prevent them from being able to use my silence against me? If I have my lawyer with me and he tells the cops I am exercising the 5th, would that be ok?

    What planet are these judges from anyway?

    And David, I would love to know the answer to that question too.

  10. ‘You have a right to remain silent – *but only* from the time that we formally tell you about that right.’

    One could apply that logic to any ‘right’ that people think they have.

    What are they smoking?

  11. The police and prosecutors will use whatever they wish against the proles and the high court will change the law to accommodate it, It’s back to business as usual for SCOTUS.

    Texas Mother Arrested For Asking To See Warrant For Her Son

    “Police in Slaton, Texas, reportedly arrested a woman for asking to see a warrant when they came to her house to bust her son.

    “I told him, ‘I will release my son to you upon viewing those orders.’ Those were exactly my words,” the woman said. “He said, ‘This is how you want to play?’ He took two steps back, turned around to the officer and said, ‘Take her.’ They turned me around, handcuffed me and took me in.”

    The complainant was aware that police were coming for her 11-year-old son and just wanted to see that they had a warrant. Apparently the warrant did not exist. The end result was that the woman spent the night behind bars and her son remained at home, My Fox Lubbock reported.” continues

  12. Darren, right, that’s the question isn’t it. An exercise of ones rights to silence, or probably immediately requesting a lawyer, is now if not indicative of guilt, certainly prejudicial regarding one’s innocence. The concept of ‘If s/he’s not guilty why wouldn’t she talk to the police’ is fair game as an argument or conclusion to bring into the case, as if one had no right to silence to begin with. What is the best approach to take?

  13. This suggestion is not offered as legal advice but as rhetorical advice:

    Speak in non-responsive gibberish.

    You aren’t silent but you reveal nothing of value.

    Cop: Where were you at eight o’clock on the twenty-first?

    You: Banana axe mangrove thrush thrush hootenanny.

    Cop: Are you trying to give me the run around?

    You: The bells, the bells! Honestly, apricots don’t make a good industrial lubricant.

    Cop: Answer my questions!

    You: I am. Hippopotamus simplex or fugazi?

    I’m betting they’d soon get the idea you aren’t going to talk to them about what they want to talk about or you’d be getting Mirandized shortly.

  14. I surmise that, if I ever get so desperate as to need a suicide by police officer end of life experience, perhaps the following would work:

    0. I find that, according to my Miranda rights, I need to read my rights to myself, so that my rights will have been read to me.
    1. I have the right to remain silent.
    2. Anhyting I say or do can and wil be used against me in a court of law.
    3. Because my only possible adversary is the adversarial system, I have no actual right to an attorney.
    4. I cannot afford an attorney and none will be provided for me.
    5. I do not understand these rights as I have just read them to myself.
    6. With these rights not in mind, I choose to not speak with any law enforcement person.

  15. Maybe some of these critics of the world’s greatest legal system would be happier if our system was more like the ones in Roosia, China, or N. Korea.

  16. For those asking what a suspect should do, Alito states it clearly in the Washington Post article on this ruling: ‘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.’”’

  17. To expand on what I just posted, you have to point out to the police that you have a right to remain silent and that remaining silent cannot be used against you. In other words, Miranda rights apply once you say them, if the police don’t. It’s ridiculous, but that seems to now be the case. The WP article also points out that the suspect had answered some questions, and this was taken to mean that he was not invoking his right to remain silent. So, it sounds like the best course is to answer no questions at all, except to state that you are invoking your right to be silent.

  18. Reblogged this on Randy C White and commented:
    This shows you how f**ked up the conservative members of SCOTUS really are. The “Miranda Rights” are in the Constitution. They exist PRIOR to a suspect being Mirandized. The SOLE purpose of reading a suspect their rights is to insure they are AWARE of those rights…they are NOT magically given to a suspect once the rights are read.

  19. Randy White,
    You used one of the four magic words that will get you snagged in the moderation filter. I made a minor edit for you and approved it.

  20. I though the Miranda warning was to insure that people were aware of the right to remain silent and to have an attorney. Now it seems, those rights have disappeared until the cops decide to grant them. As I recall, even if you choose to waive the right to remain silent, you can withdraw the waiver at any time and not speak. Guess the new prison/slave labor force will be expanding again.

    listening to the cardinals claiming territory. :-)

  21. We have much damage to our rights to undo soon.

    You can see the masses gathering already. It will not be much longer.

  22. The cops will start running seminars this next week regarding how to delay the Miranda warning and perhaps ramp up the video of the interrogations.

  23. ALITO, J., announced the judgment of the Court and delivered an
    opinion, in which ROBERTS, C. J., and KENNEDY, J., joined. THOMAS, J.,
    filed an opinion concurring in the judgment, in which SCALIA, J., joined.
    BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR,
    and KAGAN, JJ., joined.

    As I approach my 37th year practicing criminal law, this, now constant, chipping away of the Bill of Rights by the Supreme Court is not only expected but shockingly, does not draw an outrage by the citizens of this country. This is another sad day in our country and we criminal defense litigators( already handicapped by the opinions over the last 40 years) have another hurdle to overcome in protecting our clients from the law enforcement powers blessed by the courts. It saddens me. To my brother and sister barristers: focus grasshopper and continue to fight the good fight!

  24. The Fifth Amendment of the U.S. Constitution provides, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor 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; nor shall private property be taken for public use, without just compensation.”

  25. This article misconstrues the situation. Interestingly, the link to the case at issue does not work. An actual working link is at .

    In essence, the situation comes down to:

    (1) The guy initially answered some questions voluntarily, but then stopped answering and began acting suspicious when asked a hard, pointed question; and

    (2) the cops were not given affirmative notice of the reason for the subsequent silence — the guy just fell silent all the sudden without informing the cops that his reason for doing so was that he was invoking his right against self-incrimination.

    In essence, if you specifically tell them you’re invoking the 5th amendment, then they cannot use it against you. The first 3 pages of the actual case at issue make this clear.

  26. “To my brother and sister barristers: focus grasshopper and continue to fight the good fight!”

    Copy that, Frank.

  27. Actually, “Echelon” – which is a peculiar nom de plume in itself for someone defending Alito’s attack on civil liberties – that link was fixed hours ago.

    Now would you kindly like to explain how rights, which are inherent and reserved by the terms of the 9th Amendment, can be subject to a condition of specific invocation without running afoul of the 14th Amendment’s Equal Protection Clause when the right itself exists without reserve in the specifically protective language of the 5th which clearly states and without reservation that “[n]o person shall be [. . .] compelled in any criminal case to be a witness against himself” regardless of whether they affirmatively assert the right or not? Despite precedent stating, as Breyer summarizes in the dissent, that “we have two sets of cases: One where express invocation of the Fifth Amendment was not required to tie one’s silence to its protections, and another where something like express invocation was required, because circumstances demanded some explanation for the silence (or the statements) in order to indicate that the Fifth Amendment was at issue.

    There is also a third set of cases, cases that may well fit into the second category but where the Court has held that the Fifth Amendment both applies and does not require express invocation despite ambiguous circumstances. The Court in those cases has made clear that an individual,
    when silent, need not expressly invoke the Fifth Amendment if there are ‘inherently compelling pressures’ not to do so. Miranda, 384 U. S., at 467.”?

    That is do you care to explain it without resorting to tortured logic roughly analogous in quality to the piss poor logic and legal reasoning in decisions past like Buckley v. Valeo and the current court’s own Citizens United v. FEC and the same low quality reasoning exhibited in this case by Alito in this case?

    Rights are not created by state fiat. That’s counter to the very foundations laid out by our Founders in the Constitution and rooted in the natural law tradition. They cannot be usurped so casually in favor of the state without it be called anything other than – and fairly so – tyranny.

    Feel free to get your friend, Carnivore, to help you answer. If he’s not home, call your buddy PRISM.

  28. I think we are seeing the begining of the end of American democracy and the beginings of the American police state. Makes me want to cry.

  29. Mr. Torp,

    I must concur with the stipulation that mine are tears of anger at those in Washington – from all three branches of government – who were so stupid, overly ambitious and/or greedy to give bin Laden everything he wanted on a silver platter in their response to the over hyped “threat” of terrorism: the destruction of the rights and liberties our Founder intended to protect by forming a liberal democratic republican form of government rooted in natural law and employing only the best traditions protecting civilian rights from the English common law as our basis.

    A pox upon them all.

  30. We need a constitutional amendment limiting the time a justice can serve on the supreme court. I would suggest 12 years. And they cannot serve in any capacity in a governmental position for life or practice law at the end of the 12 year term. By accepting an appointment to the high court the would agree to those terms. They would also receive a lifelong pension at the end of their term. Such an amendment would allow a turnover of the court so a terrible decision (or as with this court, a series of terible decisions) can be corrected in a decade rether than a lifetime.

  31. Robert, we are indeed witnessing the destruction of the Bill of Rights. However, this will be reversed very soon. The people have had enough. The time is coming very quickly.

  32. face it, the old “innocent until proven guilty” is long gone. with the new and improved “criminal justice system” you are a criminal. if you weren’t, you wouldn’t be there.

  33. Echelon,
    So my 5th Amendment only takes effect when a LEO says so?

    I’m confused… What does a police state look like, then?

  34. Gene H.
    1, June 17, 2013 at 10:56 pm

    … What you say and don’t say can and will be used against you in a court of, laaaaaaw.

    May I now, commit myself, your honor?

  35. Robert Torp, esq.
    If enacted through the legislative process… Would the U.S. Supreme Court would find it unconstitutional?

  36. Well, if Clarence Thomas gave the position the thumbs-up, who are we to argue with his infallible authority? I’m sure that Gene and Darren, president and vice president, respectively, of the Clarence Thomas Fan Club, would agree.

  37. Dirker: ” 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.’”’

    If that is the case, then why bother with Mirandas at all? Just keep going unless the person claims their ‘rights’ without being prompted to do so.

    Remember the fuss about Mirandizing the Boston brother?
    The justification for delay in reading him his rights was that it gave investigators an opportunity to prevent some wider conspiracy or ticking bombs.
    There was mention of a case where the suspect had hidden a gun somewhere in a grocery store. It was asserted that the requirement to Mirandize was trumped by the need to locate the gun and prevent a random discoverer from accidentally discharging the gun or using the gun in a crime.
    In the case being discussed here, that sort of consideration does not appear to have been a factor.

    The only evidence that convicted the guy appears to have been (1) the cops thought he seemed guilty and (2) some other guy asserted that he had overheard the guy admitting it somewhere sometime. That’s a very low bar.

    One big WTF question from me…..
    “He agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning. ”
    He was then apparently asked if he thought the shells from the scene would match his gun.
    Hello? Why not ask a ballistics expert? The gun and shells do not appear to have been used in evidence. I wonder why not.
    Was it that the guy was considered to be of some general ‘low-life’ persuasion and therefore the procedures applicable to ‘relatively decent’ people did not apply – not even in court?

  38. One more question..

    I had some notion that any questioning before the Miranda moment was not admissible in court – or that there would at least be difficulties in trying to use it.

    What would I know?

    So, the plan:
    Cop: “How are you today?”
    Me: “The Fifth! I wanna lawyer”

    I should also carry a recording device.

  39. Damned if you do, damned if you don’t. Wasn’t there a case out of Michigan where the defendant kept telling the police he had nothing to say and wanted a lawyer after he had been Mirandized, and scotus said that because he failed to remain SILENT, certain statements or responses during subsequent questioning were used to incriminate him?

  40. This is an amazing case, except for who voted for it and against it and who wrote the opinion. It is truly amazing that if I just keep my mouth shut, that silence is evidence of a crime. I would say keeping one’s mouth shut when questioned by the police is a good thing, not a crime. Holy crap.

  41. So, we are at the point now where the term “right” has been redefined as “something that negative consequences can be inflicted on you for doing”. Which, if my dictionary is correct, makes it a synonym for “offence”, or so.

  42. Yep…. And out of the great state of Michigan they did the same thing…. It’s crazy….. Crazy I tell you….

    What’s surprising here its a Hispanic and Houston…. At least he made it to trial….. That all…

  43. If you have to say I am invoking the 5th amendment so that your silence is not held against you it presupposes that everyone knows that this is what they have to say.
    (someone had written, sry I cannot quickly find the post, that people don’t care about this kind of thing. I think it is more that they have not heard about it. Absent this post I hadn’t. There is a lot in the ‘news’ that I would be ignorant of without this blog. So much news, so much of it caring more about celebrities and Kate Middleton’s pregnancy, people cannot keep it, even when something important is noted it is often lost within the clatter of all the other crap with which it is surrounded.))

  44. […] Der US Supreme Court hat entschieden, dass die Miranda-Rechte erst gelten, nachdem sie dem Befragten…. Da hat jemand Fragen der Polizei nicht beantwortet und sie hatten keine Beweise gegen ihn, also haben sie das Detail, dass er nicht antworten wollte, als Schuldeingeständnis gewertet. Und weil sie ihm zu dem Zeitpunkt noch nicht seine Miranda-Rechte gesagt hatten, findet jetzt der Supreme Court, war das OK. […]

  45. The concept of “Miranda rights” was enshrined in U.S. law following the 1966 Miranda v. Arizona Supreme Court decision, which found that the Fifth and Sixth Amendment rights of Ernesto Arturo Miranda had been violated during his arrest and trial for domestic violence. (Miranda was subsequently retried and convicted.)

    The Supreme Court did not specify the exact wording to use when informing a suspect of his/her rights. However, the Court did create a set of guidelines that must be followed. The ruling states:

    …The person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he/she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he/she is indigent, an attorney will be provided at no cost to represent him/her.

    Fast forward from 1966 to 2013, WOW! This opinion hardly made nation news. It certainly is a new legal world as now seen by the Supremes!

    “I love my country, it’s the government I’m afraid of.”

  46. Frank,

    Yep….. If I recall… Wasn’t Miranda shot in a Bar?

    For your last statement I’ve seen it before…. Can you tell me who originally said it….

  47. I will be delighted to answer your questions when they are presented in writing for review by my attorney to assure my efforts are complete and accurate in every detail.

    Thank you for giving me the opportunity to help the police in this serious matter.

  48. Anonymously Yours:

    The Supreme Court set aside Miranda’s conviction, which was tainted by the use of the confession that had been obtained through improper interrogation. The state of Arizona retried him. At the second trial, his confession was not introduced into evidence, but he was convicted again on testimony given by his estranged de facto wife, but only after he sued for custody of their daughter. He was sentenced to 20 to 30 years in prison.

    Miranda was paroled in 1972.[4] After his release, he started selling autographed Miranda warning cards for $1.50.Over the next years, Miranda was arrested numerous times for minor driving offenses and eventually lost the privilege to drive a car. He was arrested for the possession of a gun but the charges were dropped. However, because this violated his parole he was sent back to Arizona state prison for another year.

    On January 31, 1976, after his release for violating his parole, a violent fight broke out in a bar in Kingman, Arizona. Miranda received a lethal wound from a knife, he was pronounced dead on arrival at Good Samaritan Hospital. Several Miranda cards were found on his person.

    I don’t know the author but I’ve also seen it as ” I love my country, it’s the government I’m afraid of. God bless America.”

  49. How about not putting yourself in the situation where you need miranda rights said to you. And if they are said to you, you have nothing to hide. Is there something wrong with doing the right thing these days?

  50. How about not putting yourself in the situation where you need miranda rights said to you. And if they are said to you, you have nothing to hide. Is there something wrong with doing the right thing these days?

    How many people have been arrested who were not guilty (forgetting those found guilty and later exonerated.)
    The right thing is not always the right thing depending on the circumstances.
    I used to think the way you do, if you have done nothing wrong you have nothing to hide but I have seen the police, when I have called them about someone harassing me, taking the side of the harasser. When I said to the officer “Please make sure that your report shows that I was the one who called you.” the officer got nasty. “I’ll write what I want to write, you don’t tell me what to do.” I have not seen the report but I would be very surprised if it gave the truth that I was the one who called them. Imagine if this had been about a murder or other heinous crime.

  51. What exactly did you expect from a police state that keeps its own cizitens under surveillance – even journalists and soldiers? Why do you keep thinking the United States are any different from Saudi Arabia, China oder the former GDR (that had a secret service called “National Security Department” / “Ministerium fuer Staatssicherheit” fighting enemies of the state by even storing olfactory patterns) ?

    When only one freedom right is being limited, terrorists win.

    The paranoid western world has already given up on so many freedom rights that they just don’t deserve them any more.

    This is the bed you made. So this is the bed you will rest on.

  52. Like my good friend ROBERT FOX is well versed to say, try this out for consideration. At all times I am either under one of two conditions. Either I am under arrest, or I am NOT under arrest. At all times, I have full access to all of my rights. I have the right to speak and the right to not speak. I therefore choose to not speak to you law enforcement officers, according to the 5th Amendment rights I have. (and then stick to that by not talking, even though they will try a myriad of ways to get you to revoke the exercise of that right, by starting to speak again.)

  53. Defs. Right to Remain Silent attaches only when arrested. This is why there is mention of the “non-custodial” type of questioning. Had he been arrested, the 5th amendment would attach. This is still SCRAY as well. So much can be interpenetrated from silence alone.

  54. The only purpose for “their” supreme court is to justify every Treason passed by our “employees” It is their reason for establishing this Treason justifying arm of their government. It all has no standing in Common Law. And why they use “their” supreme treason justifiers court of corporate maritime law. ALL COURTS OF OUR “employees”/government are not courts of the people as set by our founders and found in MY Constitution

  55. “How many people have been arrested who were not guilty ”

    It would take me a while to dig up the clipping. But recently a man was exonerated and released after more than a decade in prison.

    Suspicion attached to him when he asked an officer what was going on. He was in the area of a crime purely by accident.

    Fortunately that kind of thing does not happen often. But occasionally innocent people are convicted. Many times conviction of the innocent results from issues such as bad science and erroneous eye witness accounts.

    But sometimes the process starts when an innocent bystander asks a reasonable question or when someone gives information in the belief they are being questioned as a witness.

    All citizens should understand that it is serious business anytime an LEO asks questions relating to a crime.

    Being innocent is simply not enough to guarantee the system works as it should.

    In addition there are numerous examples of people being charged for giving false answers to federal investigators.

    Leaving aside the question regarding guild or innocent of the underlying crime, it seems likely that advice of an attorney would have prevented these individuals from answering in a way that would result in a charge.

    The lesson is simple. If you are questioned by law enforcement about a crime get advice from an attorney before you answer.

  56. Problem with getting an attorney first is many folks cannot afford an attorney. And it seems that the poor and disenfranchised tend to get caught up more often in these scenarios.

  57. Julia Esq.,

    “This is still SCRAY as well. So much can be interpenetrated from silence alone.”

    Not to mention that argumentum e silentio (argument from silence) is a logical fallacy in its own right. Conclusions based on the absence of evidence, rather than the existence of evidence, are subject to all sorts of bias and error. This holding is inherently irrational because it is inherently illogical. Not to mention the whole “flies in the face of precedent” argument from Breyer’s dissent.

  58. As I recall, when the Geneva Convention was agreed upon, enemy soldiers were only required to provide three pieces of information.
    This SCOTUS decision has simply solidified the FACT that WE are the enemy.
    When speaking to ‘law enforcment’, only provide those three things. Anything more shall be construed as ‘collaboration’.
    I THINK that this is REVENGE for the former head of the IRS’s testimony, and the call for her to be brought to trial for her statements (and the misconstuing of her statements in invoking the 5th).
    GEE, ya THINK?

  59. Ignorance of a law doesn’t matter, but ignorance of rights does? yeah that totally makes sense, you only have rights after a specific person in authority tells you about it.

  60. Since this is applies during a “non-custodial” interview, meaning you are being suspected without compelling evidence and not technically under arrest, a person in this situation might be wise to respond to the officer’s first question with the query: “Am I being detained or am I free to go?”
    If allowed to leave, then he should IMMEDIATELY do so and if not he should formally invoke his 5th amendment rights with an appropriate declaration.
    I AM NOT an attorney, and my opinion does not constitute specific legal advice. Best of luck to all innocent individuals who fall into such a situation. God be with you because the High Court certainly is not.

  61. […] In a major loss for individual rights vis-a-vis the police, the Supreme Court ruled 5-4 that prosecutors could use a person’s silence against them in court if it comes before he’s told of his right to remain silent. The prosecutors used the silence of Genovevo Salinas to convict him of a 1992 murder. Because this was a non-custodial interview, the Court ruled that the prosecutors could use his silence even though citizens are allowed to refuse to speak with police. It is of little surprise that the pro-police powers decision was written by Samuel Alito who consistently rules in favor of expanding police powers.  Read The Full Story […]

  62. “the FACT that WE are the enemy.”

    Of course we are the enemy. We have a tyrant in the White House and his lackeys and minions running everything, with the media acting as his lap-dogs… Did you ever doubt that we are the enemy? Why do you think they want us unarmed???

  63. All you have to do is invoke your right to remain silent and they can’t use that against yo. If you don’t invoke, then they can, regardless this case is just an opinion, hence that is why they call them opinions

    Was defendant within the Federal Zone?
    Was the officers Federal or State?
    Was the socalled crime civil or Admirality?
    Was the Defendant a National(State citizen) or United States Citizen(born in the Federal Zone?
    These questions and many more are the kingpin questions as to the authority of the Federalistas to prosecute the defendant or not?
    One more statement. Did the defendant have a lawyer(officer of the court) or council at bar? Government schools do not teach civics anymore. Wonder why?

  65. So if any of us choose to exercise our First Amendment rights to worship God, or to speak, read or write private communications, we will be required to cite the First Amendment, word-for-word?

  66. So if any of us choose to exercise our First Amendment rights to worship God, or to speak, read or write private communications, we will be required to cite the First Amendment, word-for-word?

    There is no benefit in you citing the First Amendment.
    Immediately before the incident of your worship, speaking, reading or writing, someone in authority has to formally advise you of the provisions of the First Amendment.
    Whether or not you were already aware of the provisions of the FIrst Amendment is immaterial. The ritual of (re)informing you is like magic pixie dust. If you have not been sprinked with the dust, you’re screwed.

    That is the clear logic of this Miranda decision. You don’t have any rights until the instant of being read them.

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