Silence is Guilt

I have always given this advice to all my clients (and anyone willing to listen): If there is any chance you might be a suspect, even if it’s not true, do not talk to the police. There is nothing you can say that will make things better. Their job is to get you to confess or at least say things that can be used against you. That makes their job so much easier later. The only exception is if you have an air-tight alibi (“I was in Europe the last three months and here’s my passport to prove it.”)

Well, I’m not sure what to advise them now. The Supreme Court yesterday ruled that silence can be used against you, too.shut-up

According to this decision, the District Attorney is allowed to argue to the jury that your silence can be interpreted as a sign of guilt.

Conservatives everywhere are thrilled with this new interpretation of the 5th Amendment — an interpretation which wholly new and not supported by any documentation from the Founding Fathers whose “intent” they always say should follow. Apparently, every Amendment has exceptions (except, of course, for the 2nd.)

This, by the way, is a great example of “judicial activism” wherein the judges write laws and change the meanings of long-established precedent. You know how much conservatives hate judicial activism. Well, unless they agree with the result.

My only hope is that some states (such as Pennsylvania, where I practice) will negate the decision. After all, a state can always give more rights than the bare minimum required by the Constitution.

6 thoughts on “Silence is Guilt

  1. Mike, you are being very reactionary and misrepresenting the ruling. According to the ruling, your advice of “keep silent” is still good advice that always works. The ruling specifically noted that the suspect was freely answering questions and then suddenly stopped answering. The ruling also noted that the suspect did not explicitly invoke the right to silence. If you tell your clients to be quiet from the start, this ruling will not affect them (also, if you tell your clients to explicitly invoke their right to silence, this ruling does not affect them).

    I can understand that you disagree with the ruling and don’t like it. But that doesn’t forgive outright deceit of claiming that your previous advice no longer works or that you don’t know what to advise your clients. The status quo may have changed, but your “worst case scenario” advice is still valid (and, according to this ruling it is still overkill).


    • Well, I’d go even farther back to earlier rulings from this Court that allow police to interrogate someone without giving them their Miranda rights as long as the person is not “in custody” which only applies in a small percentage of cases anyway.

      The point is that previous to this ruling, the police were not allowed to use the lack of a confession as a confession. “He didn’t confess when he should have, so therefore he confessed.” The fact that he may have decided at that point to exercise his rights but wasn’t smart enough to specifically say “Hey, I want to remain silent now” is a poor excuse.

      So many loopholes allowing exceptions to the 5th Amendment…


  2. Actually, the ruling handed down by the court has nothing to do with speaking under police questioning and stopping. The ruling the court gave explicitly states that this dealt with questioning BEFORE arrest, before invoking Miranda warnings. In effect, the Court ruled that Miranda Rights under the Fifth Amendment only exist when formally charged with a crime, and at no other time. So pre-silence during a police questioning outside of an arrest but still within an investigation can be used as evidence.

    So, in this day of advanced psychological training, when police interrogators utilize specific techniques that can get even an innocent person to make statements that can implicate complicity and duplicity, silence cannot even be used by those unable to afford legal counsel during questioning without it now being used to incriminate all by itself.

    AND THAT IS THE PROBLEM. Because the point of having a Bill of Rights in this country is to not be in a position where someone can assume they don’t apply solely on the basis of not needing to remind you of them in the first place.


  3. It’s still perfectly acceptable to ask to speak with your attorney. That isn’t silence, and the police are supposed to stop questioning you at that point. (If they then arrest you, they were going to anyway, no matter what you said.)


  4. Isn’t that the same as a lie detector test? You don’t know WHY the person got nervous or quiet, so it isn’t admissible? They don’t have to confess that the alibi is a perfectly legal porn store, they just pay in cash because they are shy.


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