Silence Law – Can Silence Be Incriminating? Fifth Amendment and Miranda Rights

The right to remain silent… what exactly does that mean for the regular Joe? As it turns out, keeping silent in some cases can actually be incriminating. The basic rule to go by would be to get a lawyer if you feel you might need one.

Take a look at the U.S. Supreme Court’s ruling in Salinas v. Texas for example. This was a homicide case in Houston with just two suspects back in 1992. Salinas went to police voluntarily – which is important to note since the law doesn’t consider such interrogations to be protected the same way as when under arrest. Ultimately he was cooperative until asked about shotgun shells, at which point he fell silent. And later on during the trial his silence was used as an indication of guilt.

A violation of the 5th amendment, right? “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;” Salinas thought so as well and tried to appeal to the Supreme Court. He thought, like most of us assume, that the fifth amendment went hand-in-hand with the right to silence written into the miranda rights… except that voluntary interviews aren’t protected by that law and the fifth amendment is intended to only keep you from being a witness against yourself (in relation to keeping silent). Meaning that what you don’t say can become just as incriminating as what you do say. As a precaution: when in doubt – get a lawyer!

When arrested, it’s a good idea to remain silent until you can speak with a lawyer. Many people choose to waive their right to silence, 93% according to studies by the Idaho Law Review in 2012. Why? Confusion, frustration or under-education in many cases. Whether guilty or innocent, it’s important to keep an expert on your side who knows the laws and consequences.

There’s a lot of fine print… but that goes without saying in the law world. Another tip to remember would be to state your rights. If you want to remain silent, express the reason behind your silence. Say repeatedly “I invoke my Miranda rights” or “I want to speak with a lawyer”. This will be documented and clear you of any ‘suspicious silences’ later. A court case sets defense against prosecution and any information can be used either in your favor or against you in a court of law.