Anyone who has watched an episode of Law & Order, NYPD
Blue, or Miami Vice has heard those famous words: “You have the right to remain
silent; anything you say can and will be used against you in a court of law....” As you may know, it’s known as “Mirandizing”
a suspect, a term coined from the Supreme Court case that ruled that police are
required to make these and other disclosures prior to “custodial
interrogation.”
Most
attorneys, if given the chance, would advise their client to do just that –
remain silent. Little good can come from
running your mouth in a situation where the police have already decided that
you’re their man (or woman, just to be fair).
You’re probably not going to talk your way out of the mess, at least not
right then. So both practically and
legally speaking, the prudent thing to do is to remain silent.
But what if
your silence could be used against you to demonstrate your guilt to the jury
later on? In a case before the Supreme
Court, prosecutors in Texas
had successfully used a defendant’s silence to help prove him guilty of murder
to a jury. The trial court judge had allowed
the prosecution to argue that by remaining silent in response to questions by
police, the defendant basically admitted his guilt. This particular defendant had been freely
talking to police until the officer asked him if certain shell casings were
going to match a rifle that he had. It
seems that the defendant then realized the possibility of a ballistics match
for the first time and also realized he may be in trouble after all. So he did exactly what he thought he had the
right to do – remain silent.
Importantly, he had not yet been arrested, and therefore had not been advised
of his rights (Mirandized), nor were the police obligated to Mirandize him at
that point.
But the issue in front of the
Supreme Court is whether or not that right to remain silent extends to the time
prior to the arrest. Some of the comments of the individual
Justices indicate that there is a possibility that the Court may determine that
your pre-arrest silence can be used against you to prove guilt. Is it good policy (or even Constitutional)
for the police to be able to question you prior to arrest, and then be allowed
to use either your answers or your silence against you in court? It seems that such a ruling by the Court
would place future suspects in a Catch-22.
Either talk to the police and risk incriminating yourself, or don’t talk
to police…and risk incriminating yourself.
