The U.S. Supreme Court has been very busy chipping away at our Fifth and Sixth Amendment Rights…
and US citizens should be VERY concerned.
Dispelling the myth: Pre-Miranda silence is not protected by the Constitution and may be construed as an admission of guilt during an investigation, says the U.S. Supreme Court. Prosecutors can – and will – use your silence against you.
“You have the right to remain silent.” There are few citizens in the United States with access to a television that haven’t heard that line being delivered by the heroic law enforcement officer arresting the suspects as they walk them off to the patrol car. But what you may not know is that silence isn’t always golden. Miranda Rights, established by a Supreme Court ruling in 1966 in order to preserve a defendant’s right to avoid self-incrimination has a few caveats that could be critical to your case should you ever find yourself facing criminal charges.
History of the Miranda Warning
On June 13, 1966, the Supreme Court’s 5-4 decision on Miranda v. Arizona resulted in what we know today as “Miranda Rights”. Ernesto Miranda, the defendant, was arrested and charged with robbery, kidnapping and rape in 1963. Without an attorney present, and without being informed of his rights, Miranda finally confessed to the crimes after hours of being interrogated by police officers, detectives and state attorneys all the while being cut off from the outside world.
Supreme Court Justice Earl Warren wrote the decision and stated, “… the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U. S. 436 (1966).
According to the U.S. Supreme Court’s almost paradoxical ruling in Salinas v. Texas, 133 S. Ct. 2174, 2178 (2013), however, silence may absolutely be used against you. Silence in and of itself is not exercising the protection afforded under Miranda. Quite the contrary: In Salinas, pre-Miranda silence in lieu of answering questions may be interpreted by the State as admission of guilt and used as such evidence in a trial. A suspect must first clearly state that he or she intends to invoke their Miranda rights and retain a lawyer immediately.
You can absolutely be arrested without being Mirandized.
As iterated in my recent article for a law firm publication this week:
Once arrested, any statements coerced by law enforcement or made during interrogations prior to your Miranda Warning may be suppressed due to Fifth Amendment violations, but that is provided you clearly state that you understand your rights and want a lawyer present. You must invoke your rights if you’re a suspect in a criminal investigation and retain an attorney immediately.
If you are arrested, the Miranda Warning serves to protect you from self-incrimination by giving you the “right to remain silent” under the Fifth Amendment of the Constitution, which offers the suspect the right to refuse “to be a witness against himself.” The Miranda Warning also requires law enforcement to remind the defendant that he has a guaranteed Sixth Amendment right “to have the assistance of counsel for his defense.” A defendant has the right to an attorney if facing criminal charges and if he cannot afford an attorney, a government-appointed attorney (public defender) will be provided.
Unlike what we often see on television, the Miranda Warning is not a get out of jail free card based on a technicality, and the defendant has a certain amount of responsibility in the process to ensure that the Miranda rights are properly exercised by him or her. Miranda Warning is not required by law enforcement to make an initial arrest, nor is it required to issue a warrant or initiate interrogations. Rather, Miranda is a procedural process that, over time, has become a little less defendant-friendly, and a lot more tilted toward law enforcement.
Ideally, upon you invoking your Miranda rights, law enforcement officers should immediately cease questioning during custodial interrogation. Edwards v. Arizona, 451 U. S. 477 (1981). But what about the statements you may have made right before you were read Miranda? Spontaneous admissions made prior to the reading of your Miranda Rights may be usedagainst you if they were voluntary and are considered admissible. U.S. v. Withorn, 204 F.3d 790, 796, 54 Fed. R. Evid. Serv. 255 (8th Cir. 2000).Mere silence during questioning is not enough to ensure the protection of your Fifth and Sixth and Fourteenth (due process) Amendment rights. Salinas v. Texas, 133 S. Ct. 2174, 2178 (2013). If you have been arrested, you must acknowledge that you understand your rights, and then invoke them. You must state clearly that you will not participate in questioning without your attorney present. Davis v. United States, 512 US 452 S. Ct. (1994).
You must state that you want an attorney immediately, and do not give any further comments to law enforcement under any circumstances. By exercising your rights under Miranda, you are not being uncooperative – you are protecting yourself from self-incrimination and ensuring that your right to due process (fair treatment afforded to all citizens under the Constitution) during a criminal investigation is upheld.