32 votes

Supreme Court Decision Shreds 5th Amendment Protection; Your Silence Can Now Be Used As Evidence of Guilt

Is an illusion of civil liberties all that is left? It has seemed that way for quite some time, as all the evidence piling up points to that conclusion. Here is the latest to that effect:

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 an 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 little surprise that the pro-police powers decision was written by Samuel Alito who consistently rules in favor of expanding police powers...

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.

Read the full analysis of this decision by Constitutional law profressor Jonathan Turley: http://jonathanturley.org/2013/06/17/the-price-of-silence-su...

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Supreme court is wacko, probably blackmailed by FBI

Evidence is evidence of guilt.

How can any sane person claim that lack of evidence is evidence?

These guys should be thrown off the bench for being severely retarded.

Free includes debt-free!

He should have demanded that

He should have demanded that the silence be presented in discovery along with a transcript.

New job opportunity for police sound techs to dub questions

over a video of a suspect sitting quietly.

"He remained silent during questioning - must be guilty".

Silence is ordered & evidenced in court. Oft noted in record.

You do not have to testify against yourself. Evidence of who & why silence was recorded is arguable, at best. Mystery of Watergate tape’s missing 18 minutes may finally be solved Nixon's secretary, she claimed to have accidentally erased a crucial 18 minutes of the Watergate tapes, demonstrated in the photo. While theoretically possible, her "simultaneous stretch, reach, press, and push" actions were extremely unlikely. Any one was "possible," but in combination, they were not believable. Photo: http://www.lesjones.com/posts/2005_12.shtml

Date: 2009.07.30 By Tim Reid, TimesOnline.co.uk

One of the great political mysteries — what was said by President Nixon during a suspicious 18-minute gap on the Watergate tapes — could soon be solved thanks to a keen-eyed amateur sleuth and modern crime-fighting technology. The missing section of a 79-minute conversation between Mr Nixon and his Chief of Staff, H. R. “Bob” Haldeman, was erased deliberately.

It recorded a meeting on June 20, 1972, three days after operatives connected to the White House broke into the headquarters of the Democratic National Committee in the Watergate complex — a burglary that caused the scandal that destroyed Mr Nixon’s presidency. President Nixon with H R 'Bob' Haldeman, his Chief of Staff, in the Oval office...

Once it became known that Mr Nixon had recorded meetings secretly in the White House, the President faced congressional and court subpoenas to hand the tapes over. These eventually sealed Mr Nixon’s fate, but the unexplained 18 minutes of silence has troubled historians ever since.

The US National Archives, which holds the Watergate files, has tried to fill in the blanks. In 2001 it set up a panel to see if new technology could bring back what was said on the tape, but nobody could.

An amateur Watergate sleuth, however, has convinced the archives that there could well be another way to solve the puzzle: using notes taken by Mr Haldeman at the meeting.

Mr Haldeman was a meticulous note taker who wrote in longhand on yellow legal notepads. ...

The notes were subpoenaed in 1974 and retrieved from a White House safe to which only Mr Haldeman had the combination...

Yet nobody noticed that he provided only two pages of notes from the 79-minute conversation. It is unlikely that he sat through a large part of the meeting without taking notes.

Disclaimer: Mark Twain (1835-1910-To be continued) is unlicensed. His river pilot's license went delinquent in 1862. Caution advised. Daily Paul

LIBERTY2ME's picture

This would have worked in our

This would have worked in our favor if the IRS agents were unable to plead the 5th.

Easy Fix

Simply ask are you a suspect or under investigation then say you will use your fifth amendment rights...

This reverts us to a very old doctrine....pre Magna Carta?

"qui tacet consentire videtur". In a nutshell, to remain silent is to affirm.

Be brave, be brave, the Myan pilot needs no aeroplane.

Correct Decision - Read the constitution

Sorry but the 5th amendment only says you don't have to testify against yourself (as relevant to this case), it says nothing about what a prosecution team can say about your silence on a matter.

I agree it's a shady move by a prosecutor but it is constitutional.

I disagree. What do you

I disagree. What do you think you are doing when you are explaining anything to the cops??? You ARE TESTIFYING once you speak to the cop---why? Because everything you say will be used against you in a court of law.

This decision was wrong.

when you are stopped by a policeman (thug in a custome) he is acting as judge, jury and prosecutor.

legally they are supposed to take you to a magistrate immediately if you are being accused of a crime, except they never do...and indeed if a cop stops you, he or she is the accuser.

- Brennan

No you're still

misunderstanding. The ruling isn't saying the 5th amendment is waived. The 5th amendment only says you don't have to speak at any time.

The ruling is correct because it's only clarifying that if you're in a non-custodial interview (not a suspect) then it's the same as an ordinary citizen questioning another ordinary citizen. That means one citizen can submit as evidence the fact that upon a certain question the other citizen remained silent, which a jury could take as relevant to the case.

If you're in a non-custodial interview (not a suspect) and don't want to answer any questions (or have that fact potentially be used against you later) simply leave.

historically in

historically in contract/common law if you do not respond or object you are agreeing to the claims being made against you. The theory is that your silence is your acquiescence or your tacit agreement.

- Brennan

having said that, I think it

having said that, I think it still doesn't excuse case law where were are innocent until proven guilty.

- Brennan


Constitution says you shall not be compelled in any criminal case to be a witness against yourself. Your silence can still be evidence. It just makes the burden of proof for the state, who can not convict on silence alone, that much bigger.

And on a more expansive view, Miranda warnings in general are a made-up right. The framers envisioned a citizenry who took the time to educate themselves on their own rights and defend them. Not get arrested and wait for the government to spoon-feed them to you.

In the United States

one is innocent until proven guilty. This is now no longer the case (as it hasn't been for a while now).

Disagree. I'm with Breyer,


I'm with Breyer, who in his dissent writes:

... 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 the privilege.” 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.

The 5th amendment states expressly that no person "shall be compelled in any criminal case to be a witness against himself," and as Breyer points out, that's precisely what this decision is allowing. A person's silence in a non-custody circumstance can now be used against them; that is, a person who chooses to be silent in a non-custody situation, pre-Miranda, is indeed implicitly invoking the protections of the amendment; and this decision now compels that person to be a witness against himself should the prosecution introduce the silence as evidence of guilt.

Car Chase

As the concurring opinion said, I don't think it matters if they read your rights or not; it can be used against you. It's similar to a suspect being chased in a car (think OJ case). Are we going to say the car chase is not admissible because it may be perceived as self-incrimination?

At the end of the day having someone describe how you were silent is not the same as being compelled to testify against yourself.

I still maintain it is extremely shady to try and paint a picture with no real evidence but it is constitutional.

Yes, but the prosecution should have to stick with facts

"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"

Maybe he had to take a shit. Maybe some people just are not comfortable around armed thugs.

Miranda rights are not listed in the 5th either. However, miranda rights were based upon the idea that all people should know the 5th when getting arrested.
So basically they just said - well - you can know all the rights you want - they will be used against you.

And wake up - this is not "end game" - this is the setup move.
So, hmm - if you are not mirnadized and remain silent - you must be guilty. And if you ARE mirandized its only because the police have probable cause.

Sounds like your fucked either way.

Basically, Yes

I agree that the prosecution should stick with the facts but it is on the jury to parse bad arguments and good arguments. At the end of the day the jury can convict you because of bad arguments.

As another poster said, Miranda rights (specifically the requirement for a warning) is totally made up and not in the original understanding of the constitution.

Jury Duty

We must serve on juries. It's the only vote that really counts.

What do you think? http://consequeries.com/

and be informed, if on a jury.


"Hence, naturally enough, my symbol for Hell is something like the bureaucracy of a police state or the office of a thoroughly nasty business concern." ~~C.S. Lewis
Love won! Deliverance from Tyranny is on the way! Col. 2:13-15

Do the Supremes swear an Oath to the Constitution?

Or are they above that?

"It is difficult to free fools from the chains they revere".

It's hard not to be a menace to society when half the population is happy on their knees. - unknown

Yes, they do.

This is what I found.


The Constitution does not provide the wording for this oath, leaving that to the determination of Congress. From 1789 until 1861, this oath was, "I do solemnly swear (or affirm) that I will support the Constitution of the United States." During the 1860s, this oath was altered several times before Congress settled on the text used today, which is set out at 5 U. S. C. § 3331. This oath is now taken by all federal employees, other than the President:

"I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

Just say you're exercising

Just say you're exercising your right to protection from self-incrimination and you want to speak to a lawyer.