The Sound of Silence: Can a criminal defendant’s refusal to answer a question be used against him?

If a defendant talks to the police when he is not in custody and then goes silent, does he make a sound? To wit, can the prosecutor argue that the defendant’s silence or refusal to answer certain questions demonstrates his guilt? The U.S. Supreme Court will take up this question when it hears arguments for the case of Salinas v. Texas this week.

In Salinas, the defendant agreed to voluntarily talk to the police regarding a murder for which he was a suspect. He was not arrested at this time. After answering questions for close to an hour, he was asked about shotgun shells that were used in the murder. The defendant provided no further answers and was later arrested and charged with the murder. The State did not comment on the defendant’s refusal to continue answering questions in his first trial, which resulted in a mistrial by a hung jury. In the second trial, in which the defendant did not testify, the prosecutor asserted in closing argument that the defendant’s abrupt silence shows his guilt because an innocent person would have offered an explanation to the question about the shotgun shells. The defendant was convicted. The conviction was affirmed on direct appeal.

TV has conditioned most Americans into understanding the Miranda warning: that an arrested person has the right to remain silent and that anything he or she says in waiver of the right can be used as evidence against him or her. Miranda v. Arizona, 384 U.S. 436 (1966). Miranda is not an issue in Salinas because Mr. Salinas was not in custody–Miranda only applies to people who are arrested or otherwise detained by the police–but instead voluntarily talked to the police. He could have left at anytime before being arrested. He also could have declined the police’s invitation to come down to the station. Miranda prevents statements obtained after a defendant invokes his right to remain silent or made absent a warning from being used as state evidence but do not invalidate the arrest or charges.

Defendants have the right to testify for themselves and also the right to not testify at all. The Fifth Amendment prohibits criminal defendants from being witnesses against themselves. In many if not most trials, the defendant does not testify. Jurors are instructed not to infer anything about a defendant’s decision not to testify (that he or she is hiding something…which many jurors do anyway). Prosecutors, by the rule articulated in Griffin v. California, 380 U.S. 609 (1965), are not allowed to comment on a defendant’s decision not to testify. The Griffin rule and the Fifth Amendment are rooted in our adversarial system of justice and to protect from inquisitorial-like proceedings.

Should a defendant’s silence be able to be used against him or her even though the verbal statements are admissible? It is my opinion (not surprisingly siding with the defendant in this one) that it should not be. A defendant’s refusal to answer questions should not be argued or construed to be evidence of guilt. Allowing such a practice would undermine the Fifth Amendment and unfairly shift the burden of proof onto the defendant, in violation of our presumption of innocence.

For starters, why should silence be considered incriminating? There are many reasons why a person may decline to give an answer to a question while being interrogated. One is that the person may be confused. Another is that the person may realize, upon hearing the question, that he or she may be under suspicion and should talk to a lawyer (better late than never). When a person gives an answer, there are words that were spoken for a fact-finder to read or hear. Whether those words are incriminating is up for the finder of fact to determine. There are no words in silence. Mr. Salinas’ silence only became incriminating because the prosecutor said it was. Using silence as evidence against a defendant effectively punishes him or her for invoking a Constitutional right. It is one thing when someone willingly says something incriminating. It is quite another when a person says nothing. The prosecuting authority should not be allowed to put words in a defendant’s mouth. Putting incriminating words into a defendant’s mouth makes that defendant a witness against himself.

As the petitioner (defendant) in Salinas argued in his brief, considering silence incriminating shifts the burden of proof. In the United States all criminal defendants are presumed innocent until proven guilty beyond a reasonable doubt by the government. A defendant does not have to put on a defense to be acquitted. Allowing silence to be considered incriminating reduces the state’s burden on top of giving the state more evidence.

Justices, reverse this conviction.

The words of the prophets are written in the Common Law blog.


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