Supreme Court to consider if silence can be evidence of guilt

specifically this part:

Still, the United States Supreme Court has yet to decide what protections, if any, the Fifth Amendment affords to pre-arrest silence when the defendant does not testify and his silence is introduced by the State not for impeachment but in its case-in-chief.

Salinas was convicted on both forensics evidence and testimony from his erstwhile co-conspirator; a shotgun he freely admitted to owning matched shells found at the scene of the crime, and his fellow criminal felt guilty after having a dream about the victims and testified against him.

'Not for impeachment' above means that his silence was not offered as dispositive of his guilt. There was plenty of other evidence to prove him guilty in the jury's eyes. That evidence is not appealed from, nor is the lawfulness of his arrest. Salinas' argument is that his conviction should be overturned because the prosecution should not have even mentioned the fact of his silence. You can't tell a jury that they must convict someone because the person was silent when asked an incriminating question. But Salinas is effectively arguing that the jury can not be informed of a question going unanswered, which I don't think is supported by precedent.

In the event that the Supreme court agrees with Salinas (unlikely IMHO), what will happen is that his case will be sent back to the lower court for a retrial, all the same evidence will be introduced, except that the prosecutor will studiously avoid mentioning this exchange. Then he'll be convicted again because there's loads and loads of other evidence.

Refusal to answer a question when in custody cannot be adduced as evidence of guilt. But even if you sit there and say nothing, the prosecution and police are perfectly at liberty to describe how you began sweating profusely and shaking when asked an apparently incriminating question. The prosecution may not submit as evidence expert testimony about what this means ('only a guilty person would react that way,') but the jury is perfectly entitled to draw its own inferences.

Nor is there a binary choice between silence and lying. When the officer asked Salinas if the shells from the murder scene would match his gun, Salinas could have made a noncommittal answer like 'how should I know?' or suchlike. Indications are that he had already voluntarily dug himself into a hole (admitting to owning the gun, how long it had been in his possession, that it had not been in anyone else's possession, and so on).

One other thing to bear in mind when reading the case is that appellate cases are restricted to questions of law. With certain rare exceptions, they do not examine questions of fact, which is the job of the trial court (and which is why if the conviction were overturned, another trial would take place because an overturning is not the same as an acquittal). When you read an appellate case, resist the temptation to imagine alternative interpretations of the facts that might lead to a conclusion of innocence; that is a determination for the jury, not the court. The appeals court is examining whether or not the trial was conducted properly, not the credibility of participants.

I'm going to hold out on my outrage until the Supreme Court comments, but should they even hint at silence being a form of confession, I think that will surely be regarded as the day the judicial system in the United States finally jumped the shark for once and for all.

However Wikipedia points me at http://en.wikipedia.org/wiki/Berghuis_v._Thompkins which indicates that this protection has been considerably eroded from what I was aware it had been.

Hopefully this decision will not complete the erosion of meaningful protection from self-incrimination under the 5th. (Though, given the court we have, I'm not very optimistic.)

So, because he was under no compulsion to speak, his refusal to speak can be taken as a sign of guilt?

http://boingboing.net/2008/07/28/law-prof-and-cop-agr.html

As well as the ACLU

http://www.aclu.org/drug-law-reform-immigrants-rights-racial...

And flex your rights http://www.flexyourrights.org/

This case asks if 5th amendment rights only attach once a suspect has been arrested. If the Court finds that the 5th amendment (and, by extension, the Miranda rule) applies to pre-arrest interviews, then the Griffin rule applies, and such silences are inadmissable.

> You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.

We also tend not to have "loopholes" - someone not getting the correct caution will have to go through years of expensive law . Their case isn't won just because of a missing warning. (I think; I am not a lawyer.)

It's a shame. Right to silence may have started here: (https://en.wikipedia.org/wiki/Miranda_warning#England_and_Wa...)

But is being attacked here: (https://en.wikipedia.org/wiki/Right_to_silence_in_England_an...)

Silence is neither an acknowledgment guilt or innocence, But the absence of speech. I have never been so fearful of a verdict to such a question involving the admission of guilt since the Salem witch trials. It's the sense of the justices I question not so much the grounds of the case.