Supreme Court: Pre-Miranda silence can be used as evidence of guilt

A police officer comes running up and asks where the bear went.

Question: Do you tell him, or do you say that you will not talk without a lawyer present?

I've asked people on Reddit similar questions when this video has come up there, and a lot of them say they would not talk without a lawyer, based on the video.

I'm curious how many here feel that way.

But I'm still looking for analysis of how talking to the police affects the chance that they won't arrest you at all. If we're interested in P(trouble | talk to police) vs. P(trouble | don't talk to police), this part is just as important.

Yes, and the framing of this article as being about before-versus-after is misleading.

It's not before-or-after Miranda that matters. It's when you start talking, when you stop talking, what you say when you stop talking, etc. As other commenters have said, you can simplify this decision by never talking to police without your lawyer present.

IANAL. And also I generally answer questions for cops when they ask me.

If you're under oath, testifying in court, you're expected to give an answer of some form — in fact, you've sworn an oath to do exactly that — so in order to invoke your 5th Amendement right against self-incrimination, you must do so explicitly.

If you're being questioned by the police, even subsequent to an arrest, however, your silence should be sufficient.

Salinas' trouble didn't come from not explicitly invoking his privilege, but from waiving it by starting to talk, and then invoking it by refusing to talk further once the State's line of questioning in the pre-Miranda police interview became relevant to the crime in question.

The moral of the story? "Don't talk to the police. Ever."

Also, IANAL.

Likewise Alito says that the Fifth Amendment right must be specifically exercised even before the Miranda warning to have any effect, once you've started speaking. What's the point of the Miranda warning then, if not to remind one of their Constitutional rights?

Even refusing to talk to the cops is no longer enough now, since if you're not under arrest and they are not "compelling" you to speak there's no end to the questions that they can ask you where silence or self-incrimination are the only choices.

Edit: IANAL.

Ballistic reports showed the shells matched the shotgun, but police declined to prosecute Salinas.

Maybe I don't understand shotgun forensics very well, but as I understand the only ballistics that they could match it the gauge of the shotgun and possibly match gunpowder residue. Other than that, shotguns don't have riflings, which make them very difficult to pinpoint as a weapon.

As an example, if I were to fire 5 different shotguns of the same gauge but use the same shells and you either had the expended shell or the result of the shot (buckshot or slug), you most likely wouldn't be able to tell which rifle shot which shell.

While the jury may still have had plenty to convict on with other circumstantial evidence (motive, means, opportunity), I will say that this is a bad decision.

You can only be tried once, by both a state or subdivision, and the feds, "on the same set of facts", if a verdict of innocence is rendered. In a mistrial, the trial is ended for whatever reason without a verdict of any sort being rendered, generally the judge prematurely ends it because of a procedural issue or the jury deadlocks.

The prohibition against double jeopardy (which the courts have determined does not extend to both a state and a federal prosecution each, e.g. see the Rodney King debacle) is to prevent the authorities from trying you again and again until they get a jury to come to the "right" decision, and this decreases the problem of "the process is the punishment". Also protects you from a better prosecution after you reveal your (successful) defense the first time.