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September 4, 2013

The Supreme Court Guts The Right to Remain Silent

By Michael H. Joseph

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Our New York City and White Plains criminal defense lawyers recommend refusing to cooperate with the police at all, since the invocation of silence, unless you are actually under arrest, can now be used against you. Instead when contacted by a police department in any New York City borough or Westchester town, you should contact our White Plains criminal defense lawyers and New York City criminal defense attorneys. Stated differently, the right to counsel appears to have better protection than the right to remain silent.

A recent Supreme Court decision makes new ground in further eroding the Fifth Amendment right to remain silent. In a sharply divided Court, Judge Alito, writing for the conservative majority held that the defendants’ right to remain silent was not violated where the accused voluntarily answered a police officers’ questions concerning a murder and the Defendant balked when the officer asked him whether a ballistics test would show that the shell casings found at the crime scene would match the accused’s shotgun. The Defendant was subsequently charged with murder, and at trial prosecutors argued that his reaction to the officer’s question suggested that he was guilty. In rationalizing its decision, the Supreme Court held that because the accused did not expressly invoke the privilege against self-incrimination in response to the officer’s question, he was not protected by the Fifth Amendment. The Court reasoned that it has long been settled that the privilege is not self-executing and that a witness who desires its protection must claim it. In a completely ridiculous decision, the Court held that the right to remain silent cannot be exercised by simply standing mute. In other words, you cannot exercise your right to remain silent, by simply remaining silent., rather, you must state that you are exercising your right to remain silent.

The Court essentially dodged the question of whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief. Such a holding would surely turn the Fifth amendment on its head and require a defendant to face the Hobson’s choice of lying or providing evidence of his guilt. The privilege against self-incrimination “is an exception to the general principle that the Government has the right to everyone’s testimony. The Court in essence held that the privilege was not meant to protect the accused, but rather to provide a convenience to the government, so that by affirmatively exercising the privilege the accused puts the government on notice that a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating or cure any potential self-incrimination through a grant of immunity.

The dissent correctly asserted that that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his “right to remain silent”. The Majority again in a ridiculous holding held that the Fifth Amendment guarantees that no one may be compelled in any criminal case to be a witness against himself”; it does not establish an unqualified “right to remain silent. A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim. Justices Scalia and Thomas went further and indicated that they would hold that a prosecutor’s comments regarding his precustodial silence do not compel the accused to give self-incriminating testimony. It is plainly absurd, to believe that by remaining silent, a suspect will be inferred to be guilty, but his only other choices are to confess and be a witness against himself or to lie and potentially incur criminal liability. While the majority acknowledged that the Fifth Amendment prohibits a prosecutor or judge from commenting on a defendant’s failure to testify because such comments, and any adverse inferences drawn from them, are a penalty imposed on the defendant’s exercise of his Fifth Amendment privilege, however, under Scalia’s and Thomas’ view, it is appropriate to attach a penalty to pre-custodial silence. Apparently, this penalty does not yet apply to custodial interrogation and exercise of the right to remain silent.

Justice Breyer, who was among the dissenters, held the correct view that since the Fifth Amendment prohibits prosecutors from commenting on an individual’s silence where that silence amounts to an effort to avoid becoming “a witness against himself the Court has specified that a rule permitting comment in a criminal case upon a defendant’s failure to testify “violates the Fifth Amendment. And, since “it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation,” the “prosecution may not use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Particularly in the context of police interrogation, a contrary rule would undermine the basic protection that the Fifth Amendment provides because the privilege usually operates to allow a citizen to remain silent when asked a question requiring an incriminatory answer. To permit a prosecutor to comment on a defendant’s constitutionally protected silence would put that defendant in an impossible predicament. He must either answer the question or remain silent. If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances, even if he is innocent. If he remains silent, the prosecutor may well use that silence to suggest a consciousness of guilt. And if the defendant then takes the witness stand in order to explain either his speech or his silence, the prosecution may introduce, say for impeachment purposes, a prior conviction that the law would otherwise make inadmissible. Thus, where the Fifth Amendment is at issue, to allow comment on silence directly or indirectly can compel an individual to act as a witness against himself, which is what the Fifth Amendment forbids. And that is similarly so whether the questioned individual, as part of his decision to remain silent, invokes the Fifth Amendment explicitly or implicitly, through words, through deeds, or through reference to surrounding circumstances.

Unfortunately, the majority of the Supreme Court appears to be focused on expanding government power, and completely eroding the civil rights and liberties.

 
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