Anything You Don't Say Can Be Used Against You

You no longer have the absolute right to remain silent in Police State USA.

That is the unbelievable gist of a Supreme Court decision issued on Monday. If the cops don't Mirandize you prior to conducting an informal, friendly chat, and you clam up at some point in the voluntary interview, your very silence may now be legally construed as a prima facie indicator of your guilt. You must verbally self-invoke your right against self-incrimination, because passive-aggressive sullenness won't cut it. Even nervous tics can be used as evidence against you.

So as the chip, chip, chipping away at the Bill of Rights continues apace, we can now add the Fifth Amendment to the First and Fourth as optional suggestions no longer engraved in stone. It's all part of the brave new world of checks and balances of the Terror Triad formerly known as the three separate branches of government. The spy state not only has the right to vacuum up all your data, it has given itself the right to use your refusal to speak to them about it as a weapon against you. This, my friends, also applies to the "US Persons" whom the president insists are not spied upon by their own government.

Monday's decision stems from a Texas (where else?) case in which a man named Genevevo Salinas appealed his murder conviction based on claims that his refusal to talk to police during informal questioning were later used against him at trial. Lyle Denniston of SCOTUSblog lays it out:

He (Salinas) had voluntarily gone to a police station with officers to talk about the murder of two brothers in 1992.  He was not under arrest, and was not in custody, so he had no right to “Miranda warnings” telling him that he had a right to silence.

He answered almost all of the officers’ questions, but simply sat silent when the officers asked him if shotgun casings found at the scene would match his gun.  He acted very nervous in response, but said nothing.  Prosecutors used the fact that he said nothing to help convince the jury that he was guilty.  He was convicted and is serving a twenty-year sentence.

The Court rejected the argument by Salinas’s attorney that, since he was not in custody at the time and had not been given warnings about his rights, that he did not have to explicitly claim the protection of the Fifth Amendment when he did not want to answer the police questions about the shotgun casings.   The Court had previously said, in a number of other contexts, that one had to invoke the right for it to take effect, but it had never done so in the setting of a voluntary encounter of an individual with officers at a police station.

The conservative majority of the Court ruled that if you voluntarily talk to police, the Miranda Rule does not apply. They only have to inform you of your right to remain silent if they're holding you against your will.

He answered most of the officers’ questions, but simply remained silent when they asked him whether shotgun casings found at the scene of the murders would match his gun.   He shifted his feet, and others acted nervously, but did not say anything.   Later, at his trial, prosecutors told jurors that his silence in the face of that question showed that he was guilty, that he knew that the shotgun used to kill the victims was his. 

 His lawyer wanted the Supreme Court to rule that the simple fact of silence during police questioning, when an individual was not under arrest, could not be used against that person at a criminal trial.   The Court did not rule on that issue.  Instead, it said that Salinas had no complaint about the use of his silence, because in order to claim the Fifth Amendment right to say nothing that might be damaging, he had to explicitly say something that showed his silence was a claim of that right.  Since he did not do so, the Amendment did not protect him, according to the decision.

As Slate's Brandon L. Garrett points out, this "terrible decision" will make false confessions a lot more likely:

 Salinas may very well have been guilty of the two murders. But in many cases, as in this one, there are no eyewitnesses and not much other evidence of guilt: That is why the police may desperately need a confession. And that makes it crucial for them to handle interrogations and confessions with the utmost care. The court appreciated none of the pressures police face, and how they can squeeze an innocent suspect. Alito and the other conservatives were not troubled that there was no video to confirm that Salinas was in fact uncomfortable as well as silent. If Salinas had answered the question by exclaiming that he was innocent, could police have reported that he sounded desperate and like a liar? The court’s new ruling puts the “defendant in an impossible predicament. He must either answer the question or remain silent,” Justice Stephen Breyer said in dissent (joined by the other three liberal-moderates). “If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances—even if he is innocent.” But if he doesn’t answer, at trial, police and prosecutors can now take advantage of his silence, or perhaps even of just pausing or fidgeting.

 We're sure to see an epidemic of those friendly, exhausting, totally voluntary all-night chats conducted by seasoned interrogators. Youthful suspects not well-versed in Constitutional law, along with immigrants not well-versed in the English language ,will be prime targets for the new Silence is Not Golden ruling. Belching, nodding off to sleep, grimaces, yawns.... all can be used against you now. The private prison profiteers must be salivating. The school-to-prison pipeline just widened by a mile. 

We already have the highest per capita incarceration rate in the world, and this new decision making criminal convictions as easy as pie can only make it grow. One in a hundred "US Persons" is behind bars not because our crime rate is so high, but because we punish poor people for non-violent offenses, such as drug use. Incarcerated people tend to lack a high school diploma. People lacking a high school diploma tend to not be able to tell you the meaning of the Fifth Amendment.

Slam, bam.