The Fifth Amendment to the United States Constitution provides that (among other things) you have the right to remain silent and the right against incriminating yourself. In a landmark ruling and a straining effort to assist law enforcement at the expense of every American’s civil liberties, the court has now ruled that a person cannot stand mute to automatically evoke the privilege. Under the new United States Supreme Court case Salinas v Texas (decided June 17, 2013) the Court ruled that privilege is not self-executing and that a witness who desires to use its protection must affirmatively claim it. In other words, the backwards ruling is that the only way to invoke your right to remain silent is to speak.
If a person remains silent and does not answer an incriminating question during a custodial interview – this is insufficient to assert the privilege and the government can use the silence against that person at trial. Under these circumstances you must state that you are asserting your Fifth Amendment right not against self-incrimination or risk your silence being used against you.
If there is official compulsion (you are subpoenaed) to testify then there is no need to expressly invoke the privilege against self-incrimination.
The Supreme Court held that it is not difficult for a defendant to say that he/she is not answering questions on Fifth Amendment grounds, and when there is a failure to do so that is insufficient to put police on notice that the Fifth Amendment is being relied on. Essentially, the Court has found that police cannot understand silence and a person must explain why they are being silent.
A witness’s constitutional right to refuse to answer questions depends on his reason for refusing to answer and the court needs to know the reason to evaluate the merits of the Fifth Amendment claim. What burden does this put on the average American who is unfamiliar with the legal justice system, the explicit terms of the Constitution and the explicit ruling in this case? In a terrible place because the average person who wishes to remain silent, even innocent people, will justifiably and understandable think that they can just not talk in response to questions and that their Constitution will protect them. Under the new ruling of the Supreme Court, even an innocent person’s silence will be used against them. This is unfortunate and wrong and for the defense attorney specialists with LEWIS & DICKSTEIN, P.L.L.C., these rulings only motivate us to fight even harder for our clients who are charged with state and federal, misdemeanor and felony criminal offenses.
A Michigan Criminal Defense Attorney will help when constitutional issues need to be evaluated and assessed.
When you are charged with a felony or misdemeanor offense and there is a possibility that your constitutional rights have been violated, it is extremely important that you have legal representation that has experience, knowledge and expertise in constitutional law issues. The attorneys at LEWIS & DICKSTEIN, P.L.L.C. have decades of combined legal experience in criminal and constitutional law matters. You need to have your rights protected and not allow the government to over step its bounds. Please call us at (248) 263-6800 or complete a Request for Assistance Form
and one of our criminal defense lawyers will promptly contact you