When Silence Doesn't Equal Silence

As anyone who has watched any crime show knows, you have the right to remain silent. Anything you say can and will be used against you. So watch out. I cannot tell you how many cases I have represented defendants in when their own statements are what sank them. If words of your guilt come out of your own mouth, that is the most potent evidence there is.

Comes now the US Supreme Court. In a close 5-4 decision, that court held that a criminal defendant must actively assert his right to silence. Merely the act of being silent does not do it. The Washington Post version of the story can be found here.

What does this mean? Why would you care?

It means that if a defendant is sitting in a police station and does not desire to speak - but never tells his questioners that he is intentionally sitting silently - that this silence is, in itself, a statement.

I know you need to have had the law school labotomy to get this to make sense. But think of it like this: a jury of laypeople sit and listen to a prosecutor's presentation. Part of that presentation is that the defendant sat mutely while his inquisitors asked him question.

Wouldn't a non-guilty person have spoken up?

Who sits there silent while police officers seek to only understand your involvement - or lack of it - in a crime?

These questions go through the jury's mind. And if permitted, a prosecutor will argue they are conclusive signs of a defendant's guilt.

Our Constitution permits silence. In fact, per Miranda, it is a right.

Or maybe, it was a right. Now you need to break your silence to assert it.