Transcription
You have the right to remain silent with the police, right? I mean, it's the Fifth Amendment, right? No, the Supreme Court has ruled that the Fifth Amendment and the right to remain silent are not the same thing. You can't just shut up and be okay. It's a loophole in the Fifth Amendment, and police are using it against innocent people. So, let's talk about how we got here and how you can defend yourself.
10 years ago, a man was convicted of murder, and his silence was used against him in his trial. In *Salinas v. Texas*, Juan and Hector Garza had been murdered in their home. Houston police officers showed up, and they began the investigation. They found shotgun shell casings at the murder scene. They later learned that Salinas had been at a party the night of the murder, and so they went and they began to question him. Salinas volunteered to talk to the police, and he informed them that his father had a shotgun. Of course, they went to the father and they gathered that shotgun. As a result of that, they asked Salinas if he would be willing to come in and sit down at the police station and interview. This is a key part. This was a voluntary interview, so Salinas agreed to come in and sit down and talk.
During the portion of this interview, he answered many questions from the police until it came to one specific question where they asked him, "Salinas, would the shotgun shells, would they match the shotgun that your father provided to us?" It was at this moment he went completely silent for several minutes. He didn't say anything. He just sat there. Now, according to the police, he looked down, he kind of looked nervous, he seemed to be kind of staring down at his feet, and he did some fidgety type stuff, is what they tried to claim that he did. But at no time did he answer or say anything related to that specific question. After several minutes, the police continued to question him about different things completely unrelated, and Salinas agreed to answer those questions.
Well, at the trial, the prosecutor said, "Okay, now we're going to use this silence against him." And this is what they argued. They argued that an innocent person would have appropriately responded and said they didn't do it if they were innocent. So, because he chose to remain silent, they should infer his guilt from his silence. And as a result of that, he was convicted of murder. The appeals court ruled that his decision to remain silent was not a violation of his Fifth Amendment rights, and as a result of that, his silence could be used against him, and his murder conviction could stand. Instead of the Fifth Amendment preserving his innocence, his silence was actually used as evidence of guilt. That's an example of the police using the Fifth Amendment loophole.
But why did the Supreme Court allow this to stand? There are two key trials that got us here. *Berghuis v. Thompkins* from 2010 established your rights when you're in custody and when you're not in custody. And *Chavez v. Martinez* in 2003 established when your silence can be used against you in a trial. In *Berghuis v. Thompkins*, a new precedent was set that if you were in the face of actual interrogation from a police officer, even though they may read you your Miranda warnings, in order to actually obtain the benefit of being able to remain silent, you must clearly articulate your desire to be silent in the face of police questioning. Otherwise, the police may be able to use your actual silence against you. So, how do you know you've been arrested? They read you your Miranda Rights. That's the line.
In *Chavez v. Martinez*, the Supreme Court ruled that the Fifth Amendment only protects from unwanted and coercive interrogations. If the government is seeking to introduce that at a criminal trial, you do not have a Fifth Amendment right to be able to remain silent in the face of police interrogations. Otherwise, in voluntary interactions with the police, they can use your silence against you in court. In fact, the only way not to have your silence used against you in voluntary interactions with the police is to expressly stand on your Fifth Amendment right and tell them you refuse to answer the questions based upon your constitutional rights. It is only by invoking the right that you actually obtain the benefit of the right.
But then why did the Supreme Court decide to create this loophole in the Fifth Amendment? The best way I know how to describe this is to read to you some of Justice Alito's comments during oral arguments. He said, basically, that the Fifth Amendment does not establish an unqualified right to remain silent. In fact, a person's right to refuse to answer questions, here's what he said, "depends on his reasons for doing so, and the courts need to know those reasons to evaluate the merits of a Fifth Amendment claim." In the end, the Supreme Court agreed to uphold the *Salinas* decision by 5 to 4.
Who does this disproportionately hurt? The innocent. It's the people who know they've done nothing wrong that will step up and want to volunteer to have a conversation with the police. But once they realize the fix is in and they feel like they're being framed for something they didn't do, and they decide they want to step back and remain silent, they'll realize they're in trouble and they have nowhere to go.
Imagine for a moment a person with no formal legal training works for a business. All of a sudden, the Securities and Exchange Commission shows up, or some other governmental agency, and they barge into their office and they start talking to them about, "We need to ask you some questions." This is critical. You've done nothing wrong. The person under investigation knows they've done nothing wrong, so they voluntarily agree to answer any of the questions the SEC might have. Suddenly, the officer asks a question that makes this poor guy feel very uncomfortable internally. What is he thinking? "I probably shouldn't answer this question, and I probably need to have an attorney present before I start continuing on."
So now the officer continues to press him about these questions, and he chooses to remain silent. He pauses because he doesn't know what to say. Here's what's key. Now the officer tells him, "Sir, you do realize if you continue to remain silent, I can use your silence against you in your trial?" What is this poor business person going to do? What is anyone going to do? First reaction: confusion and fear. If you don't say something, it's used against you. If I do say something, it's used against me. Maybe I should walk out. Maybe I should stand up. What exactly should I do in this situation? In fact, I thought the Fifth Amendment and the right to remain silent were the same thing. If I don't have a right to remain silent, it's going to be used against me, then don't I lose both ways?
Wouldn't the next likely move be an exit strategy in this situation? Panic would likely ensue. And let's say the man doesn't know what to say, so he stands up and he starts to walk towards the door. If he does that, he's still remaining silent. So, as he's remained silent, won't that be used against him? Confused and likely intimidated, the person is vulnerable to the illusion that he must now cooperate with the police because if he doesn't, he's worse off than if he just remains silent. Either way, the police win.
So, how do you defend yourself against this Fifth Amendment loophole? It is no longer sufficient to keep your mouth shut or ignore police officers in voluntary interactions with the police. You must now understand the importance of expressly invoking your constitutional right to the Fifth Amendment and to remain silent when the police reach out to you or you have any voluntary interaction with the police. Even when the police tell you your silence can be used against you, the correct response is, "Sir, I am exercising my Fifth Amendment right to remain silent, and as a result of that, I will not answer any more of your questions." Even when the police tell you that your silence can be used against you, you should invoke your right to remain silent and say no more.
This Fifth Amendment loophole is a terrible trick used by the police on innocent people, but it's not the only one to learn about. 10 more of their favorite tricks, check out this video. I'll see you there.