We all hear the line in police procedural TV shows and movies. When cops arrest someone they say, “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” To repeat: you have a right to remain silent.
Except your silence can be used against you as evidence that you must be guilty.
At least one person has been convicted by a jury in a court case where the prosecutor argued that, because the defendant refused to speak, he must have been guilty of the crime. The Washington Post reports:
“The case comes from Texas, where Genovevo Salinas was suspected of shooting and killing Juan and Hector Garza after a party in December 1992. Police went to see Salinas after he was identified as one of the attendees and his father had turned over a shotgun. Salinas cooperated with questioning at the police station until he was asked whether the shells found at the crime scene would match the shotgun. He did not answer and was later charged. The first attempt to convict Salinas ended in a mistrial. At the second, over the objections of Salinas’s defense lawyer, prosecutors put considerably more emphasis on his refusal to answer the question about the shotgun shells, according to court briefs. The prosecutor told the jury that ‘an innocent person’ asked such a question would say no. Salinas, on the other hand ‘wouldn’t answer that question.’ Salinas did not testify.”
I have no idea if Salinas did the crime or not. If he is guilty, I hope he gets convicted. But I hope he gets convicted in a way that does not overturn our basic civil rights.
If we can be prosecuted in court and our refusal to speak be presented as evidence of our guilt, then plainly the claim that we have the right to remain silent is not true. If it is not true, then the Miranda rights are nothing more than false promises to make vulnerable to prosecution. We should strike, “You have the right to remain silent,” and edit the rest as, “Anything you say or any refusal to speak or offer up information can and will be used against you in a court of law.”