Do You Really Have the Right to Remain Silent?

Michael B. Cohen, Esquire is an outstanding criminal defense attorney who is recognized by his clients and peers as an aggressive, knowledgeable defender of all criminal allegations charged by the State of Florida as well as the federal government. His extensive résumé as well as honors he’s received over more than thirty-five years of practice as a criminal defense attorney in addition to the many successful years he worked for both the State of Florida Prosecutor’s Office and the federal government can be found by clicking here

Before an arrest, law enforcement may ask questions of any suspects and witnesses before an actual declaration of an arrest is indicated. In Fort Lauderdale, West Palm Beach and Miami including all surrounding areas, it is important to know your Constitutional rights before there is any engagement of conversation with law enforcement.

Each year, The Supreme Court of the United States begins its term on the first Monday of October. Sessions continue through late June or early July and after that, once recessed for the year, the Court begins its preparations for the cases that will be heard and scheduled for the next fall term. The Court hears cases involving federal and Constitutional law, in many cases originating from appeals that were heard previously by Federal District Courts, concluded in all fifty states.

In 2013, the Court’s docket had many cases to be heard that received a lot of media attention. Some of these were the rulings on the Voting Rights Act and Affirmative Action, the Defense of Marriage Act (DOMA) and Proposition eight. Because these cases were so high profile, when the Court elected to hear a case that dealt directly with the right to remain silent, the press did not put as much emphasis on it as the other cases that dominated the headlines that year.

The case which flew a bit under the radar that year which the Court chose to take up involved making a formal decision on a twenty year old murder case: Salinas v. the State of Texas.

Before the Salinas opinion was delivered by Justice Samuel Alito, in a 5-4 vote, it was determined that if a person of interest is not in official custody, their silence can’t be used against them at a later time in a court of law. Although law enforcement must deliver the Miranda warning before an interrogation is underway and the individual is in custody, the period of time before that, when a suspect or witness is asked routine questions by police when they were instructed or under the assumption that they were free to leave, their silence could not later be used and held against them if a trial arose with that person as the defendant. This held true as well if they refused to speak in part with police prior to being charged with a crime.

The suspect or witnesses’ silence was held to be inviolable prior to being placed in formal custody. Contrarily, if in custody, a reasonable individual in that situation would certainly know that they were not free to leave and Miranda warnings must be provided before any interrogation began; or in other words they would know, by being informed, that they now had the right to remain silent and request counsel.

It should also be noted that once an interrogation begins it not only includes direct questioning, but likewise any wording or actions that law enforcement should recognize are probable to produce an incriminating reply by a rational individual considered a suspect.

The effect of the Miranda caveat is that the prosecution can’t use a suspect’s silence as evidence of guilt at a future trial, or else the warning would be worthless. However the wording of the Fifth Amendment’s meaning (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury…”) doesn’t oblige interrogating law enforcement to Mirandize a person who isn’t officially in custody. No individual will be required in any criminal matter to be a witness against themselves. Prosecutors couldn’t call the defendant as a witness, nor remark on the defendant’s refusal to testify. To testify or not was entirely the privilege of the accused at and before a continuing criminal legal proceeding. That is, until the updated Supreme Court ruling which was handed down as described above on June 17, 2013.

To sum up the decision, the Supreme Court ruled that the prosecution can in fact point to a non-custodial suspect’s silence in response to law enforcement questioning as evidence of their own guilt. Based on this ruling, the only way to prohibit the prosecution from presenting evidence of the suspect’s silence at trial is for them to have unequivocally invoked their right to say nothing and/or request counsel prior to any conversation with police begins.

Previously, a number of case outcomes and State Supreme Court rulings were similarly argued and debated. The groundwork for the recent decision may have first been named in Griffin v. California in 1965 which was cited in Salinas v. Texas and was solidified in People v. Tom, a 2007 case that was decided by the California Supreme Court in 2014.

Because many people are not aware of this change in the phraseology of the law it is still widely believed that your right to remain silent protects you throughout all parts of an investigation by law enforcement. This is simply not the case; you have a right not to answer any questions at all asked by law enforcement without a lawyer present.

To understand what should be done next if you or someone you care about is charged with any crime and have been advised of your Miranda rights, click here. If police begin questioning in a case that you may be involved with in any way, call me before a word is spoken.

My law office can guide you through the process countering any criminal charges, and offer the best opportunity for a successful resolution.

*Outstanding criminal defense in Miami, Fort Lauderdale and West Palm Beach as well as all surrounding areas of South Florida and throughout the state.

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