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If You Clam Up When Talking to Cops, Can That Be Used Against You?

Next Wednesday, the U.S. Supreme Court will hear arguments in the case of a Texas man who was convicted of murder in the 1993 deaths of two brothers. The case has to do with our Fifth Amendment right against compelled self incrimination -- specifically, whether your silence can be held against you in a court of law.

The Supreme Court's 1966 decision in Miranda v. Arizona assures us we have the right to remain silent, and that our silence can't be used against us. However, Mirandaonly applies after you have been arrested. In 1980, the court said in Jenkins v. Anderson that silence can be used as evidence if you testify in your own defense. In this case, however, the defendant had not been arrested and did not testify.

The case began in 1993, when Houston police arrived at the man's home and asked if they could discuss the recent murders and search his home for evidence. He consented to the search, which turned up his father's shotgun. The man and his father agreed to hand the shotgun over for ballistics testing. The man then agreed to go to the station for fingerprinting, supposedly to eliminate him as a suspect.

He was not told he was under arrest, handcuffed, or read his rights. He cooperated and answered -- until they asked him if he thought shell casings from the murder scene would match those from his father's shotgun. An officer later testified that he "looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, [and] began to tighten up."

The first trial ended in a hung jury. When the man was retried, prosecutor emphasized his silence. "He didn't want to answer that," he said in his closing statement. "An innocent person is going to say: 'What are you talking about? I didn't do that. I wasn't there.' He didn't respond that way. ... He wouldn't answer that question."

That apparently made the difference. He was convicted and sentenced to 20 years in prison.

Texas sees the issue this way: "If a citizen is voluntarily interacting with the police, whatever he says or doesn't say is something we can use in evidence without damaging his Fifth Amendment rights," said the state's appellate counsel.

The man's appellate lawyer says this turns the Fifth Amendment into a Catch-22. "If he speaks, his words can be used against him," he wrote in the appellate brief. "And if he refuses to speak, the prosecution can argue that his silence is evidence of guilt."

The Supreme Court of the United States in Ohio v. Reiner, 532 U.S. 17 (2001) has recognized that one of the Fifth Amendment's basic functions is to protect the innocent who otherwise might be ensnared in ambiguous circumstances. This protection of the Fifth Amendment is inconsistent with allowing silence to be used against a person, and in fact punishes the person for invoking a constitutional right of great importance.

Source: ABA Journal, "Court weighs whether a prosecutor can use a defendant's refusal to answer a question," Mark Walsh, April 1, 2013

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