You can’t remain silent in order to invoke your right to remain silent.

Read the title. Twice.

The recent Supreme Court ruling Salinas v Texas ruled that if you are not under arrest and you are voluntarily answering some questions the police are posing to you that you cannot just choose to not answer questions and assume you are protected by the fifth amendment. Not only can your answers be used against you (since you are not under arrest) but your silence can be used against you as well. Part of the testimony that convicted Salinas was the fact that he chose to not answer the question on if the shotgun shells would match his gun. He was silent and he nervously fidgeted. His silence was used as evidence of guilt.

Read that last part again. His silence was used against him in court as evidence of his guilt. Isn’t that absurd? And the Conservative Supreme Court ruled that if you are in custody and wish to invoke your fifth amendment right to remain silent that you must SAY that you are invoking your fifth amendment rights.

YOU ARE REQUIRED TO NOT BE SILENT IN ORDER TO INVOKE YOUR RIGHT TO REMAIN SILENT!

When you are under arrest you are presumed to not know your right to remain silent and as such must be read your rights and told that you have the right to remain silent and that whatever you say can be used against you in a court of law. In Berghuis v. Thompkins a similar requirement to specifically invoke your fifth amendment right to remain silent was ruled on. But at least in that case the person knew that you were under arrest and was read (and understood) the Miranda rights. So why is it that when you are under questioning by police officers while not under arrest that you are all of a sudden assumed to know what your rights are and that in order to invoke those rights you have to state that you are invoking them? People not under arrest perfectly know their rights but people under arrest magically must be told them? That makes no sense.

This is why it is vital that you know what to do if the police want to question you. I have nothing but respect for people who put themselves at risk by serving in law enforcement. However, that doesn’t mean I need to make things easy for them if they believe I may be involved in some sort of crime. If you are being questioned, the only thing you should ask if you are free to go. If you are, just walk away peacefully. If not, you are considered to be under arrest and the only thing you should do is ask to speak to a lawyer. Anything else and you risk incriminating yourself. The “I shot the clerk” scene in My Cousin Vinny should be a good, if comical, look at what might happen if you don’t follow these simple rules.

That advice was sound advice before this ruling though. Now? It is even more vital.

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