A few weeks ago I came across an article about a case the U.S. Supreme Court agreed to hear regarding an individual’s right to remain silent before an arrest is made. I found this case surprising because ever since high school when I studiously learned my Miranda rights protections, I assumed I could always refuse to answer police officers’ questions until I had a lawyer present.
As I read more, however, I learned this is not always the case. For example, in state supreme courts—including Texas, Missouri, Maryland, North Dakota, and Minnesota—silence has been allowed to be used as evidence of guilt. However, Idaho, Nebraska, New Hampshire, Ohio, Washington, and Wisconsin have ruled against using silence as evidence, and the federal district courts are similarly split.
I admit in this particular case it seems suspicious the defendant answered all questions except whether his gun would match the crime scene and then proceeded to “shuffle his feet [and bite] his lower lip.” Nevertheless, it does not make sense to me why silence before arrest should be used as evidence of guilt when the exact same behavior performed seconds after arrest could not be used in court.
Such a decision could also have potentially negative consequences. If the Court decides people do not have the right to remain silent before arrest, why would the police rush to arrest a suspect? There would certainly be an incentive for them to interrogate the individuals while they cannot refuse to answer and then, only after obtaining either a confession or silence that can be construed as guilt-induced, make the arrest. In such a situation, Miranda rights become much less effective since they do not apply to the entire course of the investigation.
I did not post anything related to this case immediately because I assumed the general public would be just as concerned about this issue as I am and it would easily get its due attention. Instead, I have seen relatively few articles and mentions about it thus far. Obviously, it is a bit early since the case has not yet been decided, but it is certainly one I will be watching closely throughout the spring.
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If a government official is asking a question, after giving this some informed thought, I have concluded the best course is to answer the question with a question, "Is the answer to your question compulsory or voluntary?" If the response is, "It's compulsory; you have to answer." At that point you say, "Then I assert my right to remain silent." If the answer to your question is, "It is voluntary." Then, your response would be, "Then I am not answering the question."
In partial support I submit this authority:
As to a judge’s attempts to arrive at perfect clarity as to what crimes I might have been involved in the Court said in Slochower v. Board of Higher Ed. of New York City, 350 US 551, 556-8 (1956):
“At the outset we must condemn the practice of imputing a sinister meaning to the exercise of a person's constitutional right under the Fifth Amendment. The right of an accused person to refuse to testify, which had been in England merely a rule of evidence, was so important to our forefathers that they raised it to the dignity of a constitutional enactment, and it has been recognized as "one of the most valuable prerogatives of the citizen." Brown v. Walker, 161 U. S. 591, 610. We have reaffirmed our faith in this principle recently in Quinn v. United States, 349 U. S. 155. In Ullmann v. United States, 350 U. S. 422, decided last month, we scored the assumption that those who claim this privilege are either criminals or perjurers. The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. As we pointed out in Ullmann, a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.” Slochower, supra @ 558.
The Court said in Quinn v. United States, 349 U.S. 155 (1955):
“… the fact that a witness expresses his intention in vague terms is immaterial so long as the claim is sufficiently definite to apprise the committee of his intention. As everyone agrees, no ritualistic formula is necessary in order to invoke the privilege. In the instant case, Quinn's references to the Fifth Amendment were clearly sufficient to put the committee on notice of an apparent claim of the privilege. It then became incumbent on the committee either to accept the claim or to ask petitioner whether he was in fact invoking the privilege. Particularly is this so if it is true, as the Government contends, that petitioner feared the stigma that might result from a forthright claim of his constitutional right to refuse to testify. It is precisely at such times—when the privilege is under attack by those who wrongly conceive of it as merely a shield for the guilty—that governmental bodies must be most scrupulous in protecting its exercise.” Id. @ 163-4. (Emphasis mine).
Important to note the above is applicable in every state as it is the Supreme Court's explanation of the 5th Amendment which applies to the states via the 14th Amendment.