The Supreme Court Decided Your Silence Can Be Used Against You

The Atlantic reports:

A nation continues to wait for final word on the Supreme Court’s Big Four cases this term — voting rights, affirmative action, DOMA, and Proposition 8 — but the justices’ closest decision arrived first on Monday, in a 5-4 ruling on Salinas v. Texas in which the conservative members of the Court and Anthony Kennedy determined that if you remain silent before police read your Miranda rights, that silence can and will be held against you. Here’s what that means.

Basically, if you’re ever in any trouble with police (no, we don’t condone breaking laws) and want to keep your mouth shut, you will need to announce that you’re invoking your Fifth Amendment right instead of, you know, just keeping your mouth shut. “Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question,” reads the opinion from Justice Samuel Alito, which Justice Kennedy and Chief Justice John Roberts backed. Justices Thomas and Scalia had a concurring opinion while the remaining four Supremes dissented.

It all seems ridiculously terrifying, this idea that in order to claim your Fifth Amendment, you now need to know how to call the on-the-fly legal equivalent of “safesies.” Your right to remain silent just got more complicated, and it will require potential criminals to be more informed about their protections and the linguistic details on how to invoke them. “But does it really mean that the suspect must use the exact words ‘Fifth Amendment’? How can an individual who is not a lawyer know that these particular words are legally magic?” Breyer wrote.

Indeed, how could an individual who is not a lawyer know that they need to expressly say they are invoking the 5th?  You see, the problem our Glorious Leaders face is that THE VAST MAJORITY OF LAWS fall into this category.  People know it is wrong to steal, rob, rape, murder or defraud, but do most people know that it is illegal to create a refrigerator that doesn’t have a way to open from the inside?  A ruling to the contrary could lead to a return of the mens rea principle.  Something our society abandoned a long long time ago.

  • Tom

    Next, will we have to announce that we are invoking our First Amendment rights as we enter a church, write a letter, read this web site, or pray in private? And will we have to carry a sign proclaiming our intent to exercise our Second Amendment rights when we go to the shooting range (I assume the justices would decide that verbally announcing our intent would not be good enough in an environment where everyone’s wearing hearing protection).

  • Tom

    Don’t forget: We will need to hang signs on our front and back doors announcing that we are invoking our Fourth Amendment rights to be free from unreasonable searches, as we lock our doors at night and go to bed.

  • Christian

    I just don’t understand how this would effect anyone. If someone was to not say anything without saying “I am going to exercise my 5th amendment right” what could they do? Is there a specific penalty?