Prior constitutional law, as well as popular culture via crime shows on TV, inform us that a suspect can keep silent and that silence cannot be used against him in a criminal proceeding. This has been generally true, but a Supreme Court case from 2013 warns of an important exception.
Let’s say you are a taxpayer, and an IRS Criminal Investigation agent comes to your house or place or work and wants to ask you questions. Since you have not been arrested or otherwise are not in custody, the agent does not read you your Miranda rights. Applying what you know of your rights, you remain silent in response to the agent’s questions. You are later indicted and on trial for criminal tax evasion. To your surprise, the judge allows the agent to testify that you did not answer his questions and thus infer your guilt by failing to respond.
This is the law now since Salinas v. Texas, 133 S. Ct. 2174 (2013). If you are arrested and you do not speak, this cannot be used against you. If you are not arrested, but you were read your Miranda rights and you do not speak, this cannot be used against you. But if you are not in custody and you are not read your Miranda rights, your silence CAN be used against you.
Commentators now expect that law enforcement will conduct more pre-arrest, pre-custodial interviews to benefit from this new interpretation of the 5th Amendment right against self-incrimination. They also posit a new method of dealing with such questioning. In the past, the stock advice was always “don’t say anything.” Now, in a noncustodial, non-Mirandized situation, the advice is to not to answer questions, but to expressly say that one is invoking their right against self-incrimination and right to counsel. By saying so, the interpretation will then place silence in that situation off-limits in a later criminal proceeding.
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