Miranda is Dying: The Erosion of Silence and The Fifth Amendment
by W Ned Livingston
"You are under arrest. You have the right to remain silent."
In fact, until 1864, in the United States, you did not have the right to speak in your own defense at your trial, let alone incriminate yourself. There may have been a presumption of innocence, but there was also the presumption that, if allowed to testify, the defendant would simply lie. By 1864, however, the state of Maine appears to have realized the presumption of lying was tantamount to the presumption of guilt, and ruled that defendants were allowed to testify in their own defense.
So began the back-and-forth struggle to ensure the sanctity of the Fifth Amendment to the U.S. Constitution, which protects U.S. citizens from providing testimony against themselves. Starting in 1878, when congress passed a Federal Law declaring defendants competent to testify, they thought they might stay ahead in the game by including in that statute a "no comment rule", which prohibited a defendant's silence from being interpreted as an implied admission of guilt. Unfortunately the law only applied to federal proceedings, and individual states were allowed to instruct juries as they pleased, with California's constitution explicitly allowing for the judge and prosecutor to comment on the suspicious nature of a defendant's silence.
Such was the status quo until the 1960s, and the tumultuous state of affairs in the United States at that time. Due to a variety of societal upheavals, including racial issues, and a growing antipathy toward the war in Viet Nam. The resulting civil unrest fomented an unfortunate trend in American society that has only intensified over the intervening years. That trend is a painful "Us against Them" mentality within a large segment of the law enforcement community.
The resulting environment spawned a sort of "arms race" between due process and law enforcement, and the 1960s saw the U.S. Supreme Court ruling on a number of landmark civil rights cases. One such case was in 1965, when the High Court ruled that because of the Fourteenth Amendment, the Federal "no comment" rule applied to all states, and silence at one's trial could no longer infer guilt.
In addition, in 1966, the famous case of Miranda v. Arizona came before the Supreme Court. The Court decided that a defendant's admissions under interrogation are only admissible in court if the defendant knows of and understands his rights to remain silent and to have a lawyer present during questioning. That decision spawned an entire decade of movies about disgruntled police officers defaming the very existence of Miranda and the Warren Court (the Supreme Court under Chief Justice Earl Warren).
For twenty years, law enforcement abided by the civil-centric ruling, waiting for a tidal change. In 2010, the tide began to shift, when the Supreme Court ruled, in Berghuis, Warden v . Thompkins, that unless a defendant specifically invokes his right to remain silent, verbally, he has effectively waived that right, whether or not a lawyer is present.
And so the scales of justice tip. In their June, 2013, ruling on Maryland v. King, the Supreme Court ruled that, after having arrested a suspect, it is legal for police to collect the suspect's DNA, via a "cheek swab", as a normal part of the "booking" process - "just like fingerprinting." Having gone that far, the Supreme Court went for a direct assault on the plague-ridden issue that started the whole self incrimination conundrum in the first place, namely, the right to remain silent. In as slick an end-run as has ever been seen in the NFL, the Court decided in favor of the state of Texas, in Salinas v. Texas. In that case, the police invited Mr. Salinas to the police station for a chat. Just a few questions. During their conversation, the police asked Mr. Salinas about his shotgun, at which point, Mr. Salinas stopped talking. That silence was used by prosecution to infer Mr. Salinas' guilt.
The Salinas v. Texas ruling effectively kills the Warren Court ruling forbidding judges and prosecutors from using a suspect's silence against him, without infringing upon that ruling at all. The incriminating silence which was used to convict Mr. Salinas occurred before his actual arrest. And that is one of the critical tenets of the Miranda ruling: in order for a suspect to invoke his Miranda rights, he must be under arrest.
"You are not yet under arrest. Until that time, you do not have the right to remain silent. Any silence at this time may be used to suggest your guilt, in a court of law."