Hornsby & Hornsby, Attorneys at Law            (205) 856-1000

          Anyone who has watched an episode of Law & Order, NYPD Blue, or Miami Vice has heard those famous words: “You have the right to remain silent; anything you say can and will be used against you in a court of law....” As you may know, it’s known as “Mirandizing” a suspect, a term coined from the Supreme Court case that ruled that police are required to make these and other disclosures prior to “custodial interrogation.”

          Most attorneys, if given the chance, would advise their client to do just that – remain silent. Little good can come from running your mouth in a situation where the police have already decided that you’re their man (or woman, just to be fair). You’re probably not going to talk your way out of the mess, at least not right then. So both practically and legally speaking, the prudent thing to do is to remain silent.

          But what if your silence could be used against you to demonstrate your guilt to the jury later on? In a case before the Supreme Court, prosecutors in Texas had successfully used a defendant’s silence to help prove him guilty of murder to a jury. The trial court judge had allowed the prosecution to argue that by remaining silent in response to questions by police, the defendant basically admitted his guilt. This particular defendant had been freely talking to police until the officer asked him if certain shell casings were going to match a rifle that he had. It seems that the defendant then realized the possibility of a ballistics match for the first time and also realized he may be in trouble after all. So he did exactly what he thought he had the right to do – remain silent. Importantly, he had not yet been arrested, and therefore had not been advised of his rights (Mirandized), nor were the police obligated to Mirandize him at that point.

          But the issue in front of the Supreme Court is whether or not that right to remain silent extends to the time prior to the arrest. Some of the comments of the individual Justices indicate that there is a possibility that the Court may determine that your pre-arrest silence can be used against you to prove guilt. Is it good policy (or even Constitutional) for the police to be able to question you prior to arrest, and then be allowed to use either your answers or your silence against you in court? It seems that such a ruling by the Court would place future suspects in a Catch-22. Either talk to the police and risk incriminating yourself, or don’t talk to police…and risk incriminating yourself.