The Fifth amendment specifically states:  “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The common person on the street with new rulings is expected to just “know” that you formally have to invoke the fifth amendment right to silence by a formal statement; otherwise it is an admission of guilt. The ACJ has summarized the impact of the CA Supreme Court ruling with Justice Liu dissenting:   http://judicialcouncilwatcher.com/2014/08/16/you-no-longer-have-a-right-to-remain-silent-without-being-guilty/;  http://www.courts.ca.gov/opinions/documents/S202107.PDF

Miranda warnings originate from the Fifth Amendment privilege against self-incrimination.  The person detained and interrogated must be made aware of the right to remain silent, the right to consult with an attorney and have the attorney present during questioning, and the right to have an attorney appointed if indigent.

Without a Miranda warning or a valid waiver, statements might be inadmissible at trial under the exclusionary rule (e.g., they cannot be used as substantive evidence of guilt in criminal proceedings). See Miranda v. Arizona, 384 US 436 (1966).

Can anyone point to any clause in the fifth amendment stating that a person has to SPECIFICALLY state that they are invoking the fifth amendment right to silence, otherwise their SILENCE can be held and used against them in a court of law?  Based on the purely statutory construction of the fifth amendment, the right to self incrimination includes the fact that SILENCE cannot be used to infer guilt or innocence.

In Salinas v. Texas the U.S. Supreme Court actually held that silence was an admission of guilt.  http://www.supremecourt.gov/opinions/12pdf/12-246_7l48.pdf” Petitioner, without being placed in custody or receiving Miranda warnings, voluntarily answered some of a police officer’s questions about a murder, but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime. At petitioner’s murder trial in Texas state court, and over his objection,the prosecution used his failure to answer the question as evidence of guilt. He was convicted, and both the State Court of Appeals and Court of Criminal Appeals affirmed, rejecting his claim that the prosecution’s use of his silence in its case in chief violated the Fifth Amendment.’

Previous US supreme court rulings have held that the government cannot punish a criminal defendant for exercising his right to silence, by allowing the prosecutor to ask the jury to draw an inference of guilt from the defendant’s refusal to testify in his own defense. Griffin v. California, 380 U.S. 609 (1965). In Griffin, the Court overturned as unconstitutional under the federal constitution a provision of the California state constitution that explicitly granted such power to prosecutors.

Someone out there has a new business opportunity with the crop of bumper stickers, pamphlets and apparel that will no doubt be produced, stating that the person, car, house is automatically invoking their fifth amendment right to silence, by having that statement on their person, car or house. 



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