You have the right to remain silent. Anything you say can and will be used against you in a court of law.
If you exercise your right to remain silent, that will also be used against you in a court of law…
There’s no bombshell appellate opinion. No shocking, horrifying denial of our constitutional rights. Not this time, and, as usual, we are talking about just one more small cut, a bit of blood from a minor wound that we will forget about soon enough and accept as the law of the land.
Yes, you may have your constitutional rights. We will allow the government to weaponize those rights against you, however.
Are We Really Losing Our Constitutional Rights?
Blah, blah, blah. Tired of hearing it?
For decades, over and over, commentators have been saying, “We are going to lose our constitutional rights. The courts are chipping away at our constitutional rights. Use it or lose it!”
We haven’t completely lost them yet – we are still hanging in there. Why do we keep saying these things?
The slow, inexorable, apparently unstoppable slide from the United States into the United Federal Police States continues, one law at a time, one appellate opinion at a time.
As an infamous murderer and cult leader once said, “The police used to watch over the people. Now they’re watching the people.”
Reading criminal law appellate opinions – whether it is state law opinions or federal – often leaves you with the impression that prosecutors, judges, justices, and legislators – pretty much everyone but criminal defense lawyers – want to do away with the Bill of Rights.
The First, Fourth, Fifth, and Sixth Amendments are still there, but they have been gutted in every way possible. Most people – including prosecutors, judges, justices, and legislators – will say that we are the greatest country in the world and what sets us apart is the individual rights we each have.
Those sacred rights that stand between us and a police state where Might (guns and badges) equals Right (respect my authority) and due process means don’t commit a crime.
They will say we are the greatest county in the world, and yet they work tirelessly to cancel, reduce, criticize, find exceptions to, and get around the individual rights that make ours the greatest country in the world.
Doyle v. Ohio, and the subsequent state-court opinions interpreting and applying Doyle’s analysis, is just one example of our Supreme Courts chipping away at those pesky constitutional rights.
If it gets in the way of efficient law enforcement, 1) find an exception, 2) limit its application, or 3) give it the strictest possible interpretation that favors law enforcement.
State v. Green – You Have the Right to Remain Silent
You still have the right to remain silent.
You don’t have to answer questions from police officers or other government officials, and, in most cases, you cannot be forced to incriminate yourself.
As with every other constitutional right, however, legislatures and courts have been slowly chipping away at the edges, looking to give law enforcement every possible edge when it comes to getting around, finding an exception to, or lessening the terrible impact of your right to remain silent on the government’s ability to put you in prison.
In State v. Green, the SC Supreme Court held (in line with US Supreme Court opinions) that a prosecutor can “impeach” a defendant with the exercise of their right to remain silent and argue to a jury that the defendant must be lying because they didn’t tell the police what happened when they were arrested.
If the defendant testifies and the prosecutor intends to cross-examine them on why they would exercise their right to remain silent, the Court says the prosecutor should raise the issue outside the presence of the jury. (They won’t. They will continue to ask the question and then argue the issue if the defense objects, ensuring that the jury hears their question whether the court admits it or not.)
The defendant can then either 1) concede that Miranda rights were not read to them and allow the prosecutor to continue with their cross-examination, or 2) assert that Miranda rights were read to them and object to the prosecutor’s cross-examination.
The burden of proof is then on the prosecutor to prove – by a preponderance of the evidence – that Miranda rights were not read to the defendant. If Miranda rights were read to the defendant, the prosecutor cannot “impeach” the defendant with the exercise of their right to remain silent.
If Miranda rights were not read to the defendant, then the prosecutor can “impeach” the defendant with the exercise of their right to remain silent and argue to the jury that the defendant must be lying at trial because they remained silent when they were arrested.
You see – you have the right to remain silent.
If you use it, however, you must be lying if you later tell a jury what happened, and it is okay for the prosecutor to argue that to the jurors. Unless you were told that you have the right to remain silent just before exercising your right to remain silent – because that makes sense?
The Government Decides Your Fate Based on Rules Made by the Government When You Are Prosecuted by the Government for Violations of Laws Made by the Government
Let’s speak as plainly as possible about these things. We are talking about the government (legislatures, prosecutors, judges) making decisions about individual rights and deciding in favor of the government.
When you are accused of a crime, the government arrests you (law enforcement), you are prosecuted by the government (in SC, the Solicitor’s Office) for violating a rule that was created by the government (the legislature), you are defended by an attorney who is paid by the government unless you have the means to retain an attorney, the government is the decision-maker in your trial (even if you have a jury trial, the judge who is employed by the government makes critical decisions about motions, objections, and the admissibility of evidence), and the government (a judge) decides what your sentence will be.
If you don’t like the outcome, you can then appeal to the government (the Court of Appeals). You can continue filing appeals to the government (SC Supreme Court, federal district court, federal courts of appeal, US Supreme Court, post-conviction relief in the state circuit court, SC Supreme Court again, etc.), at every stage of the process represented by an attorney who is paid by the government unless you have the means to retain an attorney.
The only players in this game that are not the government are you, your retained attorney, and the jurors in your trial if you make it to that point.
You Have the Right to Remain Silent, You Really Do
You have the right to remain silent. If you are unfortunate enough to be the subject of a police encounter where law enforcement is attempting to interrogate you, exercise your right to remain silent. Be unequivocal about it. Say, “I am exercising my right to remain silent, and I want my attorney now.”
They can’t take that away from you.
But, when you get to trial, unless 1) you were in custody and 2) you were Mirandized before you exercised your right to remain silent, the prosecutor can “impeach you” with the exercise of your right to remain silent and argue to the jury that you must be lying at trial since you didn’t tell the police exactly what happened when they had you handcuffed on the floor at the scene of the crime…
To me, this doesn’t seem any different or less harmful than a prosecutor being permitted to argue, “He didn’t consent to search. Why? What does he have to hide? He must have had drugs in his home, or he would have just allowed them to come in and have a look.”
Death by a thousand cuts. That’s how the Bill of Rights will die.
Criminal Defense Lawyers in Columbia, SC, and Myrtle Beach, SC
The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.
