» RESPONSIBLE CITIZENS who choose to arm themselves know they must develop the mindset, weapons skills and tactics to effectively deal with a potential threat. They know they must maintain and enhance those attributes over time. Many are coming to understand that a critical phase of a deadly force (or threat of deadly force) event is what happens afterwards. Some have a rudimentary plan. But just as a rudimentary understanding and plan might not be enough to deal with a threat, it might not be enough to deal with the aftermath. Mismanaging the aftermath can place you in serious jeopardy — or even prison.
Most people believe that something they don’t say cannot be used against them. What if I told you that, in some cases, your silence can be used against you?
“What?!” you say. “What about my Fifth Amendment rights? The U.S. Supreme Court would never stand for this!”
Well, they did: Salinas v. Texas. The U.S. Supreme Court ruled 5-4 that the defendant’s silence under police questioning could be used against him in court.
THE FIFTH AMENDMENT
Through the years, courts have carved out many exceptions and limits to Fifth Amendment protections. Federal and state rules of evidence offer many exceptions to bans on the use of people’s silence against them. Here, the U.S. Supreme Court expanded those exceptions.
The court’s majority wrote, “Virtually every schoolboy is familiar with the concept, if not the language, of the Fifth Amendment. But popular misconceptions notwithstanding … it does not establish an unqualified ‘right to remain silent.’”
Briefly, these are the facts in Salinas: Two men were murdered in 1992. Police matched empty shotgun shells at the scene with a shotgun kept by Salinas’ father. Salinas was not charged for years, until one of his friends told police that Salinas had confessed the crime to him.
Arrested in 2007, his first trial ended in a mistrial. At the second trial, he was convicted and sentenced to 20 years. The prosecutor successfully used Salinas’ silence under police questioning as evidence of his guilt. Salinas appealed, claiming that his Fifth Amendment rights were violated, not just in the use of his silence under police questioning but by extension his trial rights that his refusal to testify cannot be used against him. The challenge went up through the courts, with the U.S. Supreme Court rendering their decision in 2013.
The majority relied heavily on the fact that Salinas was the subject of “non-custodial questioning.” In other words, he had not been arrested or detained. He was technically free to go at any time during the interview. Courts traditionally ignore the practical aspects of an event in favor of the theory. The reality that police questioning, even if “non-custodial,” can be high pressure and coercive means little. If you had the right to leave in theory, that’s all that matters.
There is little consideration or appreciation for the fear, anxiety and uncertainty of the person involved on the dark street.
It’s similar to discussing in class or court someone’s actions in a threat of deadly force encounter. There is little consideration or appreciation for the fear, anxiety and uncertainty of the person involved on the dark street.
Salinas answered some of the officers’ questions before and after his silence. The court found his silence on the question of the shotgun shells could be admitted as self-incriminating evidence of guilt. Some actions can easily be seen as the equivalent of a verbal statement, such as when someone points to a specific vehicle when asked, “Which is your car?” The court also admitted police testimony that Salinas “looked down at the floor,” “shuffled his feet” and “began to tighten up.” Nervous under police questioning? Who wouldn’t be?
By not expressly asserting his right to remain silent, the court said he did not claim it and therefore his silence was not protected. It does not matter that the police were asking incriminating questions and hoping to get incriminating answers. Whatever the most probable explanation for a suspect’s silence, it is still “ambiguous,” wrote the court.
He might not answer an incriminating question because he is “trying to think of a good lie, because he is embarrassed or because he is protecting someone else.” It is the suspect’s burden to “make a timely assertion of the privilege.” The law will not assume that your silence is because you do not want to make self-incriminating statements.
RIGHT TO REMAIN SILENT
A person is required to assert his or her right to remain silent. The police must inform people in custody of their right not to talk (part of the “Miranda” warning), but the person must affirmatively claim it. It has been held that a suspect’s silence under two and a half hours of questioning after being read their Miranda rights is not sufficient to invoke the privilege.
Many people mistakenly believe that nothing they say to the police prior to receiving a Miranda warning can be used against them. This is dangerously incorrect. The result is that many people talk themselves into being arrested and charged with crimes. The police have no obligation to inform anyone of any rights until they have arrested them or detained them against their will. If you talk to the police, your silence during part of an interview can now be used as if it were a statement, unless you tell them specifically that you are invoking your right not to speak.
You will likely be overwhelmed with adrenaline, emotion, excitement, relief, overstimulated senses and the post-event shakes as your body ‘stands down’ from its survival response.
INTERACTING WITH POLICE
What does this mean for the responsibly armed citizen? Let’s be clear about one thing. The aftermath of a threat of deadly force encounter is absolutely the worst time to speak with the police. You will likely be overwhelmed with adrenaline, emotion, excitement, relief, overstimulated senses and the post-event shakes as your body “stands down” from its survival response. That is often mixed with elation that you were the victor over a threat, along with anger at what happened.
Frequently, there will be a disconnect between your conscious thinking and the subconscious training response that saved your life. Little that comes out of your mouth will be reasoned, thoughtful or reflective, and it might actually be factually wrong.
Trying to pick and choose which questions to answer and which to avoid offers two other major problems in addition to your silence possibly being used against you. First, are you expert enough in the law that, under the pressure of police questioning, you will be clear about what is potentially incriminating information and what is not? Second, picking and choosing can result in something like this:
“Did you cheat on your spouse in Detroit?”
“I refuse to answer that.”
When officers are called to a potential or actual deadly force event, remember that they are, officially and personally, on “high alert.” You must interact with them and give them enough information to secure the scene and sort out who is who. They are also often highly motivated to find a wrongdoer and get an arrest. If you are the one at hand and the situation is even a little unclear to them, you will be the person they lean on. They might try to get you to say anything that can seem self-incriminating or be used to infer that you did something wrong. They might even try to coerce information from you.
If the police persist, don’t be led down the path of giving ‘just a little more’ information. That can be a game of ‘information creep.’
After the scene is secured and you have provided necessary information to police, your best course of action is to not engage in questions and answers with the officers. Tell them that you feared for your life — “He was going to kill me! There was nothing else I could do to stay alive.” Tell them that you can’t talk anymore — “I can’t say anything else right now. I need to calm down.” And tell them that you need your attorney — “I have to get in contact with my attorney.”
If the police persist, don’t be led down the path of giving “just a little more” information. That can be a game of “information creep.” Repeat what you already said. If they pressure you, tell them you are relying on your right not to answer questions. You can ask them to stop questioning you.
Responsibly armed citizens know there are limitless scenarios in which they might face a threat. They try to envision those threats and often train in as many different scenarios as possible to help them be ready to properly and effectively respond. Too many, even those who understand they must deal with a difficult aftermath, do not appreciate how many scenarios the aftermath can involve and how many threats to their liberty exist there.
Planning and training for the aftermath of a threat of deadly force encounter is an area that needs more attention.