I Do Not Want My Silence to Be Used Against Me. What's the Script?
June 28, 2013 4:51 AM   Subscribe

I've only today discovered the SCOTUS ruling of Salinas vs. Texas and want to ensure I understand it and know what to say if I'm ever talking (especially informally) to the police. As previously discussed, this ruling determined that unless a person specifically invokes the right to remain silent at any time when speaking with police, their silence can be used against them. YANAL, YANML, and I am not looking here to critique this ruling, what I'm looking for is an exact script to say to the police whenever I'm talking to them.

And I'm not a rule breaker, I just want to ensure that nobody I know who's innocent suddenly finds themselves on trial because they said the wrong thing (or nothing).

The scenario I imagine is something like this because it's happened: the police are at my door and are asking about a slew of neighborhood robberies and as they were asking me if I saw anything on a specific night, I suddenly remembered that I had a cake in the oven. At that point, I didn't answer them. Nothing happened, but with this SCOTUS ruling, I realized that if they wanted, the police could have used my silence at that moment to consider me a suspect.

So, how does one respectfully talk to the police when one has nothing to hide but also don't want to get arrested just because they were quiet?
posted by kinetic to Law & Government (19 answers total) 17 users marked this as a favorite
I'd go with "excuse me, I've just realised that I need to take a cake out of the oven. Would you mind waiting just one minute, and I'll be back to answer your question".

I'm not being intentionally flippant. I just don't see how there could be an all-purpose script for this kind of situation. And honestly, it's difficult to imagine a scenario where a brief pause in conversation would be taken as a refusal to speak. I think the kind of 'silence' referred to in the case you mentioned is a clear refusal to answer when asked a specific question. Anyone with basic conversation skills would know the difference - the police especially.

I can't help thinking that taking a "They're out to trip me up. How can I protect myself?" approach in situations where you're not an immediate suspect seem more likely to have a negative outcome than just dealing with the police in a straightforward and open manner, provided you don't say anything reckless or overly-speculative.

Of course, policing varies the world over, and situations are many and varied. If I lived somewhere where police were corrupt and known to arrest innocent people on a whim, I'd probably have different advice.
posted by pipeski at 5:10 AM on June 28, 2013 [4 favorites]

Here's the complete script:

"I'm just going to have to invoke my right to remain silent now, thanks." then STOP TALKING!
posted by The 10th Regiment of Foot at 5:24 AM on June 28, 2013 [12 favorites]

It's probably worth pointing out that if the police are doing a door-to-door and the first thing they hear in response to the question 'have you seen or heard anything strange around here lately' is an invocation of the right to remain silent, (rightly or wrongly) scrutiny of that person is probably going in increase pretty sharply.

The calculus is different if you think you're being arrested.
posted by jquinby at 5:37 AM on June 28, 2013 [3 favorites]

Response by poster: If I lived somewhere where police were corrupt and known to arrest innocent people on a whim, I'd probably have different advice.

Let's assume that's a possibility.
posted by kinetic at 5:45 AM on June 28, 2013 [16 favorites]

My personal thought is that you are completely in the right to be wary of saying ANYTHING AT ALL to police, even if innocent, even if you are not directly or indirectly being accused of anything, ESPECIALLY if being questioned informally, and the Salinas v. Texas ruling only solidifies this, as accidental silence can now BE USED AGAINST YOU!

10th Regiment has it. Short, simple: "I'm invoking my right to remain silent now" said at the beginning of the conversation. If they need to talk to you further, call your lawyer.
posted by Gonestarfishing at 5:49 AM on June 28, 2013 [4 favorites]

I interpret the ruling to say not so much that silence alone can be considered, but that the circumstances surrounding it can be considered. So if you said "hang on while i grab a cake out of the oven" and then the police officers see you removing a cake from the oven, that should not be suspect in any way. If, on the other hand, there is no cake and you just shut the door in their face, they can interpret this as weird and worthy of further investigation.

If I remember the case correctly, this was a situation where the guy was cooperative and comfortable until a specific incriminating question was asked, when he started acting nervous.

Basically, police officers aren't forced to ignore things they observe just because a person has invoked the right to silence. The right to remain silent is the right to not be compelled to testify against oneself. It does not extend to the point that investigators have to ignore what they see just because someone decided to invoke their rights.
posted by gjc at 5:53 AM on June 28, 2013 [4 favorites]

It's also important to realize that the prosecutor in the case cited didn't build an entire case out of literally nothing - the fact that the accused said nothing. The *context* in which he said nothing, his body language, all simply led (along with other evidence) to a conclusion.

Let me counter your example with another example. I had insomnia one night and decided to go on into work. My office is next to another building which we do not own, is not in use and which has the parking lot behind the building. I have customers who will knock on our door outside of business hours if they see a car in our lot.

So I had the bright idea (running on 4 hours of sleep, mind you) to park there. Just as I was pulling into their parking lot, a police car drove down the adjoining highway.

I immediately realized that the officer would tend to view that as suspicious (especially at 2 a.m.), and gave up on my idea. I pulled out of that lot and into my own lot and parked, and sure enough by the time I was getting out of my car to go into my office, he'd returned and pulled in behind my car.

Now at this point, what magical thing could I have said to avoid his questioning me? I could have specifically invoked the 5th, I could have said "I'm sorry, I've got to get to work," and rushed in. And all of that would have likely raised more suspicions, which would have led to more time spent clearing them up. Instead I admitted that the car he saw was mine, I briefly told him about my bright idea, he laughed and wished me a good night.

In your example "Be right back; I've got a cake in the oven" would work. "I'm sorry, I can't help you; I didn't see anything" would be about as quick. I guarantee you that in the real world invoking the 5th as a conversation opener would cause an awkward conversation to ensue that would take longer. Police DO have the power to temporarily detain people for a limited time without meeting the formal standards of probable cause.

I don't want to live in a world where the police have unlimited powers to interrogate, but I also don't want to live in one where they have to put aside any ability to use their judgement about what is suspicious and what isn't, either. If, instead of me, the person prowling through the parking lots in a car had been someone breaking into my building, I'd be upset if I knew the police had seen headlights at 2 a.m. and hadn't looked into it.
posted by randomkeystrike at 5:54 AM on June 28, 2013 [10 favorites]


Here is a Forbes article about it. It seems the SCOTUS decision doesn't clear up the question entirely.

My layman's understanding is that it's always appropriate to ask "am I free to go" or "I need to go, will you excuse me?" repeatedly even though it may seem rude. Traffic stops are special; you have to provide evidence that you're lawfully allowed to operate the vehicle, but they are not generally custodial and this gets tricky.

My layman's interpretation (probably inaccurate) of the SCOTUS ruling is that it's more important than ever to draw a bright line when interacting with law enforcement. For instance, you might answer questions about what you saw on the street but stop when the questioning turns to whether you've gone somewhere, done something or interacted with someone. And then you have to declare your right to silence and counsel and, importantly, shut up. This still doesn't mean you won't be arrested.

Sounds like actually having a cake in the oven is one of the better ways to end the conversation :)
posted by RobotVoodooPower at 6:48 AM on June 28, 2013 [1 favorite]

Not sure how effective it is, but this statement designed for printing on a business card-sized card seems to cover it. Some civil rights wags seem to think that by presenting it and saying nothing, you can assert later that you said nothing at all, that you didn't even open your mouth in order to assert your Fifth Amendment rights.
posted by Mercaptan at 6:50 AM on June 28, 2013

Best answer: This is a hypo, so this is not legal advice and I am not your lawyer.

First, you need to understand how narrow a ruling this is. The suspect without invoking the fifth or being placed into custody, was answering questions. Then when asked if ballistics would link the gun to the crime he balked and said nothing. Prosecutors later argued his silence on that question, followed by answering other questions was indeed an admission that the shotgun shells found at the scene would be linked to the shotgun. He later claimed his silence was an invocation of the fifth and could not be used against him.

What to say: Don't answer police questions without a lawyer if they are asking you questions about a specific crime.

Also, don't shoot people with a shotgun.

Just remember this is a very narrow situation. It is unlikely to happen to you and don't answer any questions if you've committed a crime, ask for a lawyer immediately. You don't need a script.

This is not legal advice. I am a lawyer, I am not your lawyer.
posted by Ironmouth at 6:54 AM on June 28, 2013 [17 favorites]

In the scenario you've stated where the police come to your door to ask about local crime activity, you have a few options:
(1) Refuse to answer the door
(2) Answer the door --- open the door, step into the hallway, then close the door behind you.
(2)(a) Answer their questions or
(2)(b) Simply say "I can't help you" then go back inside.

In a situation in which it seems they are not letting you go, you can ask "am I under arrest?" or alternatively "am I free to go?" -- [warning: oversimplification about to happen] generally, if you are under arrest or otherwise prevented from leaving their custody, and they are asking you questions or making statements intended to elicit a response, it is considered a custodial interrogation and they have to read you Miranda rights.

So, basically, you either have a right to leave or a right to be told about your right to silence.

To invoke this right to silence, all you have to do is say: I'm invoking my right to silence. (Ideally, you should say I'm invoking my right to counsel and my right to silence).

In Salinas, the main issue arose because (a) Salinas was not in custody or arrested at the time of the questioning [no right to Miranda warnings] and (b) Salinas answered most of the questions, then went silent at the asking of a particularly damning question. If he had said "I'm invoking my right to silence" or "I'd like to speak with my attorney" the outcome would likely have been different.

TL;DR Don't answer the police's questions ever; don't let them into your house; don't go to the police station voluntarily; if in doubt affirmatively say "I'm invoking my right to silence."
posted by melissasaurus at 7:02 AM on June 28, 2013 [4 favorites]

When I was in law school, my most beloved of blessed memory Crim Pro prof begged and instructed us to say to any police who stopped by for any reason, no matter how innocuous, "I'm sorry, but my law school professor has forbidden me to allow you entry to my home without a warrant or to answer any questions without an attorney present." Period. Also, fyi, he was extremely well loved by the law enforcement community so this isn't the advice of some crazy rabble rouser.

I have taken his advice on more than one occasion and no honest search for wrongdoers was in any way hindered.
posted by janey47 at 7:05 AM on June 28, 2013 [6 favorites]

I was going to say what Ironmouth said about the narrowness of the ruling. I would also add to "if you've committed a crime" that if you appear to be a suspect (or, as Ironmouth said, asking you questions about a specific crime), ask for a lawyer.

Generally, after Salinas, my informal, general, non-legal-advice recommendation for someone who has committed a crime or appears to be a suspect would be this:

"My wife/friend/sister is a lawyer and has always told me that innocent people suspected of committing a crime should always invoke their right to remain silent, so I invoke my right to remain silent and wish to speak to an attorney."
posted by Pax at 7:11 AM on June 28, 2013 [2 favorites]

The ACLU has a series of guidelines for how to deal with police if you are stopped, depending on the circumstances.

For general advice on this topic see this talk by a law prof that got a lot of attention a few years ago: Never ever talk to the police
posted by Wretch729 at 7:31 AM on June 28, 2013 [3 favorites]

pipeski: I'd go with "excuse me, I've just realised that I need to take a cake out of the oven. Would you mind waiting just one minute, and I'll be back to answer your question".

I'm not being intentionally flippant. I just don't see how there could be an all-purpose script for this kind of situation.
pipeski's advice is ill-informed and downright wrong. Do not follow it. Also, in case it's not obvious,
somewhere where police were corrupt and known to arrest innocent people on a whim
is true of every point on planet Earth, and pointless anyway: a perfectly ethical policeman might find (misleading) evidence that leads to your arrest, despite your innocence, and at that point you want every card stacked in your favor.
posted by IAmBroom at 7:45 AM on June 28, 2013 [1 favorite]

So, how does one respectfully talk to the police when one has nothing to hide but also don't want to get arrested just because they were quiet?

(I am not a lawyer). Some people have suggested the "I'm invoking my right to remain silent" line, but the one I think makes more sense and is more flexible is something more along the lines of "I decline to make a statement at this time". It makes it clear that you understand that they are asking you to make a statement, and that you are deciding not to provide one, regardless of if you are considered a suspect and are trying to avoid giving the police evidence that could be used against you. With your specific example of police questioning you as a possible witness to a crime, there's no legal obligation for you to give them a witness statement and you should be free to tell them that you decline to do so without giving an explanation of why you are declining. The only time you can really be forced to give that kind of statement is if you are actually subpoenaed to testify in court.
posted by burnmp3s at 8:17 AM on June 28, 2013


DO NOT EVER TALK TO THE POLICE if you think you did it.

DO NOT EVER TALK TO THE POLICE if you know you are innocent.

DO NOT EVER TALK TO THE POLICE if they say they "just want to talk to you" and "you are not a suspect"

IF YOU HAVE ANY INKLING THAT YOU WILL EVER CHOOSE TO TALK TO THE POLICE, please please please donate 48 minutes of your life to me and watch this.

posted by BrooksCooper at 5:35 PM on June 28, 2013 [2 favorites]

janey47, how very awesome it must have been to have Prof. Whitebread. He came through to my school on a promo tour for BarBri, and brought the house down. He was as funny as he was brilliant. He did the BarBri Crim Law/Pro videos when I did the course in 2008, which were equally wonderful.
posted by holterbarbour at 7:54 PM on June 28, 2013

:-) luckily, I was just smart enough to take Crim Pro -- which I otherwise would have skipped on the theory that it would have no relevance for me post-bar exam and that bar topics are best studied in bar review -- precisely because I knew I would cherish the memories of those classes. Not to brag or anything but I used to say that I minored in Erwin Chemerinsky, too. Law school was pretty great.
posted by janey47 at 11:53 PM on June 30, 2013

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