I had lunch with Criminal defense attorney Howard Snader the other day.   He told me about a recent Supreme Court ruling that has some chilling consequences.  Basically, thanks to a recent court decision, a suspect’s “silence” can now be used against you in a criminal proceeding.   I asked him to write an article about it and here it is:

MIRANDA IS ALMOST DEAD AND BURIED: SILENCE IS NO LONGER GOLDEN
My criminal defense practice extends to all types of criminal acts.  But, my primary mission is to defend and protect you from any wrongful or excessive government taking of your liberty or property. Because I hope to protect you from any wrongful investigation or otherwise making a statement against your interest made to any officer, you need to understand a recent change in our fundamental right to remain silent.
The United States Supreme Court turned Miranda and our right to remain silent upside down.  See, Salinas v. Texas, 133 S.Ct. 2174 (2013).  Their ruling received little to no coverage in the media. Yet, the Court’s ruling is scary stuff. And, the ruling substantially changed one of our basic rights: the right to remain silent.
Most of us are familiar with Mirandaand the Miranda warnings: “you have a right to remain silent and anything you say can be held against you.” Since Dragnet and Adam 12, police dramas and literature speak of your Mirandarights. Miranda requires that any statement you make must be voluntary before it can be used against you.  Mirandahas been the rule concerning statements made to law enforcement since 1966. 
Mirandaapplied with two primary caveats: 1) you needed to be in custody, and 2) law enforcement was asking you questions.  If you were not in custody (making statements over the phone, or speaking to an officer when not under arrest) Miranda would not apply. But in all other cases, your statement needed to be voluntary before it could be used against you.  If you were Mirandized, your statements were presumed voluntary and could be used against you.
But with the Salinasruling, The US Supreme Court has now held it to be the law of the land that if you are not in custody, you are not entitled to be advised of your right to remain silent (also known as your right against self incrimination). AND, because you are not in custody, if you remain silent, YOUR SILENCE CAN NOW BE USED AGAINST YOU. 
So, if you are not in custody, police do not need to tell you have a right to counsel or tell you have the right to remain silent. Where does that leave you?  If you remain silent, a prosecutor can actually say to a jury that “an honest person would have answered those questions” or an innocent person would have answered those questions,” or worse, “what is that person hiding?”  Your presumption of innocence is a fallacy, is a myth, is now dead!
If you are reading this and you say so what, then think of it this way.  A criminal case is a jigsaw puzzle in which the only person seeing the cover of the box is the detective.  The detective enters his investigation believing you are involved.  Any question you answer provides him a piece of his puzzle.  Innocent answers can result in criminal charges being brought.  Did you know that person? Were you at the bar last Saturday? What time did you leave?   Each of those questions, even if answered truthfully, address a piece of the puzzle the prosecutor no longer needs to prove.  If you were to remain silent, it forces the prosecutor to prove you knew the person, were at the bar and what time you left. 
I have had too many cases where my innocent client is investigated or charged because the “innocent” statements were taken out of context, were twisted to fit the detective’s or  prosecutor’s theory, or were improperly recorded and subsequently misused. 
An innocent person may have many reasons for remaining silent.  You may know who is guilty, but do not wish to involve the person.  It may be your wish to remain silent because you are angry or in shock that you have been accused of a crime.  It may be you exercised your right to remain silent because for almost 50 years, you have been taught to remain silent.  All of these are valid reasons and concerns to remain silent. But under the new Salinas rule, the prosecutor can and will use your silence against you.  So, what is your remedy?

If you remember nothing else from this article, please remember this:
After identifying yourself to an officer, CLEARLY TELL THE OFFICER THAT YOU WANT TO 
REMAIN SILENT PURSUANT TO THE 5TH AMENDMENT.  YOU SHOULD ALSO CLEARLY STATE YOU WANT TO SPEAK TO YOUR LAWYER. 
Rarely, you can convince an officer to not arrest you.  So remaining silent is normally your best course of action. But now, you must proactively invoke your right and request counsel.  If in doubt, invoke your right to remain silent. So long as you invoke your right, you can then remain silent with no recourse or finger pointing by the prosecutor.  But no one is going to remind you to do it.
When the police are knocking on your door, or the red and blue lights are in your rearview mirror, remember to remain silent, invoke that right, and call me right away….even if on the roadside. 

You can reach Howard Snader on his website  http://www.SnaderLaw.com