Trust me, I'm a LONG way from there... but the guy didn't exercise his right, he was talking all night.
Imagine an interrogation that goes like this:
I'm too lazy for all the quotation marks...
Did you kill John? No. Did you kill Jane? No. Did you steal John's car? No. Did you steal Jane's car? No. Did you tell Joe where John kept the money hidden? ..... silence....
Do you really think that presenting that sequence of conversation to a jury violates the Fifth Amendment?
ETA: Remember, the Fifth Amendment protects us from compelled self-incrimination. ["nor shall be compelled in any criminal case to be a witness against himself"] Doesn't say anything about keeping silent. This guy was not compelled to answer any questions, nor was he compelled to act differently when he got to the hard question.
TFred
Yes, he
did exercise his right--he went silent. And, his exercise of a right--his silence--was used to incriminate him. In this case, because of the timing of
when he went silent.
This is just a court-room version of what many of us already discussed years ago about street encounters with police. We already figured out years ago that it looks bad to the cop and would increase his suspicions if we silenced during a police encounter rather than right at the beginning. Same thing here, only in this case it became evidence in a courtroom.
Its just a matter of the timing, TFred. Do I really have to do all the imagining here? Today the silence about whether matching shotgun shells or whatever will be found at your house is evidence. Tomorrow, for sure and without any doubt, it will be mid-silence about anything will justify suspicion. And, hey, if mid-silence can be used as evidence, it obviously follows that mid-silence must also give probable cause for a search. Or, Oh! He was friendly until we asked his name. Then he went silent. He must have a warrant or restraining order. "Gimme your ID!"
Also, its curious how the cops set him up. They chatted innocently enough about this and that. But, he went silent the moment they made it clear they were investigating him rather than just investigating the crime. How about that as a technique? You think you're doing your civic duty helping a cop investigate something, maybe a missing child when its not even known whether the child wandered off or was kidnapped. And, then the cop starts getting a little personal, investigating you. You go silent, and later when the body is found in the woods, and you're the handiest suspect, and the kids fingerprints are found on your car from when his ball got stuck under your car, you find yourself in a huge heap of trouble even though you were fishing but can't prove it.
The way the police handled the defendant's questioning in the instant case is far, far too easy to ensnare a innocent person. Set him up with tame questions, then go for the meat and see whether he goes silent. They got him if he goes silent. They got him if he tells the truth but the police have evidence that contradicts him.
Exercising a right is exercising a right. This case was just another in a long, long series of government driving a wedge into a right.
One criminal who gets away only affects the people he comes into contact with. Government affects every single person in its jurisdiction. And, in the instant case, we don't know that this criminal would have gotten away with it without this police tactic or ruling. Meaning, the police might still have come up with enough evidence to convict if they had just done proper police work
without playing games with our rights.
