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What Is Admission by Silence?

Admission by silence occurs when a defendant’s silence in the face of an accusation is used against him in court. Admission by silence is only admissible in limited circumstances. However, it is important to know when silence can be used against you in a court of law.

Admission by silence is based on the idea that an innocent person will resent being charged with a crime and will deny it as a matter of self-defense and self-preservation.

When someone who is not under arrest is accused of a crime but says nothing or responds evasively, at trial, a prosecutor may attempt to introduce evidence of the defendant’s reaction to infer that the defendant is guilty.

Silence is only admissible in very limited circumstances, and evidence of a defendant's silence is admitted into evidence, not for the accusation itself, but to show how the defendant responded when accused.

If the jury hears testimony about a defendant’s silence or failure to respond to an accusation, a juror must use common sense to interpret the defendant’s silence and whether it can be used to infer guilt.

Can Admission by Silence Be Used Against You in Court?

In most cases, admission by silence is not admissible in court. However, there are limited exceptions. First and foremost, evidence of a defendant’s silence can only be introduced against a defendant who was not under arrest at the time the accusation was made.

Once a person has been read their Miranda rights or is taken into custody by police or other law enforcement officers, the prosecutor cannot introduce evidence of a defendant’s silence, and a jury cannot use it to infer guilt.

In addition, evidence of a defendant’s silence cannot be introduced if the defendant:

  • Declined to speak without a lawyer present
  • Declined to speak after being advised not to do so by their lawyer
  • Requested to speak with a lawyer before speaking

If a prosecutor intends to introduce a defendant’s silence, the jury can only consider the defendant’s silence if the defendant:

  • Heard the accusation
  • Understood the accusation
  • Had motive or opportunity to reply
  • Could reply
  • Appeared to agree with the statement

In addition, if a defendant denies an accusation, both the accusation and the denial are not admissible in court.

Salinas v. Texas: No Fifth Amendment Rights When NOT Under Arrest

Despite the Constitutional guarantee to be free from self-incrimination, admission by silence is allowed in certain, very limited circumstances. Even then, it is only admissible to show the conduct of someone who was accused of a crime, and not for the accusation itself.

In Salinas v. Texas, the United States Supreme Court ruled that someone who is not under arrest does not have a right to remain silent under the Fifth Amendment.

The defendant, Genovevo Salinas, voluntarily went to the police station to discuss the 1992 murder of two brothers. Salinas was not under arrest and not in police custody and, therefore, had no right to a Miranda warning telling him that he had the right to remain silent.

Salinas answered most of the police officers’ questions but remained silent when asked if shotgun casings found at the scene would match his gun. He acted nervous but said nothing.

At trial, prosecutors used Salinas’s silence to help convince the jury that he was guilty.

Justice Alito wrote that “A witness's constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim.”

Ultimately, the court ruled that a person must say affirmatively something to show that his silence is an exercise of the Fifth Amendment right against self-incrimination.

Importantly, the case only applies when a defendant remains silent in response to questions but has not been placed under arrest or read his Miranda rights.

The Legal Team of Christina L. Williams: Protecting YOUR One Shot at Justice

If you have been accused of a crime, it is critical that you hire an experienced criminal defense attorney as quickly as possible. An experienced criminal defense lawyer can protect your rights, offer advice on how to minimize the likelihood of a conviction, and challenge the evidence against you in court.

Christina L. Williams and her criminal defense team proudly serve people in Northeastern Wyoming and Western South Dakota.

Learn more about the cases we handle and why clients choose us, then contact us today to schedule a personalized case review and strategy session.

You only have one shot at justice. Don’t leave it to chance.

DISCLAIMER: The information contained in this article is offered for educational purposes only. This information is not offered as legal advice. A person accused of a crime should always consult with an attorney before making decisions that have legal consequences.

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