I don't get it.
Perhaps I don't get it either.
Under U.S. law there is some question regarding how a person may assert their right to not be put to question, including whether they need to formally assert that right.
In a recent Supreme Court case where a defendant had stood mute when questioned, the court held that the defendant's silence could be used as evidence during trial.
N. Richard Janis and Jennifer A. Sincavage offer the following commentary:
In the plurality opinion authored by Justice Alito and joined by Justices Kennedy and Roberts, the Court recited the two existing exceptions to the general proposition that a defendant must expressly invoke his Fifth Amendment privilege in order to enjoy its protections: 1) a criminal defendant need not take the stand to assert the privilege at his own trial, and 2) a witness’s failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary. The Court declined to create a third exception to the express invocation requirement where a witness chooses to stand mute rather than give an answer ...
The Court went on to state that the express invocation requirement applies even when an official has reason to suspect that the answer to his question would incriminate the witness, and that forfeiture of the privilege need not be knowing.
So the majority position was that the defendant failed to
expressly invoke his right. As such his behavior, to wit, of standing mute, could be used in evidence against him.
Justices Thomas and Scalia in their concurring opinion held that the defendant by his inaction of standing mute had invoked the right.
but (they) would have allowed the prosecution to use evidence of Salinas’ silence against him at trial—essentially holding that an individual has no protection under the Fifth Amendment when he submits to voluntary questioning by authorities.
So James Duane holds that an improper invocation of the right to avoid self incrimination may itself incriminate you. Does he go to far in saying so? I can say that in matters where a defendant's very life may be in question it is bizarre in the extreme for a fundamental protection to be contingent on a person reciting some spell like ritual verbiage. And yet it is presently the case.
Hence, it is so important not to get it wrong.
