At a recent drunk driving bench trial . . . the police officer testified that my client was silent when the officer asked my client on the roadside about what he had imbibed earlier that evening.

I objected to that line of testimony, on the grounds that my client had a Fifth Amendment right not to answer the question, and to have his silence excluded from evidence. The judge overruled my objection, on the basis that a Terry stop — Terry v. Ohio, 392 U.S. 1 (1968) — was in progress, and not an arrest. 

The judge’s rationale was that the defendant’s Miranda rights had not yet attached, and therefore the underlying rights, including the right to remain silent, were not yet in play.  At the same time, the stop was justified per Terry, giving the officer a right to inquire. A relatively sophisticated analysis, and, as Jon notes, totally wrong.

We possess our constitutional rights at all times.  We don’t need the government’s permission or approval to exercise them.  Indeed, they would be relatively worthless if we did.  But the exercise of these rights is rendered meaningless if the very exercise itself can be used to impugn a defendant at trial. 

So let’s parse this out a bit.  We have the right to remain silent, whether subject to custodial interrogation or just a passing question. Miranda merely provides the timing for the cops to tell us of our rights, nothing more.  So the police in Jon’s case were under no duty to provide Miranda warnings?  That’s fine, and likely correct, but the timing of police taking a person into custody neither creates nor confers the initial availability of constitutional rights.  The two issues are entirely distinct.

As for the Terry stop, it provides the police with a guide to their level of intrusiveness into the personal realm of people.  They are allowed to ask questions.  That doesn’t mean that we are required to answer them.  It’s quite a significant distinction, and one that easily eludes certain robed decision-makers.  By chosing not to answer, we do not open ourselves up to our silence becoming a weapon against us.  We are exercising our rights as Americans.  You don’t have something against Americans, do you?

But the final step in the process is the judge recognizing that the exercise of rights, which to an outsider can look as bad, if not worse, than a confession to kidnapping the Lindbergh baby, does not constitute evidence in itself.  When a cop testifies, as he did in Jon’s case, as to silence when the typical juror would expect a law-abiding person to simply answer the cop’s question, the defendant is damned by his exercise of rights.  If permitted, then the exercise of rights embodied in the Constitution are tantamount to a confession.  Only guilty people invoke their rights.

The problem isn’t that the police officer is Jon’s case sought to use what he believed (wrongly) to be perfectly good evidence that the defendant was a bad person by his refusal to respond to the officer’s perfectly reasonable inquiry.  The problem is a judge who put two and two together and ended up with 39. 

Bear in mind, if the police can use silence as a weapon, as potent if not more so than a statement offered in disregard of one’s rights, then we’re left with one odd Catch-22.  I hope Jon’s judge down in Maryland is paying attention to him.  He knows what he’s talking about.