Yesterday, the Supreme Court ruled that you must expressly invoke your 5th Amendment protection to the Right to Remain Silent. Justice Alito and the concurring Justices (Kennedy, Scalia, Roberts) claimed that a witness who “desires the protection of the privilege…must claim it.” In what world are they living in that the right to remain silent is a “privilege?” A privilege is a favor, a gift granted by the legislature, subject to revocation on any whim they deem expedient. A right is inherent; it is inalienable; it is something no legislator or ruler can take away from you. To call the right to remain silent a privilege is blasphemous.
If, to be able to exercise a right you must expressly invoke it, that is no different than saying there is no such right (which is what they are saying by calling it a privilege). To say this means that we have no right to silence, and that we may be compelled to speak if we do not choose to expressly invoke the 5th Amendment. It is hard to stomach anyone interpreting the simple act of saying nothing as an admission of guilt, as nonsensical as that is. Also, the act of saying nothing is itself an express act invoking the 5th Amendment. It is self-evident, a priori, that if an individual chooses to stay silent (or chooses to do anything else, for that matter) they are exercising their right to do so.
If I am talking to someone on the sidewalk, do I (or should I) have to explain to a police officer that I am exercising my right to free speech? No, the act of speaking itself is a priori an invocation of the right. Telling someone that you are exercising your right is explanatory of the fact that you are exercising it, but the ability to exercise the right is not dependent upon this explanation. It is granted to Justice Alito that the 5th Amendment says that no one may be “compelled in any criminal case to be a witness against himself,” but is that not what has happened? If we may interpret a defendants lack of testimony as an admission of guilt, is he not ultimately being compelled to be a witness against himself in a criminal case? It is a fine line.
In my own tendency to extend as much protection to defendants as possible, I believe the protection against self-incrimination cannot be limited to the witness stand nor can it be limited to an express invocation of the right. At the same time, I find myself agreeing with Justice Thomas that the Griffin case, where they determined that a prosecutor cannot make damaging statements about an individuals exercising their right to remain silence, does in a sense fall outside the bounds of the 5th Amendment. However, the rule determined today that the 5th Amendment right to remain silent must be expressly invoked to extend an individual protection is absurd on its own rights.
If someone would rather say nothing at all (their right), why should we force them to state they are invoking the 5th Amendment? And again, the most disparaging aspect of this case is the reference to our 5th Amendment right as a “privilege.” So has the Bill of Rights been ab ovo a Bill of Privileges? Should we be grateful that our merciful overlords granted us such a privilege in the first place?