How your silence can be used against you?

     If you are an avid follower of Indian Movies, then I am sure you might have seen this -"Your silence is proof of your guilt" at least once. Well, as now when I started studying law I found out about "right to remain silent" under article 20 (3) of Indian Constitution and Fifth Amendment of US Constitution. While doing comparative study of both the constitutions I noticed two really important case laws of US Supreme Court which I think are important for Indian Constitution as well. 

    In this blog post I will give 2 case laws from US Supreme Court and "position and importance in India".

Berghuis v. Thompkins  

     Thompkins was a suspect in a shooting in which one person died and other was injured. During interrogation one of the officers provided the suspect with Miranda form, officer read the four warnings to the suspect and asked him to read the fifth warning. After that he was asked to sign the acknowledgment that he had been informed about his Miranda rights, which he refused. Now when questions were being asked, he was silent on most of the questions but answered a few including -

Police- "Do you pray to God to forgive you for shooting that boy down?"

Defendant - "Yes" 

Now when he went to appeal, he said that he did not intend to waive his rights and his Fifth amendment rights were violated. 

Court held that -  There was no express invocation of rights, he just remained silent. though there was no express waiver of right, court say and I explain it in formula form - 

     "No Invocation of rights + Understanding Miranda Warnings = Implied Waiver"

Right to remain silence must be unambiguously invoked.  

Now Point here to understand is-

• There should be express invocation of rights (like in below GIF pic) or else there can be implied waiver. 

     

Salinas v. Texas

     Two brothers were killed. Police while investigation found shotgun shell castings at that place which led to the defendant. Defendant agreed to give shotgun for ballistic testing and went down to station, where he talked for one hour (without being arrested or being read his Miranda rights) till he was asked that if shotgun would match the shells recovered at murder scene. He went silent and became uncomfortable. Prosecution used it against him. 

     During trial he remained silent but had an uncomfortable reaction which was later capitalized by prosecution. Court held that - "Without lawyer he should have invoked his right to not answer question." 

Court mentions further in the reasoning - "Fifth amendment only protects right to remain silent if silence is for purpose of avoiding self-incrimination without an express invocation reason for witness' silence is ambiguous". 

Point from Berghuis v. Thompkins has been made once again by US Supreme Court that-

"Even when you want to be silent → SPEAK UP 

Say- "I Decline To Answer" 

Position In India

In India, Article 20 (3) from Constitution mentions right against self-incrimination. 

Sec. 132 Of Indian Evidence Act protects witness from self-incrimination.

Ajmal Amir Kasab Vs. State Of Maharashtra

This was really serious and high profile case. 

Mr. Gopal Subramanium, senior advocate appearing for the State of Maharashtra cited Berghuis V. Thompkins. He submitted that Miranda Rights have no application and rights of accused are been placed on a much higher pedestal in Indian law. 

Court held that without  express waiver, court or police should act for him (accused) according to his rights and follow their constitutional duties. There is no need of help from Miranda Principles. 

Court says -

"Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him."

Last Word

In India, Supreme Court seeks to protect rights of accused due to low literacy rate in India and as less people know about their rights. 

While in US, Supreme Court felt that sometimes accused "skirt the law" which should not happen, so they made is necessary for accused to invoke his/her rights. 

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Hope you like the post. Please comment your views below. 

Important Links: 

Fifth Amendment : Wikipedia

Salinas v. Texas : Click Here

Berghuis v. Thompkins : Click Here

Article 20 (3) Of Indian Constitution : Click Here

Ajmal Amir Kasab Vs. State Of Maharashtra : Click Here

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