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Can your pre-arrest silence be held against you?

"You have the right to remain silent." This begins the recitation by police of the various "Miranda rights" that they must give to a person they are placing under arrest. But what about when the silence of the suspect was being exercised before being informed of his or her Miranda rights? Can silence in such a situation be held against you?

This is the question that the Florida Supreme Court is pondering as it considers the decision by the Fourth District Court of Appeal to overturn the murder conviction of a woman, which was obtained at least in part by the claim by the state that her pre-arrest silence in response to police questioning could be construed as evidencing "consciousness of guilt." The appeals court had asked the supreme court to consider the matter and to make a ruling before its reversal of the trial court conviction takes effect.

The question about the significance of pre-arrest silence is one that has been before the U.S. Supreme Court, and the Florida state prosecution claims that its ruling -- that such silence does not violate a criminal defendant's right under the Fifth Amendment to the U.S. Constitution as long as the suspect did not invoke the right to remain silent -- should apply in Florida generally, and to the case at hand in particular.

The attorney for the accused murderer, on the other hand, claims that the issue of whether pre-arrest silence can be used as evidence at trial is also a question for Florida state law, and in its hearing on the matter it appears that most of the Florida Supreme Court Justices agreed with his argument that silence is not necessarily evidence of consciousness of guilt.

Although the Florida Supreme Court will issue its judicial opinion on the case later on, it seems clear that even if the prosecution's argument prevails it would be a good idea for anyone being questioned by police as a "person of interest" in connection with a crime to voluntarily state that he or she is exercising the right to remain silent and not to wait for the Miranda rights to be read. Another sound legal strategy would be for anyone being questioned by police under such circumstances to state as soon as possible that he or she wants to speak with a criminal defense attorney before answering any questions.

Source: Sun Sentinel, "Florida Supreme Court reviews Jupiter woman's silence in case of murdered ex-husband," Marc Freeman, Nov. 3, 2015

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