Can your silence be used against you? Miranda rights say you have the right to remain silent and that anything you say can be used against you. My question is, can the exercise of this right be used against you at a trial? It seems that at the Rittenhouse trial the prosecutor called into question why the accused remained silent. This seemed like a clear violation of the defendant's constitutional rights.
Your silence can be used against you: this is known as an adoptive admission. It is an exception to the hearsay rule, and is based on the premise that if a person hears and understands an accusation against them (even framed very indirectly), and &quot;adopts&quot; the truth of the accusation by directly acting in a certain way or by failing to dispute the accusation, this can be introduced as a form of admitting to the accusation. For instance, B might say to A &quot;I laughed when you shot Smith in the foot&quot; and A might say &quot;That was pretty funny, right&quot;, that can be admitted and interpreted as a confession. The same goes for A saying nothing. What's crucial is that the accusation has to be made in the defendant's presence, they must hear and understand it, they must be able to deny the accusation and it would be natural to deny the accusation. There is a relationship between this and the Fifth Amendment, see Salinas v. Texas (and prior law), that &quot;To prevent the privilege against self-incrimination from shielding information not properly within its scope, a witness who “‘desires the protection of the privilege . . . must claim it’&quot;. During a non-custodial interview, defendant was asked asked if his shotgun “would match the shells recovered at the scene of the murder”, and he said nothing (and actually gave non-verbal indicators that the accusation was true). He did not invoke his right to silence, thus the court reasoned that &quot;Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment&quot;.
This is currently untested but the U.S. Supreme Court did leave the door open to allow someone to plead the 5th amendment in order to hide their identity. In Hiibel v. Nevada the U.S. Supreme Court held that the petitioner did not have a 5th amendment right to withhold his name from a questioning police officer. The Supreme Court held that Mr. Hiibel could be arrested for failing to identify himself because Nevada's statute requiring identification was narrowly tailored and was not vague. The police officer who stopped Mr. Hiibel had reasonable suspicion that a crime had occurred and Mr. Hiibel could have satisfied Nevada's statute by simply stating his name; there was no requirement to turn over any papers or other documentation. The final paragraph of the opinion speaks of the importance of the narrow scope of the disclosure requirement and then goes on and states: ...Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances...Even witnesses who plan to invoke the Fifth Amendment privilege answer when their names are called to take the stand. Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. We do not resolve those questions here. While the court is leaving unanswered the question of whether there are circumstances where one may refuse to identify themselves, they are making it quite clear that such a situation would be very different than the case decided in Hiibel. There is a strong hint that they would uphold Fifth Amendment privilege in the situation you posit.
united-states The Sixth Amendment gives a defendant in a criminal case the right to “confront one’s accuser”, and the Supreme Court has taken a notably originalist view of this right, holding that this means face-to-face cross examination under virtually all circumstances. While there are some small exceptions related to minors and to witnesses who became unavoidably absent after giving a sworn statement (none of which could apply to Alice), and while the Supreme Court hasn’t explicitly ruled out cross examination over videoconference, the idea of anonymous testimony in a criminal case is unthinkable. Part of an effective cross examination is arguing why the witness’s testimony might be unreliable, and a defendant who didn’t know whose testimony it was would be hamstrung at that.
Generally speaking, no. Assuming your lie did not cause some &quot;legally cognizable harm&quot; -- as in the case of perjury, defamation, fraud -- it is almost certainly protected by the First Amendment. United States v. Alvarez, 567 U.S. 709 (2012).
The Fifth Amendment always protects someone from being forced to testify against themselves if it would implicate them in a crime (see, among others, Ohio v. Reiner, 532 U.S. 17). Any person can assert the privilege, regardless of their role in the trial, with the possible exception of the plaintiff (who is the one person who wanted to go to court). Like always with the Fifth Amendment, they can answer some questions but not others (but if they do answer a question, they need to fully answer it). In civil cases, the Fifth Amendment itself does not keep the jury from making adverse inferences against whoever invoked the privilege; if you refuse to testify, they can assume that it's because testifying would be extremely damaging in that particular case. However, most states have rules against that, and so invoking the privilege in state courts generally works like it does in a criminal case (where the jury basically ignores that the question was even asked). In federal courts, if a case is being heard under diversity jurisdiction (plaintiff and defendant are from different states but the claim is not a federal claim) the state rule is supposed to apply; if the claim is a federal claim, the federal rule applies and adverse inferences are allowed. While the Fifth Amendment can be invoked by anyone, there may be consequences. In many states (where adverse inference isn't allowed), a witness who will just invoke the Fifth and answer no questions can't be called, because it's a complete waste of time. If the plaintiff invokes the Fifth to not answer key questions, then the court can potentially dismiss the case; they have the right to assert the privilege, but their lawsuit might suffer for it. In federal court, another possibility that's been done several times before is that the civil case is just put on hold until the criminal matter is resolved. Sources: “The Fifth Amendment Can &amp; Will Be Used Against You In a (Federal) Court of Law” Taking the 5th: How to pierce the testimonial shield Plaintiff as Deponent: Invoking the Fifth Amendment
In McCarthy v. Arndstein, 266 U.S. 34, the Supreme Court declared that The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. Kastigar v. United States, 406 U.S. 441 It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, [Footnote 10] and it Page 406 U. S. 445 likewise finds that the privilege can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. There may be some confusion over criminal vs. civil cases, so first we should restate the self-incrimination clause: nor shall be compelled in any criminal case to be a witness against himself There are many ways that this language can be interpreted, for example it could mean that a person who is a criminal defendant cannot be compelled to testify against themselves in that case; or that the protection applies to a possible, future criminal case against them (when they are the defendant in a criminal trial); or when they are a non-defendant witness in some criminal trial. Instead, the courts interpret the privilege as protection against any being compelled to testify, when that testimony has a tendency to incriminate. The line that exists, w.r.t. civil cases, is that you can be compelled to testify against your civil case interest – you can be compelled to testify that you breached a contract, for example. When testifying in a criminal case, you can be compelled to testify to a breach of contract. It is not about the nature of the case where you are testifying, it is about the nature of the possible case where that testimony could be used against you.
I haven't found a recent case like this where it constitutes evidence. Military members didn't have an express right to remain silent until somewhere in the 1950s, so one chances are there might be cases prior to that point. The present right is codified in 10 U.S.C. 831, which is Article 31 of the UCMJ. That said, there is certainly a well documented adverse inference effect. While jurors aren't supposed to take the silence into account (e.g. when a defendant elects not to testify or exercises a right against self-incrimination), it's a difficult thing to do, practically speaking.
There's an interesting philosophical debate you can have. By the plain text of the First Amendment, it protects libel. Aside: Yes, the First Amendment does apply to libel cases. A libel case, like all lawsuits, involves the government's judicial branch using its coercive power to make you pay money as a result of your speech, based on a law requiring you to pay money for certain kinds of speech. Tort law is not optional; a libel case isn't "you promised not to say bad things and then said bad things," it's the government saying "what you did is bad, now pay the person you hurt because of your speech." The idea that "you can say it, you just have to face the consequences" isn't enough and hasn't been for quite a while now. Traditionally, the main point of freedom of speech was that a court couldn't stop you from saying something, but could only seek to punish you after the fact (and for that you get a jury, a public hearing, etc.) But more recently, courts realized that subsequent punishment had similar effects to prior restraint. If you're going to be punished for some kind of speech, you're going to steer clear of saying anything a jury might think is that kind of speech. Libel law is heavily influenced by the First Amendment, and has been for over 40 years. The First Amendment looks like it protects libel, but it also looks like it should protect your right to reprint any book you want. It also looks like it should protect your right to tell someone "go and murder this person." It also looks like it should protect your right to say whatever you want in court, whether or not it's true. It also looks like it should protect your right to falsely shout "fire" in a crowded hall, with the intent to cause a stampede (this isn't just a turn of phrase, there was an actual incident in which 73 people were killed which is believed to have started when someone falsely shouted that there was a fire). It also looks like it should protect your right to post a sign saying "There is a bomb at this elementary school." Yet the Constitution explicitly sanctions copyright, and no one would seriously conclude that Congress may not protect the integrity of the judicial process by punishing perjury. Ordering a hit, making bomb threats, intentionally causing panics -- the fact that speech is a key part of these can't mean that the government isn't allowed to criminalize them. You cannot run a civilized society in which death threats are legal. So, the courts interpret. Language in the Constitution that appears absolute is understood to have implied exceptions. The people writing the document were well aware that perjury was generally a crime. The same Congress that proposed the First Amendment passed a law criminalizing perjury. Sure, you're punishing someone based on their speech, but it's clearly not meant to be protected. You can't run a court system without perjury laws, and its absence from the First Amendment doesn't mean that the First Amendment thereby upended this basic principle. The courts have identified a number of kinds of speech that, by longstanding practice, are not protected. Intellectual property violations are one. Obscenity is another. So are threats. So is "speech integral to criminal conduct" (e.g. "what'll it be, your money or your life?") And so is defamation. The text of the First Amendment may not exclude it, but courts have uniformly held that it's not something the amendment was ever meant to protect. The First Amendment does still pose constraints, which are some of the most defendant-friendly in the world (interestingly enough, US law is descended from English law, and English libel law used to be among the most plaintiff-friendly in the world). It's not libel if it's true. It's not libel if it's an opinion (unless it's a statement of fact dressed up as opinion). It's not libel unless you were at least negligent; if it was about a public figure, you have to have known it was false or seriously doubted its truth. But these restrictions leave a core of speech that is and always has been punishable.