For example, in California, a man caused a car accident, injuring a girl and killing her sister. At the accident scene, he was handcuffed and placed in the back of a police car. At no time did he ask the officer how the people in the other car were doing. The man was later charged with vehicular manslaughter. While sitting in the back of the police car, the man was not read his Miranda rights. In fact, two hours went by before the man was read his Miranda rights. During the criminal trial, the prosecutor told the jury that the man did not ask about the individuals well being from the other car. The prosecutor then said that this failure to ask about the victims pointed to the "consciousness of his own guilt" and showed his "indifference to the consequences caused by his reckless driving."
Wait. Didn't the man have the right to remain silent? Are they saying that because he chose to invoke his right it is now used at trial to show what an awful person he is? Is this what society has become? Courts have found that suspects do not have to be read their rights upon being arrested. Instead, a suspect needs to be read his rights before being questioned. What happens if a lot of time goes by in between being arrested and questioned? Does this mean that if you are silent, your absence of saying anything will imply your guilt and be used against you later?
In the case above, the California Supreme Court ruled that the man's silence at the accident scene COULD be used against him. What is a person supposed to do if anything they say can be used against them and anything they don't say can be used against them?
In 2013, the U.S. Supreme Court issued a similar decision in a case involving a silent suspect prior to arrest. In that case, the suspect actually answered police questions for about two hours, but only gave vague answers and refused to go in detail about a gun found in his house. Well, the prosecutor used that against him at trial.
So, what do you do if you are arrested? The court said that the only exception is if a defendant expressly tells the police he is invoking his 5th Amendment right. This means that you need to announce that you are relying on your 5th Amendment privilege. That way when you sit silently waiting, your silence is not used against you. It means that it is no longer enough to simply refuse to talk to the police.