What is admission by silence?

Can I go to jail if I do not speak to police?

Recently, a client called concerned that she DID NOT respond to accusations from police when she was accused of shoplifting. While in the parking lot of a store she was confronted by police. The police walked her to her car and noticed many items that in their judgment appeared to be questionable or stolen. When the officer confronted the person about what he believed was contraband she failed to answer and she wondered whether her lack of response would be used against her.

This post will answer some frequently asked questions about the legal idea of admission by silence.

What is admission by silence?

Admission by silence is when a defendant offers no response or replies by saying something suggesting evasiveness. In other words, this means the failure by a part to assert that such act or declaration is untrue.

What happens with admission by silence?

A confession suggests that the defendant’s silence amounts to a silent admission of a crime. It is the responsibility of jurors to decide whether they believe the testimony.

Is all silence admission by silence?

No. We usually expect that an accused person denies or corrects the accusation.

However, this is not always the case. Under some circumstances, it might NOT be reasonable to expect a routine denial. In fact, there is a substantial risk a jury could misunderstand and/or misapply an admission by silence.

It is crucial that any conclusions jurors draw are fair ones. Jurors must be certain of ALL of the following before determining a response is one:

  • That the defendant heard any accusation and understood its significance
  • That a person always speaks up in a situation, like the one in question, if he or she is truly innocent
  • That other factors, apart from guilt or innocence with respect to the particular accusation, that might explain why a person did not choose to respond are NOT present

Remember that some accusations may be of such a nature, or come from such a source, that it would be natural to expect an innocent person to protest when such an accusation is made to his face if there are no other explanations for his silence.

How do we know when silence is admission by silence?

If a juror accepts the testimony about the defendant’s alleged silence or reply, then that juror will have to rely on his or her common sense and experience to determine how to interpret the defendant’s silence or answer in this particular case.

When the juror concludes that the defendant did silently admit that the accusation was true, he or she may give that conclusion whatever significance he or she feels is fairly entitled to receive in his or her deliberations.

If the juror is uncertain whether the defendant’s alleged silence or reply amounted to a silent confession, then he or she should disregard it entirely and go on to consider the other evidence of the case in question.

When is an admission by silence allowed as evidence in court?

Either party to any given case may show what is formally called an “adoptive admission by silence” by a witness or criminal defendant who, while NOT under arrest:

  • Did NOT respond
  • Responded evasively
  • Responded equivocally

…to a direct accusation that he or she would naturally be expected to deny.

Note that it would NOT be “natural” to reply if doing so might be “self-incriminatory” as to another crime or as to the person’s family members.

It is essential that the jury consider ALL of the following in determining if it is applicable:

  • Whether the witness heard the statement
  • The witness understood the statement
  • Whether the witness had motive or opportunity to reply
  • The witness could properly reply
  • Whether the witness appeared to acquiesce in the statement

In certain, selective circumstances a witness’s failure to tell his or her story to authorities may also be admissible to impeach the witness’s testimony.

Is my “right to remain silent” an admission by silence?

No, once a person is read their Miranda Rights or is taken into custody by authorities, no adverse inference may be drawn from his or her silence.

Additionally, no inference of guilt may by drawn from:

  • A person declining to speak without counsel present
  • Person declining to speak after advised not to by their counsel
  • A person requesting to speak with a counsel first before speaking

Also note that when a defendant denies an accusation, both the statement and the denial are inadmissible.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A CRIME AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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