constitutional-law us-constitution fifth-amendment
Can your silence be used against you?
<p>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.</p>

<p>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.</p>
<p>There is a relationship between this and the Fifth Amendment, see <a href="https://www.supremecourt.gov/opinions/12pdf/12-246_7l48.pdf" rel="nofollow noreferrer">Salinas v. Texas</a> (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;.</p>
