Can he, upon being arrested, both speak and remain silent? No.
Can he, prior to being arrested, both speak and remain silent? No.
Can he, if the government is about to arrest him, both speak and remain silent? No.
If both speaking and remaining silent are used to prove guilt, then you actions are witness against you regardless of what they are.
Now for force:
Are you free to avoid being arrested? No.
Can you legitimately fight being arrested? Theoretically, if it is a false arrest, yes; realistically, no.
What happens if you try to avoid it or resist? The police use force to make it happen.
At this point you have been forced into a situation where your action (speaking or remaining silent) is witness against you.
Thereby you have been forced to witness against yourself.
You folks are thinking that this guy was found guilty because of his silence. I’d say that the conviction was because of the facts. He did have a drunken blood/alcohol level, he was the driver of the car, he did kill the little girl and injure her mother and sister.
There is ZERO dispute about those facts. Zero.
The appeals court overturned his lower court conviction, and they were going to let this killer (67 mph in a 35 zone) WALK. Nothing against him. Nada. Free as a bird even though there is NO DOUBT that he killed that little girl.
The ‘silence’ was not about the certainty of the case against this killer. It wasn’t even crucial evidence in his behavior being calloused behavior. The 67/35 and the drunk driver are already evidence of callous disregard. That the man’s behavior (silence) is cited as additional circumstantial evidence of his state of mind is not even crucial. What do I think it meant? I think his behavior meant that he was trying to legally protect his butt from the consequences of what he’d just done, even though he knew he’d just done it.
EVERYONE knew he was guilty.
Do you want him to walk away from a murder, over which there is no dispute as to his guilt, over a legal technicality, when the court says he hadn’t even been arrested and people are free to infer what they want from his behavior prior to his arrest and Miranda reading?
Counselor P-Marlowe, if I was a judge in a court in which you and OneWingedShark were in a legal struggle, I would rule for OneWingedShark. If I was a jurist, I would vote in favor of OneWingedShark's plaintiff.
Counselor P-Marlowe, if I was a judge in a court in which you and OneWingedShark were in a legal struggle, I would rule for OneWingedShark. If I was a jurist, I would vote in favor of OneWingedShark's plaintiff.
(Second post correcting the failure to ping)