Skip to main content

Adoptive admission by silence during a traffic stop

San Diego, CA |

If I remain silent during a traffic stop, particularly to questions like "do you know how fast you were going?", can that silence be used against me as an adoptive admission ala Jenkins v. Anderson or is this type of questioning sufficient to trigger self-incrimination exceptions to the silence type of adoptive admissions? Thanks.

Attorney Answers 5


  1. It can only be used against you, and can be used against you, if you testify on your own behalf. The holding in Jenkins v. Anderson:

    The Fifth Amendment, as applied to the States through the Fourteenth Amendment, is not violated by the use of prearrest silence to impeach a criminal defendant's credibility. While the Fifth Amendment prevents the prosecution from commenting on the silence of a defendant who asserts the right to remain silent during his criminal trial, it is not violated when a defendant who testifies in his own defense is impeached with his prior silence. Impeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truthfinding function of the criminal trial. Cf. Raffel v. United States, 271 U. S. 494; Harris v. New York, 401 U. S. 222; Brown v. United States, 356 U. S. 148. Pp. 447 U. S. 235-238.

    I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for general information only. They are not legal advice. Answers must not be relied upon. Legal advice must be based on the interplay between specific exact facts and the law. This forum does not allow for the discussion of that interplay. My answer to any specific question would likely be different if that interplay were explored during an attorney-client relationship. I provide legal advice during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us. The communications on this website are not privileged or confidential and I assume no duty to anyone by my participation on Avvo or because I have answered or commented on a question. All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice in answer to any question, if you are an interested party you should promptly and personally consult with an attorney for legal advice. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference


  2. IMHO this is not an adoptive admission. The cop asked you a question which could have been answered yes or no or, as you chose to do, not at all. You do not have to answer the cops obviously incriminating questions. The fact that you did not is not the same thing as an admission.


  3. Maybe traffic court is a different animal in California, but I cannot imagine a traffic court prosecutor in Illinois trying to get that into evidence.


  4. And this will be attempted to be introduced by the invisible prosecutor at San Diego traffic court?

    Law Offices of David Shapiro 3555 4th Avenue San Diego, CA 92103 (619) 295-3555


  5. This is not an admission- although I have no doubrt that the officer will testify to it at time of trial. Get an attorney and figt your ticket.

Criminal defense topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics