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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.

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Attorney answers 5


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.

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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.


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.


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


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.