Right to Remain Silent – And That Silence Will Be Used Against You

24 Jun

The right to remain silent is not an absolute right. It’s a misperception held by many that the right to remain silent – and for that silence not to be used against you – is always the case, no matter the setting. But, the United States Supreme Court forcefully reminded us that this is not the case in the Salinas v. Texas decision it issued earlier this week.

In Salinas, the defendant agreed to accompany the officers to the police station, where he was subject to questioning for an hour. Key to the case is that the defendant was never in custody – i.e. he was free to leave at any time – and, as a result, he was never given the Miranda warning we are all familiar with (you have the right to remain silent, etc…). The defendant answered most of the officers’ questions during the hour. But when they asked him whether his shotgun would match the shell casings removed at the scene, he fell silent, looked down, and shuffled his feet. After a few moments of silence, the officers asked different questions, which he again then answered. The defendant was ultimately convicted based, in part, on this silence. His silence was, in fact, used against him.

The Supreme Court was faced with the following issue: whether the prosecution may use evidence that a defendant asserted the privilege against self-incrimination during a police interview when the defendant was not in custody.

In holding that the prosecution may rely upon the defendant’s silence as an inference of his guilt, the Supreme Court held that a defendant must explicitly invoke his Fifth Amendment privilege against self-incrimination. Because the defendant was free to leave and was not even read the Miranda warning, “simply standing mute” is not enough to invoke the Fifth Amendment privilege against self-incrimination. It is not self-executing and can only be recognized in this setting when the defendant explicitly invokes it.

All is not lost, though, because the Court recognized that this rule does not apply – even in the same circumstances – when government coerces the forfeiture of the Fifth Amendment privilege. The Court’s few examples of when this might occur are not clear; but, the overriding principle is that coercion occurs when the government action denies the defendants free choice to admit, deny, or to refuse to answer.

So what does this case mean going forward? The most obvious implication is that the prosecution will use all available evidence (and inferences from the same) to obtain a conviction. But, you’d expect that out of them – otherwise, they aren’t doing their job.

Instead, it shows that defendants need to be careful about what they say and do not say during the police investigation. Most defense attorneys advise defendants to politely decline answering police questions during the investigation stages – i.e. before they are placed into custody. After all, what’s being said is most often only aiding the state’s case against you. But, now, a savvy prosecutor could attempt to use that silence against you if you were not in-custody, unless you explicitly invoke your Fifth Amendment privilege against self-incrimination. This means that must say the magic words – something along the lines of: “I’m invoking my Fifth Amendment privilege against self-incrimination.” To best protect yourself, identify Fifth Amendment by name, not just your privilege against self-incrimination.

Salinas has paved the way for prosecutors to get creative with what is said and not said by the defendant before being placed into custody. It’s important to make sure you have defense counsel to help combat this.  

This blog entry is written by James Gempeler, an associate at Thomsen Nybeck. James practices in the litigation area of the firm with a focus on general civil litigation, construction litigation, criminal defense, and is a prosecutor for the Metropolitan Airports Commission.

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