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You Don't Have the Right to Remain Silent Unless You Claim It

Posted on Dec 18, 2013

Two brothers were murdered in Houston, Texas in 1992. An acquaintance of theirs, Genovevo Salinas was questioned by police and later charged with murder. He received a 20 year sentence. In April, 2013, Salinas v. Texas  was heard by the Supreme Court.  The heart of the matter is Salinas claimed his right to remain silent, a Fifth Amendment right, should not have been brought up at trial and used against him. During his initial questioning by police, he answered questions willingly but became silent when they asked about shotgun shells found at the scene of the crime. Police asked if a shotgun he owned would match up with the shells they found and he suddenly became quiet an uncooperative.

Salinas was charged with murder in 1993 but he had disappeared, not to be found until 2007.  He went to trial, but it ended in a mistrial. He had a second trial at which he was found guilty. Over objections from his lawyers, the court allowed testimony that Salinas remained silent during the police interview, after the shotgun question came up.  Salinas then brought the case to the Court of Appeals, which found the lower court did not err in allowing the "silence" testimony by the prosecution. The Court of Criminal Appeals, Texas's highest court, also heard Salinas's argument that the lower courts erred in holding admissible the evidence of his silence, because doing so violated his Fifth Amendment right against self-incrimination.

Can prosecutors use a defendant's silence during pre-arrest, pre-Miranda questioning as evidence of guilt? That is the question here. The Supreme Court, in April, 2013 had to decide this question. The Supreme Court said yes, silence can be admitted into evidence.The decision significantly impacts how  law enforcement may question individuals and advise them of their Miranda rights. Salinas had argued that pre-arrest silence cannot be introduced as evidence of guilt because it compells a defendant to speak or have his silence used against him.

The Supreme Court had previously stated that prosecutors cannot bring up a defendant's refusal to answer the state's questions.  In Salinas v. Texas, Justice Samuel Alito said that Salinas was free to leave and did not invoke his right to remain silent. He just remained silent. It should be noted that Salinas was not accompanied by a lawyer when questioned by police. Justice Clarence Thomas and Justice Antonin Scalia joined Alito, going even further in thinking a defendant has no rights at all to invoke a right to silence before an arrest. Basically, after this case, people have to somehow invoke the right to remain silent even if they're not formal suspects and haven't heard the Miranda warning. In essence, the court is saying if you remain silent during questioning, even if you're not under arrest, you do so at your own peril.

The Liberal Moderates on the court, as would be expected, dissented from the affirmation by the Conservatives. Led by Justice Breyer, Justices Ginsburg, Sotomayor and Kagan dissented, saying, "To permit a prosecutor to comment on a defendant's constitutionally protected silence would put that defendant in an impossible predicament. He must either answer the question or remain silent. If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances-even if he is innocent."

To allow comment on silence directly or indirectly compels an individual to act as a witness against himself-exactly what the Fifth Amendment forbids.

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