You Have the Right to Remain Silent, but…

Anything you don't say can and will be used against you in a court of law

On June 17, 2013, while most of us weren’t paying attention. The Supreme Court of the United States came down with an important decision on a criminal case called Salinas v. Texas. In this case, two brothers were found in their home in Houston, shot to death. The suspect, Genovevo Salinas had been at a party at the house the night before. Only shotgun shell casings were left at the scene of the shooting. Police invited Salinas down to the station where they proceeded to talk for an hour. The police did not arrest him nor did they read him his Miranda rights which includes his right to remain silent.

Salinas agreed to give the police his shotgun for testing. Then the cops asked whether the gun would match the shells from the scene of the murder. According to the police, Salinas stopped talking and looked down, so his body language was used by the police instead. Salinas was found guilty, but fought the use of his silence as evidence to convict him.

The U.S. Supreme Court agreed to review the case in order to resolve a dispute of the lower courts on whether the prosecution can use evidence of a defendant invoking their 5th Amendment rights in a non-custodial police interview. In a 5-4 decision that few of us even know about, the Court undermined the main tenet of what we know as “Miranda” rights, i.e., the right to remain silent.

This decision on the 5th Amendment “right to remain silent” has an impact on defendants everywhere now that their silence can be held against them. Miranda rules require the police to stop questioning and leave the suspect alone upon arrest, but now any questioning pre or post arrest can be used in trials as an admission of guilt.

Pre-arrest, the person has not yet been told that they have any rights. The court’s ruling puts the “defendant in an impossible predicament. He must either answer the question or remain silent,” Justice Stephen Breyer said in dissent (joined by the other three liberals/moderates). “If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances – even if he is innocent.” But if he doesn’t answer, then at trial, police and prosecutors can now take advantage of his silence, pausing or fidgeting.

The Salinas case tells us that the Fifth Amendment privilege in the pre-arrest questioning has to be asserted. A suspect only has a Fifth Amendment right against self-incrimination when 1) he asserts his right formally and 2) a failure to answer would subject him to punishment under the law. The theory of Miranda was that in custodial interrogation, the coercive pressures of interrogation are so great that they’re akin to a threat of legal punishment.

Whenever there is a vote (5 to 4), there is obvious doubt that the ruling was just. It’s just too much to ask for one ruling fits all. The loss of the concept of integrity is the real issue. Police can miss evidence or misrepresent evidence, that’s a problem. They can lie to get a statement from a suspect, they can use trickery. No law against that, but it’s non integral.

The Salinas Case will make zealous prosecutors into over zealous prosecutors who can now comment on a citizen’s silence to a jury pre-Miranda custody. This is prior to attorney involvement in many cases. what’s worse, it could be done right after asking a potential suspect’s name. Ask about their involvement in X and when they do not answer you have your implied admission.

In closing, under this ruling you have no protection at all if you voluntarily talk to the police. Now you need to tell the officer with the gun that you are asserting your 5th Amendment rights and want an attorney as soon as possible. I’m thinking the best answer to any police question, whether you’re suspected of breaking a law or not would be “I’d be happy to answer all of your questions. Let me give my lawyer a call and we’ll set something up.“