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Salinas v Texas: Your Silence During Police Interrogation Does Not Get 5th Amendment Protection, Can Be Used Against You as Evidence of Guilt to the Jury

Well, prosecutors and police officers are happy today, because the United States Supreme Court just came down their way in the case of Salinas v. Texas (more about that pending case here).   It’s not too far off to imagine that interrogation training is already being revised in Dallas and across the State of Texas to take advantage of this ruling — and it’s important for citizens to know and understand the implications of this latest Supreme Court decision.

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The Salinas v Texas Decision – Despite 4 Justices Dissenting, Law Enforcement Arguments Prevail

This is a big deal for anyone who is questioned by police or law enforcement, regardless of the kind of crime that is being investigated (sexual assault; family violence; fraud; murder; robbery; etc.). This impacts all criminal investigations and has ramifications for anyone who is stopped by police.

However, it is going to have serious implications on the future criminal trials of those who are stopped and questioned by police and:

  • are under the influence of alcohol or drugs;
  • suffer from mental health issues;
  • do not understand English well or at all;
  • have little education and don’t know much about the criminal justice / police process; or
  • are mentally challenged in some way.

Two days ago, enough of the Justices on the United States Supreme Court agreed with the Texas Court of Criminal Appeals for the federal high court to affirm the actions taken by the state high court in determining whether or not someone simply keeping silent during questioning by law enforcement is sufficient to invoke their Fifth Amendment right of silence. The Supreme Court has ruled it is NOT.

No, it doesn’t matter if someone doesn’t know the law and thinks that keeping silent is enough to protect them constitutionally. Not knowing that silence can be used against you is your problem.

Keeping your mouth shut when the police are questioning you may seem smart, and it may be smart — but it’s not going to be respected as automatic Fifth Amendment protection. Now, the police and prosecutors are going to be able to use that silence against you.

1.  Opinion Finds The Individual “Must Claim” the Privilege of Not Having Silence Used Against Him

In a judgment affirming the CCA opinion with Supreme Court Justices Alito, Roberts, and Kennedy joining in the opinion (written by Alito), the majority opinion explains their position (Justice Thomas filed his concurrence with the judgment and Justice Scalia joined Thomas on it) as follows:

Without being placed in custody or receiving Miranda warnings, petitioner voluntarily answered the questions of a police officer who was investigating a murder. But petitioner balked when the officer asked whether a ballistics test would show that the shell casings found at the crime scene would match petitioner’s shotgun. Petitioner was subsequently charged with murder, and at trial prosecutors argued that his reaction to the officer’s question suggested that he was guilty. Petitioner claims that this argument violated the Fifth Amendment, which guarantees that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.”

Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self incrimination in response to the officer’s question. It has long been settled that the privilege “generally is not self executing” and that a witness who desires its protection “‘must claim it.’” Minnesota v. Murphy, 465 U. S. 420, 425, 427 (1984) (quoting United States v. Monia, 317 U. S. 424, 427 (1943)). Although “no ritualistic formula is necessary in order to invoke the privilege,” Quinn v. United States, 349 U. S. 155, 164 (1955), a witness does not do so by simply standing mute. Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner’s Fifth Amendment claim is affirmed.

2.  Dissent Points Out Predicament:  Choose Between Incrimination by Silence or Incrimination by Speech – Because Silence Will Be Used Against You Now

In the minority, Justices Breyer, Ginsburg, Sotomayor, and Kagan, dissented (Breyer wrote the dissent). From the dissent (emphasis added):

Applying these principles to the present case, I would hold that Salinas need not have expressly invoked the Fifth Amendment. The context was that of a criminal investigation. Police told Salinas that and made clear that he was a suspect. His interrogation took place at the police station. Salinas was not represented by counsel. The relevant question—about whether the shotgun from Salinas’ home would incriminate him—amounted to a switch in subject matter. And it was obvious that the new question sought to ferret out whether Salinas was guilty of murder. … Salinas, not being represented by counsel, would not likely have used the precise words “Fifth Amendment” to invoke his rights because he would not likely have been aware of technical legal requirements, such as a need to identify the Fifth Amendment by name. At the same time, the need to categorize Salinas’ silence as based on the Fifth Amendment is supported here by the presence, in full force, of the predicament I discussed earlier, namely that of not forcing Salinas to choose between incrimination through speech and incrimination through silence.

What Salinas v Texas Means to You and Me

Say you’re stopped by the police. They question you. Their questions suggest to you that they have some notion that you are responsible for a crime [insert crime here — murder, assault, DWI, Medicare fraud, child pornography possession, distribution of marijuana, take your pick because this applies to all crimes].

Whoa Nellie, right? Having a brain, you decide the best thing for you to do is just keep your mouth shut. So you do.

  • What Salinas v. Texas does is allow the police (or FBI or Texas Rangers, etc.) and the district attorney (or US Attorney or prosecutor) to use your silence against you at trial, assuming that they arrest and charge you with the crime. Now, because of this opinion, if you are voluntarily talking with the police (not arrested, not charged), then you MUST voice out loud that you are claiming your Fifth Amendment right of silence.  You must say the magic words.
  • Of course, after someone is arrested ,they must be given their Miranda rights and their silence won’t be used against them. Also, at trial, the prosecutor can’t use the fact that the individual was silent after arrest against them — nor can the prosecutor use the fact that the defendant did not take the stand as evidence of guilt.  But silence in an interrogation, before the formal arrest?  Fair game to argue that silence = guilt.

Lesson for everyone: Clamming up during police questioning will not be enough to get that Fifth Amendment protection working for you. Pre-arrest silence will be used by prosecutors against you as evidence that you are GUILTY.


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