Michael Lowe is Celebrating Over 20 YEARS of Service

Learn More

Will U.S. Supreme Court Protect Citizens Once Again Against Overzealous Law Enforcement in Salinas v Texas? Dallas Prosecutors May No Longer Be Able to Argue Silence Means Guilt

A week ago today, the United States Supreme Court heard oral arguments in a Texas case called Salinas v. Texas, grading the papers of the highest criminal court in the Lone Star State, the Texas Court of Criminal Appeals.  It’s another major federal case that will impact Texas criminal defense cases and people arrested and charged in Texas, coming right on the heels of last week’s Supreme Court decision finding warrantless DWI searches to be unconstitutional.

Which means that while the prosecutors and district attorneys across the State of Texas are still reeling from the Supreme Court’s opinion that taking someone’s blood in a DWI case without a search warrant violates the U.S. Constitution, they may get whammed a second time when the Salinas opinion comes down.


Texas prosecutors like the idea of arguing to a jury that when someone remains silent during questioning by police or other law enforcement – before they’ve been arrested, and before they’ve been Mirandized – that it’s evidence of their guilt.

So, if someone is savvy enough to remain silent when police officers are asking them questions about a crime, then the district attorney can use their silence against them later on, if they are arrested and tried for the crime.

For example, in the Salinas case, Mr. Salinas clammed up and said absolutely nothing to the police after their questioning about his shotgun suggested to him that the police considered him to be a suspect in a murder.  The Harris County District Attorney argued to the jury that Mr. Salinas’ failure to answer the police officer’s questions (remember, he hasn’t been arrested, he hasn’t been taken into custody, no one has brought up Miranda at the time) in and of itself showed Mr. Salinas’ guilt … because “an innocent person” would answer the questions.

Many believe this is wrong.  That it’s unconstitutional.

However, arguments made before the Texas Court of Criminal Appeals were unsuccessful, and the Court of Criminal Appeals issued its opinion back in April 2012 that prosecutors may indeed tell a jury that someone who keeps quiet while being questioned by law enforcement before he’s arrested or read his rights has really admitted that he or she is flat out guilty of that crime.

Obviously this is a very important issue for many criminal defendants – not only in Dallas or the rest of Texas, but the entire country – so the United States Supreme Court agreed to hear the case, and has accepted briefs from both the parties as well as “friends of the court” and now, the final step before an opinion is written has happened with last week’s oral arguments of the lawyers before the Justices.  (Check the US Supreme Court docket here.)

Here’s the question, the only question, that is being decided:

Whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.

You can read the transcript of the oral argument here, as posted on the United States Supreme Court’s website.  As Stanford Law Professor Jeffrey Fisher argued to the Justices last week:

“The Fifth Amendment prohibits using a person’s silence during a noncustodial police interview against him at trial, and nothing about the specific facts of this case give this Court cause to refrain from applying that rule here.

“To the contrary, the State’s closing argument in this case urging the jury to find Mr. Salinas guilty because, quote, “an innocent person would have denied law enforcement’s accusations,” strikes at the core of everything the Griffin rule and, indeed, the Fifth Amendment is designed to prohibit.

“It evokes an inquisitorial system of justice. It effectively shifts the burden of proof onto the defendant, and it demeans individual dignity by conscripting the defendant as a product of his own demise.”

Comments are welcomed here and I will respond to you -- but please, no requests for personal legal advice here and nothing that's promoting your business or product. Comments are moderated and these will not be published.

Leave a Reply

Your email address will not be published. Required fields are marked *