Wednesday, July 24, 2024

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Salinas v. Texas: the 5th Amendment’s Downward Spiral?

Earlier this month the United States Supreme Court issued its ruling in Salinas v. Texas, 570 U.S. ___ (2013) (plurality opinion), holding that, in the context of non-custodial, pre-arrest questioning, a person’s silence may be used against them absent an unequivocal invocation of his or her 5th Amendment right against self-incrimination.  At first blush this sounds incredible; in fact, some commentators are strongly criticizing the Court’s opinion for various reasons.  But is it really that surprising?

The Supreme Court has long held that the right against self-incrimination “generally is not self executing.” Minnesota v. Murphy, 465 U.S. 420, 425, 427 (1984).  In the context of custodial interrogations where Miranda applies, the Court has said that the right must be invoked unequivocally; merely remaining silent is not enough. Berghuis v. Thompkins, 560 U.S. 370, ___ (2010).  But if you do invoke your right and then remain silent, the prosecution may not make reference to your silence. Doyle v. Ohio, 426 U.S. 610, 618-19 (1976)

Here, the police suspected Salinas of murder.  And during a pre-arrest interview at his house, Salinas gave the officers his shotgun, which they suspected was the murder weapon.  He then voluntarily accompanied them to the station for further talks.  But because he was there voluntarily and was not under arrest, Miranda warnings were neither required nor given.  After Salinas answered several questions, the officer asked him if ballistics tests would show that his shotgun was the murder weapon; Salinas remained silent and said nothing.  At trial, the prosecutor pointed out the fact that Salinas refused to answer the question, implying his guilt.  But Salinas claimed that his remaining silent constituted an invocation of his 5th Amendment right, making the reference to his silence a violation of the 5th Amendment.

Thus, the issue that many expected the court to rule on is whether or not it violates the 5th Amendment for the prosecution, during trial, to make reference to a defendant’s pre-arrest silence.  The Court’s plurality opinion did not reach this issue (at least in the context that everyone was expecting) because Salinas never unequivocally invoked his 5th Amendment right against self-incrimination. So the implication is that even when a person is not in custody, their silence in response to police questioning can be used against them unless they unequivocally tell the police that they are invoking their right to silence.

But does Salinas really change anything?  Thirty years ago, in Fletcher v. Weir, 455 U.S. 603, 607 (1982), the Court held that a defendant’s pre-arrest silence can be used against him where the protections of Miranda do not apply (i.e., when the warnings are not given and the rights invoked).  So it seems that Salinas merely provides the obvious qualifier: pre-arrest silence may be used against a defendant where Miranda does not apply, unless the 5th Amendment right against self-incrimination is expressly and unequivocally invoked.

Troubling as it may be, however, the unequivocal invocation requirement is not new.  And if post-Miranda silence is not sufficient to invoke the right, then it is only logical that it would also be insufficient in the pre-Miranda, pre-arrestcontext.  Nonetheless, many feel that this is just another in a long line of cases diminishing the protections afforded under the 5th Amendment.  The Cato Institute said that it was “a bad day for the Bill of Rights.”

After all, how many average citizens would think to tell an officer “I am invoking my 5th Amendment right to not incriminate myself” unless they have just been read their Miranda rights?  Probably few, but the plurality was not persuaded.  So what does this really mean?  If an officer approaches you on the street and asks where you are coming from and you simply ignore him, your silence may be used against you; but that’s a fairly extreme example.  Nonetheless, a person is practically forced to reply to an officer’s questions.  So the take-away is that if you do not want to answer an officer’s questions you need to expressly and unequivocally tell the officer that you are invoking your right against self-incrimination.

If you have questions about your rights when talking to police, or if you need information on DUI law, criminal defense and related matters, please visit our website:

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Victor Carmody

Victor Carmody

I am the owner and managing partner of Victor W.Carmody Jr.P.A. My practice has taken me into all 82 counties of this state and most of the cities. I have also been priviledged to have represented clients in 15 other states. And as founding regent of The National College of DUI Defense I have relationships with almost 1000 DUI attorneys around the country, and I keep constant contact to share ideas and techniques to better assist in and out-of-state clients. I have always enjoyed helping people with their DUI problems.

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