Friday, April 19, 2013

Can Silence = Guilt in Pre-Arrest, Pre-Miranda Questioning?

On Wednesday April 17th, 2012 the Supreme Court heard oral arguments in the case Salinas v. Texas.[1]  This case will test an issue that has deeply divided the circuits—whether, even before an arrest, an individual has the right to remain silent during an interview with police, and suffer no legal consequences from this action.   So far, ten lower federal and state courts have ruled that the Fifth Amendment does apply to silence before arrest, and before police have the duty to give Miranda warnings, with about as many lower courts ruling that it does not. 

Salinas v. Texas was decided by the Court of Criminal Appeals of Texas on April 25, 2012, and affirmed the Court of Appeals holding that the “Fifth Amendment right against compelled self-incrimination does not apply to pre-arrest, pre-Miranda silence used as substantive evidence of guilt in cases in cases in which a defendant does not testify.”[2]  The facts of this case are as follows.  In December 1992 police found two homicide victims.  An investigation led to Mr. Salinas who voluntarily accompanied the officers to the police station where he answered every question asked for an hour.  Then, when asked whether the shotgun shells found at the scene would match the shotgun found in his home, he remained silent and “demonstrated signs of deception”, according to the interrogating officer.  The officer’s continued asking questions, which Salinas answered.  Salinas was held on outstanding traffic warrants until ballistics showed the shotgun shells found at the scene had been fired from the shotgun found at Salinas’ house, at which time he was held as a murder suspect.  However, the District Attorney’s office declined charges without additional evidence and Salinas was released when the hold expired.  A witness later came forward stating Salinas told him he committed the murder.  Police attempted to arrest Salinas, but they could not locate him.  Salinas evaded arrest for fifteen years.  His first trial, in which the State did not make use of his silence from the initial interview, ended in a mistrial.   At his second trial the State offered evidence of his silence when he was questioned about the shotgun shells, which Mr. Salinas’ attorney objected to; however this objection was overruled and the silence was deemed admissible.  In this trial, Mr. Salinas was found guilty of murder and sentenced to twenty years’ imprisonment and a $5,000 fine. 

Mr. Salinas appealed the admission of the evidence of his silence to the Fourteenth Circuit Court of Appeals.  The Court of Appeals noted that other state and federal courts of appeals were divided on the issue but sided with the holding that silence was admissible.  Salinas then appealed the Court of Appeals decision to the Criminal Court of Appeals of Texas, who affirmed the holding of the Court of Appeals.  The Criminal Court of Appeals stated that the Fifth Amendment protection given to pre-trial silence varies according to several factors: “(1) whether the defendant was in police custody; (2) whether he was informed of his Miranda rights; and (3) whether evidence of such silence is offered as substantive evidence of guilt or elicited from a testifying defendant.” 

The Supreme Court has reached decisions on some issues relating to Fifth Amendment protection of silence.  In Doyle v. Ohio the Supreme Court held that a defendant’s right against compelled self-incrimination is violated if the State is allowed to use post-arrest, post-Miranda silence to impeach their testimony.[3]  However, in Jenkins v. Anderson the Supreme Court held the defendant’s rights are not violated when defendant choses to testify and is cross-examined about post-arrest, pre-Miranda silence.[4]  The issue here is whether pre-arrest, pre-Miranda silence can be used against a non-testifying defendant.  The Texas Court of Appeals stated that the Fifth Amendment protects a defendant from compelled self-incrimination, and that in pre-arrest, pre-Miranda circumstances the suspect’s interactions with police are not compelled.  Therefore, the court held that the Fifth Amendment right against compulsory self-incrimination is “simply irrelevant to a citizen’s decision to remain silent when he is under no compulsion to speak.”
Salinas’ brief argues that there is compulsion in Fifth Amendment terms when the State uses silence against an individual “because it leaves him no avenue to avoid incriminating himself.  If he speaks, his words can be used against him; and if he refuses to speak, the prosecution can argue that his silence is evidence of guilt.”[5]  Additionally, Salinas argues that the risk of wrongful conviction is just as high if pre-arrest silence is used against the defendant as evidence of guilt.   Furthermore, Salinas’ argues that compulsion has nothing to do with custody, and the right to remain silent has been recognized in many noncustodial settings like testifying before Congress or answering tax questions from the IRS.  Lastly, Salinas points to the fact that his first trial, where little use was made of his silence, ended in a mistrial, yet when special emphasis was put on his silence during the second trial he was found guilty.  He noted the fact that he could have been sentenced to life in prison, but the jurors only asked for the twenty years the judge had imposed.   Salinas’ argues for a simple rule, “Once police initiate contact with a suspect, Fifth Amendment protection right to remain silent kicks in.”
The State of Texas’ brief argues that a simple refusal to answer is not the same as invoking Fifth Amendment protection.[6]  They also note that Salinas did not claim he was in custody at the time, nor did he argue that he had been coerced.  They argue that the encounter was voluntary, non-custodial, and had none of the attributes of coercion that the Fifth Amendment protects against.  Furthermore, they argue that precedent in Jenkins already held that “use of an individual’s voluntary, non-custodial communication with police is not compelled merely because of its potential use at trial.”  Texas also argues that the reasoning behind Griffin v. California, which banned the use of silence in a trial setting, is to protect the “presumption of innocence.”  The right to a presumption of innocence only applies at trial; therefore, they argue, this rationale should not be expanded to the pre-trial setting. 

The federal government has also entered the argument on the side of the State of Texas.[7]  The federal government argues that the right that is protected by the Fifth Amendment is the right not to be compelled to testify against oneself at trial and that the issue in Salinas is whether Griffin should be expanded beyond the trial setting.  The federal government argues that it should not and that in order to gain the privilege of Fifth Amendment protection you must invoke that privilege, and silence does not do that.  The federal government argues that if mere silence is enough to invoke Fifth Amendment privilege then it would protect a great deal of conduct that is not related to the Fifth Amendment such as a moment of uncertainty about what a question meant.  Additionally, the federal government argues that a suspect who voluntarily goes with the police and answers questions, “unlike a defendant who refuses to take the stand his at trial, or a suspect who refuses to answer any police questions, the suspect takes actions that are inconsistent with any intention to exercise this (Fifth Amendment) privilege.” 

The Court here has the opportunity to set new precedent and extend the rights of criminal suspects in pre-arrest situations.  It will be interesting to see whether they handle the case as a simple extension of precedent or delve deeper into the meaning of silence, compulsion, or custody.  

Nicole Irwin

Blogger, Criminal Law Brief



  1. Yes, I agree with lower courts that the right should be extended to pre-Miranda stage. In the recent Boston blast case, the suspect has not been read Miranda because there is a public safety issue involved. In that case, the police does not need to read to the suspect the Miranda rule.

  2. If you are innocent, then say as much. It's not that hard not to say something stupid. Refusing to say anything just naturally makes you look guilty. The only folks I know of that will tell you differently are criminal lawyers in Raleigh NC, where the judicial system tends to flow a little better.

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