It’s common knowledge that the right to remain silent is a fundamental constitutional protection for anyone who is arrested and read their Miranda rights. But an important recent Supreme Court decision makes it clear you don’t have the same level of protection if you are not in custody but are being questioned by police.
In the case of Salinas v. Texas on June 17, 2013, the U.S. Supreme Court held that the Fifth Amendment privilege against self-incrimination does not protect the silence of a witness in a voluntary, noncustodial police interview. If you choose to voluntarily speak to the police when you are not in custody you have to invoke the privilege in a timely manner to benefit from its protections.
In other words if you are being questioned pre arrest, merely remaining silent is not enough for your Fifth Amendment right to kick in.
Right to Remain Silent
To protect your right to remain silent pre-arrest, it is important to respond to police questioning by pointing out clearly you are taking the Fifth Amendment and intend to remain silent after every question.
In the case two brothers were shot at a home in Houston, Texas. There were no witnesses to the shooting. Police invited Genovevo Salinas, who had been at a party at that house the night before the shooting, to the station where they talked for about an hour.
Police said Salinas became quiet and edgy when asked about a shotgun.
At trial Salinas didn’t testify. Prosecutors brought up his reportedly uncomfortable reaction to the question about his shotgun. Salinas argued they violated his Fifth Amendment rights because he remained silent, and the Supreme Court has in the past stated that prosecutors can’t bring up a defendant’s refusal to answer the state’s questions.
U.S. Supreme Court Ruling
The U.S. Supreme Court viewed it differently and decided he had not invoked his right to silence in a 5-4 ruling. Justice Samuel Alito said Salinas was “free to leave.”
Many commentators have reacted with alarm to this ruling, warning it could place vulnerable suspects at the mercy of the police.
“Unfortunately, the Supreme Court has complicated the law for persons who are the most vulnerable persons who lack education, persons who do not speak English very well, persons who may suffer from mental problems, and persons who may be under the influence of alcohol. This is a bad day for the Bill of Rights,” wrote Tim Lynch in Cato at Liberty.
After years as a Fairfax Prosecutor and being in court nearly every day, I am very familiar with the right to remain silent. You should consider contacting an experienced Virginia criminal defense lawyer if you have been charged with a crime.
