Right To Remain Silent

In a recent 5-4 decision, the United States Supreme Court decided a constitutional issue regarding the Fifth Amendment in the case of Salinas v. Texas. When does the Fifth Amendment privilege to avoid self-incrimination (also known as your right to remain silent) apply? Does it apply when you specify that you are invoking your Fifth Amendment right to remain silent? Or does it apply when you simply refuse to speak?

At Rush & Gransee, L.C., we leverage decades of defense experience, coupled with an understanding of legal precedent, to craft the most effective defense possible. We use these decisions, as well as others, to skillfully protect your rights in the justice system.

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How Salinas V. Texas And The Right To Remain Silent Could Affect Your Case

In the case of Mr. Salinas, he was convicted of murder and the conviction was affirmed meaning the police did nothing wrong. The suspect was asked to join some investigating officers at a Houston police station. Mr. Salinas voluntarily went to the police station and voluntarily engaged in conversation with investigating police officers. Maybe he felt he had nothing to hide? Maybe he thought he could outsmart the police? Maybe he was innocent? The suspect did not confess. But, while being interviewed by police officers at the police station, one of the officers asked Mr. Salinas a question which he did not want to answer, so Mr. Salinas was "mute," in response to the question. The prosecutor in this case took Mr. Salinas' mere silence as indicative of his guilt. When Mr. Salinas' defense attorney attempted to assert Mr. Salinas' Fifth Amendment right to not be a witness against himself, the United States Supreme Court denied the argument.

So, do we, as U.S. citizens, still have a Fifth Amendment privilege to not be a witness against ourselves? Yes, of course. Does it apply to pre-arrest questioning? Yes! Do we need to explicitly state that we are exercising our Fifth Amendment right to police officers who want to speak with us? YES! This is the new rule which the Supreme Court of the United States has conveyed. The Fifth Amendment is not some abstract idea or right floating around out there to be seized and used whenever it is "convenient" for us. The right to not be a witness against yourself is a right you must assert, and it is always best to be as clear as possible about this assertion.

Before you say to yourself, "Why, I'm innocent. I have nothing to hide," understand that there are many reasons to refuse to speak with law enforcement officers. If a police officer asks to speak with you regarding an investigation, it is ALWAYS best to speak with an attorney, first. You do not know what type of evidence that the police officers have, and you do not know how they could possibly link it to you. Before agreeing to speak with law enforcement officers, speak with your attorney, FIRST.

A police officer might want to talk to you for a multitude of reasons. You might be a suspect, or you might just be a witness. But, the officer is not legally required to tell you why you are a person of interest, so it is best to invoke your right as soon as an officer asks to speak with you. As in the case of Salinas, it is common for an officer to casually ask you to come on down to the police station to talk. The officer might notify you that you are not under arrest, that you are free to leave, and/or that "We just want your statement so we can close the file," or something to that effect. Oftentimes, this is just a sham. Frequently, the minute the suspect leaves the office or police station, after having talked with the police officers, an officer is preparing a warrant for the suspect's arrest.

When casually questioning a suspect, the suspect is told that s/he is not under arrest so that, legally, the police officers will not have to give the Miranda Rights, notifying you that you have the right to remain silent, and you have the right to an attorney. Constitutionally, Miranda Rights are only required to be given once a suspect has been arrested. But, you have these rights to remain silent and to consult with an attorney before AND after an arrest. If you exercise these rights prior to an arrest, there might be a good chance that no arrest or conviction will follow.

Many times, when suspects have not been read their Miranda Rights, they feel they are not the target of an investigation, so their guard is down. This causes a problem for suspects, because suspects who have not been arrested and/or Mirandized are often too careless in their conversation and what they say and tell investigating officers. In many situations, it is better just to say that you want to help them, but you have always been told to talk to a lawyer first. And, there is nothing wrong with this. It is absolutely OK for an innocent person to ask to speak with an attorney, despite what police officers might imply — that only guilty people need a lawyer. This simply is not true. Unfortunately, innocent people go to jail every day, based on false or ambiguous testimony. It is possible to incriminate yourself completely unknowingly.

Once you have peacefully asserted your disinterest in an interview, it is best to say that you are invoking your right to remain silent. In a clear and calm voice, state to the officer, "I am invoking my right to remain silent." Then do not say anything afterward. At this point, you have made it clear to the officer that you are asserting your Fifth Amendment right, and the conversation should cease. But, it might not, and this is where you must remain solid in your assertion, because police officers are well-trained in the art of getting people to talk.

It is likely that the officer you are talking to has training and experience with getting all sorts of people — young, old, poor, wealthy, uneducated and highly intelligent — to talk. Do not assume that you can outsmart the officer. They are highly trained in the art of manipulation. The police officers my act like they have sympathy for you, that they "understand" what you did and why you did it, they might try to guilt trip you, or they may simply act like they are your friends, and they just need a little information, and it won't take long, so they can close the case, and everyone can go about their day. This may or may not be true. Just remember that there is no penalty for invoking your Fifth Amendment privilege; there is only the possibility that you might say something which could easily be construed against you.

An officer will say and do what s/he can in order to get you to talk, so that s/he can gain some sort of useful information. Some officers are confrontational and do not disguise the fact that you are the target of an investigation, and some officers might act like they are your friend with your best interests at heart. Do not be fooled. Automatically assume that any conversation with a police officer is in the interest of gaining information for a criminal investigation. When that police officer has on her/his uniform and s/he is operating in a police officer's capacity, s/he is at work, and her/his job is to investigate, ask questions and to solve crimes. The police officer is not your friend, and there is a high likelihood that the police officer has no desire to be your friend.

Do not believe that the officer trusts you. Do not believe that the officer likes you. Do not believe that the officer has your best interests at heart. And, most importantly, do NOT believe that YOU are NOT the target of the investigation, no matter what the police officers tell you. Police officers are not legally or constitutionally obligated to tell you the truth. Henceforth, anything you say to a police officer is never "off the record," despite what a police officer might tell you. Anything you say, regardless of when or where you say it, can and might be used to prosecute you.

If there is absolutely no way that you are the target of an investigation, it is still important to refuse to speak with a police officer, until you have consulted with your attorney. It is possible that something you say could cause the investigating officers to believe that you should be the target of an investigation, for whatever reason. Something you could say could trigger an investigation of your activities or the activities of your friends or family members. It is possible that the line of questioning could lead to questions on "unrelated" matters which you do not want to talk about. The questions may seem simple and innocent, at first. But, the line of questioning could turn out unexpectedly.

Or, how you answer the questions could be used to indicate your guilt. Your movements might suggest "surprise and anxiety." You might perspire. This verbal and physical testimony, which you voluntarily and sometimes unknowingly give police officers, may be allowed in as evidence against you. Even an innocent person might be nervous talking to the police, and this nervousness could be interpreted by officers as evidence of the suspect's guilt. It is possible that you might misspeak, due to anxiety or a poor memory, and if you retell a story slightly differently, later, your conflicting stories could make you appear untrustworthy or like you are outright lying.

Another potential problem which "innocent" people may face is that it is possible that you have done something which you did not even know was illegal. You might reveal incriminating evidence against yourself without even knowing it. You might unknowingly implicate yourself in a crime. Do you know all of the laws of your city? Of your state? Of the federal government? There are a multitude of laws, and not even the most educated and experienced Supreme Court Justice can possibly know all of them.

When you choose to speak to an investigating officer, you also open yourself up to the possibility that the investigating officer will misremember what you have said or how you said it. Police officers are humans, too, and human beings sometimes forget things and/or get confused about what actually happened. If a police officer has a memory lapse about something you said or did, it will be your word against his in a courtroom. Juries tend to favor professionals in uniforms over defendants with their lawyers. The best thing for you to do is to not even expose yourself to this possibility and refuse to answer any questions, until after you have spoken with your attorney. If you refuse to talk and you invoke your Fifth Amendment right, all the investigating officer has to remember is that you invoked your Fifth Amendment privilege.

Basically, if you agree to talk to an officer, you do not get to pick and choose which questions you want to answer, without your silence on certain matters potentially being used in court to suggest your guilt. If you answer some questions and remain silent on others, a prosecutor may suggest to the jury that your silence is indicative of your guilt. You do not get to invoke and revoke and invoke and revoke, etc. your right to remain silent free from judgment or inference of your guilt. The court will consider the context and what the evidence indicates. Prosecutors and juries might infer that silence in the middle of a conversation means you are trying to think of a lie or that you are trying to hide something. There is no Fifth Amendment privilege to random silence in the middle of a conversation. This can be used against you in court. So, avoid the conversation altogether, by invoking your Fifth Amendment right, immediately upon being asked to speak with a police officer.

Know that there is a great possibility that, during the interview process, undesirable questions will come up. Avoid the whole uncomfortable situation by refusing to answer any questions to begin with.

If you are arrested, formally invoke your Fifth Amendment right by stating that you are invoking your Fifth Amendment privilege, continue to remain silent, and contact your lawyer as soon as possible. Let your lawyer, who has your best interests at heart, be the first to hear your story.