Your Miranda Rights (Part 2 of 3): When Do You Have The Right To Remain Silent?

In 2013, Salinas v. Texas was decided 5-4 by the United States Supreme Court, becoming the most recent landmark case regarding a person’s Fifth Amendment Right.

In Salinas, two brothers were shot at their Houston home. There were no suspects in the case because no one witnessed the murder or witnessed anyone fleeing from the house. The only evidence that police were able to recover were shotgun shell casings left at the scene. The defendant, Genovevo Salinas, had been at a party at that house the night before the shooting, and police invited him down to the station to talk. During that time, Salinas agreed to give the police his shotgun for ballistic testing. Salinas was not arrested and he was not read his Miranda rights. According to police, when asked whether the gun would match the shells from the scene of the murder Salinas stopped talking, shuffled his feet, bit his lip, and started to tighten up.

During trial Salinas did not testify but the prosecution used the silence during questioning as an admission to guilt. The prosecutor commented, “An innocent person, is going to say: ‘What are you talking about? I didn’t do that. I wasn’t there.’ He didn’t respond that way. He didn’t say, ‘No, it’s not going to match up.” Mr. Salinas’ attorney objected to the prosecutor being permitted to ask the officer about Mr. Salinas’ reaction and silence after being asked whether his shotgun shells would match those at the murder scene. But, the trial judge permitted the questioning.

Salinas was convicted of murder and sentenced to 20 years. Salinas appealed his conviction on the grounds that his Fifth Amendment right against self-incrimination was violated because the prosecution used his uncomfortable reaction to questioning by police as an admission of guilt in court.

The five majority votes on the Supreme Court decided that the prosecution’s use of the defendants silence did not violate the Fifth Amendment because a witness must expressly invoke his Fifth Amendment right in order to benefit from that right.

The dissent, written by Justice Breyer, stated, “Allowing a prosecutor to comment on a defendant’s constitutionally protected silence would put that defendant in an impossible predicament. Mr. Salinas’s choice was between incrimination through speech and incrimination through silence.”

What Does This Mean For You?

A significant difference between Salinas and Miranda is the custody status of the defendants at the time of questioning. In Salinas, police told the defendant that he was free to leave at any time during questioning. In Miranda, however, the defendant was under arrest at the time he was questioned.

How will the average person in criminal proceedings know the difference between being in custody vs. non custody? A person may realize that he is in custody if the officer tells him that he is “under arrest”. However, a person may be in custody even in less obvious situations. To ensure the protection of the Fifth Amendment rights, a person who does not wish to answer police questions should expressly invoke his Fifth Amendment Right against self-incrimination. A few examples of this could be:

1. I invoke my Miranda rights.
2. I invoke my 5th Amendment right.
3. I will not speak to you without my attorney being present.

Under the Salinas ruling, if a person who is voluntarily talking to police and does not want to continue, then they must expressly invoke the Fifth Amendment Right so their silence may not be used against in court.

In part 3 of our blog series, “What Does Miranda Mean for You”, we will discuss when and how it may be in your best interest to waive your Miranda Rights.

Salinas v. Texas (2013) 133 S.Ct. 2174, 2185