Sometimes the Choice to Remain Silent Can Be Used Against You

The Fifth Amendment of the United States Constitution protects a defendant from, among other things, being compelled to incriminate themselves through testimony. This protection is explained to arrestees day in and day out as part of the standard Miranda admonishment as the “right to remain silent.” However, in a case decided last week, the United States Supreme Court reminds us that the protection against self-incrimination through testimony does not necessarily equate to an absolute right to remain silent without consequences.

In 1992, two brothers were shot to death in their Houston home following a party they had hosted the previous night. There were no witnesses to the actual killing, but a neighbor reported hearing gunshots and seeing a man run from the residence and flee the neighborhood in a dark colored vehicle. The police recovered several expended shotgun shell casings from the crime scene.

Additional investigation led police to a suspect, Genovevo Salinas, who had been a guest at the party. When police contacted Salinas at his house, they found a dark blue vehicle parked in his driveway. Mr. Salinas agreed to submit his shotgun for ballistic testing and to accompany the police to the station for an interview. The interview lasted about an hour, and all parties agree the interview was voluntary and non-custodial. No Miranda admonishment was given or required. During the majority of the interview, Salinas answered the officers’ questions. However, when an officer asked Salinas if his shotgun would match the shells found at the murder scene, he didn’t respond. According to testimony, Salinas “looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, and began to tighten up.” After a prolonged silence, the officers asked additional questions, which Salinas answered. He never provided any verbal response to the question about the shotgun.

At the conclusion of the interview, Salinas was arrested for outstanding traffic warrants. Determining there was insufficient evidence to charge Salinas with the murders, he was soon released. A few days after his release, police received information from another witness who claimed to have heard Salinas confess to the killings. With this additional evidence, prosecutors decided to charge Salinas with the murders. When officials attempted to arrest Salinas, they discovered he had already fled. They were unable to arrest him until 2007 when he was found living in the Houston area under an assumed name. Salinas was charged with the murders. Over his objection, the prosecution admitted evidence of his refusal to answer the question about the shotgun. He was convicted of the murders and sentenced to 20 years in prison.

The defense appealed, claiming the use of Salinas’ silence as evidence of his guilt was a violation of the Fifth Amendment. The Court of Appeals of Texas affirmed the conviction by finding Salinas’ silence was not “compelled” within the meaning of the Fifth Amendment. The Texas Court of Criminal Appeals also reviewed the case and again affirmed on the same grounds. The defense appealed the issue to the United States Supreme Court.

The Supreme Court held the Fifth Amendment protection against self-incrimination is a protection a defendant must specifically invoke. The only two exceptions to this general rule are a defendant’s choice not to testify in court, or when a defendant’s decision to remain silent is the “result of being subjected to the inherently compelling pressures of an unwarned custodial interrogation.” Neither of the two exceptions applied to the facts of this case. The defense urged to Supreme Court to create a third exception to the invocation requirement which would cover situations when “a witness stands mute and thereby declines to give an answer that officials suspect would be incriminating.” The Court declined, reasoning that to do so would unreasonably burden the government’s interest in obtaining evidence and prosecuting crimes. They upheld the decisions of the lower courts, and Mr. Salinas’ sentence remained in place.

The United State Supreme Court’s ruling in this case is a reminder that the Fifth Amendment protection against self-incrimination is not an absolute protection against possible negative consequences of a defendant’s decision to remain silent. Absent a specific invocation, or one of the two recognized exceptions, a defendant’s decision to remain silent may potentially be used as evidence of guilt.

Salinas v. Texas, No. 12-246 (June 17, 2013)






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