The Fifth Amendment to the United States Constitution prohibits self-incrimination. We’ve all heard (and can probably recite) our constitutional right to remain silent. Further, the high court’s 1966 decision in Miranda v. Arizona enshrined the rights of persons in police custody, subject to custodial interrogation, to remain silent. Everybody knows we have the right to remain silent and not incriminate ourselves . . . or do we? And remember, a good Bryan|College Station Criminal Defense Attorney can help you with questions about your constitutional rights.


Right to Remain SilentThe Supreme Court has taken the case of Salinas v. Texas. Salinas is a Texas criminal case in which the defendant was convicted of the shotgun murder of two brothers in Houston, Texas. During the trial prosecutors admitted Salinas’ non-custodial statement to police which included one key moment of silence when police asked Salinas if the shotgun in his possession was the weapon used to kill the brothers. Salinas had not testified and the trial court permitted the state to admit the “silence,” and also permitted the prosecutors to argue Salinas’ silence was evidence of his guilt. Not surprisingly, the Texas Court of Criminal Appeals upheld the conviction and found no Fifth Amendment violation because “in pre-arrest, pre-Miranda circumstances, a suspect’s interaction with police officers is not compelled.”


Salinas is being represented at the Supreme Court by Stanford University law professor Jeffrey L. Fisher. The argument before the SCOTUS is essentially this: “A prosecutor’s use of a defendant’s silence during questioning compels the defendant to be a witness against himself because it leaves him no way 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.” Suspects are, consequently, put into a unconstitutional “damned-if-you-do, damned-if-you don’t situation.


It will be interesting to see how the court will handle this situation. The ruling will significantly effect the states and how they apply the right to silence privilege at trial, and will be significant for police officers in determining how far they can go in interrogating a suspect.