As most of us know, we have the right to remain silent once read our Miranda rights by law enforcement officers, in the event we are arrested and/or under suspicion for a shooting or a crime. However, a recent major U.S. Supreme Court decision on June 17th, 2013 changed this based on the Salinas v. Texas Case. Here is the general issue: what if we have not been arrested and haven’t been read our Miranda rights and we are merely being questioned? Can we remain silent? What this 5-4 Supreme Court decision means to this lay, non-attorney person is that in order to invoke your right to remain silent you have to initially speak up first. Confusing?
Hopefully, we will never have to be involved in a shooting or crime investigation, but if we are there are some new things we must understand. It now seems that we have to invoke our 5th Amendment rights in our U.S. Constitution immediately when the Police begin to question us. The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law and outlines basic constitutional limits on police procedure. It is a prohibition against required self-incrimination and applies to states through the Due Process Clause of the Fourteenth Amendment.
If we do not invoke the 5th, our silence now can be used against us. As a result of this Salinas Supreme Court decision, silence can now be more solidly construed as meaning we have something to hide or are trying to be deceitful. So, if that terrible situation occurs where there is much uncertainty of facts and circumstances, where someone is injured or dies, or a crime or shooting has occurred, and we are being questioned, we have to be very cautious, even as an innocent person, about the statements we make.
A complex issue that arises is do prosecutors violate an accused criminal’s Fifth Amendment right against forced self-incrimination when they use evidence of his silence against him, even when the evidence comes from questioning conducted before he was taken into police custody?
Here is a summary of the facts of the Salinas v. Texas case. Police in Houston, Texas questioned Genovevo Salinas during a murder investigation. Salinas answered all of their questions until the police asked whether he thought that casings found at the murder scene would match the shotgun the police found in his house. In response, Salinas remained silent. He 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 few moments of silence, the officer asked additional questions, which Salinas answered. Later, he was charged with murder, tried, and convicted partially on the basis of evidence that he had remained silent during police questioning before he was arrested and given his Miranda warnings.
Salinas claims that the Texas trial court should not have admitted evidence of his silence because of the Fifth Amendment privilege against self-incrimination. He argued that allowing evidence of his silence would violate the Fifth Amendment by forcing him to speak or have his silence used against him. The State of Texas argued that the evidence was appropriately admitted and outside the protection of Fifth Amendment privilege because Salinas’s silence was non-testimonial and the police questioning was non-coercive. The Supreme Court’s decision determined the scope of the Fifth Amendment protection against self-incrimination and, more specifically, whether it extends to the protection of a defendant’s pre-arrest, pre-Miranda statements to the police. Mr. Salinas’ silence was used against him in court. and the court sided with the prosecution. In essence, the Supreme Court is saying that you must speak up or silence will be used against you. So it seems according to the Supreme Court, the Fifth Amendment is now a privilege and not a right.
If this non-attorney with very limited legal background is involved in any way with a highly unlikely shooting or any crime investigation, I want to minimize any possible personal risks. So, the only initial statement I will probably make is:
“I want to cooperate fully with law enforcement, but I do not want to make a statement or answer any questions until I talk to my attorney.”
Understand this is not legal advice or a legal opinion, but just this lay person thinking out loud. Thus, I am communicating to the police that:
- I am willing to cooperate and have nothing to hide: “I want to cooperate fully with law enforcement”;
- I do not want to talk at all at this time for the official record: “I do not want to make a statement”; and
- I do not want to be questioned at all nor provide any answers or information until I speak with my lawyer: “or answer any questions.”
This case affects the Miranda Warning and we probably should consider adding this statement to protect ourselves from any further questioning by police. Without adding this, law enforcement can still ask us questions and if we answer any of those questions, it can be used against us.
Another consideration is to NOT initiate a conversation with law enforcement after invoking your Miranda rights. If you do initiate a conversation, it could possibly be interpreted that you revoked your rights under Miranda. Without a doubt, this decision will significantly impact law enforcement practices, including how police question individuals and advise them of their Miranda rights. It will also influence the way prosecutors introduce evidence and attempt to prove defendants’ guilt.
The Constitution was created to protect all of us, even the person like me who is not legally trained and doesn’t deeply understand the law. It is supposed to be the basis for fair justice for everyone. Because the Court on the surface seemingly disagreed in this situation, some might think it is best to not talk to the police at all and strictly invoke all their Constitutional rights. However, this can hinder justice. So if you are involved in a shooting or criminal investigation, perhaps the best approach is to think positive and only make the initial statement… and wait for your attorney to arrive. What are your thoughts about this?