When Silence Can Be Used Against You

We’ve heard it time and again, “You have the right to remain silent. Anything you say may be used against you in a court of law…” This iteration of the Fifth Amendment right against self-incrimination has become a part of our cultural lexicon. Those words have become ubiquitous in every depiction of an arrest found on tv and in movies since the 1966 watershed opinion in Miranda v. Arizona.

The Fifth Amendment right against self-incrimination is one of the most fundamental rights inherent to our criminal justice system. Many Americans know that they don’t have to answer to police questioning.

However, what most Americans don’t know is that what they don’t say can now be used against them.

Salinas v. Texas

In the 2013 Supreme Court case of Salinas v. Texas, the Supreme Court effectively placed an asterisk on the Fifth Amendment right to remain silent. The Supreme Court held that a suspect’s silence in the face of police questioning could be used against him at trial because he did not explain why he was remaining silent.

“A witness’s constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,” Justice Samuel A. Alito, Jr., wrote. Hence, merely declining to respond to police questioning will not invoke the protections of the Fifth Amendment.

In Salinas, Genovevo Salinas had voluntarily reported to a police station to answer questions about a murder committed with a shotgun. Salinas was not under arrest and had not received Miranda warnings. He spoke to the police for over an hour, answering several questions posed to him. He even gave the officers permission to examine his shotgun.

However, when the officers asked him if the shotgun shells were going to match those found at the murder scene, he stopped talking. The officer questioning him told the jury about Salinas’ failure to answer the question. The prosecutor then went on to tell the jury, “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.’ ”

The jury convicted Salinas of the murder and the Supreme Court affirmed the conviction, finding no violation of the Fifth Amendment because Salinas did not explain that he intended to invoke the Fifth Amendment.

Invoke your Fifth Amendment Rights

The lesson for citizens is to affirmatively invoke the Fifth Amendment in response to police questioning. Merely staying silent is not enough.

You must advise the officers, “I am invoking my Fifth Amendment right to remain silent.” Otherwise, your silence during a police encounter may be used against you. For those who are being investigated prior to arrest, the lesson is even more important because these citizens won’t have the benefit of the Miranda warnings.

-Post by Jennifer Mayer