Salinas v. Texas – If You Want To Remain Silent, You Better Say Something

I’m a little late to the party, but I thought I’d better weigh in on the Supreme Court’s decision in Salinas v. Texas.  You know, the one that guts your rights under Miranda v. Arizona.  There’s a great recap of the case here at SCOTUSblog, but here’s the ruling in a nutshell:

In Salinas, the Court considered whether prosecutors can use pre-arrest silence as evidence of guilt.  Salinas was not “in custody” at the time he was questioned by the police, so he hadn’t been advised of his Miranda rights.  He answered many questions, but clammed up when asked whether shotgun casings found at the scene of a murder would match his gun.

In a divided set of opinions, the Supremes held that Salinas’s silence could be used against him.  The gist of the controlling opinion (authored by Justice Samuel Alito) is that if you want to enjoy the benefit of the Fifth Amendment right against self-incrimination, you must “invoke” that right in some way prior to remaining silent in response to questions — whether or not you had been advised of those rights by law-enforcement.  Otherwise, your silence can be used to secure a conviction.

Some of you may say, “so what?”  Critics of the opinion would answer that this holding encourages precisely the type of hyper-aggressive (and ultimately unfair) questioning that often results in unreliable and/or false confessions.  As noted in the SCOTUSblog piece, law enforcement officers are often under tremendous pressure to secure a conviction, and at times, it clouds their judgment as to whether they have the “right guy.”  Under the Salinas decision, even your silence in response to unfair questioning can be used against you — an unfair and illogical inference, if you ask me — if you don’t first invoke your right to remain silent.

So, given this opinion, if you find yourself being questioned by the police for any reason, there are only two ways to handle it.  First, answer their questions with a question: “Am I free to go?”  If they say yes, leave.  If they say no, tell them you are invoking your right to remain silent under the Fifth Amendment, then say nothing else.