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Silence As Evidence of Guilt?

The most commonly repeated phrase in police drama television shows or movies from police officers prior to or after affecting an arrest is “you have the right to remain silent. You have the right to an attorney…” These statements are part of the “Miranda Rights or Warnings” which derives from the Fifth Amendment of the United States Constitution that protects an individual against self-incrimination which reads:

“nor 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”

The Miranda Rights are warnings that are given by law enforcement personnel to individuals in police custody but prior to arrest, arrested but prior to questioning, during arrest while questioning and after arrest along with post arrest questioning. The manner in which Miranda Rights are depicted in police drama television shows or movies mislead the public.

While the phrases “you have the right to remain silent” and “you have a right to an attorney” is often heard, most citizens do not have a clear understanding of how those statements relate to the Miranda Rights, as well as the interplay of the Fifth and Sixth Amendments of the United States Constitution. A common misconception is that the Miranda Rights must be read to each and every person arrested. That is not legally correct. The police must give a person their Miranda Rights only if the person is in police custody and they intend to question such person about their alleged crimes. Remember, there are three levels of police questioning, they are: common law right of inquiry, stop and question (sometimes frisk) and Miranda Rights.

Under the Common Right of Inquiry, an exception to the Fourth Amendment of the United States Constitution, the police can ask you basic questions such as name, address, and the nature of your conduct. However, the police cannot use physical force to forcibly stop such individual and that individual has an absolute right to walk away without answering the officer’s questions. This is generally true throughout the country. Under Stop and Question, aka Stop, Question and Frisk (New York Criminal Procedure Law 140.50), and exception to the Fourth Amendment of the United States Constitution, the police can use physical force to forcibly stop and question such an individual about the nature of their conduct that they reasonably suspect is about to commit, has committed or is committing any felony or misdemeanor in the New York State Penal Law. The person can be detained for a “reasonable period of time” and is not free to leave. Depending upon the brief investigation, the person may be released or arrested. The issues surrounding Stop and Question are complex, not for this blog discussion but, will be addressed in a separate blog discussion. Finally, the Miranda Rights are warnings that are given by law enforcement personnel to individuals in police custody but prior to arrest, arrested but prior to questioning, during arrest while questioning and after arrest along with post arrest questioning. Both the Fifth and Sixth Amendments of the United States Constitution are applicable. It is important to note, that an individual who is in police custody MUST refuse to answer questions and request legal counsel for all of the protections to apply.

Over the years, there have been several court decisions that focused on when and if Miranda even applies. Some courts have allowed statements to be used against an individual prior to being read his Miranda rights and prior to a request for counsel. But, with a recent Supreme Court decision, Salinas v. Texas, the Court ruled that individuals in police custody that answer questions then suddenly remain silent essentially waives their Miranda Rights. In other words, silence is a statement of guilt. Now, that is a very scary proposition indeed.

In this case, Genovevo Salinas of Houston, the police requested him to voluntarily come to the police station. Once he arrived at the police station, he was questioned about the double murder of two brothers with whom he had been seen with the night before. He was not in police “custody.” Hmm, we will save that one for later. Anyway, Salinas “voluntarily” answered police questioning for about an hour. Prior to his questioning, he was not read his Miranda Rights. Later in the questioning, the police asked him about some shotgun shells found at the murder scene. They asked him, if they performed Ballistic Tests on the shotgun shells, would they match his shotgun, Salinas remained silent. Based upon his silence, and a subsequent Ballistic match, Salinas was charged with murder, tried, and convicted in part by the court allowing the prosecutor to use his silence on some pre-arrest questions as evidence of his guilt. Salinas appealed on the grounds that his pre-arrest silence should not be admitted as evidence against him because the questioning and alleged statement (silence) violated the Self-Incrimination Clause of the Fifth Amendment of the United States Constitution. On appeal, two state appellate courts upheld the murder conviction. One court citing a previous decision written by United States Supreme Court Justice John Paul Stevens who reasoned that the Fifth Amendment is “simply irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak.”

The Supreme Court granted Salinas’s petition for writ of certiorari (a document which a losing party files with the Supreme Court asking court to review the decision of a lower court). However, the Court upheld Salinas’s murder conviction ruling “that before petitioner could rely on the privilege against self- incrimination, he was required to invoke it. Because he failed to do so, the judgment of the Texas Court of Criminal Appeals is affirmed.”

The Court’s decision now makes it absolutely necessary for individuals who find themselves in a pre-arrest, pre-Miranda situation to specifically state that they wish to invoke their right to remain silent and request legal counsel, failure to do so, will result in silence being used as evidence of guilt.

Quite frankly, my personal view is that the Court upheld the unlawful custodial questioning of Salinas because other evidence connected him to the crime. If you review prior Supreme Court precedent, this decision makes no logical sense.