Your Silence Can Be Used Against You.

I could swear I heard somewhere that a defendant has a right to remain silent and that the state cannot comment on the silence at trial. I could be wrong, but I swear I heard it somewhere.

On June 17, 2013, in Salinas v. Texas, the United States Supreme Court clarified for me. It held that the state could use at trial a defendant's failure to answer some questions where the defendant was not yet in custody and had answered some questions but refused to answer others. We know that the relevant provision in the Fifth Amendment reads that a defendant shall not "be compelled in any criminal case to be a witness against himself [.]" Prior to being in custody or Mirandized, Salinas answered some questions from police. When asked about ballistics testing, he remained silent. Texas argued at trial that this was evidence of guilt. Salinas argued that the comment violated his Fifth Amendment privilege not to be compelled to be a witness against himself.

Ultimately, the United States Supreme Court rejected this argument. The case is interesting in that the Court took the case to decide the question of the prosecution may use during its case-in-chief a defendant's assertion of the right to remain silent during a non-custodial interrogation. The Court though did not answer that question because it concluded that the Salinas had not invoked his privilege during the interrogation. (2013), 133 S.Ct. 2174. (Yep, mere silence is not enough to invoke the right to remain silent.)

The Court looked first at what it described as the long held opinion that those who desire the protection of the privilege, must claim it. Id. at 2179. The Court reasoned that this was necessary to ensure that the government is "put on notice when a witness intends to rely on the privilege[.]" (Nope, not answering a question is not enough notice.) In short and clear language, the Court held that "[b]efore petitioner could rely on the privilege against self-incrimination, he was required to invoke it."

Salinas is certainly complicated case law for criminal defense. Interesting though, remember that Salinas was not subject to a custodial interrogation. That is a critical fact that cannot be ignored.