One Can’t Remain Silent to Remain Silent

Tim Powers

Law Offices of Tim Powers

Denton, Texas

If you’ve been arrested, and the police want to interrogate you, they will tell you that you have the right to remain silent.

How do you assert that right?

One way would be to say something like “I would like to remain silent.” Saying “I want a lawyer” should also stop the questioning.

But yesterday, in Salinas v. Texas, the Supreme Court of the United States held that you do not assert your right to remain silent by remaining silent. If you want to remain silent, you’ll need to be prepared to talk about it.

No one will be surprised that this result came from the Justice least likely to be voted most beloved by those in our nation’s prison systems, Justice Alito.

Sort of….

Genovevo Salinas talked to a police officer who was investigating a murder. The murder happened after a party that Salinas had been to. The conversation was voluntary; Salinas was simply being a good citizen.

At some point, the officer asked Salinas if the shell casings found at the scene of the murder would match a shotgun that Salinas owned.

Salinas thought, at that point, that perhaps silence is one way of being a good citizen — as the Fifth Amendment provides. When asked about the possible ballistics test, he “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.”

Salinas was charged with murder. At trial, the prosecutors told the jury that Salinas started talking, then stopped. His lawyer objected, saying that the jury was being told only that Salinas asserted his Fifth Amendment rights – and that shouldn’t be held against him.

The case went to One First Street, originally to answer the question of whether a Fifth Amendment assertion can be used against a person in a criminal trial as a part of the government’s presentation.

Though a funny thing happened on the way to that question presented — it turns out the Court decided that merely being silent is not the same thing as invoking the Fifth Amendment.

Alito wrote an opinion announcing the judgment of the Court, but joined only by the Chief and Justice Kennedy. In it, Alito wrote that a witness does not signal his intention to not talk “by simply standing mute.”

Had Salinas said, for example, in response to the question about ballistics testing, “I will not answer that question, because I have the right not to under the Fifth Amendment,” that response would have invoked the Fifth Amendment. But Salinas just sat silent.

One may wonder who would think that saying “I do not want to talk” is different than just not talking. The answer: someone who has been to law school. Maybe the best explanation for this result is that Alito is trying to generate a new set of arguments for why you should go to law school.

Alito lends some support to this theory (internal citations omitted):

At oral argument, counsel for petitioner suggested that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his “right to remain silent.” But popular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself ”; it does not establish an unqualified “right to remain silent.” A witness’ 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.

The bottom line: we are all making a record all the time. It’s better to have a J.D.

Justice Thomas, joined by Justice Scalia, thought the easier way to resolve this case would have been to hold that the Fifth Amendment doesn’t apply to police interviews that aren’t custodial.

The Court had already rejected that view in Griffin v. California , but Thomas doesn’t like that opinion. Or stare decisis.

Happily, though, with no majority opinion, and no common ground between the plurality opinions, this case is really only going to make life hard for Genovevo Salinas himself.

If you are seeking aggressive criminal representation by an experienced criminal defense attorney for your Denton County criminal case or arrest in Denton County, contact the offices of Tim Powers today. There is no charge or obligation for the initial consultation. 940.580.2899

*Tim Powers is an attorney licensed to practice law by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific legal question you should directly consult an attorney.

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