To Infringe or not to Infringe on our 5th Amendment Rights, That is the Question

On April 17, 2013 the United States Supreme Court will take up the question of whether prosecutors may use in their case-in-chief a defendant’s silence during police questioning before an arrest and before being “Miranda-ized” – even when the defendant does not take the stand in his own defense. The case they are hearing to resolve the issue is Salinas v. Texas.

The Salinas case occurred in early 1993. The Houston police officer arrived at the home of Salinas to question him about the shotgun murders of two brothers outside a party a few weeks earlier. Salinas accompanied the police to the station house, where he consented to answer questions for nearly an hour in a noncustodial setting. But it is a singular question that he did not answer that has landed his case in front of the U.S. Supreme Court — whether the shotgun from his home would match the shell casings found at the murder scene.

A jury convicted Salinas of murder and sentenced him to 20 years. Salinas’ silence was emphasized by the prosecutor during the trial that lead to his conviction. On appeal, lawyers for Salinas argued that the use of his pre-arrest silence violated his Fifth Amendment right that “no person … shall be compelled in any criminal case to be a witness against himself.” Both a midlevel state appeals court and the Texas Court of Criminal Appeals, the state’s highest for criminal matters, found no Fifth Amendment violation because, as the second court put it, “in pre-arrest, pre-Miranda circumstances, a suspect’s interaction with police officers is not compelled.”

As most U.S. citizens now know, a suspect who is in custody has the right to remain silent, and such silence cannot be used against him. But what some folks may not know is that there are times when a suspect’s silence can be used against him in court. For example, under settled Supreme Court rulings, prosecutors may use a defendant’s silence during police questioning to try to impeach his testimony if he takes the stand.  The high court’s ruling could really have a significant effect on all 50 states, as to how they assess the silence privilege and apply it at trial, and it is going to be significant for law enforcement officers in determining how far they can go in question a suspect and/or ordinary citizen.

If you or a loved one is charged with a crime in Washington State it is imperative that you (1) assert your right to remain silent, and (2) seek the assistance of a qualified and reputable Washington criminal defense attorney. The Seattle criminal attorneys that make up the criminal defense team of SQ Attorneys are highly qualified and reputable Seattle criminal defense lawyers that are dedicated to providing top notch, aggressive representation for those arrested for crime all across Western Washington and the Greater Puget Sound region. The team creates success by working with law enforcement and the prosecuting attorney’s office to ensure that all facts and circumstances related to the criminal allegations are considered in creating the fairest, most equitable and just resolution possible in light of all the surrounding circumstances of the given case.

Leave a reply


10.0Gregory Wayne Schwesinger
10.0Saad Qamer Qadri