Silence Is No Longer Golden

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According to Justice Alito in Salinas v. Texas, 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.”


In June 2013, the U.S. Supreme Court ruled that a witness’s privilege against self-incrimination does not apply within the scope of a noncustodial, voluntary, pre-Miranda silence. Salinas v. Texas, supra. When first noting the headline and ruling, I had thought the Supreme Court had turned Miranda on its head. Salinas remains the current law concerning one’s Fifth Amendment right to not incriminate themselves by remaining silent.

Two years later, the Arizona courts have dealt with the question in a couple of unpublished opinions. But, as the quote noted above rings in your head, you never had a right to remain silent (despite all those Miranda warnings read verbatim). Rather the actual privilege is limited so that you can not be compelled to be a witness against yourself.

In Salinas, the defendant was prosecuted for murder. During the police investigation, it was uncontested that Salinas submitted to voluntary questioning. He did so at the police station after being told he could leave at any time. Never Mirandized, he responded to the investigator’s questions at length. At one point in the interview, detectives asked him whether ballistics of the shell casings would match his shotgun.

At that point, Salinas, declined to answer. As officers were subsequently permitted to testify, Salinas “looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, and began to tighten up.” After not making any statement for a few moments, the investigators asked additional questions. Salinas continued to answer the other questions. Salinas did not testify at trial, and the court permitted their description of his reaction to the question as evidence of guilt. Salinas was subsequently convicted.


The two take-aways from the decision consist of long established principles: (1) as the defendant’s interview was voluntary, he was not in custody and Miranda warnings were not required; and, (2) any witness that wishes to invoke their Fifth Amendment and its protections must expressly claim the privilege. The court noted that a witness cannot invoke the privilege by remaining mute.


For our clients, the hardship is that officers are not required to provide Miranda warnings prior to any voluntary statement. As I advise my clients, when a police officer wishes to question you, you have three options: (1) answer the questions honestly; (2) don’t respond at all; or, (3) politely state, “on the advice of counsel, I will not talk to you.” I instruct them never to lie to an officer, but they do need to answer the questions. Salinas only applies when someone has begun to answer questions voluntarily and then subsequently elects to remain silent without expressly invoking their right to do so.

Once a client begins to answer questions, it is easy to walk into an arrest. Any investigation is a jigsaw puzzle. Your client is at an extreme disadvantage as only the investigators know what the picture on the puzzle box looks like. Your clients can answer questions honestly, and their responses may not even raise any illegal activity. But, each answer may be providing one more piece of the jigsaw puzzle. How many pieces of that puzzle will the officers need to have sufficient evidence to make an arrest or successfully prosecute?

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Prosecutors have been given a valuable tool. In those limited circumstances similar to Salinas, a prosecutor can solicit evidence that the person elected to not answer a question. In fact, they can now argue that, an innocent person would have answered!

There are legitimate reasons one will not answer a question. You need to raise those reasons early and, if in trial, educate the jury as to the reasons. And, in many cases, the reason is not an admission of guilt.

After the decision was delivered, I modified my business cards to include a Miranda advisement. It instructs my client to identify themselves and then to clearly request to speak to counsel before answering any questions. With the Salinas decision, it is incumbent on us to educate and remind everyone that they must clearly and expressly request counsel early and often.

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