The United States Supreme Court issued its decision today in
Salinas v. Texas. The decision has implications that will reach just about every type of
criminal prosecution, including
white collar crime. After having read the decision, I would imagine that every criminal defense
attorney will now advise any client, including a potential witness to
a crime, to specifically invoke their 5th Amendment rights to silence
and not answer any simple questions without a lawyer present – whether
in custody or not. The moral of this case is that when a law enforcement
officer appears at your door just to inquire about some matter and ask
a few questions, simply say “No, I wish to invoke my 5th Amendment
rights” and immediately refer him/her to your criminal defense lawyer.
In Salinas v. Texas, two brothers were shot and killed in their Houston
home. There were no witnesses to the shooting, and the police recovered
six shotgun shell casings at the scene. There was apparently a party at
the brothers’ home the night before. Salinas was a guest at the
party and now a suspect in the shooting. The police stopped by Salinas’
house, and he agreed to give the police his shotgun for ballistics purposes.
He also agreed to go with the officers to the local police station for
questioning. The police questioned Salinas for about an hour. He was told
by the police during questioning that he was free to leave. Since he was
told that he was “free to leave,” no Miranda warnings were
required as he was not considered to be “in custody” for purposes
of 5th Amendment rights.
During the majority of the interview, Salinas answered police questions.
However, when asked whether his shotgun would match the shells recovered
at the scene of the murder, Salinas refused to answer. Instead, he looked
down at the floor, shuffled his feet, bit his bottom lip, clenched his
hands in his lap, and began to tighten up. After a few moments of silence,
the officer asked additional questions, which Salinas answered. In the
closing argument at this trial, the prosecuting attorney told the jury
about Salinas’ silence when questioned about the shotgun and then
argued that an innocent person would not have remained silent when asked
about the shotgun. Salinas was convicted by the jury.
The issue on appeal in the case was whether the prosecution may use a defendant’s
assertion of the privilege against self-incrimination during a noncustodial
police interview as part of its case in chief. However, the Court never
resolved this issue. The Court specifically held that if an individual
wishes to utilize the privilege of self-incrimination, he must specifically
claim it – mere silence is not enough. Thus, the case stands for
the proposition that any person/witness must now specifically invoke his/her
5th Amendment right not to speak to law enforcement or run the grave risk
of having their silence used and argued against them in a
criminal defense prosecution.
One may think, “What’s all the fuss about? If I didn’t
do anything wrong, then I would have nothing to hide.” However,
the implications of this case are somewhat disturbing. Let’s say
you are a suspect in a criminal prosecution and don’t even know
it. The police stop by your house on a warm, summer day and start to ask
you questions. You don’t like the officers’ tone, the questions
being asked or simply don’t want to deal with the police at that
moment. You politely tell the police to leave. The police take their case
to the local prosecutor based on whatever evidence they have, and you
get charged with a crime. Since you didn’t specifically invoke your
5th Amendment rights when the police came out to your home (when you were
not even in custody), the prosecution can later argue at your trial that
your silence at the time was evidence of your guilt for the crime charged.
This simply seems unjust not only to me as a Milwaukee Criminal Defense
Attorney, but should also appear unjust to all citizens outside of the
criminal justice system.