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The New World Order on 5th Amendment Rights


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.

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