You Have the Right to Remain Silent. But Should You?

While this isn’t a personal injury related story, and not based in Baton Rouge, its interesting and can affect us all. A defendant who didn’t expressly invoke his right against self-incrimination in a voluntary police interview before his formal arrest can have his silence used against him in court, says the highest court in the land.

The Supreme court ruled in the case of Genovevo Salinas, who had attended a party hosted by two brothers the night before their murders. Salinas voluntarily accompanied officers to the police station and answered their questions until he was asked whether shell casings at the murder scene would match his shotgun. Salinas did not answer. At trial, prosecutors argued that Salinas’ silence suggested he was guilty. Salinas argued that the prosecutors’ remarks violated his Fifth Amendment right against self-incrimination.

Justice Samuel A. Alito Jr. wrote the controlling opinion (Google Scholar), joined by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy. “Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question,” Alito wrote.

The court had accepted the case to resolve a split of authority on whether prosecutors can use a defendant’s silence at trial, when the defendant’s interview with police takes place before a formal arrest. “But because petitioner did not invoke the privilege during his interview,” Alito said, “we find it unnecessary to reach that question.”

Justice Clarence Thomas, in an opinion joined by Justice Antonin Scalia, said he would rule against Salinas even if he had formally invoked the privilege. The prosecutor did not compel Salinas to give self-incriminating testimony, Thomas said, so Salinas’ claim should fail. “A defendant is not ‘compelled . . . to be a witness against himself’ simply because a jury has been told that it may draw an adverse inference from his silence,” Thomas wrote.

The takeaway from this ruling is that when the police tell you that you have, “the right to remain silent when questioned,” and that, “anything you say or do may be used against you in a court of law.” What they really mean is, you have “the right to remain silent when questioned,” and that, “anything you say or do or don’t say or do may be used against you in a court of law.”

The case is Salinas v. Texas.