It is common for criminal defense attorneys in Chicago and elsewhere to advise their clients to remain silent and refuse to make any statements whenever they are being questioned by law enforcement. But recently, the United States Supreme Court held in Salinas v. Texas, 570 U.S. ____, 133 S.Ct. 2174 (2013), that if a client/witness remains silent under non-custodial police questioning, the prosecutor can now introduce such silence at trial as evidence of guilt. Custodial interrogation is generally, when a person has been arrested by the police and then the police are required to advise the suspect of his Miranda rights. Under non-custodial interrogation, the police are not required provide Miranda warnings.
A custodial interrogation is when the person being questioned is under arrest or at least not free to leave. The difference is extremely fact based. A person handcuffed and questioned is being subject to a custodial interrogation. A person stopped for a traffic offense is not.
Before the Supreme Court issued this opinion, a suspect’s right to remain silent could never be used against him.
The concern among criminal defense attorneys, including this one, is that a defendant’s refusal to answer questions in non-custodial settings can now be used by prosecutors to argue that the defendant knows he is guilty, has a guilty conscious, or he would have cooperated with the police and answered their questions.
In Salinas, the defendant was being questioned by the police at the police station in a non-custodial setting where the police were not required to provide Miranda warnings. Salinas was asked questions about whether shells found at a murder would match a weapon found at his father’s house. Salinas did not respond to these questions.
Salinas was eventually tried and convicted of murder and appealed his conviction to the Texas Court of Appeals. The Court of Appeals upheld the conviction and found that the Fifth Amendment does not apply to pre-arrest, pre-Miranda silence and that defendant’s silence could be used against him in the State’s case in chief. This is because Salinas was never in custody and was free to leave. the Court characterized the questioning by police as voluntary. The Texas Court of Criminal Appeals, agreed with the lower Texas Appeals Court and affirmed the conviction.
The U.S. Supreme Court ruled that before a defendant can rely on the Fifth AMendment privilege against self-incrimination he must invoke his right to remain silent. Because the defendant did not state that he wished to invoke his right to remain silent, the State could use his silence against him as evidence of his guilt.
Based on this opinion, people must affirmative invoke their right to remain silent even in non-custodial settings to prevent the government from using their silence or refusal to answer a question against them at trial.