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.