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When Silence is Not Golden: Failure to Invoke the Privilege Against Self-Incrimination

Most people are aware they have a Fifth Amendment privilege against self-incrimination when they are being questioned by law enforcement. What many people do not know, however, is that in some circumstances, the privilege must be expressly involved and, if it is not invoked, the failure to answer specific police questions can be used against them later. In those instances, silence is not golden and can be introduced as evidence of guilt at trial. 

The issue was specifically addressed by the United States Supreme Court in Salinas v. Texas, ___ U.S. ___, 2013 WL 2922119 (June 17, 2013). In Salinas, police were investigating the double murders of two brothers at their Houston home. During the course of the investigation, six shotgun shell casings were recovered at the scene of the murders. The investigation then led police to the defendant, who was approached by them at his home. Upon request, the defendant agreed to hand over his shotgun for ballistics testing and to accompany the police to the station for questioning.

Significantly, this questioning was non-custodial and Mr. Salinas never invoked his Fifth Amendment privilege. In other words, the defendant voluntarily agreed to talk to police, was not placed in police custody and was free to leave the questioning if he so desired. During the course of the interview, the defendant readily answered the officer's questions with one notable exception. When asked whether his shotgun would match the shells recovered at the murder scene, the defendant declined to answer the question, "[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up." After a few minutes of silence, the defendant answered additional questions. At trial, over Mr. Salinas' objection, the prosecution was permitted to introduce his reaction to that question as evidence of guilt.

After his conviction was affirmed by the Texas appellate court, the United States Supreme Court granted review to determine whether Mr. Salinas' silence was properly admitted. In concluding his silence was admissible, the court held Mr. Salinas' failure to invoke his privilege waived this right to object to admission of this evidence at trial. While most people are unaware of the need to specifically invoke their right to remain silent, the Salinas decision makes clear such invocation is a prerequisite to challenge use of an accused's silence at trial.

The Salinas court did, however, recognize certain exceptions to the requirement that a witness specifically invoke their right to remain silent. Those exceptions are:

1. A criminal defendant is not required to take the stand to assert the privilege at his own trial;

2. A suspect who is the subject of "unwarned custodial interrogation" need not invoke "unless [he] fails to claim [it] after being suitably warned." (i.e., advised of his Miranda rights);

3. If a person is threatened with deprivation of a governmental benefit, he need not specifically invoke his privilege; and

4. Where the assertion of the privilege would itself tend to incriminate the witness, specific invocation is not required.

Since the defendant in Salinas voluntarily agreed to speak with the investigator officers and "was free to leave at any time during the interview," not only was his questioning outside the scope of Miranda, Mr. Salinas was specifically required to invoke his privilege against self-incrimination in order to argue his silence in the face of questioning was inadmissible at his trial.

The Salinas decision offers important guidance when deciding whether to respond to police questioning. First, it is never in the best interest of a subject of a criminal investigation to voluntarily answer questions posed by law enforcement. So long as the questioning officer can claim you voluntarily spoke to him in a non-custodial setting (even if the setting is a police station), the failure to invoke your Fifth Amendment privilege means anything you say - or don't say - can be used against you if you are charged with a crime. Second, your silence in the face of questioning does not invoke your right to remain silent and your failure to specifically invoke your privilege will waive it in future proceedings.

In light of these extremely technical requirements which few people understand, our uniform advice is: If you are being questioned by the police, whether or not you are "voluntarily" doing so, specifically invoke your right to remain silent and your right to remain silent. Specifically request that you be permitted to speak to an attorney. If you are in custody, and you cannot afford an attorney, you have the right to have an attorney appointed to represent you. If you are not in custody, politely excuse yourself from the presence of law enforcement and immediately contact an attorney experienced in those situations to advise you whether you should answer further questions. Under no circumstances should you continue to answer questions without advice of counsel.

Do not allow yourself to be "tricked" into saying something - or not saying something - which can later be used in a subsequent prosecution against you. Silence is golden only if your Fifth Amendment right against self-incrimination is properly invoked.

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