SKIP TO CONTENT
We use both our own and third-party cookies for statistical purposes and to improve our services. If you continue to browse, we consider that you accept the use of these.
  • Celebrating 20 Years of Training Excellence 2004-2024

Salinas v. Texas

 

Recently the United States Supreme Court decided a question regarding the Fifth Amendment that was unsettled: Under what, if any, circumstances does the Fifth Amendment’s self-incrimination clause protect a defendant’s refusal to answer law enforcement questioning before she has been arrested or read her Miranda rights?

 

As a primer, prosecutors are not allowed to comment on a defendant’s silence at trial.[1]  Also, prosecutors may not impeach a testifying defendant with evidence of their silence following Miranda warnings.[2]  Prosecutors may present evidence of pre-arrest, pre Miranda silence[3] and evidence of post arrest silence before Miranda warnings.[4] 

 

 

FACTS

 

Salinas shot-gunned two brothers to death in Houston in 1992.  Shell casings and pellets were left behind as evidence.  The investigation soon focused on Salinas after his father turned over a shotgun to police and Salinas agreed to meet with two police officers at the station and answered their questions for nearly an hour.  Salinas was not in custody nor was he read his Miranda rights.  When asked whether the shotgun that was turned over by his father would match shells found at the crime scene Salinas said nothing.  One of the questioning detectives testified that Salinas “looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, began to tighten up.”  That was the only question in the interview that Salinas did not answer.  He answered questions after that one.

 

During the trial where Salinas was convicted, the prosecutor introduced evidence of Salinas’ silence when asked about the shotgun.  The prosecutor argued that an innocent person would have answered the question and denied that the shotgun would match. 

 

Salinas appealed arguing that his silence was a Fifth Amendment invocation that should not have been used by the prosecution at trial. 

 

HOLDING

 

Recall the Supreme Court has held that the invocation of the right to remain silent has to be explicit.[5]  The court here reaffirmed that principle. The right to remain silent must be explicitly invoked.  The court also found that there is no Fifth Amendment protection to invoke for non-custodial silence.[6]  Thus the court held that a prosecutor may argue to the jury the defendant’s guilt based on non-custodial silence in the face of interrogation. 

 

 

Why Salinas is Important

 

Over the course of a long interview, the investigator might ask dozens or hundreds of incriminating questions. If the case goes to trial, a smart prosecutor will ask the investigator if he thought that any of the ways the defendant reacted to the questions was a non-answer or pause that seemed to reflect an awareness of guilt. If the prosecutor can comment on a non-answer, presumably the prosecutor can also comment on a pause before an answer.   It is always a good idea to video and audio record the interview so the prosecutor can point out the circumstances where the suspect does not answer.   The prosecutor can then focus on that before the jury, and there’s not much a defendant can do in response. The defendant must take the stand to explain any of the circumstances where he didn’t answer.  The defendant on the stand is always a circumstance a prosecutor wants. 

As a practical matter, it seems unlikely that a person questioned by a police officer outside of custody is going to formally assert his Fifth Amendment right. Of course, because the person is not in custody there is no requirement of Miranda warnings. 

 

PRACTICAL ISSUES

What to do if the defendant asserts his Fifth Amendment right in a non-custodial setting?  The court did not answer this question. 

First, courts might create some sort of Griffin-like rule just for pre-arrest questioning. That is, they might say that the police can’t comment on an assertion of Fifth Amendment privilege in that setting (even though there is no traditional Fifth Amendment privilege to assert) in order to ensure that the Fifth Amendment right is fully respected. Maybe they’ll throw in a bit of Miranda-like reasoning, too, and hold that a formal assertion of the Fifth Amendment right requires the police to stop questioning. Perhaps. But on the other end, the courts might say that an assertion of the Fifth Amendment right when there is no actual Fifth Amendment right at stake is entitled to no special treatment. In that case, the defendant would be allowed to formally assert his Fifth Amendment right but the prosecution would be free to comment on it as indicating guilt.

Of course, if you then take a defendant into custody after she has asserted her Fifth Amendment right, can you give her Miranda warnings and question her if she waives?  I think the likelihood of that scenario is slim, but at this point it seems as though the answer to that question is yes. 

 

 


[1] Griffin v. California (1965) 380 U.S. 609, 615

[2] Doyle v. Ohio (1976) 426 U.S. 610, 619

[3] Jenkins v. Anderson (1980) 447 U.s. 231

[4] Fletcher v. Weir (1982) 455 U.S. 603,607

[5] Berghuis v. Thompkins (2010) 131 S.Ct 33

[6] There were three votes for the proposition of an explicit invocation and two votes for the proposition that there is no Fifth Amendment protection in a non-custodial setting. Thus there were five votes for the proposition that a prosecutor may introduce evidence of silence in a non-custodial setting and argue consciousness of guilt as a result. 



  • It not often that you go to a training that you really, really want to pay attention to. Because of the high quality information and style of presentation, I knew that if I looked away I was going to miss out.

    —Quinten Graves, Oregon State Police
  • This was, by far and away the best training I have received in 15 plus years of Law Enforcement. The instructors are experienced, engaging, articulate, and very entertaining. I will be recommending this training to multiple agencies.

    —Mark Paynter, Oregon DOC
  • The information presented was highly relevant to my job and was presented in a manner that was organized and very easy to digest.

    —Michael McGarvey, California State Prison, San Quentin
  • This was, by far, one of the most useful training classes I've attended since becoming an investigator.

    —Steven Aiello, Antioch Police Department
  • Instructional style is engaging and highly effective.

    —George Laing, Fire Prevention Captain, Investigator
  • This training provided the useful tools necessary for assessing the veracity of a suspected child abuser, which goes a long way in helping to protect children.

    —Sunny Burgan, MSSW, LCSW, Social Work Supervisor, Santa Clara County DFCS
  • This training by far has been the most informative and most effective I've attended. The instructors engaged the students in a manner that made me want to speak my opinion, ask questions, and participate.

    —Julio Ibarra, Merced County Sheriff’s Office
  • I will continue to use and pass on this information because I really believe in the instructors and their approach.

    —Kimberly Meyer, Washoe County Sheriff's Department
  • Effective teaching teams! The presentation of the material was consistently interesting, and intelligent without being too intellectualized.

    —Michele Keller, Deputy Probation Officer, County of Alameda
  • Your training gave me the confidence and tools to interview the suspect for over 5 hours and to bring a closure to the case.

    —Daniel Phelan, San Jose Police Department
  • Your training has made the greatest and most direct impact on my assignment of any training class that I've taken.

    —Ken Gelskey, National City Police Department
  • Incredible training with amazing real world instruction. I have been taking law enforcement classes for over 30 years and by far this is the best presented and most useful.

    —Det. Brian Dale, Portland Police Bureau
  • I highly recommend this training for any Probation staff who have the necessity to interview/interrogate individuals for investigation purposes.

    —R. Bret Fidler, Santa Clara County Probation Department