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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. Also, prosecutors may not impeach a testifying defendant with evidence of their silence following Miranda warnings. Prosecutors may present evidence of pre-arrest, pre Miranda silence and evidence of post arrest silence before Miranda warnings.
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.
Recall the Supreme Court has held that the invocation of the right to remain silent has to be explicit. 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. 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.
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.
 Griffin v. California (1965) 380 U.S. 609, 615
 Doyle v. Ohio (1976) 426 U.S. 610, 619
 Jenkins v. Anderson (1980) 447 U.s. 231
 Fletcher v. Weir (1982) 455 U.S. 603,607
 Berghuis v. Thompkins (2010) 131 S.Ct 33
 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.
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