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Legal Issues in Criminal Defense: Your Right to Remain Silent

Right to Remain Silent

“You have the right to remain silent anything you say can be used against you in the court of law.” This phrase has been the staple to any criminal defendant protected by both the United States and Indiana constitutions. As discussed in my previous blog post, the United States Supreme Court in 1966, with what has been a hallmark decision Miranda v. Arizona, limited this right to apply only when a defendant is in custody and is being interrogated by the police. Nearly fifty (50) years later, the United States Supreme Court has again chipped away at the right of a criminal defendant to remain silent.

In Salinas v. Texas, the United States Supreme Court held that a defendant who police subject to noncustodial questioning without giving the Miranda warning, cannot rely on the Fifth Amendment unless he/she expressly invokes it. In layman’s terms, if a witness remains silent in the face of noncustodial questioning, the prosecution can, at trial, introduce his/her silence as substantive evidence of his/her guilt. Based upon this decision, the prosecutor can argue that the defendant must be guilty because he/she remained silent instead of cooperating and speaking to police. Furthermore, the police do not have to inform the witness of his/her right against self-incrimination.

The Practical Effect

Salinas profoundly affects all stages of the criminal process, including investigation and trials. Not only are police officers not required to give any warnings for a noncustodial interrogation, Salinas allows a police officer to “accurately state the law” to witnesses. That is, an officer can tell a suspect, who is not in custody, “suspect, I want to ask you some questions and if you do not answer my questions, then the prosecution at trial can argue to the jury that an innocent man would have answered questions.” Furthermore, police officers are now encouraged to conduct noncustodial questioning of a suspect, after they already have probable cause to arrest him, knowing that he/she will rarely assert the privilege and that anything else he does, whether he speaks or remains silent, can be used against him.

The most troubling effect is that Salinas allows the prosecution to argue to the jury that the defendant’s pretrial silence is substantive evidence of guilt. Jurors will likely be inclined to agree with the prosecutor’s assertion that silence is evidence of guilt, which will pressure defendants to take the stand to offer an explanation for their silence.

The Remedy

Salinas holds that silence can only be used against a defendant who did not expressly assert his right to counsel during the interrogation. Therefore, the criminal defense bar needs to educate their clients and the public as a whole about their rights. When questioned by a police officer regarding your potential involvement with a crime, DO NOT merely remain silent. Instead, say I want to speak with an attorney. I encourage you to share this information with friends, family, neighbors and acquaintances. The more people that know, the more we can protect our constitutional rights.

Written by:
Russell W. Brown, Jr.
Attorney At Law
9211 Broadway
Merrillville, IN 46410

Posted: 3/25/2014

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