Prosecutors can legally use your silence during a pre-arrest interrogation as evidence of guilt during a forthcoming criminal trial, according the U.S. Supreme Court ruling in Salinas v. Texas. “Popular misconception notwithstanding,” said Justice Alito, writing for the five-justice majority, “[the Constitution] does not establish an unqualified ‘right to remain silent.’”
The facts of the case involved the noncustodial detention of a criminal suspect who, essentially, was not placed under arrest. The suspect, Robert Salinas, voluntarily agreed to go to the police station to answer questions. Since the suspect was not under arrest, the Miranda warning was not read. During the interrogation, Salinas remained silent without ever vocalizing to police that he was exercising his right to do so. His silence was used as evidence of his guilt by prosecutors at trial.
Based on these facts, the Supreme Court held that prosecutors did not violate the defendant’s Fifth Amendment right to be free from forced self-incrimination because Salinas failed to verbally invoke his Fifth Amendment right during interrogation. The lesson here is:
Ask for an attorney, even if police assure you that you are not a suspect in the crime.
Verbally invoke your right to remain silent until your lawyer arrives. Do not volunteer information that can incriminate you as an aider, abettor or accessory to the crime.
Evidence that you chose not to cooperate with police can sometimes be used against you in court, but asking for a lawyer does not mean you are unwilling to cooperate.
In California, police can only detain you for 48 hours at the station before charges must be filed or you are released. Review CA Penal Codes §§ 833-851.90 to learn more.
If you have questions about criminal detention, talk to a California defense lawyer who can make the tactical decisions that are essential to preserving your rights.