Sometimes… Your Silence Can Convict You #CriminalDefense


Americans do not need to be taught in school that we have the right to remain silent. With the surplus of cop shows on TV, the past couple of generations have grown up hearing the famous Miranda warnings multiple times each week. As a criminal defense attorney and part-time judge, I routinely visit classrooms as a guest speaker. I have witnessed many a teenager spout forth Miranda warnings with a cadence and perfection that would make any police chief proud.

Yet, what American youth do not learn on TV is that law enforcement officers are only required to give you Miranda warnings if you are “in custody.” A person who is handcuffed and placed in the back of a patrol car is clearly in custody. A person who is being questioned inside a police station (but has been informed that he or she is free to leave whenever they want) is not in custody. Knowing the precise moment custody began has always been a critical element in any Miranda suppression hearing regarding statements a person made. But when silence was involved, custody was seldom the issue. After all, according to the Constitution, our silence could never be used against us – or so we thought.

In a recent decision, decided June 17, 2013, the United States Supreme Court, changed the rules of the game and for the first time, informed us that to claim the privilege against self-incrimination, we must actually first verbalize our intent to remain silent. The fact you simply remain silent is no longer enough. If you do not explicitly verbalize your desire to invoke the privilege, your silent conduct can now be presented to the jury as evidence of your guilt.

In Salinas v. Texas, 133 S.Ct. 2174 (2013), Mr. Salinas was questioned about a murder that had occurred in Houston, Texas. Mr. Salinas had voluntarily surrendered his shotgun to the police for forensic testing and was interviewed for almost an hour in a noncustodial setting. Because he was not in custody, Mr. Salinas was never given his Miranda warnings. 133 S.Ct. at 2178. For most of the interview, Mr. Salinas answered the officer’s questions, yet when asked whether his shotgun “would match the shells recovered at the scene,” Mr. Salinas “declined to answer” and “looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap [and] began to tighten up.” 133 S.Ct. at 2178. After a few moments of silence, the officer asked additional questions that Mr. Salinas decided to answer.

During his trial (and over the strenuous objection of defense counsel), the prosecutor introduced evidence of Mr. Salinas’ silent fidgeting to the shotgun question as evidence of his guilt. In upholding that Mr. Salinas’ pre-Miranda and noncustodial silence could be used against him, the Supreme Court noted that – in spite of what we have learned on TV – citizens do not always have the absolute right to remain silent in all settings. In fact, according to the Supreme Court, just the opposite is true – “the Government has the right to everyone’s testimony.” 133 S.Ct at 2179. The privilege against self-incrimination through silence is merely an exception to the government’s right. As a result, anyone desiring “the protection of the privilege must claim it at the time he relies on it.” 133 S.Ct at 2179 (emphasis added).

Abraham Lincoln often said that is was “Better to remain silent and be thought a fool, than to speak out and remove all doubt.” Yet, if Lincoln were alive today, after the Salinas decision, he probably would have modified his thinking and said: “Better first to invoke one’s right to silence than simply look away and fidget in one’s seat.”

If you are ever questioned by a police officer, always ask if you are free to leave. If you are – then leave immediately and call an attorney for assistance. If you are not free to leave, immediately invoke both your right to silence and your right to an attorney.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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