Miranda Eviscerated: How Your Silence During a Government Interview Could Be Used Against You

by Baker Donelson

Can your silence be used against you in a criminal proceeding? Most of us would assume that it cannot because of the Fifth Amendment to the U.S. Constitution and case law interpreting it.1  A recent U.S. Supreme Court case, Salinas v. Texas, raises questions about whether this long-standing belief is still true.

Imagine the following scenario:

You are a nurse who has just ended a grueling twelve-hour shift at your hospital. It’s 7:00 p.m., and you’ve just arrived home, exhausted. You need to feed your children and get them ready for bed. At 8:30 p.m., when you are finally able to eat your own dinner, you hear a knock on your door. You answer the door and see a law enforcement investigator. He introduces himself and tells you that he would like to interview you now about your work at the hospital. You don’t want to seem rude, so you agree to speak him. At first, his questions are easy to answer and seemingly benign. The conversation appears friendly. You believe him when he tells you that he’s just gathering background information. Then, about 20 minutes into the interview, his tone changes and he asks you direct questions about your care of specific patients, including one who died. You become nervous, so you stop talking. You do not tell him that you don’t want to talk to him anymore, you just remain silent.

Do you think that your decision to remain silent cannot be used against you in a later criminal prosecution? If your answer to that question is “yes,” you could be wrong.

In Salinas v. Texas, Houston police officers were investigating the murders of brothers shot in their own home. Recovered from the scene of the crime were six shotgun shell casings. No one witnessed the murder, but a neighbor heard gunshots at the home. The neighbor also saw an unidentified man run out of the house and flee the scene in a dark-colored car. Ultimately, the police’s investigation led to Genovevo Salinas’ home. The police asked him to give them his weapon for ballistics testing, and he agreed. He also agreed to be questioned by the police at the station. The police did not take Salinas into custody (arrest him), nor did they read him his Miranda rights after he arrived at the station because the interaction was considered “non-custodial.” In other words, it was a voluntary interaction; he was free to leave the station at any time. The police questioned Salinas for almost an hour. He answered most of their questions; however, when the police asked him if his shotgun would match the six shell casings recovered from the crime scene, Salinas stopped talking. According to the officer who testified at his trial, Salinas began to act nervously; i.e., he shuffled his feet, bit his lip, and clenched his hands in his lap. The police ceased questioning Salinas and they all sat in silence for a few minutes. When the officers resumed their questioning, Salinas answered their questions. After the government obtained additional evidence connecting Salinas to the crime, he was arrested and tried for murder. During closing argument at the murder trial, the prosecutor argued that Salinas’ silence in the face of questioning about the shotgun was evidence of his “consciousness of guilt,” i.e., that an innocent person would have said something to the police officer like “What are you talking about? I didn’t do that. I wasn’t there.”2

On appeal, Salinas asserted that the prosecution’s argument about his silence violated his Fifth Amendment privilege against compulsory self-incrimination. The Supreme Court had granted certiorari in Salinas to resolve a split in the lower courts regarding this question. Instead of resolving this question, however, the Court decided in a plurality opinion that Salinas’ Fifth Amendment claim failed because he did not expressly invoke his Fifth Amendment privilege against self-incrimination in response to the officer’s question. The Court held that well-settled case law provides that the Fifth Amendment privilege “is not self-executing,” and that a person cannot “simply stand mute,” but, rather, must “assert the privilege in order to benefit from it.”3  The Court opined that:

someone might decline to answer a police officer’s question in reliance on his constitutional privilege. But he might also do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else. Not every such possible explanation for silence is probation of guilt, but neither is every possible explanation protected by the Fifth Amendment.4

Thus, it appears that a logical interpretation of Salinas could be that an individual: (a) who volunteers to be interviewed by law enforcement; (b) in a non-custodial setting; (c) in a criminal investigation; (d) who answers some questions and then falls silent; (e) must use some talismanic words, such as “ I exercise my Fifth Amendment right to remain silent,” or “Fifth Amendment,” or “I wish to not incriminate myself,” or “I want to be silent,” in order for the individual’s silence to be interpreted as true silence worthy of protection under the Fifth Amendment.

The Salinas decision is particularly troubling because of all of the questions that it does not answer:

  • How does a layperson know whether he/she is being investigated for a crime?
  • What if the investigator lies and says to the interviewee that he/she is not the subject or target of a criminal investigation?
  • Is Salinas restricted to scenarios where an individual is under criminal investigation? Or does it apply to any voluntary, non-custodial interview of a witness by law enforcement?

Because the Supreme Court’s decision does not answer these and other questions, it is quite possible that Salinas could be read to apply to our hypothetical nurse. Thus, it is highly possible that if the nurse agrees to speak with the investigator, but later stops talking and does not say “Fifth Amendment” or use the right words—whatever those may be—to communicate that she wants to stop talking, then the government could likely argue at a later trial that her silence in the face of accusatory questioning is evidence of her guilt.

In light of Salinas v. Texas, what should corporate health care providers do? What advice can they give their employees on how to handle surprise visits from government investigators seeking to interview them about their work, which could ultimately impact the liability of the corporation?

Before a government investigator’s surprise visit, health care providers should consider distributing a carefully worded advisory memorandum to employees regarding potential contacts with the government. But how specific does the employer need to be in this memorandum? At a minimum, the memorandum should clearly and accurately explain the employees’ rights. Some suggested language includes advising an employee that:

  • He has the right to speak with a government investigator, as well as the right to refuse to be interviewed.
  • He has the right to have counsel present during an interview, to confer with counsel in advance of an interview, and to terminate an interview at anytime.
  • If he chooses to speak with an investigator, he should tell the truth.
  • Any statements made to the investigator could have legal consequences.

Now, because of Salinas, should the memorandum also tell the employee that if he agrees to answer questions, but later changes his mind and wishes to remain silent, any statements that he does not make could have legal consequences? Put another way, does Salinas really mean that if you want to be silent you have to tell law enforcement that you want to be silent, otherwise you run the risk that what you do not say could be used against you in a future proceeding?

Given the current legal landscape, isn’t it just safer and easier for a witness to refuse to talk to law enforcement without counsel present?

1 The Fifth Amendment provides that “no citizen shall be compelled in any criminal case to be a witness against himself.” Previously, U.S. Supreme court case law precluded a prosecutor from commenting at trial on your silence if the reason that you remained silent was to not be witness against yourself. See, e.g., Griffin v. California, 380 U.S. 609, 610 n.2 613 (1965).
2 Salinas, 133 S. Ct. 2174, 2185 (2013).
3 Id. at 2178.
4 Id. at 2182.

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.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson

Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.