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What Does the Right to Remain Silent Really Mean?

Anyone who has ever watched Law & Order or any other cop show knows about the right to remain silent.  Most people can even recite the Miranda warning given by police that goes: “Anything you say can and will be used against you in a court of law.”

The way the right is portrayed on television, that “right” means that if the police question a suspect, the suspect doesn’t have to answer.  The way the Miranda warning is worded, it sounds like what you SAY can be used against you.  But if you opt to stay silent, that silence can’t be used against you in court, right?  Wrong.

A recent case from the U.S. Supreme Court’s — Salinas v. Texas — found that what you DON’T say can also be used against you in court unless you specifically tell the police that you are invoking your constitutional rights.  Just refusing to answer is not enough to protect you in court.

The facts of the Salinas went like this.  On the morning of December 18, 1992, two brothers were shot and killed in their Texas home. There were no witnesses to the murders, but a neighbor who heard gunshots saw someone run out of the house, and speed away in a dark-colored car. Police recovered shotgun shell casings at the scene. The investigation led police to Mr. Salinas, who had been a guest at a party the victims hosted the night before they were killed.  When police came to Mr. Salinas’ house, they saw a dark blue car in the driveway. He agreed to hand over his shotgun for ballistics testing and to go with police to the station for questioning.

Mr. Salinas was interviewed for about an hour and everyone agreed that he was not under arrest during the questioning (he was free to leave if he wanted).  He was not read any Miranda warnings prior to questioning.  He answered most of the officer’s questions, but when asked whether his gun “would match the shells recovered at the scene of the murder,” he didn’t answer.  Instead, he “looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, and began to tighten up.” 

Mr. Salinas was released as there was insufficient evidence to charge him.  A few days later, police got a statement from a man who said he had heard Mr. Salinas confess to the murders.  Prosecutors decided to charge him, but by this time Mr. Salinas had fled.  Fifteen years later, in 2007, police discovered Mr. Salinas living in the Houston area under an assumed name and arrested him for murder.

At trial, Mr. Salinas did not testify.   But during the trial, the prosecutor used Mr. Salinas’ reaction to the ballistics question – staying silent and looking down and shuffling his feet — as evidence of his guilt.  He was found guilty  and sentenced to 20 years.

The issue on appeal and before the U.S. Supreme Court was whether using Mr. Salinas’ silence and his actions (shuffling his feet, etc) in response to police questioning as evidence of guilt violated the Fifth Amendment.

The highest Court said no – Mr. Salinas’ Fifth Amendment rights were not violated because he did not expressly “take the fifth” or say specifically “I am invoking my Fifth Amendment right against self-incrimination.”

So what is the lesson here?  If you are being questioned by police and you don’t want to answer and don’t want your non-answers to be used against you in court, you MUST tell the officer that you are invoking your Fifth Amendment privilege against self-incrimination.  In most cases (unless there is some kind of police coercion), you have to specifically tell the police that you are taking the Fifth.   Just remaining silent is not enough to invoke your rights.

If you have been arrested for a Columbus DUI or other criminal charge in the Central Ohio area and are being questioned by the police, think twice before answering.  Consider the ramifications of your statements and if you would like to not answer the officer’s questions, that is within your rights.

But to be safe, let the officer know that you are exercising your Fifth Amendment rights rather than just staying silent in response to the officer’s questions.  In light of Salinas, its better to be explicit about your intentions to exercise your constitutional rights.