On June 17, 2013 the U.S. Supreme Court decided Salinas v. Texas, which has major implications regarding criminal procedure and police practices involving a persons right to remain silent.
Issue before the U.S. Supreme Court
The question before the court was: “Whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a non-custodial police interview? On other words can they comment on exercising your right to remain silent?
However, the Court failed to answer that question because the defendant did not assert his 5th Am. right.
Genovevo Salinas was questioned by police investigating a murder. He was not in custody and did not receive any Miranda warnings. Salinas agreed to go to the police station with officers where he was questioned and voluntarily answered questions except for one where he was asked if the shotgun shells found at the crime would match the gun in Salinas’ home. During trial, the prosecutor used that fact to argue to the jury that it suggested Salinas was guilty. This was not the only evidence against Salinas as the shotgun did match the shells at the crime scene and a witness claimed Salinas admitted to the murder.
The Court held that the 5th Am. Does not establish a complete right to remain silent but only guarantees that the criminal defendant may not be forced to testify against themselves.
So, if you are voluntarily talking to police, not in custody, and choose to exercise you right to remain silent to their question(s) it can and will be used against you. The days of just say nothing are over.
What if you do assert your 5th Am. right? Justice Thomas wrote in a concurring opinion that in his view, even if you do invoke your 5th Am. right during pre-custody questioning, the prosecutor can still comment on your assertion as evidence of guilt, because that is not self-incriminating testimony.
In other words, you are damned if you do, and damned if you don’t.