Most people know they have a right to remain silent when questioned by police.
But there is a dangerous distinction many people do not understand:
Simply refusing to answer a police officer’s question does not always invoke the Fifth Amendment.
In Salinas v. Texas, 570 U.S. 178 (2013), the Supreme Court permitted prosecutors to use a suspect’s silence against him because he had voluntarily answered police questions and then remained silent when confronted with an incriminating question, without expressly invoking his Fifth Amendment privilege.
The decision provides an important lesson for anyone approached by federal agents or police:
Do not assume that simply becoming silent provides the same legal protection as clearly invoking your constitutional rights.
What Happened in Salinas v. Texas?
Police were investigating a murder and asked Genovevo Salinas to come to the police station for questioning.
Salinas voluntarily agreed.
He was not under arrest, had not received Miranda warnings, and was free to leave.
For approximately an hour, Salinas answered the officers’ questions.
Then the questioning changed.
An officer asked whether shotgun shells recovered from the murder scene would match Salinas’ shotgun.
Salinas did not answer.
According to the evidence presented at trial, his demeanor also changed.
Prosecutors later used his reaction and silence as evidence suggesting consciousness of guilt.
Salinas Never Invoked the Fifth Amendment
Salinas argued that allowing prosecutors to use his silence violated the Fifth Amendment privilege against self-incrimination.
The Supreme Court rejected his argument.
The critical problem was that Salinas never invoked the Fifth Amendment.
The privilege against self-incrimination generally is not self-executing. A person ordinarily must invoke it to receive its protection.
Salinas could not simply remain silent and later assume that his silence was constitutionally protected.
Because the interview was voluntary and noncustodial, and Salinas had not invoked the privilege, the Supreme Court concluded that the prosecution’s use of his silence did not violate the Fifth Amendment.
Remaining Silent Is Not Always the Same as Invoking Your Rights
This distinction can surprise people.
A person who voluntarily speaks with investigators may believe:
“If they ask me something I don’t want to answer, I’ll just stay quiet.”
Salinas demonstrates the danger of that approach.
During a voluntary, noncustodial interview, simply refusing to answer a particular question may not be sufficient to invoke the Fifth Amendment.
The safer course is not to participate in an investigative interview without first obtaining legal advice.
You Do Not Have to Help Police Build a Case Against You
People often agree to speak with law enforcement because they believe that cooperation will demonstrate their innocence.
That can be a serious mistake.
Federal agents are trained investigators. They may already possess documents, recordings, witness statements, electronic communications, financial records, or other evidence that the person being interviewed has never seen.
The interview may be designed to:
- Obtain admissions
- Establish knowledge or intent
- Lock the person into a particular version of events
- Identify inconsistencies
- Develop evidence against other suspects
- Obtain statements that can later be characterized as false
The fact that investigators say they merely want to “ask a few questions” does not mean the conversation is harmless.
Miranda Does Not Apply to Every Police Interview
Another common misconception is that police must always read a person their Miranda rights before asking questions.
They do not.
Miranda generally applies to custodial interrogation.
If a person voluntarily agrees to speak with investigators and is not in custody, officers ordinarily do not have to provide Miranda warnings merely because their questions could produce incriminating answers.
That was an important part of Salinas.
Salinas voluntarily went to the police station and was free to leave. The absence of Miranda warnings did not prevent the government from questioning him.
Post-Miranda Silence Is Different
Salinas does not mean that prosecutors are always free to use a defendant’s silence as evidence of guilt.
The constitutional rules depend heavily on when the silence occurred and the circumstances surrounding it.
For example, the Supreme Court held in Doyle v. Ohio, 426 U.S. 610 (1976), that after the government gives a defendant Miranda warnings, due process generally prohibits prosecutors from using the defendant’s resulting silence to impeach his trial testimony.
That situation is fundamentally different from the voluntary, pre-arrest questioning involved in Salinas.
This is why broad statements such as “silence can be used against you” or “silence can never be used against you” are both dangerous oversimplifications.
What Should You Do If Federal Agents Want to Question You?
If federal agents or police want to interview you about potential criminal conduct, you do not have to determine constitutional law while standing at your front door or sitting in an interview room.
You can tell investigators that you want to speak with an attorney before answering questions.
Then stop answering substantive questions.
A lawyer can determine why investigators want the interview, whether you are a witness, subject, or target, whether an interview is advisable, and whether communications with the government should occur through counsel.
Never Assume You Can Talk Your Way Out of a Federal Investigation
One of the most dangerous decisions in a federal investigation can occur before anyone is arrested or indicted.
A person who voluntarily speaks with federal agents may provide evidence that becomes central to the government’s prosecution.
Even worse, an inaccurate statement can create additional problems, including potential exposure under 18 U.S.C. § 1001, which criminalizes certain materially false statements made in matters within federal jurisdiction.
The decision whether to speak with investigators should therefore be made carefully and with the assistance of counsel.
Federal Criminal Defense Attorney Michael J. Petro
Salinas v. Texas demonstrates why knowing that you have a right to remain silent is not enough.
You also need to know when and how to exercise that right.
When federal agents or police want to question you about possible criminal activity, the safest time to obtain legal advice is before the interview begins.
If federal agents want to question you about a criminal investigation, do not try to talk your way out of the case. Call federal criminal defense attorney Michael J. Petro before answering their questions.