I’ve received some law book publisher flyers lately selling their wares about how criminal defense attorneys can teach their clients to respond to police questioning and use their right to silence. One publication purported to address the right to silence issue presented in Salinas v. Texas, 133 S.Ct. 2174 (2013). If you recall, Mr. Salinas was a suspect in a Houston murder. Without being placed in custody or receiving his Miranda warnings, Salinas voluntarily answered some police questions but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the killing. At his Texas murder trial, and over his attorney’s objection, the State used his failure to answer the question as evidence of guilt. He was convicted and the Texas Court of Criminal Appeals affirmed, rejecting his claim the prosecutor’s use of his silence in their case-in-chief violated the 5th Amendment. The basic principle of the SCOTUS opinion was a person must “expressly invoke” their right to silence. The Court held “a defendant normally does not invoke the privilege by remaining silent.” The court believed that “remaining silent” was “insolubly ambiguous.” In other words, there might be many reasons one may remain silent. Obviously, one reason is because they are relying upon their constitutional right. However, the Court speculated a person might remain silent because they’re thinking of a good lie to tell, because they’re embarrassed to answer, or because they were protecting someone else.
Our policy is to advise clients, and prospective clients, to answer any question (by anyone . . . not necessarily the police) with a simple 4-word rejoinder: “Talk to my Lawyer.” Regardless of the question, regardless of the situation, we role play with each client and teach them to answer every question with this simple missive. I’ll even write it on the back of a business card for them, if necessary. And the role play is vital! Most times the client doesn’t really understand that every question means every question. Of course, we explain the caveat that one must accurately identify one’s self to the police when asked for their name, birthdate, and address. But after about two minutes of practice they usually get the hang of it and the only words uttering from their lips are talk to my lawyer.
Since the invocation of our constitutional rights cannot be used as evidence of guilt, at least in Bryan-College Station, “talk to my lawyer” kills two birds with one proverbial stone. It obviously invokes the client’s right to counsel, but it has the added effect of keeping their mouth shut and stops them from engaging in conversation with the police. It’s always that seemingly innocent conversation that leads to the inculpatory confession.
So, that’s what the police get in Bryan-College Station when they ask a suspect what color the sky is this morning. “Talk to My Lawyer” Alas, what a beautiful color that is.
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.