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  • A Person’s Pre-Arrest Silence Argued as Evidence of Guilt . . . Really?
A Person’s Pre-Arrest Silence Argued as Evidence of Guilt . . . Really? April 27, 2013

The Fifth Amendment to the United States Constitution prohibits self-incrimination. As a matter of asserting criminal defenses, we’ve all heard (and can probably recite) our constitutional right to remain silent. Further, the high court’s 1966 decision in Miranda v. Arizona enshrined the rights of persons in police custody, subject to custodial interrogation, to remain silent. Everybody knows we have the right to remain silent and not incriminate ourselves . . . or do we? And remember, a good Bryan-College Station Criminal Defense Attorney can help you with questions about asserting criminal defenses and your constitutional rights.


Criminal Defenses - Person's Silence Argued as Evidence of GuiltThe Supreme Court has taken the case of Salinas v. Texas. Salinas is a Texas criminal case in which the defendant was convicted of the shotgun murder of two brothers in Houston, Texas. During the trial prosecutors admitted Salinas’ non-custodial statement to police which included one key moment of silence when police asked Salinas if the shotgun in his possession was the weapon used to kill the brothers. Salinas had not testified and the trial court permitted the state to admit the “silence,” and also permitted the prosecutors to argue Salinas’ silence was evidence of his guilt. Not surprisingly, the Texas Court of Criminal Appeals upheld the conviction and found no Fifth Amendment violation because “in pre-arrest, pre-Miranda circumstances, a suspect’s interaction with police officers is not compelled.”


Salinas is being represented at the Supreme Court by Stanford University law professor Jeffrey L. Fisher. The argument before the SCOTUS is essentially this: “A prosecutor’s use of a defendant’s silence during questioning compels the defendant to be a witness against himself because it leaves him no way to avoid incriminating himself.” “If he speaks, his words can be used against him . . .  And if he refuses to speak, the prosecution can argue that his silence is evidence of guilt.” Suspects are, consequently, put into a unconstitutional “damned-if-you-do, damned-if-you don’t situation.


It will be interesting to see how the court will handle this situation. The ruling will significantly effect the states and how they apply the right to silence privilege at trial, and will be significant for police officers in determining how far they can go in interrogating a suspect.


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.


Related Posts:

Remaining Silent Does Not Invoke Your Rights

How to Make Sure Your Client Remains Silent

Brazos County DWI Related Resources




2 thoughts on “A Person’s Pre-Arrest Silence Argued as Evidence of Guilt . . . Really?

    • Willie: It would have been different. The “invocation” of the right to silence is generally inadmissible evidence. So, if Mr. Salinas had said “I take the 5th” he would have accomplished two things. First, he would have remained silent. Second, he would have expressly invoked his right. The trial lawyer could have argued inadmissibility under two theories, instead of just one. Thanks for commenting!

Stephen Gustitis