You May Not Have The “Right to Remain Silent”


By: Sun Choy
Everyone who watches police dramas knows about the “right to remain silent.”  Under the famous right, the police cannot use a defendant’s statement in a prosecution unless it can be shown that the defendant was first informed of his rights, including the right to remain silent, and that a waiver was obtained.  The Supreme Court has recognized these so-called Miranda rights since 1966.   This week, the Supreme Court limited the “right to remain silent” in Salinas v. Texas.
In Salinas, Genovevo Salinas agreed to speak to police as part of a murder investigation.  Salinas answered a lot of questions, but fell silent when asked whether the shells from his shotgun would match the shells recovered at the murder scene.  At the criminal trial, the prosecutor argued that Salinas was guilty based, in part, on his silence.  The police were not required to inform Salinas of his Miranda rights, because he was not in custody at the time of the questioning.  In other words, Miranda rights would have applied only if Salinas had been arrested.  Accordingly, the Supreme Court had to decide whether the government was allowed to use the defendant’s pre-arrest silence against him at trial.
In a 5-4 decision, with the majority dividing 3-2, the controlling plurality (Chief Justice Roberts, Justice Alito, and Justice Kennedy) concluded that Salinas’s constitutional rights were not violated because he had agreed to the questioning.  Under these circumstances, Salinas did not have a right to remain silent, unless he affirmatively asserted that right in response to the question about the shotgun shells.  The two remaining members of the majority (Justices Thomas and Scalia) would have gone further and overruled a prior decision that first prohibited adverse inferences from a defendant’s silence.
Like many of the Supreme Court’s decisions, the practical implications of Salinas remain to be seen.  For now, Salinas provides police and prosecutors with the ability to use pre-arrest silence against the defendant in a subsequent prosecution.