H. Michael Steinberg has 38+ years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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United States Supreme Court Allows Introduction Of Pre-Arrest – Pre- Custodial Silence – Miranda Does Not Apply

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In 2013 the United States Supreme Court – in Salinas v. Texas – took a step back from the protections accorded by the Fifth Amendment’s Right To Remain Silent.



The Facts of Salinas:

Salinas – before being placed into custody – answered questions posed by a police officer in a homicide investigation. At the time he answered the questions he was not under arrest. Among the questions was a comment by the officer about the potential ballistics match as regards casings found at the scene.

answered the officer’s questions to that point but “balked” silently at the ballistics comment. While he did answer almost all of the officers’ questions, he refused to answer or even respond to the police officers question – regarding whether the shotgun casings found at the scene would match his gun. Instead – his reaction – one of nervousness – was used to persuade the jury he was guilty.

He was convicted and is serving a 22 year sentence.

The Argument On Appeal

Salinas appealed and argued that his silent reaction was not speech but rather protected silence under the 5th Amendment. Which guarantees that ‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself.'”

The Supreme Court Says NO Protection For “Pre-Custodial ” Silence

The Court held that the use of Mr. Salinas’s silence at the scene as an inference of his guilt at trial did not violate his 5th Amendment rights.

The new rule overturns a case that was almost 50 years old – Griffin v. California. That case was overturned. The old rule was that neither the prosecution nor the trial court may comment upon the silence of an accused a as an inference of guilt.

Today – after Salinas – remaining silent when the police ask damaging questions – is not the same as claiming a right to remain silent. Prosecutors may use a suspects silence against the suspect at the trial. The rule now requires an affirmative claim to the Fifth Amendment’s right to remain silent. Simply remaining silent – during an otherwise voluntary exchange with the police is now – not enough.

“A witness’s constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,”

In that one statement the Supreme Court rejected Salinas’ argument that, because suspects do not know the law, their silence should be understood as a Fifth Amendment plea.

Colorado Criminal Defense Lawyer – H. Michael Steinberg’s Take On The Case:

The dissent in the case makes the most sense to me. Justices Breyer, Bader Ginsburg, Elena Kagan, and Sonia Sotomayor joined together to argue that the rule should be that courts should examine all of the specific circumstances of an individual’s encounter with police to decide whether, in fact, that person’s silence was an attempt to claim the Fifth Amendment right.

Miranda Rights Not Implicated

The famous Miranda case involved a man held against his will at the police station. This case involved a man who had voluntarily gone to a police station where he was questioned by the police. The distinction is important. In Salinas – the Court held that since Salinas while in the police station was not under arrest or otherwise in custody, Miranda was not implicated.

Not a good day for the preservation of our constitutional rights….