In Salinas v. Texas, __ S. Ct. __ (June 17, 2013), No. 12-246, the United States Supreme Court held that a person who desires protection of the Fifth Amendment privilege against self-incrimination must expressly claim it immediately, prior to any questioning, in order to be protected. Otherwise, silence can and will be used against him/her. The Supreme Court held that it is not sufficient to invoke the Fifth Amendment privilege against self incrimination by simply remaining silent when questioned by police. A person must explicitly and expressly state that he/she desires to invoke the privilege against self-incrimination. Salinas holds that unless the privilege is expressly invoked, prosecutors can use a defendant’s silence as evidence of guilt.
Salinas was questioned by police in connection with a double murder. He was not under arrest, had not been read his Miranda rights, and voluntarily answered some questions from the police. Salinas answered some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon. At trial, prosecutors used his silence on that question as evidence of his guilt. Salinas was convicted and sentence to 20 years imprisonment. On appeal, the defense argued that his Fifth Amendment right to remain silent should have precluded the prosecutor’s comment on his silence.
The Supreme Court, in a 5-4 decision in Salinas, held that there was no violation of Salinas’ privilege against self-incrimination because that privilege must be expressly invoked, which Salinas failed to do. Justice ALITO, who wrote the plurality opinion, said “it has long been settled that the privilege ‘generally is not self-executing’ and that a witness who desires its protection ‘must claim it’ at the time he relies on it.” Justice ALITO said that there are only two situations in which the right to remain silent exists without it being explicitly claimed: when a criminal defendant does not take the stand at trial and when governmental coercion makes forfeiture of the privilege involuntary. Neither was present in Salinas.
This decision by the Supreme Court strikes a major blow to a fundamental tenet of our constitutional rights – the Fifth Amendment privilege against self-incrimination. Allowing silence to be used against a defendant can work an enormous detriment or prejudice to him/her at trial. It is now essential that every defendant expressly and explicitly invoke the right to remain silent, by saying so prior to any police questioning. Simply remaining silent is NOT sufficient to invoke the privilege.
About New York City Attorney Hope Lefeber:
Hope C. Lefeber is a practicing federal criminal defense attorney and a member of Federal Bar Association. She is a graduate of the University of Pennsylvania, Rutgers University School of Law, and is a member of the Federal Bar Association, the National Association of Criminal Defense Lawyers and numerous other criminal defense groups. Ms. Lefeber has represented high-profile clients, published numerous articles, lectured on federal criminal law issues, taught Continuing Legal Education classes to other criminal lawyers and has appeared on TV News as a legal expert.. Ms. Lefeber specializes in white collar crimes, drug crimes and appeals and is the Managing Member of her New York City-based law firm, Hope C. Lefeber, LLC.