Understanding The Remain Silent Right
When Genevo Salinas, a suspect of the 1992 murder of brothers Juan and Hector Garza, remained unresponsive to a single question following an hour of police interrogation, he believed he was acting on his Fifth Amendment rights. However, Salinas was convicted on account of his silence when police asked if a shotgun taken from his home would match the shells found at the crime scene. Such an action, the jury presumed, suggested guilt.
In 2013, the United States Supreme Court ruled the contested case proper, forever altering the understanding of “the remain silent right.” The Salinas v. Texas outcome established the new necessity of explicitly declaring the right to refuse a response. Even more concerning, with the ambiguities of interpreting the Fifth Amendment and Miranda Rights, it seems that suspects need to know to initiate such a statement without prior warning from police or the guidance of a lawyer.
A Constitutional Protection Gone Awry
Understanding that forced confessions are typically unreliable, seemingly undemocratic, and a violation human decency, the writers of the US Constitution established the remain silent right. The purpose of the Fifth Amendment is to protect the right against self-incrimination, by allowing the witness to avoid giving up any testimonial evidence that could be compromising.
The Fifth Amendment requires that all defendants be tried only upon a formal accusation, or indictment, by a grand jury. While a federal jury can force anyone to take the witness stand, with the privilege of the Fifth Amendment, a given person can choose to refuse an answer to any given question. Only if formally granted immunity by the state, in say, a case of withholding information necessary to catch another perpetrator, can someone be obliged to answer questions despite pleading the Fifth.
As the implications of the Fifth Amendment became more complicated by constitutional rulings, the remain silent right became linked with the Sixth Amendment, the right to counsel. In 1964, the Escobedo v. Illinois ruling mandated that police must allow the accused to have an attorney present during interrogation. As soon as this interrogation breaches investigatory, and becomes accusatory, defendants gain their right to a present counsel, to help guide them through the questioning process.
The Absence of the Miranda Rights
In the Salinas v. Texas ruling, Supreme Court Justice Alito asserted that due to the nature of Salinas’ interrogation, by his ability to leave and the lack of formal custody, it was not necessary that Salinas be read his Miranda rights. The procedural listing of rights from the police officer would have made up for Salinas’ failure to state his intention of invoking the Fifth, however, Salinas was clearly unaware of his need to provide a statement. Similarly, because Salinas was not considered to be “in custody” at the time of the interrogation, Justice Thomas and Justice Scalia believed Salinas had no rights to invoke in the first place. Without the key combination of “custody” and “interrogation,” the Supreme Court suddenly found the Fifth Amendment, an intrinsic right, inapplicable.
From this transformative case, it’s become clear that law enforcement relies on two factors to determine a person’s right to hear their rights: custody and interrogation. “Interrogation” covers any questioning, as well as any words or actions that may evoke an incriminating answer. The definition of “in custody,” however, is not as straightforward. While some may consider “in custody” to mean a state where a person feels they do not have the ability to leave, law enforcement officers are more likely to take such a phrase literally, meaning a formal arrest. Thus, a subject may be interrogated prior to custody without hearing or fully understanding their Miranda rights, as in the case of Salinas.
Invoking Your Rights
Both outside the context of custody, and once under arrest, in either formal or informal interrogation, a person has no obligation to answer any questions of law enforcement officers, particularly not without the guidance of counsel. This establishment of the Fifth and Sixth Amendments remains true. However, with the recent changes in interpretations of rights, it has become critical to state your invocation of rights, in any case where you do not wish to respond to the questions of law enforcement.
It is also crucial to know that you may voluntarily invoke the rights, at any time during the course of an interrogation or series of questions. If at any moment of questioning, you feel that your answer may disclose incriminating information, be sure to state your intentions. Statements such as “I plead the Fifth,” or “I would like to invoke my right to remain silent,” made during or before questioning can prevent a jury from convicting you based on the suspicion of your silence.
If you are being investigated or charged with a crime, invoke your right to remain silent and hire an experienced criminal defense attorney to assist you. For further information, contact the Kenney Legal Defense Corporation.