Overview: The U.S. Supreme Court recently rejected the Fifth Amendment claims of a man whose silence during police questioning was used as evidence of guilt. During a non-custodial interrogation, the murder suspect answered some police questions without receiving Miranda warnings, but chose to “stand mute” when asked whether ballistics testing would match his shotgun to casings found at the crime scene. The defendant’s silence was later used at his trial to show guilt. The court upheld the conviction, finding no violation where the suspect had forfeited his rights by failing expressly to invoke the privilege. The court explained that the constitutional guarantee required more than mere silence before a defendant could rely on the privilege against self-incrimination. Because the suspect declined to answer the ballistics question without expressly claiming his Fifth Amendment rights, he could not rely upon its protection at trial.

Training Points: This decision further cements the Supreme Court’s opinion that suspects must affirmatively and expressly invoke the right to remain silent. There are four key facts to remember: (1) the suspect began answering questions during a voluntary, non-custodial interview; (2) the suspect refused to answer certain questions that could incriminate him later at trial; (3) the suspect failed expressly to invoke the right to remain silent; (4) the interviewing officer carefully documented the suspect’s responses and silence for use by prosecutors at trial. Given a similar set of circumstances following a waived Miranda warning, a suspect’s refusal to answer a question could be documented in the report and likely used at trial. As always, whenever a suspect indicates expressly that he no longer wants to speak to officers, then the interview must conclude.

Summary Analysis: In Salinas v. Texas, police suspected Genovevo Salinas of killing two brothers after a party in their Houston home. Officers recovered six shell casings at the scene of the crime. During the investigation, Salinas voluntarily relinquished his shotgun for ballistics testing and agreed to go to the police station for questioning. He answered most of the officers’ questions, but fell silent when asked whether his shotgun would match the shells at the scene. Salinas was convicted of murder. He argued that the prosecution’s use of his silence in its case in chief violated the Fifth Amendment. The court disagreed, finding that Salinas had failed to expressly invoke the privilege during questioning. Although Salinas was “unschooled in legal doctrine” and “most likely” relied on the right to remain silent when he did not answer, the Fifth Amendment did not protect every explanation for silence or require a “knowing” forfeiture.