Pre-Miranda Right to Remain Silent – REVOKED

iStock_000006052358XSmall.jpgThe right to remain silent is a hot topic of Constitutional rights. In a brief nutshell, this is how the right to remain silent works. A defendant’s silence cannot be used in Court to show his or her guilt. When a defendant can invoke this right, however, is a little bit of a tricky concept. First and foremost, the defendant has to be under arrest to invoke his right to remain silent. If a police officer arrests a suspect, the officer must read the suspect his Miranda rights, which includes the right to remain silent. There are other areas where silence receives different Constitutional treatment, such as the right to remain silent and not testify during trial. A criminal defendant’s silence is usually protected by the Constitution and not allowed to be used by the prosecution to prove guilt.

However, a recent Supreme Court decision has created new limits and rules on the right to silence. This decision is based on a recent Texas criminal case involving Genovevo Salinas. The defendant in this case was at a party that got out of hand. Shots were fired at the party and two men were killed as a result. The police found Salinas at the party and brought him in for questioning. Salinas had a shotgun that he turned over to the police and he began answering their questions. He was being cooperative until the police asked him why the shotgun shells that were found at the crime scene matched Salinas’s shotgun. Salinas did not answer this question and instead remained silent. At this point, Salinas was not under a formal arrest and was not given his Miranda warnings as a result.

Salinas was eventually charged with murder. During his trial, the prosecution aggressively used his silence about the shotgun during closing arguments. Salinas was convicted and appealed his case. His case eventually made it to the Supreme Court. When it reached the Supreme Court Justices, the main issue was whether the defendant’s silence could be used during the closing argument. The Court held, in a 5-4 decision, that the silence was usable because it was pre-Miranda silence. The Texas Court of Criminal Appeals explained that “pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment right against self-incrimination, and that prosecutors may comment on such silence regardless of whether a defendant testifies.” Justice Samuel Alito further explained “Salinas’ Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question. It has long been settled that the privilege ‘generally is not self-executing’ and that a witness who desires its protection must claim it.” So if you remain silent before you get arrested, that silence can be used to show your guilt unless you CLAIM your right to remain silent.

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Gilbert Garcia has been Passionately Pursuing Justice for over 30 years and founded The Gilbert G. Garcia Law Firm in 2008. The Gilbert G. Garcia Law Firm is a boutique law firm, specializing in Criminal Defense. Gilbert represents adults and juveniles accused of a crime and who have with a felony, misdemeanor or record cleaning case. Conveniently located on the courthouse square to serve Montgomery and Walker Counties. Gilbert became Board Certified in Criminal Law by the Texas Board of Legal Specialization in 1989. The Gilbert G. Garcia Law Firm is located at 220 N. Thompson St., Suite 202, Conroe, TX 77301.  www.ggglawfirm.com