Be Careful – What You Say or Your Silence Can Be Used Against You

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When a suspect is in police custody and being questioned by an officer, Texas law requires police officers to meet multiple conditions and give the suspect various warnings before statements made by the suspect can be used against him at trial. By being aware of these requirements, Texas residents can gain insight into the protections Texas law provides to those accused of a crime.

Take for example the case of Steven Woods. The defense was able to establish that the interrogating officers did not fulfill the requirements needed to admit Woods’ oral statements, and therefore, the highest criminal court in Texas ruled that the trial court made a mistake by admitting Woods’ statement against him. Texas law requires that among the warnings officers must provide when questioning an individual who is in custody, officers must inform the individual that he has the right to terminate the questioning at any time. In Wood’s case, officers failed to meet this requirement, thus his statement should not have been admitted against him at trial.
The other warnings officers must provide include telling the suspect/defendant that:
1. s/he has the right to remain silent;
2. s/he does not have to make any statement at all;
3. any statement made may be used as evidence against him in court at trial and;
4. s/he has the right to have a lawyer present to advise before and during any interrogation. (If the suspect cannot hire a lawyer, he has the right to have a lawyer appointed.)

Further, after informing the suspect of these rights, the officers must obtain a waiver that demonstrates the suspect knowingly, intelligently, and voluntarily waived the rights explained in the warnings.

If the statements the police are obtaining are oral, in addition to giving the suspect the warnings and obtaining a waiver, law enforcement must meet four more conditions to admit the statements against the defendant. Police Officers need to electronically record the statement. Electronic recordings include motion pictures, video tapes, or other visual recordings. Officers must also ensure that the recording device was capable of making an accurate recording, that the operator was proficient, and that the recording is unaltered. Officers need to identify all voices on the recording. Law enforcement shall provide a complete and accurate copy of these recordings to the defense attorney.

Texas law provides an exception to these requirements. If the circumstance meets the conditions of this exception, a defendant’s statement can be used against him/her even though the aforementioned requirements were not met. If, while the defendant is in police custody and being questioned by an officer, the defendant makes an incriminating statement that was unknown by law enforcement and if any part of that statement is subsequently corroborated, then the defendant’s statement can be admitted. Such admission of the statement can occur regardless of whether the officer met the warning and waiver requirements. In Woods’ case, the prosecution tried arguing that the exception applied since Woods informed the officers of the possible location of the body that the officers were searching for. However, the Court of Criminal Appeals responded that because the police generally knew of the location before Woods made his statement, the exception could not apply in Woods’ case.

Officers are required to inform anyone in custody or anyone that is being interrogated, that s/he has the right to consult with an attorney before and during the questioning. Exercising this right given by the US constitution and Texas law helps safeguard all other rights of an individual facing a criminal charge.

However You May NOT Be Informed of Your Rights and silence is no longer enough.
A suspect’s silence during informal questioning can and will be used as evidence of guilt, unless the person being questioned by police proactively invokes their Right to Remain Silent.

The U.S. Supreme Court issued a decision in 2013, upholding the trial court’s decision to allow into testimony at trial the suspect’s voluntary statements and then his refusal to answer questions thereafter.

In this case, Genovevo Salinas was charged and convicted in the shooting death of two brothers in Texas in 1992.During the initial stages of the police investigation, detectives conducted an informal interview with Mr. Salinas. He was not under arrest and police had not advised him of his right to remain silent or consult a lawyer. Salinas readily answered all of the detectives’ questions – except one. After nearly an hour of questions and answers, one of the detectives asked him if the shotgun police had recovered from the Salinas house earlier that day would match the shells recovered at the scene of the murder.

Salinas fell silent and did not respond. One of the officers later testified that Salinas “looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, began to tighten up.” The detective asked some additional questions that Salinas answered. The only question Salinas declined to answer related to whether the shells found at the murder scene would match Salinas’ shotgun. At his trial, the prosecutor presented testimony from the investigator about how Salinas had answered many questions by the police – but refused to answer one. The prosecutor told the jury in his closing that Salinas’ silence was evidence of the defendant’s guilt. Salinas was convicted of the double killing and sentenced to 20 years in prison.

On appeal, his lawyer challenged the use of Salinas’ silence as evidence against him. The lawyer argued that it violated the Fifth Amendment privilege against self-incrimination. However, the Supreme Court’s ruling on this case illustrates how important it is for citizens to know what their rights are and understand when those rights are being violated, as the government will no longer be held responsible for informing you of your rights before violating them.

Therefore, a suspect must verbally invoke his or her Fifth Amendment right to remain silent to prevent police and prosecutors from using any resulting silence and incriminating body language as evidence of guilt during a jury trial. The Fifth Amendment guarantees that no one may be compelled in any criminal case to be a witness against himself; it does not establish an unqualified 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