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6/18/2013, "The Right To Remain Silent"

On June 17, 2013, the right of a person to remain silent took a slight blow. The United States Supreme Court ruled, in Salinas v. Texas, that persons who are not under arrest must specifically invoke their Fifth Amendment privilege against self-incrimination in order to avoid having their refusal to answer police questions used against them in a subsequent criminal trial. As the law stands, once a person is subjected to police custodial interrogation, that person must be read his Miranda rights, which everyone probably knows by heart just by watching television. If that person is not in custody, the rights, which include the right to remain silent so as to not incriminate yourself, do not have to be read to that person. If a person is in custody, that person must be read his or her rights and can choose to remain silent. If that person chooses to remain silent, that silence cannot later be used against him. This means that if this person chooses to go to trial, the prosecution cannot tell the jury that the defendant chose to invoke his Fifth Amendment privilege against self-incrimination and refused to answer questions. In Salinas, however, the Court took a slight turn. Mr. Salinas was questioned about a murder. He was not in custody and was free to leave at any time. Mr. Salinas chose to answer some questions, but refused to answer others. He never specifically said that he was invoking his Fifth Amendment privilege, but he merely refused to answer some questions. Once we fast forward to Mr. Salinas' criminal trial, you would see that the prosecution was allowed to tell the jury that Mr. Salinas remained silent in the face of some of the questions. His lawyer objected, and that objection was overruled. His appellate lawyer argued at the Fifth Circuit that his silence should not be used against him, and he lost on this argument. The Supreme Court granted certiorari, and ruled against Mr. Salinas again. The Court stated that, because he did not specifically invoke his right, his silence could be used against him at his trial.

Not only do I, wholeheartedly, disagree with the Supreme Court, it makes me think of something that I have learned through my years of practice as a criminal defense attorney. If I could give blanket advice to anyone suspected of or arrested for a crime, it would be this: do not say anything to the police before speaking with an attorney. The police will lie to you and make you think they already know certain evidence that they do not. The police will try to trip you up and get you to admit to things, whether they are true or not. The police cannot be trusted in interrogations. After this case, it should be clear: whenever you are questioned by the police as a suspect or as a criminal defendant, say the words "I invoke my Fifth Amendment privilege to remain silent" and ask to speak to an attorney immediately, if you are in custody, or seek an attorney immediately if you are not in custody. An attorney will be able to assess the situation and determine if it is in your best interest to speak with the police and cooperate, or if it is in your best interest to continue remaining silent. Most suspects or defendants, however, are too emotionally wrapped up in the situation to make that assessment rationally, without emotion clouding their judgment.

In giving this advice, I am reminded of a client I met about five years ago. I was handling his appeal, once he was already convicted after a trial. His friend, I will call him Andy, was suspected of several burglaries. The police investigated and eventually had enough probable cause to obtain a search warrant for Andy's home. In the home, they found many items that were stolen from many of the different homes that were burglarized. When Andy was arrested and questioned, he stated that my client, I will call him Darren, performed some of these burglaries with him. The police then arrested Darren. Darren was a severe drug user and was high when he was arrested. While in the holding cell, Darren attempted to hang himself with his t-shirt. Darren suffered no physical harm, but an ambulance was called, nonetheless, and Darren spent the night in the hospital. When he returned to the police station the next day, he was questioned by the detectives. The police knew Darren from previous encounters and knew that he was a drug addict. The police specifically pointed out to Darren that he did not cooperate with them the last time he was arrested and he did not receive help for his drug addiction. Darren decided to cooperate because he wanted, more than anything, to be placed into rehab to help his addiction. Darren admitted that he performed some of the burglaries with Andy, and he admitted that his girlfriend had one of the items stolen from one of the homes, which he returned to the police. The police charged him with six counts of burglary in the third degree, and Darren chose to go to trial. The jury convicted him on five of the six counts, and Darren was sentenced to four years, consecutive, on each of the five counts, for a total effective sentence of twenty years in prison. Now, had Darren not spoken to the police, but instead invoked his Fifth Amendment privilege, I would argue the state did not have enough evidence to convict him. Without Darren's statement, the only evidence the police had against him was the statement of a co-defendant, someone already arrested for these crimes. The only evidence the police had was the statement of the person who had all of the stolen items in his possession. It would have been very easy for Darren's trial lawyer to make it seem as if Andy was making that up to try to take the heat off of him and put it on someone else. But, that is not what happened because Darren talked. And Darren only talked because he thought he was going to get help for his addiction. Instead, he was sentenced to twenty years in prison, and no drug counseling was ordered as part of his sentence.

Every person suspected of or arrested for a crime should take a lesson from Darren and, more currently, from Mr. Salinas. Invoke your Fifth Amendment privilege specifically and do not say anything to the police until you have contacted and spoken to an attorney.

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