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Gregory Graf
Full service law firm in the Denver Metro area focusing on divorce law and criminal defense
Full service law firm in the Denver Metro area focusing on divorce law and criminal defense


Fifth Amendment Right to Remain Silent: Under Attack

Why do defense attorneys, in almost every instance, advise their clients to remain silent?  Most attorneys go advise their clients not to have any contact with the police; even if it’s just to tell the police that they are remaining silent.  A case under consideration by the U.S. Supreme Court, Salinas v. Texas, confirms that contact with the police can be perilous, even when you exercise your right to remain silent.

Unless the person the police are trying to interview the victim or an obvious innocent bystander, the real investigation has probably ended.  Simply put, the purpose of a suspect interview is to obtain incriminating information.  Regardless of what the police say, they’re not conducting the interview to be fair or to do the suspect a favor.  It is a rare occurrence that suspects will talk themself out of an arrest.  Police encourage the thought process that an arrest decision has not been made.  Regardless of guilt or innocence, the best course of action is to ask for an attorney before any questioning occurs!

I am frequently asked or told, “they didn’t read me my rights, wont my case be dismissed.” No; in most instances the case will not be dismissed.  The statements made by the suspect may be suppressed if (1) the suspect was in custody; (2) Miranda rights were not given; and (3) the statements made were in response to police questioning. 
If you are not “in custody,” Miranda warnings are not required.  What is considered “in custody” is a common issue under dispute every day in the criminal court system.  The criminal court system is flush with hearings on “motions to suppress statements” made by defendants because they were not told their Miranda rights.   The law indulges a fantasy that citizens are free to walk away or say no to a police officer.   The law offers no common sense recognition that police contact is inherently coercive regardless of whether the officer is polite.   Many people think that requiring a Miranda rights advisement was a bad idea.  Remember, a trial judge, the Arizona Court of Appeals, Arizona Supreme Court and four out of nine U.S. Supreme Court Justices thought that a rights advisement was not necessary.

Police generally approach a suspect and simply start asking questions.  Nothing wrong with that; it’s their job.  We expect police to investigate crime.  That doesn’t mean the suspect feels free to leave or say no.  Regardless, this interaction is treated as a consensual interview.  There is no requirement for the police to inform the suspect of the right to remain silent and right to an attorney.
Even if the suspect is in custody (i.e. handcuffed in the back of the police cruiser), statements made that are not in response to police interrogations are admissible.  In other words, not only must you be in custody but, the statements must be in response to police questioning.   No Miranda rights advisement is required if the police are not asking questions.

The Constitution provides that police may not “force,” “compel” or “coerce” a suspect to speak.  For example, a confession based on a threat of physical torture is not “voluntary,” and should always be suppressed.  But, “voluntary,” does not mean free of any inducement from the police.  Contrary to common perception, the law allows police to lie and threaten criminal sanctions as an inducement to cooperate. 

Prosecutors and police are no longer limiting themselves to using statements made by suspects as evidence of guilt. It may seem clear that the right to remain silent cannot be used against you but you would be wrong!  Prosecutors and police are also seeking to use a defendant’s silence as evidence despite the provisions of the Fifth Amendment.
The U.S. Supreme Court granted certiorari (review) in Salinas v. Texas, a case involving fundamental questions regarding the right to remain silent and the use of that silence as an affirmative weapon at trial.

The Salinas Case

Houston police officers discovered two homicide victims on the morning of December 18, 1992.  Salinas lived with his parents who gave the police consent to search the home.  During the search, Salinas’s father handed over a shotgun to the police. 

Salinas voluntarily accompanied officers to the police station for questioning. For approximately one hour, Salinas answered every question asked by the police. Then, when asked whether shotgun shells found at the crime scene would match the shotgun found at his home, Salinas remained silent.  According to the interrogating police officer, Salinas demonstrated signs of deception in his silence.  

During the interrogation, police were not required to read Salinas the Miranda warnings informing him of the right to remain silent and the right to an attorney.  Salinas was not considered in custody because he “volunteered to go to the police station.

Police eventually matched the casings from the murder scene with the shotgun recovered from Salinas’s house.  The State charged Salinas with two counts of murder.  Salinas disappeared and remained a fugitive for fifteen years.  Salinas was eventually captured; his first trial resulted in a mistrial.

In Salinas’ second trial, the State introduced evidence of Salinas’ silence during the questioning about the shotgun shells during the 1992 interview.  Salinas’ trial counsel objected to the introduction of this evidence, arguing that Salinas could “invoke the Fifth Amendment privilege whether he was in custody or not.”  The trial court overruled the objection and allowed the evidence to be introduced. 
During closing argument, the prosecutor emphasized that Salinas remained silent.  The prosecutor argued to the jury:
“The police officer testified that he wouldn’t answer that question. . . . You know, if you asked somebody—there is a murder in New York City, is your gun going to match up the murder in New York City?  Is your DNA going to be on that body or that person’s fingernails? Is [sic] your fingerprints going to be on that body?  You are going to say no. An innocent person is going to say: What are you talking about? I didn’t do that. I wasn’t there. He didn’t respond that way. He didn’t say: No, it’s not going to match up.  It’s my shotgun. It’s been in our house. What are you talking about?  He wouldn’t answer that question.”
On appeal, Salinas argued the prosecution’s comment on the defendant’s silence was improper and violated his Fifth Amendment right to remain silent.  The Texas Court of Appeals affirmed the trial court ruling.  The case is now before the U.S. Supreme Court.
Use of a Defendant’s Silence
The U.S. Supreme Court has decided numerous cases concerning whether a defendant’s silence may be introduced as evidence; the cases are too numerous to list.  There has been a steady erosion of the concept that prosecutors must stay away from the topic of a defendant’s silence.

In Griffin v. California, 380 U.S. 609, (1965), the Supreme Court held that a prosecutor may not comment on a defendant’s decision not to testify at trial.  A defendant has the absolute right to remain silent at trial.  Prosecutors must refrain from asking the jury to draw negative inferences from his silence. The same precedent exists in Colorado.  People v. Gomez, 211 P.3d 53 (Colo. App. 2008).

The right to remain silent was eroded by the Supreme Court in Jenkins v. Anderson, and Fletcher v. Weir.  
In Jenkins, the Supreme Court held that a prosecutor could introduce evidence of a defendant’s failure to come forward and explain his self-defense claim prior to his arrest.  The Court allowed the prosecution to impeach Jenkins’ self-defense testimony by attacking his credibility with the failure to come forward and talk to the police prior to his arrest.  

In Weir, the Supreme Court held that a defendant’s post-arrest silence could also be introduced at trial to impeach the defendant’s trial testimony.  In Jenkins and Weir, the defendant’s silence was admissible because the silence was offered to impeach the defendant’s credibility rather than to prove guilt.  

The same concept applies to statements taken in violation of Miranda.  When a police officer places a suspect into custody and interrogates the suspect without giving Miranda warnings the statements made by the defendant “in response to interrogation” should be suppressed and are usually inadmissible. The concept regarding impeachment evidence however, can also be used to introduce statements suppressed because of a Miranda violation.  
In Harris v. New York, the defendant testified at trial and contradicted previously suppressed statements taken in violation of Miranda.  The court held that the defendant “opened the door” to admit the suppressed statements to impeach the defendant’s trial testimony.

A different outcome arises if the prosecution seeks to use a statement that was “compelled” or “coerced” rather than simply being a Miranda violation or what is sometimes called a technical violation of Miranda.  

In New Jersey v. Portash, the Supreme Court held that compelled or coerced statements that were made in or out of custody, should be completely suppressed regardless of whether they were offered for impeachment or to prove guilt.  In other words “compelled” or “coerced” statements never come into evidence.

When considering the admission of defendant’s silence in Salinas, the Supreme Court has a situation wherein neither the “compulsion” nor the “impeachment” arguments applied at trial.  Introducing the defendant’s silence at trial was not offered as impeachment and interview of the defendant was not compelled or conducted in violation of Miranda.  
In a light most favorable to Salinas and the Fifth Amendment, what the prosecution did was similar to asking the jury to draw adverse inferences from the defendant’s failure to take the witness stand.  Yet, the Texas courts relied on the fact that the silence of the defendant was not compelled and Salinas’ presence at the interview, by all existing precedence, could not be considered an in custody interrogation.

There was a period of time in Colorado that commenting on the silence of a defendant would not be remotely considered by a prosecutor; it would be instant grounds for a mistrial.  Only time will tell if Colorado prosecutors will seek to expand the limits of the Fifth Amendment in the same way as the prosecutors in Texas.
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