In Salinas v. Texas, the United States Supreme Court considered whether a prosecutor could comment on a suspect’s reaction when questioned by law enforcement in a circumstance where the suspect was not in custody and had not been Mirandized.  At the outset it is important to note that this was not a custodial interrogation case where silence in response to questions would not be subject to comment by a prosecutor.

The Court outlined the background of the case as follows:

On the morning of December 18, 1992, two brothers were shot and killed in their Houston home. There were no witnesses to the murders, but a neighbor who heard gunshots saw someone run out of the house and speed away in a dark-colored car. Police recovered six shotgun shell casings at the scene. The investigation led police to [Salinas], who had been a guest at a party the victims hosted the night before they were killed. Police visited [Salinas] at his home, where they saw a dark blue car in the driveway. He agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning.

[Salinas]’s interview with the police lasted approximately one hour. All agree that the interview was noncustodial, and the parties litigated this case on the assumption that he was not read Mirandawarnings. For most of the interview, [Salinas] answered the officer’s questions. But when asked whether his shotgun “would match the shells recovered at the scene of the murder,” [Salinas] declined to answer. Instead, [Salinas] “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.”  After a few moments of silence, the officer asked additional questions, which [Salinas] answered.

Following the interview, police arrested [Salinas] on outstanding traffic warrants. Prosecutors soon concluded that there was insufficient evidence to charge him with the murders, and he was released. A few days later, police obtained a statement from a man who said he had heard [Salinas] confess to the killings. On the strength of that additional evidence, prosecutors decided to charge [Salinas], but by this time he had absconded. In 2007, police discovered [Salinas] living in the Houston area under an assumed name. [cites omitted].

At trial, the prosecutor commented on Salinas’ reaction when asked the question relating to whether his shotgun would be a ballistics match to the shells found at the scene of the murder.   Salinas was convicted of the murder after a jury trial.

The Court noted that it “granted certiorari, 568 U. S. ___, 133 S. Ct. 928, 184 L. Ed. 2d 719 (2013), to resolve a division of authority in the lower courts over whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief.”  In other words, can a prosecutor use, in the prosecution’s case the suspect’s reaction when an investigator attempts to question a suspect who is not in custody and therefore not entitled to warnings yet the suspect invokes the right to counsel or the right to remain silent.  The Court did not address this question as it was clear that Salinas had never invoked a privilege.

In analyzing the case, the Court began by noting that the 5th Amendment privilege is an exception to the general proposition that the Government is entitled to everyone’s testimony.  Additionally, in order to have a valid privilege one must claim the privilege. “That requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, see Hoffman v. United States, 341 U. S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 1118 (1951), or cure any potential self-incrimination through a grant of immunity.”

The Court also noted in its analysis that there are two circumstances under which a suspect need not expressly invoke their right against self-incrimination.  The first is at trial where a defendant is not required to take the stand and invoke their 5th Amendment privilege since a defendant has an absolute right not to testify.  The second is when government coercion occurs in which case a suspect does not have to expressly waive the privilege against self-incrimination until properly warned of how the statements may be used against them.  For example, since the Court has held that custodial interrogations are inherently coercive, a suspect’s responses to questions by law enforcement cannot be used in the prosecution’s case unless the suspect has been properly warned in accord with Miranda.  The Court noted: “The principle that unites all of those cases is that a witness need not expressly invoke the privilege where some form of official compulsion denies him “a ‘free choice to admit, to deny, or to refuse to answer.'”

It is important to recognize that Salinas was not in custody at the time he reacted to the law enforcement question regarding his shotgun and the shell casings found at the scene of the murder.  There is no dispute in the case that Salinas had voluntarily gone to the police station and was free to leave at any time.  Thus, Salinas was not subjected to any recognized government compulsion.

Since Salinas was not subjected to any government [law enforcement] compulsion the only way he could benefit from the 5th Amendment privilege would be if he [Salinas] had expressly raised the privilege.  His silence does not give rise to the privilege since there was no recognized government compulsion.

The Court pointed out that its conclusion that a suspect must expressly assert the privilege when there is no government coercion would not be changed by the fact that law enforcement expects to get an incriminating response to the inquiry.

As a result of the Court’s reasoning and the undisputed fact that Salinas did not assert a 5th Amendment privilege when questioned by law enforcement, the prosecutor did not violate any Constitutional provision by introducing at trial, Salinas’ silence and visible reaction when asked the question concerning his shotgun and the shell casings found at the scene of the shooting.

Bottom Line:  If a subject is not in custody and is questioned by law enforcement there is no 5th Amendment protection from their actions and answers unless they have affirmatively raised their 5th Amendment privilege.  Note, that since the subject is not in custody they are not entitled to Miranda warnings, thus the raising of the privilege is totally their responsibility.  

Officers and Investigators who find themselves in this situation should document all responses; lack of responses; and body language which occurs during such questioning as the prosecution may use silence and reaction which tends to show evidence of guilt in the prosecution’s case.


Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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