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Remaining Silent NOT Enough: Don’t Answer Any Questions, Invoke Right to Remain Silent and Request a Lawyer

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In a 2009 post we made this observation: “Even if an individual is innocent, no one should ever talk to the police once the police make it clear they are investigating a crime, or a potential crime, and they feel the individual has either some involvement or knowledge about the crime.”

The Supreme Court has agreed to hear a Texas murder case that underscores why a criminal suspect, regardless of the degree of suspicion, should never cooperate or speak with law enforcement officials about a crime the police think he may have some knowledge of or participation in. The case involves Genovevo Salinas who was convicted, and sentenced to twenty years, for the December 1992 killing of two brothers in Houston. The police collected six shotgun shells at the apartment where the killings took place. Investigators fairly quickly developed information that led them to believe Salinas was a good suspect in the shooting deaths of Juan and Hector Garza. They went to the home of his parents with whom Salinas lived. The parents were cooperative with the police. They gave the officers permission to search the home and Salinas’s father surrendered a shotgun to them.

And that is where the constitutional sticky-wicket began. Salinas accompanied the officers to the police station where he was interrogated for nearly an hour. He answered every question put to him by a homicide detective working the case until the detective asked him if the shotgun shells found at the crime scene would match the shotgun taken from his parents’ home at which time Salinas remained silent and said nothing. The detective and others officers connected to the case took his silence as a “demonstration of guilt.” At the time Salinas was not in custody and was free to leave the police station.

It is evident, however, that the police had adroitly maneuvered Salinas into a corner where either answer (yes or no) to the ballistics question would be evidence of guilt. Salinas’s first mistake was agreeing to accompany the officers to the police station without a warrant and his second was to answer any questions posed to him by the officers without an attorney present. Over the objection of defense counsel, the officer conducting the interrogation testified at Salinas’s trial that the ballistics question caused the suspect to exhibit signs of “deception”—clinching his hands in his lap, looking at the floor while shuffling his feet, and biting his bottom lip.

It had long been considered a rule that the Fifth Amendment right to silence included the provision that no adverse inferences or comments could be made either to a judge or jury about a defendant’s exercise of his right to silence before or during a trial or any other legal proceeding associated with a criminal prosecution. But in 1980, the U.S. Supreme Court, in Jenkins v. Anderson, qualified this prohibition by ruling that when a defendant chooses to testify, the prosecution can use his “pre-arrest silence” to impeach him. The Court reasoned that “impeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial.” In fact, in 1926, The Court said,  “[t]he immunity from giving testimony is one which the defendant may waive by offering himself as a witness. . . . When he takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined.” Raffel v. United States, 271 U. S. 494 (1926).

But what about the kind of pre-arrest, pre-Miranda silence exercised by Salinas? Could the exercise of pre-arrest, pre-Miranda silence be used against a criminal defendant who does not testify?

Since the Supreme Court did not answer these questions in Jenkins, it was left up to the federal courts of appeals to answer them on their own. Inevitably when interpreting a constitutional question without Supreme Court precedent, the appeals courts drive all over the legal landscape, too often reaching legal conclusions based more on the political composition of the court than upon guiding, persuasive case law jurisprudence in other constitutional areas. The First, Sixth, Seventh, and Tenth Circuits reached the conclusion that pre-arrest, pre-Miranda silence could not be used as “substantive evidence of guilt.” However, the Fifth, Ninth, and Eleventh Circuits reached the conclusion that such silence could be used as evidence of guilt against a defendant.

While not bound by federal circuit rulings, state courts of criminal appeals will generally look to the circuit in their jurisdiction as their legal beacon. That’s what the Fourteenth District Court of Appeals did in March 2011 when it heard Salinas’ direct appeal. The appeals court upheld the justifications by the prosecution for its use of Salinas’ pre-arrest, pre-Miranda silence as evidence of guilt against him—justifications underscored in the prosecution’s closing argument:

“The police officer testified he wouldn’t answer the question. He didn’t want to answer that. Probably the first time he realizes you can do that. What? You can compare those. You know, if you asked somebody—there is a murder in New York City, is your gun going to match up [with] the murder in New York City? Is your DNA going to be on that body or that person’s fingernails? Is (sic) your fingernails 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.’ [Salinas] 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.”

Think about this a minute, folks. The Fifth Amendment guarantees you the right against self-incrimination. A crime was committed. Your legally registered gun was used in the crime. Anyone of several family members had access to the gun. You did not use the gun in the crime. The police developed some evidence—not enough probable cause to arrest—that you either participated in, or had knowledge about, the crime they were investigating. They asked you if your gun would match the one involved in the crime. You did not want to answer that question until you spoke to an attorney. So you refused to answer the question; you exercised your constitutional right to silence until you had consulted with an attorney. While you were procuring the services of an attorney, the police located a witness—a paid confidential informant—who placed you at or near the crime scene where your gun was used. You were arrested.

At trial, you did not testify—either because you didn’t want things in your personal background to be used against you, you did not want to implicate another family member, and your attorney cautioned you that under Supreme Court precedent (Jenkins), your silence about the gun could be used to cross-examine you if you did testify. Your attorney effectively undermined the credibility of the paid informant, but the testimony of the officer who asked you the question about the gun was another matter. The prosecution had sought, and the court had granted, “expert” status to the officer who said your silence was accompanied by signs of “deception;” in other words, it was evidence of guilt. You were convicted and sent to prison.

Do you think you received a fair trial? Do you believe the prosecution proved your guilt beyond a reasonable doubt? Should your exercise of the constitutionally-protected right to silence have been used as “evidence of guilt?”

Well, in Texas that is the situation a citizen now faces: protected silence is evidence of guilt. Last April the Texas Court of Criminal Appeals upheld the decision by the Fourteenth District Court of Appeals. In reaching its supportive conclusion, the TCCA pointed out:

“Neither the Supreme Court nor our Court has decided whether pre-arrest, pre-Miranda silence (which is at issue here) is admissible evidence against a non-testifying defendant. As the Fourteenth Court of Appeals noted, the courts that have weighed in one the issue are split. Those courts holding such silence to be admissible, guided by Justice Stevens’ concurring opinion in Jenkins v. Anderson, generally reason that the Fifth Amendment right against compulsory self-incrimination is ‘irrelevant to a citizen’s decision to remain silent when he is under no compulsion to speak.’ Those courts holding that ‘once a defendant invokes his right to remain silent, it is impermissible for the prosecution to refer to any Fifth Amendment rights which [the] defendant exercised.’ Nearly all of the courts that have addressed this issue have noted the conspicuous split and lack of guidance from the Supreme Court.”

On January 11, 2013, the Court granted certiorari review in the Salinas case and will resolve the conflict among the Federal Circuits. It will also notice the state courts as to what they can or can’t do in pre-arrest, pre-Miranda situations. While the Court in a long line of cases has gutted Miranda, we can only hope the pre-arrest, pre-Miranda right to silence will survive intact. Justice Stevens’ reasoning distinguished the pre-arrest right to silence from the post-arrest right to silence by saying a citizen not under arrest is not being compelled to speak. We agree with that limited reasoning but not with its sweeping application. A police officer, we believe, can respond on the witness stand that a citizen asked a question about a crime either did not respond or refused to answer the question. However, we do not accept that a police officer, as in the Salinas case, should be allowed to comment that the failure or refusal to respond is “evidence of guilt,” especially when that officer’s ability to testify to such opinion rest solely upon having been qualified as an “expert” in police interrogations.

Exercising the right to silence should never be considered “evidence of guilt,” under any circumstances, outside of the Jenkins rationale allowing its use for impeachment purposes.

Until the law is settled in this area, our advice is simple:  Anyone contacted by law enforcement, who is even remotely suspected of violating the law, should immediately invoke their right to remain silent and request a lawyer.  No small talk, no pleasantries, just a plain, straightforward invocation of your constitutional rights like: “I invoke my right to remain silent and demand a lawyer.”  Otherwise, simply remaining silent in the face of pre-arrest, pre-Miranda questions will not protect your constitutional rights, especially in the Lone Star State.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization