We always advise individuals who a potential targets or suspects in criminal investigations to clearly assert their right to remain silent and their right to have a lawyer present during questioning.  These are personal rights that must be clearly asserted or they can be easily waived.


Earlier this year we posted a blog about the case of Genovevo Salinas who was convicted in Harris County, Texas, for the December 1992 killings of two brothers in Houston. The conviction resulted in a 20-year sentence.

Salinas was initially arrested on a number of traffic violations shortly after the shooting deaths occurred. The detectives working the case had not developed sufficient evidence to charge him with the killings. The District Attorney’s office ordered him released from jail on the traffic violations, and by the time the police built a case against him, Salinas had fled and was not arrested until 2007.


At the outset of the investigation into the shooting deaths of Juan and Hector Garza, brothers, the detectives working the case quickly developed information they believed linked Salinas to the brothers’ deaths. They collected six shotgun shells at the apartment where the killings took place. They went to the home of Salinas’s parents with whom the suspect lived. The parents cooperated with the authorities, giving consent to the police to search their residence and surrendering a shotgun to them.


The police requested that Salinas accompany them to the police station where they questioned him for nearly as hour. He was not “in custody” for Miranda purposes. He answered every question put to him by a detective until the detective asked him if the shotgun shells found at the crime scene would match the shotgun taken from his parents’ residence. At that juncture Salinas elected to remain silent, not responding to the shells/gun question. The detective interpreted this silence as a “demonstration of guilt.” This conclusion was apparently supported by certain mannerisms exhibited by Salinas: clinching his hands in his lap, looking at the floor while shuffling his feet and biting his lip. The police interpreted this behavior as signs of “deception.”


Before 1980 it has been uniformly recognized that the Fifth Amendment right to silence prohibited any adverse inferences or comments being conveyed to either a jury or judge before or during a trial about a defendant’s choice to exercise his/her right to silence. But in 1980 the Supreme Court dramatically altered this historical rule by holding that when a defendant elects to testify at his trial, the prosecution can use “pre-arrest silence” to impeach that defendant. The court put it this way: “… impeachment follows the defendant’s own decision to cask aside his cloak of silence and advances the truth-finding function of the criminal trial.”


The Court, however, did not address the kind of question presented in the Salinas case: could pre-arrest, pre-Miranda silence like that exercised by Salinas be used against a defendant at trial?


Earlier this year the Court elected to hear the Salinas case to answer this question. Two weeks before it ended its 2012 Term in June, the court said it could:


“[Salinas] cannot benefit from that principle (privilege against self-incrimination) because it is undisputed that his interview with the police was voluntary. As [Salinas] himself acknowledges, he agreed to accompany the officers to the station and ‘was free to leave at any time during the interview.’ That places [Salinas’] situation outside the scope of Miranda and other cases in which we have held that various forms of governmental coercion prevented defendants from voluntarily invoking the privilege. The dissent elides this point when it cites our precedents in this area for the proposition that ‘[c]ircumstances,

rather than explicit invocation, trigger the protection of the Fifth Amendment. The critical question is whether, under the ‘circumstances’ of this case, [Salinas] was deprived of the ability to voluntarily invoke the Fifth Amendment. He was not. We have before us no allegation that [Salinas’] failure to assert the privilege was involuntary, and it would have been a simple matter for him to say that he was not answering the officers’ question on Fifth Amendment grounds. Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment.”


That is the situation any criminal suspect now faces: protected silence is evidence of guilt. We do not agree: Exercising the right to silence should never, be considered “evidence of guilt.” That’s why we have cautioned many times: never speak to the police under any circumstances about a crime, for which you might be a suspect, until you speak with an attorney. Any time the police seek you out and question you about a crime, they suspect you of some level of involvement. Never dig your own grave—and that’s what you will do if you try to explain or cooperate with the police in any kind of interrogation process.


We often represent individuals charged with serious crimes who have made some sort of incriminating statements or acted in a manner inconsistent with innocence when questioned by police.  This often compels us to explain otherwise perfectly innocent behavior or statements rather than focusing on the legal issues and forcing the government to prove their case.  So, again, a word of free advice: Do not speak to law enforcement without a lawyer.  Request a lawyer and remain silent.