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According to a recent U.S. Supreme Court case, silence can be used against defendants, at least in some circumstances. The case, Salinas v. Texas, stands for the proposition that silence can be used against those who are questioned prior to being read their Miranda rights.

In the case, the Court voted 5-4 that the statements, or lack thereof, made by Salinas could be used against him by prosecutors during a criminal trial. The case involved an early 1990s murder where Salinas voluntarily agreed to answer questions by the police. The questioning went on for at least an hour with no problems. Then, the police asked some more incriminating questions about bullets found at the crime scene. At that point, Salinas completely stopped speaking. Prosecutors on the case later used that silence against Salinas, saying it demonstrated his guilt. The tactic worked and Salinas was found guilty of murder.

Though it was already clear from previous cases that suspects have a right to remain silent once they have been read their Miranda rights, the answer was not so clear-cut in other situations. Another case before the Supreme Court found that when a defendant chooses not to testify at trial prosecutors are not allowed to highlight that decision as an implication of guilt. In this case, the issue was whether silence during pre-Miranda questioning could be used against the defendant.

The majority opinion was written by Justice Alito and said that the Fifth Amendment clearly grants defendants the right to remain silent and not to incriminate themselves. While this is undoubtedly true, the majority of the Court said that this right to remain silent is not self-executing and that it must be claimed before it can arise. The justices said that Salinas failed to invoke his right to remain silent and that his later silence was thus lawfully used against him. Because Salinas failed to properly invoke his right to silence, the Court said no other right exists before the suspect has been officially arrested or had his Miranda rights read.

Legal experts and criminal defense attorneys have come out in opposition to the Salinas opinion, saying that the justices were very vague about what a defendant would need to do to “claim” their right to silence. The dissenting justices pointed out that Salinas lacked a defense attorney during the questioning and may not have understood that his Fifth Amendment rights protected him from having to speak at all. The dissenters believe the case makes it difficult for unrepresented defendants to protect themselves given their lack of knowledge of the law.

If you’ve had a run in with the law and find yourself in need of a Missouri criminal defense lawyer capable of aggressively protecting your interests, contact our St. Louis criminal defense law firm today at (314) 863-0500.

Source: “You Don’t Have the Right to Remain Silent,” by Brand Garrett, published at Slate.com.

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