Major change regarding how the Fifth Amendment ’s right against self-incrimination is applied

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Planning on pleading the Fifth Amendment? A person’s silence can now be used in a criminal trial against the person who was questioned and declined to provide an answer. BEWARE, this is a major change regarding how the Fifth Amendment ’s right against self-incrimination is applied. The United States Supreme Court has stated that once you begin an interview with the police, you may not selectively answer questions. Therefore, the best course, if you are being interviewed, or law enforcement officers ask to interview you, is to immediately consult with a knowledgeable criminal defense attorney. Plead the Fifth Amendment and you should decline “the opportunity” to “tell your side” until you have consulted with an attorney. PERIOD.

             A person’s silence can now be used in a criminal trial against the person who was questioned and declined to provide an answer.

             This change stems from a recent U.S. Supreme Court decision, Salinas v. Texas, 133 S. Ct. 2174, 2013 U.S. LEXIS 4697 (June 17, 2013), that upheld a murder conviction.

            In Salinas v. Texas, the Supreme Court specifically held that witnesses must affirmatively invoke their Fifth Amendment right, rather than simply remaining silent, when they are participating in a non-custodial interview with law enforcement.

             The decision is expected to have significant implications for corporations and corporate executives facing government inquiries and investigations.

             The defendant in Salinas submitted to a police interview and answered a number of seemingly innocuous questions during the course of an almost one-hour interview. Near the end of the interview, police asked the not-yet-defendant if his shotgun would match the shells recovered at the scene of the murder. The defendant did not answer this question, but looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, and began to tighten up.

             After this question, he was asked additional questions, which he also answered. Essentially, he answered all but one question, to which he remained silent.

             At trial, over objections, the prosecutor was permitted to comment in closing argument on the defendant’s silence and was specifically permitted to argue that the defendant’s “selective transitory silence” demonstrated his guilt because an innocent person would have responded to the question. The jury convicted defendant, and the Court sentenced the defendant to 20 years in prison.

             The Supreme Court upheld the conviction, noting the general rule that the privilege against self-incrimination must be expressly invoked. The Supreme Court found that the two recognized exceptions to this general rule did not apply in the Salinas case. The first exception, enunciated in Griffin v. California, 380 U.S. 609 (1996), is that a criminal defendant need not take the stand to assert his privilege against self-incrimination at this own trial. The second exception, found in Miranda v. Arizona, 384 U.S. 436 (1996), is that a witness’s failure to invoke the privilege will not constitute waiver of the privilege when the defendant is in an involuntary custodial interrogation.

            The Salinas Court failed to extend Miranda and the protections afforded in a custodial interrogation setting to a non-custodial setting and emphasized the voluntary nature of Salinas’ interview with law enforcement.

             The Court reasoned that the defendant in Salinas, unlike in Miranda, was not facing coercion and, therefore, the same protections need not be afforded.



About Martin E. Regan, Jr. Year after year, Martin E. Regan Jr., the firm’s senior partner, has dedicated tireless efforts on behalf of the accused and produce wins for clients that a less determined advocate would have thought hopeless. Martin E. Regan Jr.’s ability to tackle and win tough criminal cases has resulted in verdicts of acquittal in many highly publicized trials.

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