Fifth Amendment Right to Remain Silent is under attack.
As a criminal defense attorney, one of the most frequent questions we get asked, typically by a random person while having a few drinks at the favorite watering hole is related to the 5th Amendment Right to Remain Silent. The question typically would be: “If the police ask me a question, do I have to answer it?” … or something along those lines. In response, we criminal defense attorneys would give them the standard line… “You NEVER speak to the police without coming by my office and hiring me first… here’s my card… and remember… always keep your mouth shut!.” (also sage advice from Jimmy Conway in Goodfellas)Thanks to the United States Supreme Court, we have to rethink this answer.
In an extremely misguided opinion of the Supreme Court of the United States, SALINAS V TEXAS , 2012 SLIP OPINION 12-246 , http://www.supremecourt.gov/opinions/12pdf/12-246_7l48.pdf the majority ruled that a in pre-custodial interrogation, defendant’s must affirmatively invoke his right to remain silent, otherwise, his silence can be interpreted as evidence of guilt. Just keeping one’s mouth shut is not good enough anymore… although one has to ask isn’t the act of “REMAINING SILENT” the clearest and most direct way to invoke your Right to Remain silent?...No says the Supreme Court… now it is incumbent on the person being interrogated to announce his or her reliance on the 5th amendment as the reason for the silence.
Finally… to make things even more ridiculous, justices Scalia and Thomas go off on a tangent where they agree with each other that there is no such thing as a right to remain silent… that is a whole other topic for another day.
The ruling in this case is a very clear example why one should consult with an experienced criminal defense attorney when there is any possibility that your are being investigated by police or other law enforcement… An experienced criminal defense attorney can help answer questions and provide advice on important legal decisions that have to be made. Don’t ever go it alone.
I have represented people charged with crimes all over the State of Florida, in both the State and Federal Courts, mostly in Miami-Dade and Broward counties. Over the many years of criminal defense practice, there have been countless cases where a client came to my office and tells me they had already spoken to (sometimes confessed to) the police. On some of those occassions we have been able to have have the confession thrown out due to police not reading my client's Miranda rights, or for some other reason... however, that does not always work... and sometimes, a client will live to regret what he or she said to police. The problem that is presented by the supreme court opinion in Salinas v. Texas, is that now Mr. Salinas is living to regret his silence.... that makes no sense to anyone, but that is the result of the Supreme Court's decision.