U.S. Supreme Court: Silence Admissible

When faced with questions from a government investigator, 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 is a major change regarding how the Fifth Amendment's right against self-incrimination is applied. 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...