U.S. Supreme Court To Hear Case On Whether The Fifth Amendment’s Self-Incrimination Clause Protects Pre-Arrest, Pre-Miranda Silence

Most criminal defense lawyers at any level of experience would advise their clients to refrain from making a direct statement to a law enforcement officer prior to consulting with counsel.  However, when a criminal defendant refuses to answer a law enforcement officer’s question prior to being arrested or receiving Miranda warnings, federal and state law is murky as to whether prosecutors may introduce such silence as substantive evidence of guilt at trial.  On January 11, 2013, the United States Supreme Court granted certiorari in Salinas v. Texas, No. 12-246, in which it should clarify this important area of law and answer whether pre-arrest, pre-Miranda silence is protected by the Self-Incrimination Clause of the Fifth Amendment.

In 1992, Houston police were investigating a double-homicide, and their investigation led them to Genoveo Salinas.  Mr. Salinas voluntarily consented to a search of his family’s home and then submitted to fingerprinting and questioning at the police station.  He refused to answer a question about whether shotgun shells discovered at the crime scene would match his father’s shotgun found in his home.  In March 1993, police charged Mr. Salinas with the two murders, though Mr. Salinas evaded arrest until 2007.  His first trial ended in a mistrial.  At his second trial, the State attempted to introduce evidence of his silence upon being questioned about the shotgun shells.  Defense counsel objected, arguing that Mr. Salinas could invoke the Fifth Amendment privilege against self-incrimination whether he was in custody or not.  On appeal, both the Texas Court of Criminal Appeals and Texas Court of Appeals noted the significant split of authority on this issue, and ultimately sided with jurisdictions that held the Fifth Amendment right against compulsory self-incrimination is irrelevant when a citizen opts to remain silent when under no official compulsion to speak.

No previous Supreme Court decision has addressed the issue of whether pre-arrest, pre-Miranda silence as substantive evidence of guilt violates the Fifth Amendment protection against self-incrimination, and the Court reserved this question for future review in Jenkins v. Anderson, 447 U.S. 231 (1980).  The Fourth, Ninth and Eleventh Circuits permit use of such evidence, reasoning that the protections against self-incrimination do not apply before a suspect has been arrested and given Miranda warnings.  The Fifth Circuit has not ruled directly on this issue, but has ruled that the Fifth Amendment does not apply to every communication or lack thereof by a defendant that may give rise to an incriminating inference.  United States v. Zanabria, 74 F.3d 590 (5th Cir. 1998).  Aside from Texas, Minnesota and Missouri also allow prosecutorial comment on pre-arrest, pre-Miranda silence.    

The First, Sixth, Seventh and Tenth Circuits have held that pre-arrest, pre-Miranda silence is not admissible as substantive evidence of guilt.  These Courts of Appeal have generally found that the right to remain silent applies not only at trial and during “custodial” questioning, but also with respect to law enforcement questioning in the field.  “Griffin [v. California, 380 U.S. 609 (1965)]’s prohibition on the use of a defendant’s silence as substantive evidence of guilt applies equally to a defendant’s silence before trial and, indeed, even before arrest.”  Combs v. Coyle, 209 F.3d 269, 282 (6th Cir. 2000).  In addition to the federal circuits, Idaho, Nebraska, New Hampshire, Ohio, Washington and Wisconsin prohibit the use of pre-arrest, pre-Miranda silence as substantive evidence of guilt. 

The Salinas case has significant implications in the arena of white-collar criminal defense.  If the Supreme Court sides with jurisdictions permitting use of pre-arrest, pre-Miranda silence as substantive evidence of guilt, any refusal to answer questions during a lengthy criminal investigation by the Securities and Exchange Commission or U.S. Department of Justice may be wielded as a weapon against a white collar defendant at trial.  In its amicus curae brief in the Salinas case, the National Association of Criminal Defense Lawyers (“NACDL”) echoes this sentiment:

[O]ne should not discount the impact of a regime of pre-arrest self-incrimination in “white-collar” cases.  Suspects in such cases – often sophisticated businesspersons – commonly refuse to speak to law enforcement without a lawyer present.  Such a refusal, or “lawyering up” can be evidence of consciousness of guilt under the reasoning of the Texas court below.  Additionally, white-collar investigations often take months or years without any arrest or indictment.  During that time, prosecutors and police frequently request to interview persons of interest in the investigation, and those persons – often on the advice of counsel – routinely decline to be interviewed or insist on immunity.  Allowing pre-arrest self-incrimination turns this system upside-down.  An attorney’s proper advice to his client to decline to meet with prosecutors could boomerang into evidence of the client’s consciousness of guilt. 

Amicus Curae Brief of NACDL, p. 13: http://sblog.s3.amazonaws.com/wp-content/uploads/2012/09/12-246-NACDL-Amicus.pdf