Recently the Supreme Court decided to hear the appeal of Salinas v. Texas, a case involving the murder of two men in 1992. The question for the Supreme Court is whether a defendant’s pre-arrest silence can be used against him at trial. The police interviewed Mr. Salinas at the police station regarding the murders and asked him whether the shotgun shells recovered at the scene would match his shotgun. He did not answer the question, and at trial the prosecutor argued that an “innocent person is going to say: What are you talking about? I didn’t do that. I wasn’t there.” Interestingly, Mr. Salinas was actually convicted at his second trial, his first trial ending in a hung jury. The prosecutor placed much more emphasis on Mr. Salinas’s silence at the second trial.
The law is relatively clear in this area where the accused is in formal police custody following arrest. At that point, the defendant’s decision to remain silent cannot be used against him. Supreme Court precedent first announced in Malloy v. Hogan has consistently held that one who chooses to remain silent should “suffer no penalty. . . for such silence.” However, the law is not certain regarding the use of pre-arrest silence as evidence at trial. The Supreme Court ruled in Jenkins v. Anderson that a defendant’s pre-arrest silence can be used to impeach his credibility if he testifies at trial. In the present case, Mr. Salinas did not testify.
In Salinas v. Texas, Mr. Salinas was asked to voluntarily come to the police station and was not under arrest. In fact, he was released at some time after the interview and was not arrested on the murder charges until 2007. The question then presented to the Court is whether use as substantive evidence of his pre-arrest silence violated Mr. Salinas’s right against self-incrimination under the 5th Amendment to the U.S. Constitution.
That the 5th Amendment right not to be “compelled to testify against oneself” should depend on pre-arrest or post-arrest silence seems to be a distinction without a difference. If a person is confronted with police questioning they can choose to either answer or not. If their choice to remain silent is potentially used against them later, then they don’t really have a meaningful choice. They are in essence potentially paying a penalty for refusing to answer police questions. There are many reasons why an individual would choose to not talk with the police. Many communities have longstanding distrust of the police, an unfortunate situation that makes such communities less safe. Furthermore, anyone who has watched television knows that "You have the right to remain silent". What many do not know is that such silence could speak loudly years later at trial. For the 5th Amendment to retaining meaning, it must include a right to remain silent whether under arrest or not.