You Don't Have the Right to Remain Silent - Until After You Talk

As always, before reading my blog post, please review my disclaimer by clicking on the link at the top of the page or following this link.  As always, any legal issues discussed are applicable only to the Commonwealth of Virginia.

Introduction

Before I start, I want to give a warning.  This blog post will be different from my other posts to date.  First, I will do something in this post that I have tried to stay away from in my previous posts, and will try to stay away from in most of my future posts - I will express my personal opinions.  They are too strong on this matter not to come through.  Second, this post will be discussing a legal practice area (criminal law) that neither I nor any attorney in my firm practices, and as a result, it will not include my usual solicitation of your business at the end.  Nonetheless, I feel this topic is so important, and has been so largely ignored by the press, that every lawyer with a legal blog should be posting about it.

Now, we've all grown up hearing that famous phrase after an arrest "You have the right to remain silent."  What many of you may already know is that this phrase is a direct result of a Supreme Court case called Miranda v. Arizona, thus the term for the warning:  Miranda warnings.  Prior to Miranda, the Supreme Court had already ruled that the Fifth Amendment's ban on compelled self-incrimination meant you had a right to remain silent - the problem was, most people didn't know about it.  The whole point of Miranda is that police officers are required to tell you that you have this right before anything you say after being arrested can actually be used against you.

What many people don't understand, however, is that Miranda warnings only apply when you have been arrested, and are "in custody."  If you are taken to the police station merely for questioning, you still have the right to remain silent, but you don't get Miranda warnings first.  This has probably led to many of your high school government teachers telling you "don't talk to the cops without a lawyer, period."  That was good advice, until this week.

A gentleman named Genovevo Salinas, suspected of but not arrested for a double homicide, was brought into a Texas police station for questioning.  Likely to have remembered this advice, he did, in fact, remain silent, and refused to answer police questions.  He was later charged and at trial, a major component of the prosecution's case against Mr. Salinas was his refusal to answer police questions, and the supposed "implication" of guilt that came with that refusal.  This argument was allowed and Mr. Salinas was convicted.  This past Monday, in the case of Salinas v. Texas, by a 5-4 decision the United States Supreme Court upheld Mr. Salinas's conviction.  Their basis?  That Mr. Salinas did not "expressly" invoke his Fifth Amendment right to remain silent.

Practical Effect of this Ruling

I have yet to encounter a practicing attorney that was not blown away by this ruling.  It seems so contrary to the very purpose of the Fifth Amendment and the right to remain silent as to be mind-boggling.  What this in effect says is that in order to exercise your right to remain silent, you must first state that you are exercising that right.  So yes, in order to not talk, you must talk, and remember, if you're not in custody, you don't get a Miranda warning to tell you about this right first, either.

So, now if the police try to question you, what should you do?  Obviously the old rule of just not talking to them isn't a good idea anymore, and it will take some time to work through the mess that the Salinas ruling will create to figure out exactly what needs to be done, but we have some good ideas.  My advice is simple.  If questioned by the police, simply state "I invoke my Fifth Amendment right to remain silent, and I request the presence of my attorney."  Unless the Supreme Court comes up with some new ridiculous rule, that should still be sufficient to "expressly" invoke your rights, and subsequently prevent your silence from being used against you.

Conclusion

I know this is a shorter blog post than usual because there just is not much to say, but as I said, it was too important for me to not say something.  The ground has shifted in a somewhat dramatic way regarding your rights in a criminal investigation, and the shift is not in your favor.  Please make sure you know and understand your rights so that you don't find yourself in trouble just because you didn't understand your rights.  Memorize the phrase "I invoke my Fifth Amendment right to remain silent, and I request the presence of my attorney," and if ever questioned by police, be prepared to state it over and over again if necessary.