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U.S. Supreme Court

Can silence before arrest be used against defendant? Supreme Court to decide

Posted Jan 14, 2013 11:01 AM CDT
By Debra Cassens Weiss

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The U.S. Supreme Court has agreed to decide whether a defendant who refused to answer an officer’s question before a formal arrest can have his silence used against him at trial.

The case is Salinas v. Texas, report the New York Times and the Washington Post. The cert petition (PDF) by Stanford law professor Jeffrey Fisher argues that the Fifth Amendment’s right against self-incrimination protects a defendant’s pre-arrest silence. State and federal courts are “openly and intractably divided” on the issue, according to the petition.

The case is an appeal by Genovevo Salinas, identified as one of the people who attended a party hosted by two brothers the night before their murders. Salinas accompanied officers to the police station and answered their questions until he was asked whether a shotgun turned in by Salinas’ father would match shells at the murder scene. Salinas did not answer.

“When law enforcement agents question someone about his or her potential involvement in criminal activity,” Fisher wrote, “the individual has two choices: speak or remain silent. If the latter necessarily creates evidence of guilt, then the right the Constitution grants him to remain silent is little more than a trap for the unwary.”

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