ABA Journal

Court weighs whether a prosecutor can use a defendant’s refusal to answer a question

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In early 1993, Houston police officers arrived at the home of Genovevo Salinas to question him about the shotgun murders of two brothers outside a party a few weeks earlier. Salinas accompanied the police to the station house, where he consented to answer questions for nearly an hour in a noncustodial setting. But it is the one question he did not answer that has landed his case in the U.S. Supreme Court.

With the court’s landmark 1966 ruling in Miranda v. Arizona enshrining the rights of suspects in police custody, and decades of police shows on TV repeating the familiar warnings, “the right to remain silent” is seared into the public consciousness.

“We can all cite our Miranda rights,” says Mikah K. Thompson, an adjunct professor of law at the University of Missouri-Kansas City. “We know we have the right to remain silent.”

But there are times when silence can be used against a defendant in court. For example, under settled Supreme Court rulings, prosecutors may use a defendant’s silence during police questioning to try to impeach his testimony if he takes the stand.

However, one unsettled question is whether prosecutors may use in their case-in-chief a defendant’s silence during police questioning before an arrest and before being “Miranda-ized”—even when the defendant does not take the stand in his own defense. Federal courts of appeals and several state high courts are divided on the issue.

The Supreme Court will take up that question in Salinas v. Texas, to be argued April 17.

“This ruling could really have a significant effect on the states, as to how they assess the silence privilege and apply it at trial,” says Thompson, who has written on the topic. “And it’s really going to be significant for law enforcement officers in determining how far they can go.”

When the police approached Salinas at his home, he was generally cooperative, according to the briefs. He consented to a search of the residence. Asked about the presence of any guns, he told the officers that his father, who lived in the same home, owned a shotgun. The elder Salinas turned over the shotgun to the police, and Salinas agreed to go to the station house, ostensibly to provide fingerprints that might eliminate him as a suspect in the slayings of Juan and Hector Garza.

Click here to read the rest of “The Sounds of Silence” from the April issue of the ABA Journal.

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