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Should a suspect's silence during pre-arrest questioning be enough to invoke the Fifth Amendment?

By Jessica Priest
July 7, 2013 at 2:07 a.m.


Fifth Amendment, US Constitution

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

One hour and a pause could have cost Genovevo Salinas, a man at the center of a Houston homicide investigation, 20 years of his life.

A recent U.S. Supreme Court decision clarifies for the public that simply remaining silent during pre-arrest questioning is not enough to invoke one's Fifth Amendment right and can be used against you in a court of law.

Salinas attended a party in 1992 hosted by two brothers. They were found dead the next day.

After investigators tracked Salinas down, he agreed to an interview, even submitting his shotgun for testing.

He was not under arrest, so police did not need to read him his Miranda rights. He answered questions but fell silent when the interview's tone changed.

Then, police asked whether his shotgun would match the shell casings they found at the scene.

Salinas "looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap and began to tighten up," according to court documents.

Prosecutors used his silence as evidence of guilt at trial. A jury convicted him. Justices affirmed that conviction in a narrow, 5-4 ruling.

Proponents say officer testimony about Salinas' silence is a lawful observation a jury deserves to hear.

Critics worry this will give law enforcement an edge they don't need.

Should suspects' silence during pre-arrest questioning be enough to invoke the Fifth Amendment? According to the Supreme Court justices' ruling June 17, suspects must now say something to the effect of "I am not answering anymore questions" or "I want to speak with my attorney."

Pro: Pre-arrest silence a lawful observation that should be presented

Con: Ruling encourages dangerous, high-pressure questioning

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