April 19, 2014

Salinas v. Texas: Your Silence May Be Used Against You Re: U.S. Supreme Court Litigation

On June 17, 2013, the Supreme Court of the United States issued an opinion with important ramifications for anybody who may be interviewed in connection with a criminal investigation. 

In Salinas v. Texas, 570 U.S. ­­­___ (2013) (Slip. Op. available here), the Supreme Court held that the Fifth Amendment privilege against self-incrimination does not protect a witness's silence in the face of a voluntary, noncustodial police interview. Rather, a person who is not under arrest (or otherwise in custody) and voluntarily speaks to the police must  affirmatively and timely invoke the privilege  to benefit from its protections. The Court stated that there was no "ritualistic formula" necessary to assert the privilege, but that a witness could not do so "by simply standing mute."  Id. at 3 (citation omitted). If an individual fails to invoke, and is later charged with a crime, the prosecution may use his silence at trial as evidence of his guilt.

Petitioner Genovevo Salinas was a possible witness to a double murder. The police went to his home to question him, and he agreed to hand over his shotgun for ballistics testing. He further agreed to go to the police station for more questioning. Notably, because Salinas was not "in custody," police were under no obligation to read him Miranda warnings, and he was free to leave the station at any time.  During most of his hour-long interview, Salinas answered questions. At one point, the police asked Salinas if shells recovered from the crime scene would match the shotgun he had handed over. Salinas did not answer, but sat in silence for a few moments before the police moved on to other questions that Salinas answered. Eventually, Salinas was charged with, and tried for, the double murder. In its case-in-chief at trial, prosecutors introduced evidence of Salinas's silence in response to the police question about the shell casings, and argued that his silence was evidence of his guilt. The jury convicted Salinas, and two Texas Courts of Appeals affirmed the conviction.  Id. at 2-3.

The Supreme Court held that because Salinas did not unequivocally invoke his privilege against self-incrimination during the voluntary police interview, he had no Fifth Amendment right to have his silence in response excluded from evidence at his trial. Id. at 3. As the Court explained, the Fifth Amendment guarantees that no one may be "compelled in any criminal case to be a witness against himself."  Id. at 10. It does not establish an unqualified "right to remain silent." Id. Salinas was not deprived of his ability to voluntarily invoke the privilege; rather, he failed to do so. Accordingly, the prosecution's use of his noncustodial silence did not violate the Fifth Amendment.

The decision is instructive to anybody who is asked to give an interview to a law enforcement agent. A quick glance at the headlines reminds us that FBI agents may seldom be far away, as they seek to investigate allegations of securities fraud, bank fraud, health care fraud and other wrongdoing. Agents have been known to approach bankers, traders, doctors and other professionals at their homes in the wee hours of the morning, or at their places of business. Although each circumstance must be considered on its own merits, experience generally tells us that the best course of action in such situations may be to politely decline the request for the moment, advise the agents of the desire to confer with counsel and then to do so. Salinas also tells us that an express and immediate invocation of the Fifth Amendment privilege against self-incrimination may also be necessary in order to insure that an individual's silence is not used against that individual as a criminal defendant in a future proceeding.     

© 2014 Bracewell & Giuliani LLP

About the Author


Marc Mukasey, a former federal prosecutor and SEC enforcement attorney, represents corporations and individuals facing allegations of securities fraud, antitrust violations, environmental crimes, money laundering, bribery, mail/wire fraud, tax offenses, embezzlement, and other business crimes. He also conducts internal investigation work on behalf of corporate clients. His internal investigation work has been noted in The Wall Street Journal and Business Week Online.

Mr. Mukasey has represented corporate and individual...


About the Author


Jonathan Halpern is a partner in Bracewell & Giuliani's litigation practice and focuses his practice on white collar criminal defense, corporate internal investigations, trials, appeals and complex, civil litigation. A significant component of his practice consists of the representation of individuals and business organizations in investigations and prosecutions by the U.S. Department of Justice, U.S. Attorney's Offices, the Securities and Exchange Commission, and the U.S. Department of the Treasury, including the Internal Revenue Service and the Office of...

Floren J. Taylor, Litigation Attorney, Bracewell Law Firm

Floren Taylor is an associate in Bracewell and Giuliani's New York office, where she is a member of the Litigation section. Her practice focuses on white collar criminal defense, securities enforcement, and complex commercial litigation.

Ms. Taylor's criminal practice focuses on antitrust violations, securities fraud, pay-to-play schemes, public corruption, federal environmental crimes and obstruction of justice. She also assists with companies' internal investigations of potential misconduct, often in response to allegations of fraud or...


About the Author

Katherine M. Sullivan, Litigation Attorney, Bracewell Law firm

Kate Sullivan counsels clients in general commercial and civil litigation, as well as white collar defense and broker dealer regulatory matters throughout the trial and appellate process.

While in law school, Kate was a judicial intern with the Honorable Robert J. Miller of the New York Appellate Division, Second Department, and with the Honorable Michael A. Shipp in the District of New Jersey.


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