On Wednesday, the Supreme Court heard oral arguments for Salinas v. Texas. The issue in Salinas is whether the Fifth Amendment protects a defendant who remains silent during police questioning before being arrested or read his Miranda rights. As a Massachusetts OUI lawyer, I would expect that the Court will hold that the Fifth Amendment precludes the State from admitting evidence of pre-arrest silence. In additional to a Fifth Amendment argument, a defendant should argue under the rules of evidence that the silence is immaterial and irrelevant and should not come into evidence as having no relevance to whether a defendant committed the criminal offense.

The defendant was a suspect in a homicide investigation and voluntarily accompanied authorities to a police station for questioning. After about an hour of questioning, the defendant stopped answering questions and remained silent. Subsequent investigation linked the shotgun shells found at the scene of the murder to a shotgun found at the home of a defendant.

He was charged with murder and at trial the State sought to introduce the defendant’s silence in response to police questioning. The defendant objected to this evidence, claiming that the Fifth Amendment privilege should exclude the evidence regardless of the fact that he was not in police custody at the time of questioning. The trial court declined to extend Fifth Amendment protection to pre-arrest, pre-Miranda questioning.

During oral arguments, one of the main concerns coming from the Court was where to draw the line if Fifth Amendment protection of silence is to extend beyond an arrest. The defendant answers the Court by explaining that the government should extend the right to remain silent during a non-custodial police interrogation where that person is a suspect in a crime. The defendant argues that not responding to a question is sufficient to trigger the Fifth Amendment protection, therefore not formally invoking the right verbally in response to police questioning.

The defendant also mentioned the fact that a layperson generally knows they have a right to remain silent. With this knowledge, they are not aware that they must invoke their right to remain silent. If a police officer put a suspect on notice of his or her right to remain silent, regardless of arrest status, the problem of unfairly prejudicing suspects who thought they were exercising his or her might would be cured.

For the State’s oral argument, the Court expressed concern over the fact that lack of response equates to guilt. The State argued that if a suspect does not invoke the right to remain silent affirmatively, then it can be admitted at trial. Meaning that the only way that a suspect can exclude the fact that he did not respond to a question is by saying he or she does not wish to answer. The state heavily relies on invoking the right to remain silent in order to exclude the fact that he or she did not respond to the question.

The State’s oral argument assumed that anyone who is interrogated by police is also familiar with criminal procedure. While the Fifth Amendment’s right to remain silent is widely known by the public, the public might not know how to invoke that right. It is reasonable to think that not responding to a question from an officer is exercising the right to remain silent. As the defendant points out, the State takes a formalistic approach by proposing that the defendant must assert the right verbally. The Supreme Court will consider both arguments and resolve the issue with a holding to create uniform precedent for the lower courts to follow.