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SUPREME COURT EXPANDS USE OF PRE-ARREST SILENCE

Criminal defense attorneys often receive calls and questions regarding what to do when someone is facing a request from law enforcement to "come in and talk" about a criminal matter. It is perfectly natural that someone who is unfamiliar in dealing with police officers and detectives would be nervous or even frightened in this kind of situation regardless of whether or not they were involved in a crime.

The United States Supreme Court's recent opinion in, Salinas vs. Texas 133 S.Ct 2174 held that a defendant's silence during a voluntary interview with police before being arrested and before any Miranda Rights had been given can be used in the prosecution's case in chief as evidence of conscientious of guilt. The Salinas decision marks a dramatic expansion of the potential uses of pre-arrest silence in the prosecution of criminal defendants. Previously, prosecutors have only been allowed to use pre-arrest silence to impeach a criminal defendant's trial testimony.

In Salinas the defendant, Genovevo Salinas, was charged with murder. The state alleged that he had used a shotgun to murder two brothers the night of December 18, 1992. The police were able to connect Salinas to the crime scene due to his presence at a party at the brother's house December 17th. The police contacted Salinas and requested that he come in voluntarily for questioning. They advised him that he was not in custody and was free to leave. Because he was not "in custody" Salinas was not Mirandized. During the course of the questioning, Salinas was asked if the shells from a shotgun he owned would match shells recovered from the crime scene. At that time Salinas "declined to answer" he looked at the floor clinched his hands, bit his lower lip and began to tighten up. After a period of silence, the detective continued questioning Salinas on other matters and he began answering questions again. At the end of the interview Salinas was allowed to leave only to be arrested two days later and charged with murder.

At trial, Salinas did not testify, however over defense objection the prosecuting attorney was allowed to use evidence of his reactions in the interview to show conscientious of guilt. In a plurality decision, the United States Supreme Court approved this new tactic because, since Salinas did not affirmatively invoke his 5th Amendment right to remain silent, his silence could be used against him. Previously the law had only allowed such pre-arrest silence to be used to impeach a defendant who chose to testify.

HOW SHOULD A LAWYER ADVISE THEIR CLIENT

Historically, in these types of situations lawyers have advised clients not to cooperate in police investigations or answer any kind of questions for fear that by answering suspects may implicate themselves further. Now it seems age old advice could put a criminal defendant in the position of having their pre-arrest silence used against them as substantive evidence of guilt. After Salinas pre-arrest, pre-Miranda silence can be used as evidence of guilt unless a criminal defendant expressly invokes their right to remain silent.

With this in mind, how does a lawyer advise a client who calls up and says the police are at his door he him he is not under arrest but they would like to ask him a few questions? The only way to protect your client is to advise them to clearly and concisely explain to law enforcement that they do not wish to waive or forgo any rights and that they additionally do not wish to answer any questions and they are "invoking there privilege against self incrimination" and they are asking to be allowed to contact an attorney before any further questioning.

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