Invoking Your Right to Remain Silent

The Miranda Warning is a mainstay in police dramas on TV. “You have the right to remain silent, everything to say can and will be used against you” and so on. The Miranda Warning is what protects defendants from accidentally incriminating themselves. However, many people don’t know that simply staying quiet is not the right way to invoke your right to remain silent.

According to Salinas v. Texas (2013), the silence of a defendant can indicate guilt, even during out-of-custody questioning. Being in police custody means that you are not necessarily free to leave, and when someone is being interrogated in custody, police are required to Mirandize them. However, some police officers will do questioning out of custody when they inform a suspect that the suspect is free to leave at any point, and that they are not under arrest. This can help them get out of Mirandizing suspects.

In the case Salinas v. Texas, a police officer was asking the defendant some questions about an ongoing murder investigation. The defendant at the time was just a suspect in the investigation and wasn’t Mirandized. The defendant answered the officer’s questions, but went silent after the officer asked a question about ballistics. The officer moved on to other questions, but the silence was presented in court as an indication that the defendant was guilty.

Until recently, complete silence after a Miranda Warning meant that prosecutors couldn’t use it against them later in trial. That changed with the Salinas v. Texas ruling. Now, a defendant must indicate that they are invoking their right to remain silent by stating something like “I am invoking my right to remain silent”. Otherwise, their silence could be used as an admission of guilt in court.

If you or a loved on has been charged with a criminal act, you need an aggressive legal team at your side. Contact Austin’s criminal defense lawyers at Carroll Troberman, PLLC today.

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