The Right to Remain Silent

By Regan Joswiak*

Photo by Ciudadano Poeta

Photo by Ciudadano Poeta

“You have the right to remain silent. Anything you say can and will be used against you in a court of law…” These words can immediately be recognized as the Miranda Rights—but what happens if you are not arrested and fall silent during police questioning?

This is one of the issues that was raised in Salinas v. Texas. Genovevo Salinas was being questioned by police during a murder investigation about possible evidence found in his home when he suddenly fell silent. He was later charged with murder, tried, and convicted.  The fact that he had remained silent during police questioning before he was arrested and given his Miranda Warning was used as incriminating evidence during the trail. Salinas argued that his 5th Amendment right was violated because his silence was used as evidence against him.

The results? On June 17, 2013, the U.S. Supreme Court decided that prosecutors may use the pre-arrest silence of a suspect as evidence of his guilt without implicating the Fifth Amendment privilege against self-incrimination. Furthermore, according to the plurality opinion, the suspect must “expressly invoke the privilege against self-incrimination in response to [an] officer’s question.” If the individual does not invoke his or her 5th Amendment right aloud, prosecutors may draw their own conclusions about the silence.

The assumption that silence can mean guilt derives from the ancient maxim of common law  “silence gives consent,” and from this the rule of tacit admission that is widely applied in law. Basically, if a suspect remains silent when questioned, the assumption can follow that the suspect is tacitly admitting to the crime committed.

However, the law is unclear about this. For example, in contract law, this is not the case. It is stated that “as a general rule, a promise will not be inferred from the offeree’s mere inaction. Thus an offeree’s silence in the face of an offer to sell goods is not ordinarily an acceptance, because the offeror has no reason to believe from the offeree’s silence that the offeree promises to buy” (see Restatement (Second) of Contracts § 3.15C).

The Salinas v. Texas ruling has raised other issues as well. Hank Asbill, Brian Murray, and Andrew Pinson all wrote about unanswered questions in their column.

“Taking a step into the real world,” they wrote, “how is the typical witness who hasn’t been advised of his rights (remember, this interview happens before Miranda requires that) to know that he needs to invoke the privilege and how to do so effectively? Should it matter that the typical witness will have no idea that he has to say something to exercise his right to remain silent, whatever protection that ‘right’ entails before he’s arrested?”

They also suggest that “perhaps the best policy is avoidance until arrest.” In some cases this may not be an option, however. If you are being questioned by police, ask the following questions:

1) What crime do you suspect me of committing?

2) Am I under arrest?

3) Am I free to go?

If you are under a custodial interrogation, they must read you your rights. If you aren’t under a custodial interrogation, you need to also state that you are going to remain silent and that you want a lawyer present for further questioning.

If you have any questions regarding the 5th Amendment or the Miranda Warning, call our office at (936) 294-1717, send us an e-mail at, or make an appointment online at

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s