In the court’s split opinion, three justices said that assuming there could be a Fifth Amendment privilege not to talk to police in non-custodial settings, the burden would be on the suspect to expressly invoke it (such as by saying something like “I’m not talking on constitutional grounds,” or “I’m taking the Fifth,” or “I want to remain silent,” or “I stand on my rights not to talk,” etc.). The plurality opinion said the following:
“Before Salinas could rely on the privilege against compelled self-incrimination, he was required to invoke it. It would have been a simple matter for him to say that he was not answering the officer’s question on Fifth Amendment grounds. Because he failed to do so, the prosecution’s use of his non-custodial silence did not violate the Fifth Amendment.”
In their concurring decision, two additional justices said they would go further and hold that there is no Fifth Amendment privilege to be invoked during non-custodial questioning because that privilege relates only to “compelled” self-incrimination; in the absence of custodial interrogation or some other form of compulsion that results in “testimony,” the Fifth Amendment is inapplicable. These two justices said the following:
“In our view, Salinas’s claim would fail even if he had invoked the privilege because the prosecutor’s comments regarding the precustodial silence did not compel him to give self-incriminating testimony.”
Although the two concurring opinions in Salinas differed somewhat, there were five votes—and thus a majority ruling—holding that a prosecutor can use silence against a defendant, at least absent express invocation of the Fifth Amendment, when that silence occurs during non-custodial police interrogation without Miranda warnings.
Miranda and Doyle
What is the significance of the fact that Salinas had not been given a gratuitous Miranda warning? When you Mirandize someone, you’re telling him he has a right to remain silent. If he then invokes that right the prosecutor cannot use his silence against him because you induced his silence by giving the warning, and it would be unfair to extend a right to him and then penalize his exercise of that right. This is why you are not allowed to offer testimony in a jury trial to the effect that a suspect invoked after warnings. The Miranda decision itself said so:
“It is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not use at trial the fact that he stood mute or claimed his privilege in the face of custodial accusation.”
Also, the prosecutor is not allowed to use Miranda-induced silence to impeach a defendant’s trial testimony. “While it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” (Doyle v. Ohio)
By contrast, the Supreme Court has said that a suspect’s silence before warnings have been given may be used against him because it has not been induced by official assurance that the suspect may remain silent. (Jenkins v. Anderson; Fletcher v. Weir)
Don’t Over-Mirandize
In addition to the fact that Miranda warnings may prompt a person to clam up, these cases provide another reason not to give warnings when they aren’t legally needed.
Although Hollywood screenwriters seem to think that Mirandizing suspects immediately upon arrest is standard police procedure, you and I know better. Premature warnings are unwise and legally unnecessary.
If you Mirandize too soon—before the onset of custodial interrogation—you may deprive the prosecution of the ability to use the suspect’s silence against him. Sometimes, silence can be very damaging evidence of a consciousness of guilt. Just ask Genovevo Salinas.
Devallis Rutledge is a former police officer and veteran prosecutor who currently
serves as special counsel to the Los Angeles County district attorney. He is the author of 12 books, including “Investigative Constitutional Law.”
